To access the complete case file, click here
Case No.
WO235/914
Accused
S.M. Ito Junichi
Court
Military Court for the Trial of War Criminals No.5
Charge
Committing a War Crime
“in that he, at Tsun Wan on or about the 17th August, 1945, when a member of the KEMPEITAI, was, in violation of the laws and usages of war, concerned in the killing of YEN (otherwise spelt TUM) YEE KWAN and another unknown Chinese, both civilians at that time in his custody.”
“in that he, at Tsun Wan on or about the 17th August, 1945, when a member of the KEMPEITAI, was, in violation of the laws and usages of war, concerned in the killing of YEN (otherwise spelt TUM) YEE KWAN and another unknown Chinese, both civilians at that time in his custody.”
Background
The Accused was a Sergeant Major, a member of the Kempeitai and a staff member of the Tsun Wan Gendarmerie. He was in charge of the Tsun Wan Kempeitai Detachment Post at the material time.
Allegations
The Accused killed two Chinese who were in his custody in the Tsun Wan Gendarmerie. This took place after the Japanese Emperor’s Surrender [Note: throughout this case, the Emperor’s Capitulation on 14 August 1945 is referred to as Surrender, even though the Surrender was actually on 2 September 1945].
Maj. Yoshio Hirao, the Commander of the Kowloon Kempeitai HQ, accused of War Crimes in his own case, was the Accused’s superior. He testified that at a meeting on 17 August 1945, he had actually ordered the release of all detained Chinese. The Accused did not follow his instructions.
The Prosecution addressed the matter of jurisdiction in its Closing Address. Although the killings took place on 17 August 1945 (after the ‘Surrender’), “no question arises as to the Court’s jurisdiction to hear a case describing events after the surrender because the Royal Warrants have provided for Courts to be set up to try suspects for offences committed in any war in which Great Britain finds herself engaged in since September 1939; and the surrender, though a cessation of hostilities, does not mean legally an end of the War”.
Maj. Yoshio Hirao, the Commander of the Kowloon Kempeitai HQ, accused of War Crimes in his own case, was the Accused’s superior. He testified that at a meeting on 17 August 1945, he had actually ordered the release of all detained Chinese. The Accused did not follow his instructions.
The Prosecution addressed the matter of jurisdiction in its Closing Address. Although the killings took place on 17 August 1945 (after the ‘Surrender’), “no question arises as to the Court’s jurisdiction to hear a case describing events after the surrender because the Royal Warrants have provided for Courts to be set up to try suspects for offences committed in any war in which Great Britain finds herself engaged in since September 1939; and the surrender, though a cessation of hostilities, does not mean legally an end of the War”.
Defence
The Accused admitted shooting and killing the two Chinese. He entered a ‘guilty’ plea.
However, he raised two lines of defence or justification for his conduct – a claim of legitimate or lawful taking of life, and Superior Orders.
The Defence outlined the circumstances that led to the shooting. The two men were among a group of seven who were taken into custody. The two were held as suspected communist guerillas. Then came the Emperor’s surrender on 14 August 1945 and a conference with Major Yoshio Hirao on 17 August 1945, at which the Major ordered that “suitable steps” should be taken in respect of suspects in custody.
The Accused regarded the two detainees as a “serious menace” to public peace and order. The Accused noted that after the Emperor’s surrender, law and order in Hong Kong deteriorated. He insisted that the decision to execute them was based on his sense of public duty to the community, but not brutality or animosity towards them. Until the British returned, the Japanese were responsible for law and order.
The Accused claimed that he received orders, at the meeting with Major Hirao on 17 August 1945, to deal with the detainees with “suitable steps”. According to his understanding, in order to deal with the matter with “suitable steps”, there should be different treatment for persons suspected of serious crimes such as espionage and persons suspected of minor crimes such as robbery. Persons should be dealt with in accordance with the severity of the crime. He said that he clarified the order with Sgt. Otsu, who was in charge of investigating the matter and in contact with Major Hirao. The Accused considered Sgt Otsu reliable because he received direct orders from Major Hirao concerning the investigations of the Chinese. Sgt. Otsu told him they were not to be released but to be dealt with severely. In his Petition, the Accused stated “I thought that what he said about dealing severely with the Chinese was an order from Maj. Hirao”. In the closing statement, the Defence asserted that the Accused ordered Sgt. Otsu to kill the two Chinese, but Sgt. Otsu “requested that he be relieved of this duty and Ito took on himself to shoot the two Chinese.”
