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Case No.
WO235/1030
Accused
Major General Tanaka Ryosaburo
Court
Military Court for the Trial of War Criminals No. 5
Charge
First Charge
“COMMITTING A WAR CRIME, in that he at Hong Kong, between the 17th and 28th December, 1941 as Commanding Officer of the 229th Regiment of 38th Division of the Imperial Japanese Army, was in violation of the laws and usages of war, concerned in the inhumane treatment of Prisoners of War by troops under his command, which inhumane treatment consisted of killing some and illtreating others.”
Second Charge
“COMMITTING A WAR CRIME, in that he at Hong Kong, between the 17th and 28th December, 1941 as Commanding Officer of the 229th Regiment of 38th Division of the Imperial Japanese Army, was in violation of the laws and usages of war, concerned in the inhumane treatment of Surrendered British, Canadian and Allied Troops by troops under his command, which inhumane treatment consisted of killing some and illtreating others.”
Third Charge
“COMMITTING A WAR CRIME, in that he at Hong Kong, on or about the 19th of December, 1941 as Commanding Officer of the 229th Regiment of 38th Division of the Imperial Japanese Army, was in violation of the laws and usages of war, concerned in the killing of Medical Personnel, who had been taken into custody at SALESIAN MISSION, SAU KI WAN”
“COMMITTING A WAR CRIME, in that he at Hong Kong, between the 17th and 28th December, 1941 as Commanding Officer of the 229th Regiment of 38th Division of the Imperial Japanese Army, was in violation of the laws and usages of war, concerned in the inhumane treatment of Prisoners of War by troops under his command, which inhumane treatment consisted of killing some and illtreating others.”
Second Charge
“COMMITTING A WAR CRIME, in that he at Hong Kong, between the 17th and 28th December, 1941 as Commanding Officer of the 229th Regiment of 38th Division of the Imperial Japanese Army, was in violation of the laws and usages of war, concerned in the inhumane treatment of Surrendered British, Canadian and Allied Troops by troops under his command, which inhumane treatment consisted of killing some and illtreating others.”
Third Charge
“COMMITTING A WAR CRIME, in that he at Hong Kong, on or about the 19th of December, 1941 as Commanding Officer of the 229th Regiment of 38th Division of the Imperial Japanese Army, was in violation of the laws and usages of war, concerned in the killing of Medical Personnel, who had been taken into custody at SALESIAN MISSION, SAU KI WAN”
Background
The Accused was the Commanding Officer of the 299th Regiment (“Butai”) of the 38th Division of the Imperial Japanese Army, also known as the Tanaka Butai.
This case concerned the fall of Hong Kong Island on the night of 18 December 1941. Three Regiments of the Japanese Army attacked – the Tanaka Butai on the right (landed at Sau Ki Wan); the Doi Butai in the centre (landed at Tai Koo Docks) and the Shoji Butai on the left (landed at North Point). They were to proceed to Wong Nei Chong Gap, after which they had separate objectives.
The case concerned only the first Butai. It had the objective of reaching High West. It proceeded through Sau Ki Wan, to Stanley Gap after Wong Nei Chung Gap, then to Repulse Bay, Deep Water Bay, and reached High West after fighting through Brick Hill and Shou Shan Hill.
During its campaign (which included the capture of Wong Nei Chung Gap and Sai Wan Hill and later the Salesian Mission Massacre and the fall of Repulse Bay), many atrocities were committed. People were bayoneted, butchered or shot, after being taken prisoner after having surrendered.
This case concerned the fall of Hong Kong Island on the night of 18 December 1941. Three Regiments of the Japanese Army attacked – the Tanaka Butai on the right (landed at Sau Ki Wan); the Doi Butai in the centre (landed at Tai Koo Docks) and the Shoji Butai on the left (landed at North Point). They were to proceed to Wong Nei Chong Gap, after which they had separate objectives.
The case concerned only the first Butai. It had the objective of reaching High West. It proceeded through Sau Ki Wan, to Stanley Gap after Wong Nei Chung Gap, then to Repulse Bay, Deep Water Bay, and reached High West after fighting through Brick Hill and Shou Shan Hill.
During its campaign (which included the capture of Wong Nei Chung Gap and Sai Wan Hill and later the Salesian Mission Massacre and the fall of Repulse Bay), many atrocities were committed. People were bayoneted, butchered or shot, after being taken prisoner after having surrendered.
