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Case No.
WO235/1007
Accused
Capt. Shibata Shigeo (D1)
Sgt. Maj. Oba Takao (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that they at Hong Kong, between the 13th August, 1943 and the 19th February, 1945, when the accused SHIBATA SHIGEO was Commanding Officer of the EASTERN KEMPEITAI HEADQUARTERS and the accused OBA Takao was a member of the said Headquarters, were, in violation of the laws and usages of war, together concerned in the ill treatment of civilian residents while in custody of the said Headquarters causing the death of some and physical sufferings to others.”
“in that they at Hong Kong, between the 13th August, 1943 and the 19th February, 1945, when the accused SHIBATA SHIGEO was Commanding Officer of the EASTERN KEMPEITAI HEADQUARTERS and the accused OBA Takao was a member of the said Headquarters, were, in violation of the laws and usages of war, together concerned in the ill treatment of civilian residents while in custody of the said Headquarters causing the death of some and physical sufferings to others.”
Background
The first Accused (D1) was the Officer in Charge of the Eastern Kempeitai H.Q. in Hong Kong, and the second Accused (D2) was a member of his staff.
The Prosecution led evidence to prove that ill-treatment on a wide scale was meted out to civilian prisoners who were detained at the H.Q. Prisoners were beaten, "water" torture and “aeroplane” torture were used. A fierce Alsatian dog was kept there and used to savage prisoners during interrogation. Much of this evidence was of a general nature but there were specific allegations of ill-treatment by D2 personally.
The Prosecution led evidence to prove that ill-treatment on a wide scale was meted out to civilian prisoners who were detained at the H.Q. Prisoners were beaten, "water" torture and “aeroplane” torture were used. A fierce Alsatian dog was kept there and used to savage prisoners during interrogation. Much of this evidence was of a general nature but there were specific allegations of ill-treatment by D2 personally.
Allegations
The Prosecution alleged:
(1) Imprisonment of civilian residents and ill-treatment at the hands of Japanese gendarmes of the Eastern Kempeitai Headquarters, under conditions which are wholly unacceptable to normal standards of civilization;
(2) The torture which the victims suffered and their detention, amidst sordid surroundings, drove some to try and take their own life in sheer desperation;
(3) Several persons paid the supreme penalty of losing their lives under torture;
(4) Others survived with scars on their bodies, and with terible experiences.
As for D1, the Prosecution asked the Court to consider 1) whether D1, as the Commander, was liable for all the consequences which flowed out of the acts ordered by him, 2) whether D1 was instrumental in carrying out the policy of deliberate ill-treatment of civilians, and 3) whether D1 acquiesced in such acts, was concerned in them or knowingly failed to stop them.
D2 was alleged to be a consenting party to a continuous and systematic persecution and a part of the wider organization which made such tortures possible, by his active participation in the maltreatment of prisoners and prolonged attachment to the Eastern Kempeitai HQs.
The Prosecution relied on various witnesses who described the scene where D1 and D2 carried out their alleged criminal activities.
(1) Imprisonment of civilian residents and ill-treatment at the hands of Japanese gendarmes of the Eastern Kempeitai Headquarters, under conditions which are wholly unacceptable to normal standards of civilization;
(2) The torture which the victims suffered and their detention, amidst sordid surroundings, drove some to try and take their own life in sheer desperation;
(3) Several persons paid the supreme penalty of losing their lives under torture;
(4) Others survived with scars on their bodies, and with terible experiences.
As for D1, the Prosecution asked the Court to consider 1) whether D1, as the Commander, was liable for all the consequences which flowed out of the acts ordered by him, 2) whether D1 was instrumental in carrying out the policy of deliberate ill-treatment of civilians, and 3) whether D1 acquiesced in such acts, was concerned in them or knowingly failed to stop them.
D2 was alleged to be a consenting party to a continuous and systematic persecution and a part of the wider organization which made such tortures possible, by his active participation in the maltreatment of prisoners and prolonged attachment to the Eastern Kempeitai HQs.
The Prosecution relied on various witnesses who described the scene where D1 and D2 carried out their alleged criminal activities.
Defence
The Defence explained the poor living conditions of the prison as being due to shortage of food and transportation caused by Allied bombings. They also pointed out the need to conduct necessary arrests to maintain law and order in the territory.
The Defence attacked some witness statements by claiming exaggeration, inaccuracy, and mistakes of observation due to distance. It was also submitted that the witnesses failed to show that the dead bodies they saw were the result of ill-treatment by the Accused. Furthermore, every witness testified that they were given food twice a day, which is evidence that contradicts the claim that the Accused caused death by starvation in the prison.
D2 pleaded for the Court to be lenient, as the offence was minor.
The Defence attacked some witness statements by claiming exaggeration, inaccuracy, and mistakes of observation due to distance. It was also submitted that the witnesses failed to show that the dead bodies they saw were the result of ill-treatment by the Accused. Furthermore, every witness testified that they were given food twice a day, which is evidence that contradicts the claim that the Accused caused death by starvation in the prison.