As for Major Hirao’s claim that he actually issued an order to release the detained Chinese, the Accused insisted that he did not remember any such order from Maj. Hirao. In the closing statement, the defence asked the court to “decide which are the true facts”.
However, he raised two lines of defence or justification for his conduct – a claim of legitimate or lawful taking of life, and Superior Orders.
The Defence outlined the circumstances that led to the shooting. The two men were among a group of seven who were taken into custody. The two were held as suspected communist guerillas. Then came the Emperor’s surrender on 14 August 1945 and a conference with Major Yoshio Hirao on 17 August 1945, at which the Major ordered that “suitable steps” should be taken in respect of suspects in custody.
The Accused regarded the two detainees as a “serious menace” to public peace and order. The Accused noted that after the Emperor’s surrender, law and order in Hong Kong deteriorated. He insisted that the decision to execute them was based on his sense of public duty to the community, but not brutality or animosity towards them. Until the British returned, the Japanese were responsible for law and order.
The Accused claimed that he received orders, at the meeting with Major Hirao on 17 August 1945, to deal with the detainees with “suitable steps”. According to his understanding, in order to deal with the matter with “suitable steps”, there should be different treatment for persons suspected of serious crimes such as espionage and persons suspected of minor crimes such as robbery. Persons should be dealt with in accordance with the severity of the crime. He said that he clarified the order with Sgt. Otsu, who was in charge of investigating the matter and in contact with Major Hirao. The Accused considered Sgt Otsu reliable because he received direct orders from Major Hirao concerning the investigations of the Chinese. Sgt. Otsu told him they were not to be released but to be dealt with severely. In his Petition, the Accused stated “I thought that what he said about dealing severely with the Chinese was an order from Maj. Hirao”. In the closing statement, the Defence asserted that the Accused ordered Sgt. Otsu to kill the two Chinese, but Sgt. Otsu “requested that he be relieved of this duty and Ito took on himself to shoot the two Chinese.”
As for Major Hirao’s claim that he actually issued an order to release the detained Chinese, the Accused insisted that he did not remember any such order from Maj. Hirao. In the closing statement, the defence asked the court to “decide which are the true facts”.
Prosecutor
Major D.G. McGregor, Worcestershire Regt. Solicitor of the Supreme Court in New South Wales, Sydney
Defence Counsel
Fujita Tetsuo, a Judge in the Local Court, Hiroshima, Japan
Judges
President: Lt-Col. R.C. Laming, Judge Advocate, General Department in India, Barrister at law
Members: Major J.T. Loranger, Judge Advocate General Department, Canadian Army; Capt. L.G. Stephens, Royal Warwickshire Regt
Members: Major J.T. Loranger, Judge Advocate General Department, Canadian Army; Capt. L.G. Stephens, Royal Warwickshire Regt
Advisory Officer
Capt. P. Kostiloff, 1st Gurkha Rifles
Prosecution Witnesses
Abdul Razak Hamidon (Unknown)
Hirao Yoshio (Major)
Shukaharo Ichiro (Lance Corporal)
Ng Yee Kuan (Unemployed)
Defence Witnesses
Ito Junichi (Major)
Trial Dates
20-Sep-1946
Judgement Date
20-Sep-1946
Judgement Confirmation Date
05-Nov-1946
Judgement Promulgation Date
05-Nov-1946
Judgement
Guilty [not confirmed]
Petition
The Accused petitioned against the sentence. He had no objection to the finding of the court and admitted his guilt. He reiterated the circumstances, concluding that “At the time of the shooting, I did not know I was committing a grave crime. I thought only that I was doing something for the betterment of the community”.
What happened here was that the Accused pleaded guilty and the court proceeded with the Rule 35(B) procedure. The Judge Advocate General [Unidentified Colonel, offg. DJAG, Allied Land Forces, SEA, 20 October 1946] observed serious procedural irregularities with the guilty plea procedure in this case, and recommended retrial.
