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GONG Chu, On the Drug Trafficking Case of Sakuragi Takuma

2020-05-26


浅析日本议员樱木琢磨贩毒案

On the Drug Trafficking Case of Sakuragi Takuma, a Japanese Parliamentary Member

摘要

本文作者对日本爱知县稻泽市议员樱木琢磨涉嫌广州走私毒品一案,进行案情简介后,直接指出该案办理的核心点是论证其是否具有犯罪主观故意,提出嫌疑人的电子邮箱是本案突破的关键点,并就此对公检法、辩护律师、日本驻广州总领事馆、日本警方等提出建议。

Abstract

The author briefly introduces a drug trafficking case involving a parliamentary member from the city of Inazawa, Aichi County, Japan, whose name is Sakuragi Takuma. The Author points out that the key factor of this case is to prove whether Mr. Sakuragi possesses the subjective intention to commit a crime, and thinks that the key channel leading to the solution of his case is to thoroughly investigate his email account. The author proposes suggestions to the justice, Mr. Sakuragi’s defending lawyers, the Japanese Consulate General in Guangzhou, the Japanese police, etc.


作者

龚楚律师

中国人民大学国际法博士

执业方向:涉外争议解决

联系方式:13590496399 (微信)


The Author

Gong Chu (Oscar)

PhD. In Law, Renmin University of China

Practice scope: Dispute resolution

Mobile: 13590496399 (WeChat)


浅析日本议员樱木琢磨贩毒案

On the Drug Trafficking Case of Sakuragi Takuma, a Japanese Parliamentary Member


一、基本案情

I. Case introduction


生于1943年的日本议员樱木琢磨在广州试图乘飞机经上海回日本时,因涉嫌携带毒品被查获。被羁押6年后,他于2019118日被广州市中级人民法院一审判处无期徒刑。


Born in 1943, Sakuragi Takuma, a then Japanese parliamentary member, was detained by Chinese police on the suspicion of carrying drugs at an airport in Guangzhou as he was leaving for Japan via Shanghai. After 6 years of detention, on November 8, 2019, he was sentenced to life imprisonment by the Intermediary People’s Court of Guangzhou in the first instance trial.


法院审理查明:20131031日,樱木琢磨在广州白云国际机场搭航班回日本途中,被安检人员发现其行李箱拉杆夹层和箱内所带鞋子里藏有毒品甲基苯丙胺3289克。18天后另二名外籍犯罪嫌疑人被广州警方抓获。广州中院认定该三人构成走私毒品罪,其中樱木琢磨被判处无期徒刑。


The trial court determined that on October 31, 2013, security inspectors at Guangzhou Baiyun International Airport had discovered 3289 grams of methamphetamine inside of Sakurgi Takuma’s luggage. The methamphetamine was found inside shoes within the luggage and within a layer of the luggage’s pull-rod. 18 days later, another two foreign suspects were detained by the Guangzhou police on the suspicion of similar charges. The Court ultimately convicted the three foreigners with criminal drug smuggling. Sakuragi Takuma was sentenced to life imprisonment.


樱木琢磨(下称“樱木”)是日本国爱知县稻泽市议员,该案中他自始至终坚称自己无罪,并提起上诉,引发笔者探讨的兴趣,特撰文分析。


Sakuragi Takuma, hereinafter briefed as Sakuragi, was a parliamentary member of Inazawa City, Aichi County, Japan. Sakuragi has firmly claimed throughout the whole prosecution process that he is innocent, and has appealed his case. The author is interested by this point, thus writes this article for analyzing his case.


二、主观故意

II. Subjective intention

笔者认为本案判断核心要点是:樱木是否具有犯罪的主观故意?


I hold that the key judgment point in this case is whether Sakuragi had the subjective intention to commit the crime of drug smuggling.


不管采取哪种犯罪论来分析本案,中国公检法、中国辩护律师、日本籍犯罪嫌疑人、嫌疑人家属、日本驻华外交机构、中外记者媒体等都应聚焦犯罪主观故意。该案其他犯罪构成要件完整齐备,无需讨论。


In adopting a theory of crime to analyze the Sakuragi Case, attention should be paid as to whether he had the subjective intention to commit the crime, by the justice, the Chinese defending lawyers, the suspect himself, the family of the suspect, the diplomatic units of Japan in China, the Chinese and foreign medias, etc. While other constitutive elements of the crime are sound and set, they do not ensue discussion herein.