D2 pleaded for the Court to be lenient, as the offence was minor.
Prosecutor
Major R.C. Lai, I.A.O.C. (Judge Advocate General’s Department, India)
Defence Counsel
Mr. Yamana Toshiso (Doctor of Law, Professor of International Law, Nihon University, Law Department, Tokyo)
Judges
President: Lt.Col. R.C. Laming (Dept of JAG India, Barrister-at-Law)
Members: Major J.T. Loranger; Capt. I. Gamble MC (JAG Branch, Canadian Army, 2nd Buffs)
Members: Major J.T. Loranger; Capt. I. Gamble MC (JAG Branch, Canadian Army, 2nd Buffs)
Advisory Officer
Capt. Kostiloff (1st Ghurka Rifles)
Prosecution Witnesses
Bea Con Yah(Lieutenant, Interpreter)
Sgt Roy ITC(Seatic Detachment, Hong Kong)
Lau Wing(Policeman)
Lau U Ting(Policeman)
Tang Kuen(Policeman)
Hoshu(Policeman)
George Samuel Ladd(Unknown)
Kung Chik Yan(Mattress Manufacturer / Police)
Tyebsee Barma(Merchant)
Dennis Victor(Dance hall operator)
A.N. Olison(Unknown)
Leung Kong(Army)
Sister Marie(Hospital worker)
Beatrice Chan(British Prison Department)
Dr. Silva Nicholas Varcassoff(Medical practitioner)
Tseng Yu Hao(Exporter and importer ? a business man)
Cheung Hok Ting(Telephone operator at hospital)
Defence Witnesses
Capt Shibata Shigeo(Accused)
OBA Takao(Accused)
William Albert Shea(Unknown)
Lt. Cel. Kawazawa Asae(Former Kempeitai)
Matsunobu Shigeru(Former Kempaitai)
Sgt Maj Kamaba(Unknown)
Trial Dates
10-Feb-1947
11-Feb-1947
14-Feb-1947
17-Feb-1947
19-Feb-1947
20-Feb-1947
21-Feb-1947
22-Feb-1947
23-Feb-1947
26-Feb-1947
28-Feb-1947
03-Mar-1947
04-Mar-1947
07-Mar-1947
Judgement Date
07-Mar-1947
Judgement Confirmation Date
03-Jun-1947
Judgement Promulgation Date
19-Jun-1947
Judgement
D1 – Not Guilty;
D2 – Guilty “except that the Court finds that the dates should be from October 1943 till 19th February 1945 and not from 13th August 1943 till 19th February 1945; and except for the words “together”, “the death of same” and “to others.”
D2 – Guilty “except that the Court finds that the dates should be from October 1943 till 19th February 1945 and not from 13th August 1943 till 19th February 1945; and except for the words “together”, “the death of same” and “to others.”
Petition
D2 petitioned. He admitted that he ill-treated a person at the Eastern Kempetai but submitted that the sentence was too severe.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947], observed that the Prosecution led evidence to show that ill-treatment on a wide scale was meted out to civilian prisoners who were detained in the Headquarters. “Much of this evidence was of a general nature but there were specific allegations of ill-treatment by No. 2 accused personally.”
The Judge Advocate advised that “In my opinion the defence was not very convincing and it appears that a conviction on the grounds of [Accused No.1’s] general responsibility as a commanding officer could have been sustained. No. 2 Accused admitted beating one prisoner and tying him to a tree, but stated that it was done when he was excited as the prisoner would not confess to his crime. He denied all the other allegations against him.”
The Judge Advocate advised that the petition be dismissed and the findings and sentence against D2 be confirmed.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947], observed that the Prosecution led evidence to show that ill-treatment on a wide scale was meted out to civilian prisoners who were detained in the Headquarters. “Much of this evidence was of a general nature but there were specific allegations of ill-treatment by No. 2 accused personally.”
The Judge Advocate advised that “In my opinion the defence was not very convincing and it appears that a conviction on the grounds of [Accused No.1’s] general responsibility as a commanding officer could have been sustained. No. 2 Accused admitted beating one prisoner and tying him to a tree, but stated that it was done when he was excited as the prisoner would not confess to his crime. He denied all the other allegations against him.”
The Judge Advocate advised that the petition be dismissed and the findings and sentence against D2 be confirmed.
Sentence Imposed
D2 – 3 years imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; together "concerned in"; Committed; Acquiesced; Military Command Responsibility; War Crimes; Violations of laws and customs of war; Persecution; Policy; Widespread; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Starvation; Suicide; Poor conditions of detention; Failure to provide adequate food and/or care; Failure to provide adequate medical care; Necessity
Remarks
Same lawyer - a Professor of International Law - represented both Co-Accused.
The Court visited the Eastern Gendarme Headquarters.
The Court visited the Eastern Gendarme Headquarters.