According to the Judge Advocate, “the court proceeded to take sufficient evidence to enable them to determine the sentence and the confirming officer to know all the circumstances connected with the offence”. The Judge Advocate observed that this procedure “merely provided that the court and confirming officer will have before them sufficient evidence to know the facts to which the accused has pleaded guilty and does not amount to a trial of the averment in the charge sheet. It is difficult to appreciate why the court considered this course was necessary in as much as all statements by witnesses must have been available. Furthermore, it must have been apparent from the cross-examination of the second Prosecution Witness (page 5) that the defence were suggesting that the accused has received orders to execute prisoners and should have reversed the plea at that point.”
“Although there was no “case for the prosecution” it is so recorded on page 9, and the accused was even allowed to give evidence on oath and be cross-examined by the prosecutor despite the fact that on a plea of guilty he could do no more than make a statement in mitigation.”
“Finally, at the conclusion of the trial which though it bears some resemblance to the procedure on a plea of “Not Guilty” was really in fact a mere recording of sufficient evidence to acquaint the court of the circumstances to which the accused pleaded “Guilty” the court decided to alter the plea of one of “Not Guilty”. Having done so, the court should have re-heard the whole of the evidence from the beginning in accordance with RP 37(D). Since they have not done so, there was no trial of the facts, and the court closed to consider the finding without hearing the evidence for the prosecution and defence and cross-examination thereon as required on a plea of “Not Guilty”.”
The Judge Advocate advised the Commander, Land Forces, Hong Kong, that “In my opinion the irregularities committed in the course of this trial are so grave as to vitiate the entire proceedings and I have no alternative to advise that you withhold confirmation……. You will probably consider that the interests of justice demand that the accused be re-tried before an entirely fresh court, and after promulgation of non-confirmation [illegible]. A plea of “Guilty” should not be accepted.”
What happened here was that the Accused pleaded guilty and the court proceeded with the Rule 35(B) procedure. The Judge Advocate General [Unidentified Colonel, offg. DJAG, Allied Land Forces, SEA, 20 October 1946] observed serious procedural irregularities with the guilty plea procedure in this case, and recommended retrial.
According to the Judge Advocate, “the court proceeded to take sufficient evidence to enable them to determine the sentence and the confirming officer to know all the circumstances connected with the offence”. The Judge Advocate observed that this procedure “merely provided that the court and confirming officer will have before them sufficient evidence to know the facts to which the accused has pleaded guilty and does not amount to a trial of the averment in the charge sheet. It is difficult to appreciate why the court considered this course was necessary in as much as all statements by witnesses must have been available. Furthermore, it must have been apparent from the cross-examination of the second Prosecution Witness (page 5) that the defence were suggesting that the accused has received orders to execute prisoners and should have reversed the plea at that point.”
“Although there was no “case for the prosecution” it is so recorded on page 9, and the accused was even allowed to give evidence on oath and be cross-examined by the prosecutor despite the fact that on a plea of guilty he could do no more than make a statement in mitigation.”
“Finally, at the conclusion of the trial which though it bears some resemblance to the procedure on a plea of “Not Guilty” was really in fact a mere recording of sufficient evidence to acquaint the court of the circumstances to which the accused pleaded “Guilty” the court decided to alter the plea of one of “Not Guilty”. Having done so, the court should have re-heard the whole of the evidence from the beginning in accordance with RP 37(D). Since they have not done so, there was no trial of the facts, and the court closed to consider the finding without hearing the evidence for the prosecution and defence and cross-examination thereon as required on a plea of “Not Guilty”.”
The Judge Advocate advised the Commander, Land Forces, Hong Kong, that “In my opinion the irregularities committed in the course of this trial are so grave as to vitiate the entire proceedings and I have no alternative to advise that you withhold confirmation……. You will probably consider that the interests of justice demand that the accused be re-tried before an entirely fresh court, and after promulgation of non-confirmation [illegible]. A plea of “Guilty” should not be accepted.”
Sentence Imposed
Death by shooting [not confirmed]
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Guerilla activities; OR Guerilla activity; Anti-Japanese Activity; Communist Activities; Place of Detention; “concerned in”; Arbitrary or summary punishment; Unlawful killing; Lawful or legitimate killing; Order; Superior Orders; Miscommunication; Emperor’s capitulation; War Crimes; Violations of laws and customs of war; Judgement not confirmed
Remarks
Refer to the case of Major Yoshio Hirao, Case No. WO/235/1098 Refer to the case of S/M Ito Junichi, Case No. WO/235/1048, the retrial of this accused.