樱木的辩护律师这样描述自己的当事人:这是一个诚信到有点愚笨的日本老好人,有信仰,20年前在非洲投资被骗,一直在追讨这笔投资款,期间继续被骗了不少钱,连本带息有70多万美元,然后到广州来是为了签署几份文件,相信自己就能拿回投资款,突然就被人托带一个行李箱回日本,里边有一些松糕鞋,在机场被查到毒品,他自己都大吃一惊。


Sakuragi was depicted by his defending lawyers as an extremely honest Japanese man who never tries to offend anybody. Sakuragi’s lawyers described him as a religious man, who was a victim of fraud from a bad investment in Africa some 20 years ago. Sakuragi worked hard on several occasions to recover this investment, but unfortunately he was again defrauded while trying to recover his investment. Ultimately Sakuragi lost sums adding up to more than 700,000.00 US dollars, taking interests lost included. He came to Guangzhou to sign several documents, believing that he would finally be able to take back his fund. He was unexpectedly asked to carry a luggage back to Japan for others, believing that the luggage only contained some platform shoes. He was flabbergasted when drugs were found inside the luggage he was carrying at the airport.


这种让嫌疑人自称“无知、被骗”的辩护策略,不能说错误,但不深入挖掘辩护点,辩护律师将最终无法说服公检法。在公检法看来,被告方的以下事项均不能排除其犯罪主观故意,无论是单独列出还是组合起来:


Sakuragi’s defending lawyers argue that the suspect knew nothing and was set up. However, if the lawyers are not able to go deep enough and find a more compelling argument for the suspect, it is likely that the Justice will not be convinced of Sakuragi’s innocence. From the point of view of the Justice, the following facts are insufficient to prove that Sakuragi possessed no subjective intention to commit the crime, whether each item is separately illustrated or put in combination:


1. 樱木的芬兰籍太太出庭作证,证明其人品可靠;

2. 樱木当年在尼日利亚的投资资料,证明其投资被骗;

3. 樱木声泪俱下的自我陈述,证明其无辜被陷害;

4. 樱木是一个有信仰的基督徒,证明其遵循教义不作恶;

5. 樱木生活在高度诚信的法治社会日本,证明其不谙险恶世道。


A. Mrs. Sakuragi attesting in the court hearing that her husband has a reliable moral quality;

B. Documents related to Sakuragi’s investment in Nigeria, aiming to prove that he invested and was defrauded;

C. Sakuragi making a tearful plea during the court hearing, proving that he was set up;

D. Sakuragi is a Christian, aiming to prove that he has a creed not to do evil;

E. Sakuragi being from a law rule society i.e. Japan, which has a high degree of good faith, aiming to prove that he was unfamiliar with the tricks played by the fraudsters.


关于第一点,让身为利害关系人的太太来证明人品,无法采信。人品高或低,不必然证明会否贩毒。转身说一句话,我国公检法人员还会怀疑这位樱木的芬兰籍太太是否是同谋。


Regarding Point A, the justice has difficulty to adopt the witness’ point as his wife is a party in interest. Whether a person with high or low moral quality, does not surely tell whether one will or will not smuggle drugs. Additionally, the justice may be suspicious whether his wife is a conspirator.


关于第二点,即使有投资资料也不足以证明该人必然没有贩毒的想法。


Regarding Point B, simply to show the investment documents does not sufficiently prove that he would definitely walk away from the idea of smuggling drugs.


关于第三点,结合另两个同案人也坚称无罪,樱木的坚称无罪在全局看案件的公检法人员看来,近乎是一种事先演练好的攻守同盟。“声泪俱下”基本影响不了见惯风浪、经验丰富的公检法人员。


Regarding Point C, combined with that fact that the other two suspects firmly claim that they are innocent as well, Sakuragi’s claims could be seen as a form of collusion reached among the three suspects in the eyes of the justice. Pleading with tears basically would not change the standpoint of the justice, who have seen so many similar conditions from their long-time working experiences.


