What Constitutes "Possession" of Stimulants Under Japanese Law, Even Without Direct Physical Control?

Japan maintains an extremely stringent stance on drug offenses, with the Stimulant Control Act forming a cornerstone of its regulatory framework. Among the various prohibited acts, "possession" (所持 - shoji) of stimulants is a frequently prosecuted offense. However, the legal understanding of possession extends beyond mere physical holding, encompassing scenarios where an individual may not have direct, tangible control over the substance. This article explores the nuanced legal definition of stimulant possession in Japan, focusing on how control can be established even without immediate physical custody.

The Legal Framework: Defining "Possession"

The foundational concept of "possession" in Japanese criminal law, particularly concerning stimulants, revolves around the idea of exercising "control" or "dominion" over the substance. It's not solely about having the item in one's hand or pocket. The Supreme Court of Japan, in a significant judgment on December 21, 1955 (Showa 30), articulated that possession constitutes a de facto state of control over an object. The existence of this control relationship is determined based on prevailing societal norms and the specific circumstances of each case.

For possession to be established, the prosecution must also prove the requisite mens rea, or criminal intent. This means the individual must have been aware that the substance in question was a stimulant and that they were, in fact, exercising control over it. However, the specific motive or purpose behind the possession—such as for personal use, sale, or merely safeguarding it for another person—generally does not negate the act of possession itself, as affirmed in a Tokyo High Court judgment on April 1, 1974 (Showa 49). The act of knowingly maintaining control is the critical factor.

"Wrongfully" (みだりに - Midari ni): The Element of Illegality

A crucial element in proving a stimulant possession offense is that the possession must be "wrongful" or "without due cause" (みだりに - midari ni). The Stimulant Control Act, specifically Article 14, outlines limited circumstances under which possession is lawful. These exceptions typically apply to:

• Designated stimulant manufacturers.
• Designated medical institutions (and their administrators/practitioners).
• Designated researchers.
• Individuals who have received stimulants for therapeutic purposes from authorized medical practitioners or researchers.
• Auxiliary personnel acting within the scope of their duties for the above-mentioned authorized entities.
• Individuals possessing stimulants in the course of performing duties mandated by other laws (e.g., law enforcement officers seizing stimulants as evidence).

Outside of these narrowly defined statutory exceptions, any possession of stimulants is generally considered illegal. The term "wrongfully" was also a point of refinement in the Heisei 3 (1991) amendment to the Stimulant Control Act, which expanded provisions for extraterritorial application, meaning that acts committed outside Japan could also be prosecuted under Japanese law if they met the criteria of being "wrongful."

Possession Without Direct Physical Control

Japanese case law has consistently recognized that "possession" is not defeated by the mere absence of direct physical handling. Several scenarios illustrate this principle:

1. Constructive Possession (他人を介した場合の所持 - Tanin o kaishita baai no shoji)

This concept, akin to "constructive possession" in some other legal systems, acknowledges that an individual can possess an item through the control or actions of another person, or by having access to it in a location they control, even if indirectly.

• A ruling by the Nagoya High Court, Kanazawa Branch, on July 14, 1955 (Showa 30), established that possession can be realized through the agency of another person.
• The Supreme Court, on February 11, 1958 (Showa 33), found that if A entrusts stimulants to B, and B further entrusts them to C for safekeeping on A's behalf, A remains in possession.
• Shipping stimulants via a carrier service, where the sender consigns the goods to themselves as the recipient at a different location, has also been deemed possession by the sender throughout the transit period (Fukuoka High Court, December 17, 1955 (Showa 30)). The rationale is that the sender retains ultimate control until final delivery.
• Similarly, sending stimulants through the mail, even without explicitly naming oneself as the sender, can constitute possession. The Tokyo High Court, on October 3, 2001 (Heisei 13), reasoned that by using the postal system, the sender is exercising control over the illicit substance through an intermediary (the postal service) until it reaches the intended recipient.

2. Possession During Incarceration or Detention (隠匿覚醒剤に対する留置期間中の所持 - Intoku kakuseizai ni taisuru ryūchi kikan-chū no shoji)

An interesting and often debated scenario involves individuals who conceal stimulants and are subsequently arrested for unrelated matters or for the stimulant offense itself. The question arises whether their possession continues while they are detained.

• The Osaka High Court, on October 25, 1954 (Showa 29), addressed a case where an individual hid stimulants before being arrested and detained. The court held that once possession is established, it continues as long as the individual maintains a de facto controlling relationship over the concealed items, even if they are physically detained elsewhere. This control persists as long as the individual knows the location of the hidden drugs and can potentially access them or direct others to them, until such time as they voluntarily surrender the drugs or the authorities discover them.
• A more recent case from the Nara District Court on November 27, 1998 (Heisei 10), involved stimulants delivered to the accused's home while they were already detained. The court indicated that if the accused had prior knowledge of the impending delivery and expected family members to receive it, possession could be established from the moment the package was received at their residence. This is because the accused, despite being detained, would have knowledge of its presence and could exert a form of control by, for example, informing someone of its location.

