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Case No.
WO235/893
Accused
W/O Omura Kyoshi
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that he at Kowloon between the 8th June 1944 and the 19th July 1945 when in the service of the occupying power as W.O. in charge of the Special Branch of the Japanese Gendarmerie Kowloon Headquarters and as such responsible for the well being of persons in arrest at the said place in violation of the laws and usages of war was concerned in the ill-treatment and torture of Tai Fook, Wan Mun Soo, Sui Wai Wan, Chu Man Yu, Tsui Sai Cheung, J.A. Siren and Wan Tin Soon all persons under arrest at the gendarmerie aforesaid”
“in that he at Kowloon between the 8th June 1944 and the 19th July 1945 when in the service of the occupying power as W.O. in charge of the Special Branch of the Japanese Gendarmerie Kowloon Headquarters and as such responsible for the well being of persons in arrest at the said place in violation of the laws and usages of war was concerned in the ill-treatment and torture of Tai Fook, Wan Mun Soo, Sui Wai Wan, Chu Man Yu, Tsui Sai Cheung, J.A. Siren and Wan Tin Soon all persons under arrest at the gendarmerie aforesaid”
Background
The Accused was attached to the Kowloon Gendarmerie. In April 1944, the Accused was placed in charge of the Special Intelligence Department of the Kowloon District Gendarmerie. He remained in the post until the end of July 1944 when W.O. Miura took over. The Accused continued to work as Miura’s subordinate until 27 February 1945 when he resumed his former appointment.
Allegations
The Prosecution sought to establish that (1) the Accused actually held the position as alleged; (2) while he was in that position, he either tortured people or tolerated their torture by his subordinates.
The Accused mistreated certain detainees under his jurisdiction during his appointment in the Special Branch. It was contended that the Accused: (1) threatened torture if the victims could not give certain information; (2) actually ill-treated the victims or permitted ill-treatment such as beating, see-sawing on the victim, “water torture”, “aviation treatment” (i.e. suspending a victim from a rope which was attached to his hands, which were tied behind his back), and placing lighted papers in the victims’ waistband.
The Prosecution stated that “It is sought to make Omura liable for what he did personally, or, and in his absence it is claimed that on the facts, whatever his subordinates did must said to have been countenanced by him. He, therefore, must accept full responsibility”.
On the point of responsibility for his subordinates, the Prosecution argued that by inference, the Accused authorized the said torture by conduct (such as by being at the scene without stopping the interrogation). Alternatively, it was argued that the Accused had given general authority to his subordinates to torture. (The prosecutor relied on English law on this point, citing Halsbury Laws of England Vol. 9 at 234).
The Accused mistreated certain detainees under his jurisdiction during his appointment in the Special Branch. It was contended that the Accused: (1) threatened torture if the victims could not give certain information; (2) actually ill-treated the victims or permitted ill-treatment such as beating, see-sawing on the victim, “water torture”, “aviation treatment” (i.e. suspending a victim from a rope which was attached to his hands, which were tied behind his back), and placing lighted papers in the victims’ waistband.
The Prosecution stated that “It is sought to make Omura liable for what he did personally, or, and in his absence it is claimed that on the facts, whatever his subordinates did must said to have been countenanced by him. He, therefore, must accept full responsibility”.
On the point of responsibility for his subordinates, the Prosecution argued that by inference, the Accused authorized the said torture by conduct (such as by being at the scene without stopping the interrogation). Alternatively, it was argued that the Accused had given general authority to his subordinates to torture. (The prosecutor relied on English law on this point, citing Halsbury Laws of England Vol. 9 at 234).
Defence
The Defence founded its case on alibi and identification evidence.
First of all, the Defence challenged the identification evidence. It argued that the Accused was either not properly identified by some of the witnesses, or identified as not having tortured the witness at all.
The Defence emphasized the truthfulness of the testimony given by the Accused in the witness box.
The Defence argued that the Prosecution's emphasis on the fact that the Accused employed Chinese detectives added nothing significant (or special) to the case – use of Chinese detectives was common practice.
It was also noted that there has been consistent confusion between the identity of the Accused and another officer, Miura, who, according to the Defence, was the one who was to blame for the torture. As such, the Accused should not be held responsible for Miura's actions.