关于第四点,任何宗教都有积极正面的部分。但不必然证明每个宗教的信徒都不会贩毒。


Regarding Point D, it is logical to assume that recognized religion has a good and positive side. However, being a religious follower does not surely prove that he will not smuggle drugs.


关于第五点,生活在高度诚信的社会不必然代表樱木本人可信。诚然,公检法可能对日本人文风情了解不够深,但不至于轻易相信一位心智健全的成熟男性从50岁到6920年间的行为做派如同十几岁纯真少年。1993年投资被骗,之后又继续被骗几万美元,不接受现实,到2013年还保留着追回投资款的巨大希望和信心,罕见。


Regarding Point E, living in a society with high degree of mutual trust and good faith does not necessarily lead to the conclusion that Sakaragi himself is trustworthy. Chinese justice officials could be unfamiliar with the social conditions and culture of Japan, but a Chinese court would likely rule that naiveness is not an automatic substitute for innocence. 20 years passed from the date when he was 40 years old to when he reached 69 years old, and as a mature citizen with sound mind, he could still not accept the reality that he was defrauded, keeping big hope and confidence that he could recover his fund even from the year 1993 until the year 2013, which is rarely seen.


还有什么办法证明樱木确实没有贩毒主观故意?公检法到底该如何探查论证樱木脑中的真实想法?


Is there any other way out for Sakuragi to prove himself without subjective intention to smuggle drugs? How can the justice finally ascertain what truth lies in the mind of the suspect?


辩护律师几乎要找到突破口了。那就是辩护律师收集到樱木的手提电脑,里边有据称贩毒集团多年来为了下套而发给樱木的大量邮件。


Sakuragi’s defending lawyers almost find the breach. That is, the lawyers collected Sakuragi’s laptop which is said to contain a large quantity of emails that were exchanged between the drug dealers and Sakuragi, with which the latter was entrapped.


笔者认为辩护律师此处应刨根问底、抓住不放。即,应征得樱木同意后,以密码登录其电子邮箱,把从1993年以来的所有跟尼日利亚有关的电子邮件仔细阅读、分析。


I recommend that Sakuragi’s defending lawyers should get to the bottom of these emails and cling to them, i.e. they can log in with email address and code with the suspect’s approval, to read and study completely and thoroughly all the emails related to Nigeria.


公检法人员同样要这么做。公检法有义务主动查实犯罪嫌疑人主观上是否有故意,绝不能模糊推断。公检法和辩护律师都应把邮箱里的全部相关邮件进行阅读、下载、打印、安排翻译,归入卷宗。如果公检法不这么做,辩护律师应主动提供并强调其重要性。不能只是向司法机关出示樱木所使用的手提电脑。登录邮箱只需要电邮地址和密码,手提电脑本身证明不了什么,即使里边存有各类相关文件,其重要性也不如多年累积下来的电子邮件。


The justice departments should do the same. They bear the obligation to investigate initiatively whether a criminal suspect possesses the subjective intention, excluding any vague inference. Both the justice and the lawyers should read, download, print, arrange for translation, and add all relevant emails from Sakuragi’s email account to the case file. If the justice officials do not do this on their own initiative, the lawyers should initiatively render this proof to them and emphasize the importance. The lawyers should not only show Sakuragi’s laptop to the Justice and do no further. Sakuragi’s laptop itself does not prove anything except if it stores various kinds of documents related to the case. However, the emails accumulated from all these years are much more vital.


笔者根据自身的执业经验判断这些邮件里存在大量有用线索。邮件存在的年份越久,越能掌握本案全局,看完可得出二选一的答案:樱木到底是真追讨投资款,还是假追讨?真即无罪,假则罪成。


From my experience as a lawyer, I believe that there are many clues to be found within the emails. The more old emails exchanged between the senders and Sakuragi are discovered by investigators, the better. They then are able to understand the whole situation more easily with these letters written in years earlier along with other letters. After reading and studying these letters, an either-or choice can be made: either Sakuragi was truly trying to recover his investment fund, or he was pretending to do so. This analysis will lead to the decision on whether Sakuragi was acting with subjective intention or not.