Joint Possession (共同所持の具体例 - Kyōdō shoji no gutairei)

Possession is not limited to a single individual. "Joint possession" occurs when two or more individuals collaboratively exercise control over stimulants. This often involves a shared intent and a mutual ability to manage and control the substance.

Case law provides several examples:

• Narcotics (a similar principle applies to stimulants) found in a residence shared by two individuals known to be involved in drug sales were deemed to be in their joint possession (Sapporo High Court, May 14, 1953 (Showa 28)).
• If two individuals conspire to transport stimulants, and one carries them in a bag while the other accompanies them, both can be found in joint possession (Osaka High Court, February 22, 1954 (Showa 29)).
• A driver who knowingly allows a passenger to possess stimulants, assists in concealing them within the vehicle, and transports both the passenger and the drugs to a transaction point can be convicted of joint possession (Aomori District Court, Hirosaki Branch, November 29, 1976 (Showa 51)).
• Even an act as seemingly transient as taking hold of stimulants from their owner to prevent police discovery, with the owner's acquiescence, can establish joint possession if done in furtherance of a common design (Tokyo High Court, July 13, 1982 (Showa 57)).

When stimulants are discovered in a location occupied by multiple individuals, investigators are cautioned against ceasing their inquiry even if one person claims sole ownership. The possibility of joint possession among all present individuals should be thoroughly investigated to ascertain the true nature of control and involvement.

The Issue of Minute Amounts (微量である場合の所持罪の成否 - Biryō de aru baai no shojizai no seihi)

A common defense in possession cases involves situations where only a trace or minute quantity of stimulants is found, for instance, residue on paraphernalia or in an empty bag. The argument often made is that such a tiny amount lacks any practical utility as a stimulant and therefore should not constitute illegal possession.

Japanese courts have shown some divergence on this point:

• The Tokyo High Court, on June 6, 1973 (Showa 48), acquitted an individual found with 0.0031 grams of stimulant powder. The court reasoned that such a small amount, especially if impure (as it was in this case, mixed with caffeine and ephedrine hydrochloride), would have no discernible effect for a regular user and likely no effect for an infrequent user. Given that the Stimulant Control Act aims to prevent harm from abuse, possessing a non-efficacious quantity was deemed not to fall under the prohibited act.

However, it's crucial to note that the Stimulant Control Act itself does not specify a minimum quantity for the offense of possession. Consequently, other court decisions have upheld convictions for very small amounts:

• The Tokyo District Court, on February 1, 1977 (Showa 52), found an individual guilty for possessing 0.003 grams of Phenylmethylaminopropane hydrochloride crystals.
• The Osaka District Court, on June 26, 1989 (Heisei 1), convicted for possession of approximately 0.001 grams of stimulants.

The prevailing view, therefore, is that while the quantity might be so small that the intent to possess it as a usable drug could be contested, the mere minuteness of the amount does not automatically preclude a conviction for possession. From an investigative standpoint, if only trace amounts are found, efforts are often made to determine the original, larger quantity from which the residue originated to better establish the facts.

Number of Possession Offenses (所持の個数 - Shoji no kosū)

If an individual possesses stimulants in different locations or alters the manner of their possession over time, the question of whether this constitutes a single, continuous offense or multiple distinct offenses of possession arises. The general principle, as articulated by the Supreme Court on May 18, 1949 (Showa 24), in a case concerning illegal possession of US military goods, is that the number of possession offenses is determined by examining whether there are objectively distinct instances of de facto control, as judged by societal norms.

Applied to stimulant offenses, this can lead to multiple charges in various scenarios:

• Simultaneous possession in different manners/locations: Possessing some stimulants on one's person while also having another stash at home or entrusted to a third party can be treated as separate offenses. The Takamatsu High Court (April 14, 1954 (Showa 29)) upheld separate convictions for stimulants hidden at home and those deposited with another individual. Similarly, the Supreme Court (January 27, 1975 (Showa 50)) found that possessing stimulants on a television set at home and possessing stimulant raw materials in a clothing pocket within the same home were distinct offenses, likely due to the different nature of the substances and their immediate accessibility or purpose.
• Alteration in the mode or location of possession: If an individual initially possesses a quantity of stimulants as a single unit, and then divides it, hiding portions in different places or changing the form of a portion (e.g., from powder to liquid for injection), new, separate acts of possession may be recognized.
  • The Supreme Court (April 19, 1955 (Showa 30)) held that possessing morphine powder and later possessing a portion of that same morphine after it had been converted into an injectable solution constituted two separate possession offenses.
  • The Tokyo High Court (February 26, 1959 (Showa 34)) ruled that if a person, who had been keeping stimulants in one place, divides a part of it and hides it in a new location specifically to avoid detection by authorities, this act of dividing and re-hiding creates a new instance of possession, distinct from the continued possession of the remainder in the original location.

Conclusion

The Japanese legal interpretation of "possession" in the context of stimulant offenses is broad and fact-dependent. It underscores that direct physical control is not the sole determinant. The core elements revolve around establishing de facto control and the individual's knowing and wrongful intent to exercise such control over a substance recognized as a prohibited stimulant. This comprehensive understanding is essential for navigating the complexities of Japan's stringent Stimulant Control Act.