First of all, the Defence challenged the identification evidence. It argued that the Accused was either not properly identified by some of the witnesses, or identified as not having tortured the witness at all.
The Defence emphasized the truthfulness of the testimony given by the Accused in the witness box.
The Defence argued that the Prosecution's emphasis on the fact that the Accused employed Chinese detectives added nothing significant (or special) to the case – use of Chinese detectives was common practice.
It was also noted that there has been consistent confusion between the identity of the Accused and another officer, Miura, who, according to the Defence, was the one who was to blame for the torture. As such, the Accused should not be held responsible for Miura's actions.
Prosecutor
Major D.J. 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.)
Prosecution Witnesses
Siu Wai-man (Industries Section, Hong Kong Government)
Jules A. Siren (French Stenographer)
Wan Tin-Soong (Civilian)
Chu Man-tu (Merchant, Goldsmith Shop)
Tsui Sai-cheung (Student)
Wan Ho-keung (Teacher)
Major Hirao Yoshio (Major, Japanese Army; C.O. Kowloon District Gendarmerie)
Defence Witnesses
Omura Kyoshi (Accused)
Trial Dates
02-Jul-1946
03-Jul-1946
04-Jul-1946
Judgement Date
04-Jul-1946
Judgement Confirmation Date
01-Aug-1946
Judgement Promulgation Date
12-Aug-1946
Judgement
Held that the Accused was guilty but with the exception of the words “Wan Mun Soo, Sui Wai Wan; Wan Tin Soon”.
Petition
There is no record of a petition being filed.
The Judge Advocate [Lt.Col. D.A. Wright, AJAG, HQ Land Forces, 12 July 1946] advised that the trial had been "careful" and the Accused was "rightly convicted" even though there were weaknesses in the case. The Court made a special finding which excepted 3 named persons from the charge: Wan Mun Soo, Sui Wai Wun and Wan Tin Soon.
The Judge Advocate observed a number of procedural issues arising from prosecutorial conduct of the case:
1.He could not agree that the Prosecution was entitled to put to PW3 a previous statement.
2. The Prosecution should give a detailed explanation about its failure to call certain witnesses.
3. It was not satisfactory for the Prosecution to put in a statement in evidence when the author was in the court and could have given oral testimony.
4. The death certificate of a victim should have been properly certified and declared as a true translation.
5. The charge sheet that was delivered to the Accused before trial was not the same as the one on which he was arraigned.
Under para. 8(1)(b) of the ALFSEA Instructions, a document purporting to have been signed or issued officially by any member of any Allied Force is admissible as evidence without proof of his signature or otherwise. This did not overrule the preference for oral testimony when the person was actually in court - the Judge Advocate recommended that the person should testify and be subject to cross-examination by the Defence.
The Judge Advocate [Lt.Col. D.A. Wright, AJAG, HQ Land Forces, 12 July 1946] advised that the trial had been "careful" and the Accused was "rightly convicted" even though there were weaknesses in the case. The Court made a special finding which excepted 3 named persons from the charge: Wan Mun Soo, Sui Wai Wun and Wan Tin Soon.
The Judge Advocate observed a number of procedural issues arising from prosecutorial conduct of the case:
1.He could not agree that the Prosecution was entitled to put to PW3 a previous statement.
2. The Prosecution should give a detailed explanation about its failure to call certain witnesses.
3. It was not satisfactory for the Prosecution to put in a statement in evidence when the author was in the court and could have given oral testimony.
4. The death certificate of a victim should have been properly certified and declared as a true translation.
5. The charge sheet that was delivered to the Accused before trial was not the same as the one on which he was arraigned.
Under para. 8(1)(b) of the ALFSEA Instructions, a document purporting to have been signed or issued officially by any member of any Allied Force is admissible as evidence without proof of his signature or otherwise. This did not overrule the preference for oral testimony when the person was actually in court - the Judge Advocate recommended that the person should testify and be subject to cross-examination by the Defence.
Sentence Imposed
7 Years Imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; "concerned in"; Authorised; Acquiesced; Committed; Torture; Cruel Inhuman or Degrading Treatment; War Crimes; Violations of laws and customs of war; Alibi; Mistaken Identity; Halsbury's Laws of England; Command Responsibility; ALFEA Instructions for the Trial of War Criminals