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Case No.
WO235/937
Accused
W.O Yabuki Rikie (D1)
Civ. Takemoto Otojiro (D2)
Civ. Ohtsuka Sekitaro (D3)
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they, at Hong Kong between 21st April 1943 when members of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, were, in violation of the laws and usages of war, together concerned as parties to the ill-treatment of civilian residents of Hong Kong aforesaid, in custody at the said headquarters, resulting in physical sufferings to them and in particular to Mr. Rudy Choy, Mr. F. Tyndall, Mr. Monaghan, Mr. Edmonston, Mr. G. Kotwall, Mr. Chester Bennett and Mr. Hyde.”
Second Charge (against Third Accused)
“COMMITTING A WAR CRIME, in that he, at Hong Kong between the 15th June 1943 and 30th September 1943 when a member of the Staff of the Kempeitai Headquarters, Central Police Station, did ill-treat Mrs. Chester Bennett a civilian in custody at the said Headquarters.”
“COMMITTING A WAR CRIME, in that they, at Hong Kong between 21st April 1943 when members of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, were, in violation of the laws and usages of war, together concerned as parties to the ill-treatment of civilian residents of Hong Kong aforesaid, in custody at the said headquarters, resulting in physical sufferings to them and in particular to Mr. Rudy Choy, Mr. F. Tyndall, Mr. Monaghan, Mr. Edmonston, Mr. G. Kotwall, Mr. Chester Bennett and Mr. Hyde.”
Second Charge (against Third Accused)
“COMMITTING A WAR CRIME, in that he, at Hong Kong between the 15th June 1943 and 30th September 1943 when a member of the Staff of the Kempeitai Headquarters, Central Police Station, did ill-treat Mrs. Chester Bennett a civilian in custody at the said Headquarters.”
Background
The three Accused were members of the Hong Kong Gendarmerie and on the staff at the Supreme Court jail, where one of their duties was the interrogation of prisoners. D3 also worked at the Central Police Station.
D1 was a Warrant Officer.
D2 and D3 were civilians.
D1 was a Warrant Officer.
D2 and D3 were civilians.
Allegations
It was generally alleged that during the period April to June 1943, a number of civilians were imprisoned. They were interrogated at various times by the three accused. They were persistently tortured and ill-treated over a period of time “in a most vicious and cruel manner”. Forms of tortures included water torture, burning with cigarettes and beatings. The Prosecution, however, made clear that they were not charging the accused for the general prison conditions prevailing at the Supreme Court.
On the ill-treatment
The Prosecution brought evidence of abuse of detainees, some of whom were already dead at the time of trial. The Prosecution alleged that the three Accused committed various criminal acts against the persons interrogated. These included slapping, beating, “water torture” and hanging up. Boris Pasco (PW) was called to corroborate and confirm the various statements made by victims who did not testify in court.
On whether the Accused were personally responsible
The Prosecution argued that the evidence against the Accused, including from the identification parade, was corroborated by testimonies.
The Prosecution argued that even if Takemoto (D2) were to argue Superior Orders, it would not assist him since such an order to torture would be “something obviously unlawful”.
It was admitted that the evidence against D3 comprised mainly inferences. This was not as direct as those against the other Accused and might be too speculative for a conviction.
On the Second Charge
The Prosecution submitted that the evidence against D3 was clear and corroborated by the statement made by Ms Bennet, who was subjected to water torture, beating, starvation and other indignities – acts in which D3 took part.
Degree of Responsibility
It was argued that D1 should bear the greatest responsibility since he showed “a policy of consistent unremitting brutality of a type he admits he knew to be wrong and which had a visible effect on this unfortunate victims”. For the other Accused, the Prosecution noted that the aggravating facts might include: that they lived with the local community, yet they chose to ignore that community’s ideas of behaviour. D3 was well educated. He had “by inescapable inference a clear knowledge that what he was doing was unpardonable”.
On the ill-treatment
The Prosecution brought evidence of abuse of detainees, some of whom were already dead at the time of trial. The Prosecution alleged that the three Accused committed various criminal acts against the persons interrogated. These included slapping, beating, “water torture” and hanging up. Boris Pasco (PW) was called to corroborate and confirm the various statements made by victims who did not testify in court.