这是因为:对于贩毒集团来说,樱木在广州被查获是一个意外。樱木在广州不被查获也只是负责运毒而已。再有耐心再有城府的犯罪人也很难做到提前许多年去给一个只负责带毒的个人下套。哪一个毒贩有耐心在20年、10年、5年之间,稳定地给特定的一个人发邮件,费心编造各种事实和情节,就为了骗他到另一个国家的某一个城市去取一箱毒品?更加经济适用便利的带毒者,大量存在。毒贩围绕着樱木如此操作,不符合逻辑。


This is because, for the drug dealing group, it was an accident that Sakuragi was caught red-handed in Guangzhou. Even if he was not caught, he was only responsible for transporting the drugs. A criminal or criminal group, being even uttermost patient and well planned, will be reluctant to spend years setting up a person who they only intend on using for drug transport. Drug dealers and drug deal enterprises typically do not send regular letters via email to certain individuals during the time span of 20 years, 10 years, or 5 years. To make up facts and plots is also time consuming. And all these efforts are only for making him travel to a city in another country to carry back a suitcase of drugs? There are other persons whom the drug dealers can use to do so. It is illogical that the drug dealers operated the way depicted above, centering on setting up Sakuragi.


邮件内容能解答以下问题:1. 尼日利亚投资及被骗是否属实;2. 樱木被骗后一直在追讨投资款是否属实;3. 樱木与对方沟通中有无提及或被告知毒品相关事宜;4. 樱木来广州是否仅为了追讨投资款。


The emails can answer these questions: A. Whether it is true that Sakuragi invested in Nigeria and was scammed; B. Whether it is true that Sakuragi has been spending all these years chasing after his investment fund; C. Whether Sakuragi mentioned or was told about drug related issues during the communication; D. Whether Sakuragi came to Guangzhou only for recovering the fund of investment.


如果全部邮件读下来只能证明樱木从1993年到2013年这20跟尼日利亚人沟通,就是为了追讨投资款,那他距离“无主观故意”就近了。全部邮件里读下来,还有一个可能性,即,尼日利亚骗子(也可能同时是毒贩)一开始确实只为了进一步诈骗樱木的钱财,才有精力一直保持邮件来往。后来,贩毒集团的生意扩展到了中国,又恰好需要有人运毒去日本,发现这个人正好可以利用一下,于是用投资款最终返还作为引诱,把樱木骗到广州,让他带个箱子回日本。如此,他距离“无主观故意”就更近了。如果全部邮件读下来,内容不全部涉及追讨投资款或正常生意往来,甚至有明显破绽,无法自圆其说,那么,辩护律师就应醒觉之前的辩护策略走不通,会见时就要认真跟嫌疑人沟通,促使他面对现实,至少要对辩护律师说真话。特别是当案件拖延到樱木75周岁(2018年)以后,按现行中国刑法规定确定不会被判死刑,完全可以放心调整辩护策略。根据实际情况可建议樱木据实坦白,检举揭发,争取立功。这样法庭再结合其犯罪未遂的既有认定,争取获得更轻的判罚。


If after reading and studying all the emails related to Sakuragi’s communication with Nigerians during the 20 years between 1993 and 2013, it is ascertained that his only intention was to recover his investment fund, then Sakuragi moves closer to clearer inference that he did not possess a subjective intention. There could be another possibility, i.e. the Nigerian fraudsters (who can also be drug dealers at the same time) only wanted to further defraud Sakuragi’s money from the start, which would support the logical explanation as to why communication between them was  maintained. The drug business gradually expanded to China, where drug carriers are needed to carry the drugs into Japan. It is possible that the fraudsters/drug dealers thought Sakuragi was a good candidate for conducting a drug carry, hence they lured Sakuragi to Guangzhou, using the excuse that he would finally recover his investment fund. He was then asked to bring some luggage back to Japan. If this is the case it could show that Sakuragi lacked subjective intent to transport the drugs. And if after reading all the emails, it is found that the content is not one hundred percent about investment fund recovery or other normal business related activities, or if there are clues betraying his intentions related to drugs, then the defending lawyers should reassess their strategy. Sakuragi’s lawyers will need to visit Sakuragi to talk seriously with him, urging him to face facts and tell the truth, at the very least to his lawyers. If the case reaches this point, Sakuragi’s lawyers should make up a new strategy, as the old one would not work anymore. The new strategy has a wider space to go, especially after Sakuragi reached the age of 75, i.e. in 2018 when, according to China Penal Code he certainly will not be sentenced to death penalty even if he receives a guilty verdict for drug smuggling with an extremely large quantity. The lawyers then can discuss with Sakuragi about whether he should confesses his guilt to the justice, give reports against the other suspects, or tries to perform meritorious deeds, thereby encouraging the Court to give a lighter penalty, labeling his action as a failed attempt that caused slighter harm to the society.


