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Case No.
WO235/887
Accused
Sgt. Maj. Yamada Kiichiro (D1)
Sgt. Awa Isao (D2)
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that they at TAI PO, New Territories, Hong Kong, between the 28th Dec 1944 and 8th Jan 1945, when members of the Kempeitai Staff of Tai Po Gendarmerie, were, in violation of the laws and usages of war, together concerned as parties to the maltreatment of civilian residents of the New Territories in custody at the said Gendarmerie, causing the death of CHENG PO, LAM TIN KAU, and LAM SHUI KI and physical suffering to others and in particular to CHENG KWAI, LAM PAK LING, LAM KIU CHEUNG, LAM KIU WAI, LAM CHUNG SIK, LAM WAH, LAM YING YUEN, CHUN WAN WAI, CHUENG FUK KIN and CHUNG CHIK HUNG all civilians residents as aforesaid.”
“in that they at TAI PO, New Territories, Hong Kong, between the 28th Dec 1944 and 8th Jan 1945, when members of the Kempeitai Staff of Tai Po Gendarmerie, were, in violation of the laws and usages of war, together concerned as parties to the maltreatment of civilian residents of the New Territories in custody at the said Gendarmerie, causing the death of CHENG PO, LAM TIN KAU, and LAM SHUI KI and physical suffering to others and in particular to CHENG KWAI, LAM PAK LING, LAM KIU CHEUNG, LAM KIU WAI, LAM CHUNG SIK, LAM WAH, LAM YING YUEN, CHUN WAN WAI, CHUENG FUK KIN and CHUNG CHIK HUNG all civilians residents as aforesaid.”
Background
The Accused Yamada (D1) was Officer in Charge, and the Accused Awa (D2) was a member of, the Kempeitai substation at Tai Po on 28 December 1944.
At that time, Communist and guerilla activities in the District were causing considerable alarm to the Japanese. A boy was arrested bearing despatches and the names of some of the Chinese implicated. The Officer-in-Charge of Kowloon Kempeitai (Major Hirao Yoshio Case No. WO/235/1098) ordered immediate arrest, and sent two Special Branch members to Tai Po to interrogate the suspects.
About thirty Chinese were arrested and out of these, the persons named in the charge were detained. They were subject to torture, during which Cheng Po and Lam Tin Kau died. On 8 January 1945, the majority were released and the remainder sent to Stanley Prison. Lam Shui Ki died some months later after his release. During the course of this imprisonment, no medical attention was given to the prisoners.
At that time, Communist and guerilla activities in the District were causing considerable alarm to the Japanese. A boy was arrested bearing despatches and the names of some of the Chinese implicated. The Officer-in-Charge of Kowloon Kempeitai (Major Hirao Yoshio Case No. WO/235/1098) ordered immediate arrest, and sent two Special Branch members to Tai Po to interrogate the suspects.
About thirty Chinese were arrested and out of these, the persons named in the charge were detained. They were subject to torture, during which Cheng Po and Lam Tin Kau died. On 8 January 1945, the majority were released and the remainder sent to Stanley Prison. Lam Shui Ki died some months later after his release. During the course of this imprisonment, no medical attention was given to the prisoners.
Allegations
The Prosecution sought to establish that (1) maltreatment of the civilians, particularly those named, took place at Tai Po Gendarmerie; (2) the maltreatment caused the deaths of the persons and physical suffering to others; (3) the events occurred between 28 December 1944 and 8 January 1945; (4) that the Accused were together concerned as parties to such ill-treatment causing suffering and death.
The Prosecution relied on various witness testimonies about the death of the persons mentioned in the charge.
The Prosecution relied on identification of the two Accused from identification parades. The Accused were well known in Tai Po, making it difficult for the witnesses to be mistaken as to who they were.
The Prosecution emphasized the availability of medical resources and the non-use of them by the two Accused.
The Prosecution also attacked the credibility of the testimony of the two Accused.
The Prosecution relied on various witness testimonies about the death of the persons mentioned in the charge.
The Prosecution relied on identification of the two Accused from identification parades. The Accused were well known in Tai Po, making it difficult for the witnesses to be mistaken as to who they were.
The Prosecution emphasized the availability of medical resources and the non-use of them by the two Accused.
The Prosecution also attacked the credibility of the testimony of the two Accused.
Defence
The Defence argued that certain witnesses failed to identify D2 in the parade but they only identified D2 in the dock. Therefore, their identification evidence should be discredited.
The Defence, on behalf of D1, argued primarily along the lines that firstly the maltreatment should be attributed to the Kowloon O.C (Major Hirao). He was the one who ordered the arrest of the aforementioned persons. Then, D1 did not have any knowledge of detainees being maltreated. Finally, the Prosecution’s evidence was unreliable.
D1 argued Superior Orders, that he had arrested the Chinese on the orders of his superior officer in Kowloon. He denied that he had carried out any investigations or interrogations, as two special branch investigators had been sent for that purpose from Kowloon. He argued that he had been on friendly terms with many of the arrested persons and had scolded them in his office for putting him and themselves in such a predicament.
D1 also argued that he was posted to Waichow on 8 Jan 1945. A few days prior to this, he had been told by one of the special branch investigators that a man had died of beri-beri in his cell. Although he was O.C. in Tai Po, he was on equal rank with the special branch investigators who had longer service. Therefore, he could not issue orders to them. He could not order medical treatment, as he had to infer that the Kowloon O.C. (Major Hirao) would do so if necessary. Neither could he call for a doctor nor respond to the death, when the special branch investigators were there.
