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Case No.
WO235/1011
Accused
S/M. Ogasawara Maruji (D1)
Sgt. Kawai Hisao (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
D1 and D2: Committing a War Crime
“in that they at TAIPO Gendarmerie, Hong Kong, in or about the month of March 1942 were, in violation of the laws and usages of War concerned in the killing of CHEUNG CHO, TSANG FOK and three civilian residents of TAIPO”.
D1: Committing a War Crime
“in that he at TAIPO Gendarmerie, Hong Kong, between the 29 May 1942 and the 30 June 1942, in violation of the laws and usages of War was concerned in the maltreatment of LEE SHING and LEE TIEN SUN, civilian residents of TAIPO resulting in the death of LEE TIEN SUNG”.
“in that they at TAIPO Gendarmerie, Hong Kong, in or about the month of March 1942 were, in violation of the laws and usages of War concerned in the killing of CHEUNG CHO, TSANG FOK and three civilian residents of TAIPO”.
D1: Committing a War Crime
“in that he at TAIPO Gendarmerie, Hong Kong, between the 29 May 1942 and the 30 June 1942, in violation of the laws and usages of War was concerned in the maltreatment of LEE SHING and LEE TIEN SUN, civilian residents of TAIPO resulting in the death of LEE TIEN SUNG”.
Background
Both Accused (D1 & D2) were members of the Tai Po Gendarmarie
Allegations
As to the first charge, the Prosecution alleged that: (1) D1 was observed beating a man at the Tai Po Gendarmerie; and (2) both Accused were involved in stabbing and shooting five men to death after escorting them to San Wai Tsai Hill.
As to the second charge, the Prosecution alleged arrest and ill-treatment by D1.
The Prosecution relied on statements from witnesses and was allowed to submit as evidence the record taken of an identification parade.
As to the second charge, the Prosecution alleged arrest and ill-treatment by D1.
The Prosecution relied on statements from witnesses and was allowed to submit as evidence the record taken of an identification parade.
Defence
D1 admitted taking five civilian prisoners to the hill and shooting them without trial. However, he pleaded Superior Orders, stating that he was ordered by his superior to execute the prisoners. He insisted that he expected a fair trial of the prisoners at first, but when the order changed, he could only act upon the order and kill them.
D2 argued that he did not take any part in the execution as alleged. It was submitted that D2 was not present at the scene. The Defence also drew the Court’s attention to the fact that Col. Noma was the one who issued the order for the execution of the five Chinese. The Japanese Army does not allow a subordinate to judge or analyse any order given to him by a superior only to carry out the order.
The Defence also attacked the statements of witnesses by describing them as “very shaky and varying”.
D2 argued that he did not take any part in the execution as alleged. It was submitted that D2 was not present at the scene. The Defence also drew the Court’s attention to the fact that Col. Noma was the one who issued the order for the execution of the five Chinese. The Japanese Army does not allow a subordinate to judge or analyse any order given to him by a superior only to carry out the order.
The Defence also attacked the statements of witnesses by describing them as “very shaky and varying”.
Prosecutor
Major D.G. McGregor (Worc. R.); Major M.I. Ormsby (West Yorks) (Asst. Prosecutor)
Defence Counsel
Mr. Sakai Yusuke (Judge Advocate, Naval Military Court, Japan)
Judges
President: Lt. Col R.C. Laming, Barrister (Dept of the JAG, India)
Members: Major J.T. Loranger; Capt. K.R. Busfield (RAC)
Members: Major J.T. Loranger; Capt. K.R. Busfield (RAC)
Advisory Officer
Capt Kostiloff (1st Ghurka Rifles)
Prosecution Witnesses
Alfonso Rigod (Japanese language interpreter)
Major M.I. Ormsby (Prosecutor No. 7 War Crimes Court)
Major D.G. McGregor (Prosecutor No. 7 War Crimes Court)
Sgt Steeple (Sgt)
Col Kogi Kazuo (Prosecutor to Military Court-Martial Courts)
Cheung Chung (Unknown)
Cheung Choi (Unknown)
Yau Ngau (Farmer)
Capt. F.V. Collison (Investigating Officer)
Captain Yatagai Sukuo (Japanese Army)
Lee Fok (Watchman)
Lee Shing (Fisherman)
Lam Kwong Nam (Chinese Herbalist)
F. Kikabhoy (Interpreter to No. 5 War Crimes Court)
Defence Witnesses
S/M Ogasawara Haruji (Accused)
Sgt. Kawai Hasao (Accused)
Col. Noma Kennosuku (Japanese Army)
Lt. Gen. Higuchi Keihichiro (Japanese Army)
Yamamoto (Court Interpreter to the Hong Kong War Crimes Court)
Trial Dates
20-Mar-1947
21-Mar-1947
22-Mar-1947
24-Mar-1947
25-Mar-1947
26-Mar-1947
27-Mar-1947
31-Mar-1947
Judgement Date
01-Apr-1947
Judgement Confirmation Date
03-Apr-1947
Judgement Promulgation Date
19-Jun-1947
Judgement
First charge:
D1: Guilty;
D2: Not guilty
Second charge:
D1: Guilty except for the words “resulting in the death of LEE TIEN SUNG”.
D1: Guilty;
D2: Not guilty
Second charge:
D1: Guilty except for the words “resulting in the death of LEE TIEN SUNG”.
Petition
D1 petitioned. D1 admitted that a person was ill-treated by him at the Eastern Kempetai but submitted that the sentence was too severe.
The Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947] advised confirmation of the findings and the sentences, and dismissal of the petition.
The Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947] advised confirmation of the findings and the sentences, and dismissal of the petition.
Sentence Imposed
D1: 10 years imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; "concerned in"; Committed; Unlawful arrest and/or detention; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Ordering; Superior Orders; Duress; Mitigating circumstances; War Crimes; Violations of laws and customs of war
Remarks
One lawyer represented both Co-Accused.