樱木来华是私人身份,不具有外交豁免权,其所在的稻泽市是爱知县七十多个行政区划之一,1986年人口有94000人,规模小。日本驻华使领馆在长达7年的时间里,亦可协助辩护律师调查取证。日本警方可根据驻广州总领事馆提供的线索,依其国内法立案调查哈桑的妻子(因其负责在日接收行李箱)、樱木的妻子(因其最了解樱木,且难免有嫌疑)。如日本警方调查结论能证明樱木在日本从未涉毒,则广州带毒案就更具有偶发性,增进公检法对其确属上当受骗的判断。


Sakuragi’s visit to China was for personal reasons, hence he is not entitled to diplomatic immunity. The city of Inazawa, where Sakuragi is from, is one of the 70 administration divisions within Aichi County. Inazawa City has a relatively small population (94,000 people in the year of 1986). The diplomatic units in China from Japan in the past 7 years, could assist Sakuragi’s lawyers to investigate and collect evidence there. While the local Japanese police could, with the clue provided by Japanese Consulate General in Guangzhou, file a case to investigate Gemadi Hassan’s wife who was arranged to receive the luggage in Japan. Also, Sakuragi’s wife could be linked to his crime. Should the Japanese police conclude an investigation report saying Sakuragi has never been in connection with drug affairs, this can prove that Sakuragi’s transportation of drugs in Guangzhou was merely accidental, and this could facilitate the Chinese justice to reach that Sakuragi may have been entrapped into drug transportation.


再说到同案犯阿里和摩西,其被抓获时,其住处查获甲基苯丙胺18.15克。长达7年之间,3人全部坚称无罪,可能是知道认罪可判死刑,作案前约好绝不可承认;可能3人全部人或部分人被主犯哈桑利用,确实不知道实情。哈桑未被抓获,对本案的侦查、起诉、审判形成障碍。


As for the other two suspects Aly Yattabare and Mohamed Soumah, 18.15 grams of methamphetamine was found in their residence when they are detained. Sakuragi and these 2 suspects all firmly claim that they are innocent. There is a possibility that the group recognizes the fact that if they admit to the crime, it is very possible that they may be sentenced to the death penalty. Hence they made the collusion not to confess under any circumstance, or in the alternative, it is possible that all 3 suspects or some of them, knew nothing about Gemadi Hassan’s trick. Gemadi Hassan, staying at large, truly caused more difficulty to the investigation, prosecution and judgment to the justice in Sakuragi’s case.


再补一句:辩护律师还有一个二选一,那就是他们确实深入阅读了电子邮件,已经知道真相,或者他们没有仔细阅读。


To supplement, Sakuragi’s lawyers also have an either-or choice: they may have already studied the emails and understood the truth already, or, they really have not read these letters carefully.


那么,司法机关此刻就该知道怎么做了。


Up to this point, the justice must know what to do now.


三、总结

III. Conclusion


江户川柯南有一句名言:真相只有一个!(真実は何时もひとつ)。这句话适用于全世界任何地方的任何罪案。有罪是确定的,无罪也是确定的。这是刑事审判的基本逻辑。诉讼的重点和核心是证据。本案中樱木的邮箱是一把钥匙,可以打开一扇扇罗生门,达致真相。


Edogawa Konan has a famous saying: The truth is always only one! This dictum suits any crime case anywhere in this world. Guilty is set, innocent is also set, which is a basic logic in criminal prosecution. The point of focus in a lawsuit is also the proof. Sakuragi’s email account is a key to unlock the doors of Rashomon, unveiling the very truth.