He alleged that he inspected the cells daily. Despite having some requests for more food, he did not see anyone ill. He also argued that since he had to attend a Japanese feast at the relevant times, he could only serve on 29 Dec, 4 Jan and 6 Jan and so could not be held responsible for tortures that occurred during the other days.
On behalf of D2, the Defence claimed that D2's duties were of a clerk not an investigator. It was ''impossible that he should have at any time interrogated anyone''. The Defence argued that persons who identified him were lying and prejudiced, and that their evidence was tainted, since there was wide discussion of this case around the Tai Po villages.
The Defence, on behalf of D1, argued primarily along the lines that firstly the maltreatment should be attributed to the Kowloon O.C (Major Hirao). He was the one who ordered the arrest of the aforementioned persons. Then, D1 did not have any knowledge of detainees being maltreated. Finally, the Prosecution’s evidence was unreliable.
D1 argued Superior Orders, that he had arrested the Chinese on the orders of his superior officer in Kowloon. He denied that he had carried out any investigations or interrogations, as two special branch investigators had been sent for that purpose from Kowloon. He argued that he had been on friendly terms with many of the arrested persons and had scolded them in his office for putting him and themselves in such a predicament.
D1 also argued that he was posted to Waichow on 8 Jan 1945. A few days prior to this, he had been told by one of the special branch investigators that a man had died of beri-beri in his cell. Although he was O.C. in Tai Po, he was on equal rank with the special branch investigators who had longer service. Therefore, he could not issue orders to them. He could not order medical treatment, as he had to infer that the Kowloon O.C. (Major Hirao) would do so if necessary. Neither could he call for a doctor nor respond to the death, when the special branch investigators were there.
He alleged that he inspected the cells daily. Despite having some requests for more food, he did not see anyone ill. He also argued that since he had to attend a Japanese feast at the relevant times, he could only serve on 29 Dec, 4 Jan and 6 Jan and so could not be held responsible for tortures that occurred during the other days.
On behalf of D2, the Defence claimed that D2's duties were of a clerk not an investigator. It was ''impossible that he should have at any time interrogated anyone''. The Defence argued that persons who identified him were lying and prejudiced, and that their evidence was tainted, since there was wide discussion of this case around the Tai Po villages.
Prosecutor
Major D.G. McGregor (Black Watch)
Defence Counsel
Lt. J.R. Haggan, R.E.
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Unknown
Prosecution Witnesses
Major Hirao Yoshio (O.C. of the Kowloon Gendarmerie)
Cheng Kwai (Construction Worker)
Lam Kiu Wai (Farmer)
Lam Pak-ling (Unknown)
Lam Kiu-chung (Unknown)
Lam Chung-sik (Construction Worker)
Lam Sang (Construction Worker)
Lam Wah (Farmer)
Lam Ying-yuen (Farmer)
Chun Wan-wai (Farmer)
Cheung Fuk-yin (Farmer)
Chung Chik-hung (Farmer)
Defence Witnesses
Yamada Kiichiro (Accused)
Awa Isao (Accused)
Trial Dates
17-Jul-1946
18-Jul-1946
19-Jul-1946
20-Jul-1946
22-Jul-1946
Judgement Date
22-Jul-1946
Judgement Confirmation Date
23-Sep-1946
Judgement Promulgation Date
25-Sep-1946
Judgement
Held:
1. D1 was guilty of committing a war crime;
2. D2 was not guilty.
1. D1 was guilty of committing a war crime;
2. D2 was not guilty.
Petition
D1 petitioned:
1. The finding was against the weight of evidence;
2. His defence was prejudiced by the absence of the two special branch investigators during the trial.
The Judge Advocate recommended dismissal of the Petition and confirmation of the findings and death penalty on 2 September 1946 [unidentified Brigadier, DJAG, Allied Land Forces, SEA].
He assessed the case to have been “carefully conducted throughout and ably defended.” Even so, the Judge Advocate pointed out that the defending officer appeared not to be legally qualified. He simply invited reference to para. 46 of the ALFSEA War Crimes Instructions No. 1 and ultimately recommended confirmation of the death penalty.
1. The finding was against the weight of evidence;
2. His defence was prejudiced by the absence of the two special branch investigators during the trial.
The Judge Advocate recommended dismissal of the Petition and confirmation of the findings and death penalty on 2 September 1946 [unidentified Brigadier, DJAG, Allied Land Forces, SEA].
He assessed the case to have been “carefully conducted throughout and ably defended.” Even so, the Judge Advocate pointed out that the defending officer appeared not to be legally qualified. He simply invited reference to para. 46 of the ALFSEA War Crimes Instructions No. 1 and ultimately recommended confirmation of the death penalty.
Sentence Imposed
Death Penalty, 1 Oct 1946 carried out at Stanley Prison, Hong Kong.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Guerilla activities; "together concerned as parties"; Committed; Unlawful arrest and/or detention; Place of Detention;
Arbitrary or summary punishment; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war; Torture; Cruel Inhuman or Degrading Treatment; Superior Orders; Mistaken Identity; Malicious Witnesses; Death from natural causes; Hierarchy; Scope of responsibilities
Arbitrary or summary punishment; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war; Torture; Cruel Inhuman or Degrading Treatment; Superior Orders; Mistaken Identity; Malicious Witnesses; Death from natural causes; Hierarchy; Scope of responsibilities
Remarks
Same lawyer for two Co-Accused.