On whether the Accused were personally responsible
The Prosecution argued that the evidence against the Accused, including from the identification parade, was corroborated by testimonies.
The Prosecution argued that even if Takemoto (D2) were to argue Superior Orders, it would not assist him since such an order to torture would be “something obviously unlawful”.
It was admitted that the evidence against D3 comprised mainly inferences. This was not as direct as those against the other Accused and might be too speculative for a conviction.
On the Second Charge
The Prosecution submitted that the evidence against D3 was clear and corroborated by the statement made by Ms Bennet, who was subjected to water torture, beating, starvation and other indignities – acts in which D3 took part.
Degree of Responsibility
It was argued that D1 should bear the greatest responsibility since he showed “a policy of consistent unremitting brutality of a type he admits he knew to be wrong and which had a visible effect on this unfortunate victims”. For the other Accused, the Prosecution noted that the aggravating facts might include: that they lived with the local community, yet they chose to ignore that community’s ideas of behaviour. D3 was well educated. He had “by inescapable inference a clear knowledge that what he was doing was unpardonable”.
Defence
The Defence Counsel noted at the outset that the Accused were at a “great disadvantage since (1) there was the problem of imperfect translation and (2) that evidence given by victims may have be influenced by intentions of revenge.
On the First Charge
Relying on the testimony of Capt Yatagea, Ushiyama and Enimoto, it was argued that the acts alleged were not “concerted action”.
For D1, it was argued that Boris Pasco’s testimony was all hearsay and thus inadmissible since it was only second best. Only Rudy Choy’s evidence should be admitted. It was further said that D1 was not in charge of Rudy Choy’s case at all and had in any event only pushed him with bamboo stick but did not strike him. With respect to other victims, the Defence argued that there was not sufficient evidence against D1. In the case of Mr. Bennet, it was also argued that D1 was not in charge of his case.
In respect of the second and the third Accused (D2 and D3), it was submitted that they were both unwillingly pressed into the service of the Gendarmerie, it was most improbable for them to have committed the alleged acts. On top of that, it was noted that there was no evidence against the third Accused at all.
On the Second Charge
The Defence primarily argued along the line of insufficiency of evidence given by Mrs Bennet. It was also argued that a civilian interpreter would be “forced to be present to translate” at the scene of ill-treatment, but not to do more than that.
On the First Charge
Relying on the testimony of Capt Yatagea, Ushiyama and Enimoto, it was argued that the acts alleged were not “concerted action”.
For D1, it was argued that Boris Pasco’s testimony was all hearsay and thus inadmissible since it was only second best. Only Rudy Choy’s evidence should be admitted. It was further said that D1 was not in charge of Rudy Choy’s case at all and had in any event only pushed him with bamboo stick but did not strike him. With respect to other victims, the Defence argued that there was not sufficient evidence against D1. In the case of Mr. Bennet, it was also argued that D1 was not in charge of his case.
In respect of the second and the third Accused (D2 and D3), it was submitted that they were both unwillingly pressed into the service of the Gendarmerie, it was most improbable for them to have committed the alleged acts. On top of that, it was noted that there was no evidence against the third Accused at all.
On the Second Charge
The Defence primarily argued along the line of insufficiency of evidence given by Mrs Bennet. It was also argued that a civilian interpreter would be “forced to be present to translate” at the scene of ill-treatment, but not to do more than that.
Prosecutor
Major D.G. McGregor (Black Watch, Solicitor)
Defence Counsel
Mr. Takahashi Mikio (Japanese Barrister)
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
Major W.M. Gray (The Cameronians, Scottish Rifles)
Prosecution Witnesses
Major K. Hussain (War Crimes Investigation Unit, HQ Land Forces)
Capt. Yatagea Sukeo (Adjutant to the Commanding Officer of the Hong Kong Gendarmerie)
Axel Olsson (Warehouse foreman)
Boris Pasco (Book Seller)
Leung Hing-lin (Unemployed)
Defence Witnesses
W/O Yabuki Rikie (Accused, Warrant Officer of the Gendarmerie)
Takemoto Otojiro (Accused, Manager of the South China Branch of an Insurance Company)
Sgt/Major Enimoto Toshio (Sergeant/Major, Gendarmerie)
Capt. Ushiyama Yukio (Commanding Officer, Western District Gendarmerie)
Trial Dates
02-Aug-1946
03-Aug-1946
06-Aug-1946
07-Aug-1946
08-Aug-1946
Judgement Date
09-Aug-1946
Judgement Confirmation Date
04-Dec-1946
Judgement Promulgation Date
05-Dec-1946
Judgement
Held:
1. D1 was guilty with the exception of the named: Mr. MONAGHAN, Mr. EDMONSTON, Mr. G KOTWALL, Mr. HYDE.
2. D2 was guilty by special finding as follows: “COMMITTING A WAR CRIME, in that he, at Hong Kong between April 21, 1943 and June 13, 1943, when a member of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, was in violation of the laws and usages of war, concerned as a party to the ill-treatment of a civilian resident of Hong Kong, in custody at the said headquarters resulting in physical suffering to him.”
3. D3 was not guilty of the first charge but guilty of the second charge with the exception that the ill-treatment charged took place in July 1944 and not in 1943.
1. D1 was guilty with the exception of the named: Mr. MONAGHAN, Mr. EDMONSTON, Mr. G KOTWALL, Mr. HYDE.
2. D2 was guilty by special finding as follows: “COMMITTING A WAR CRIME, in that he, at Hong Kong between April 21, 1943 and June 13, 1943, when a member of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, was in violation of the laws and usages of war, concerned as a party to the ill-treatment of a civilian resident of Hong Kong, in custody at the said headquarters resulting in physical suffering to him.”
3. D3 was not guilty of the first charge but guilty of the second charge with the exception that the ill-treatment charged took place in July 1944 and not in 1943.
Petition
D3 petitioned:
1. The verdict was against the weight of evidence; and
2. The sentence was unduly severe in the light of the evidence.
On 18 November 1946, the Judge Advocate [unidentified Colonel, DJAG, Allied Land Forces, SEA] recommended dismissal of the petition and confirmation of the findings and the sentence.
“It may be pointed out here that on the first charge there was sufficient evidence against accused No. 1 YABUKI. There was also evidence against accused No. 2 and the court rightly found them guilty of the charge. Against the third accused, there was no evidence and he was rightly acquitted. As regards the 2nd charge the court has found the accused guilty of the charge with the exception that the ill-treatment charged took place in July 1944 and not in 1945”.
The Judge Advocate observed that the sentence of 6 years in the case of the third Accused “seems severe in view of the fact that he was acquitted on the first charge”. Nevertheless, he advised that the proceedings were in order and recommended confirmation of the sentences.
1. The verdict was against the weight of evidence; and
2. The sentence was unduly severe in the light of the evidence.
On 18 November 1946, the Judge Advocate [unidentified Colonel, DJAG, Allied Land Forces, SEA] recommended dismissal of the petition and confirmation of the findings and the sentence.
“It may be pointed out here that on the first charge there was sufficient evidence against accused No. 1 YABUKI. There was also evidence against accused No. 2 and the court rightly found them guilty of the charge. Against the third accused, there was no evidence and he was rightly acquitted. As regards the 2nd charge the court has found the accused guilty of the charge with the exception that the ill-treatment charged took place in July 1944 and not in 1945”.
The Judge Advocate observed that the sentence of 6 years in the case of the third Accused “seems severe in view of the fact that he was acquitted on the first charge”. Nevertheless, he advised that the proceedings were in order and recommended confirmation of the sentences.
Sentence Imposed
D1: 10 years imprisonment;
D2: 3 years imprisonment (subsequently remitted to 1 year imprisonment in the confirmation);
D3: 6 years imprisonment (subsequently remitted to 4 years imprisonment in the confirmation)
D2: 3 years imprisonment (subsequently remitted to 1 year imprisonment in the confirmation);
D3: 6 years imprisonment (subsequently remitted to 4 years imprisonment in the confirmation)
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; Civilians; "together concerned as parties"; Committed; Military Command Responsibility; Superior Orders; Interrogation; Torture; Cruel Inhuman or Degrading Treatment; Beating; Policy; War Crimes; Violations of laws and customs of war; Hearsay
Remarks
One lawyer for three Co-Accused.