Allegations
The Prosecution sought to establish that the charged atrocities did in fact occur, and there was no room for doubt that the Tanaka Butai was implicated. The Prosecution adduced evidence to prove such occurrences, some of the witnesses being eye-witnesses and potential victims who, by chance, escaped.
Specific incidents were highlighted:
1. Lye Mun and Sai Wan Fort at Sau Ki Wan: Bayoneting captured soldiers.
2. Salesian Mission (medical post): Butchering male military and civilian personnel. Women were taken away.
3. Pryce Incident at Island Road (Lye Mun): Two Canadian soldiers were made to work all day then bayoneted.
4. Murder of a wounded Hong Kong Singapore Artillery officer and the bayoneting of other captured soldiers.
5. Eucliffe at Repulse Bay: A number of soldiers who had surrendered were executed.
6. Wong Nei Chung Gap to Repulse Bay: Murder of personnel at various places.
7. Post Repulse Bay: The killing of 3 officers on Shou Shan Hill; the bayoneting of the remnants of a grenadier company at Little Hong Kong.
On the question of responsibility, the Prosecution accepted that there was no evidence that the Accused directly ordered the Prisoners of War (‘POWs’) to be executed. However, there was circumstantial evidence, from various witnesses and also the “similarity of what happened at various places”, showing that such orders or otherwise similar policies were in effect.
The Prosecution argued that “while isolated instances may occur which are not in the power of the Commander to prevent, when the abuses are widespread it argues that properly effective measures have not been taken” (citing and later quoting Yamashita, United States Supreme Court). It was argued that the Accused failed to take proper steps to prevent and also punish his subordinates for illegal acts. Given that it was clear that atrocities did take place, whatever instructions/order/speeches/warning given were insufficient in such instances.
Specific incidents were highlighted:
1. Lye Mun and Sai Wan Fort at Sau Ki Wan: Bayoneting captured soldiers.
2. Salesian Mission (medical post): Butchering male military and civilian personnel. Women were taken away.
3. Pryce Incident at Island Road (Lye Mun): Two Canadian soldiers were made to work all day then bayoneted.
4. Murder of a wounded Hong Kong Singapore Artillery officer and the bayoneting of other captured soldiers.
5. Eucliffe at Repulse Bay: A number of soldiers who had surrendered were executed.
6. Wong Nei Chung Gap to Repulse Bay: Murder of personnel at various places.
7. Post Repulse Bay: The killing of 3 officers on Shou Shan Hill; the bayoneting of the remnants of a grenadier company at Little Hong Kong.
On the question of responsibility, the Prosecution accepted that there was no evidence that the Accused directly ordered the Prisoners of War (‘POWs’) to be executed. However, there was circumstantial evidence, from various witnesses and also the “similarity of what happened at various places”, showing that such orders or otherwise similar policies were in effect.
The Prosecution argued that “while isolated instances may occur which are not in the power of the Commander to prevent, when the abuses are widespread it argues that properly effective measures have not been taken” (citing and later quoting Yamashita, United States Supreme Court). It was argued that the Accused failed to take proper steps to prevent and also punish his subordinates for illegal acts. Given that it was clear that atrocities did take place, whatever instructions/order/speeches/warning given were insufficient in such instances.
Defence
The main thrust of the defence was on the insufficiency of evidence and Command Responsibility.
It was not disputed that criminal acts might have been committed. But, it was not clear whether these acts were committed by troops under the control of the Accused.
The Defence pointed to specific witnesses’ affidavits/testimonies and argued that the discrepancies or inconsistencies therein were sufficient to raise doubt in the identity of the perpetrator of the crimes.
It was also argued that even if criminal acts were committed by the troops under the command of the Accused, he could not be held responsible for them, for he had, at all times, correctly carried out his duties as a commander and supervised his subordinates. Among the points made were the following:
1. The Accused had a practice of guiding and instructing his subordinates so that the POWs and others would be treated in accordance with International Law. Generally, no specific orders were issued to avoid having to issue orders for imaginary situations. Subordinates were educated and that was all. The Accused already did more than the usual practice.
2. He had never issued any orders that might infringe International Law. He took all reasonable steps to ensure that his men observed the rules of war with regard to prisoners and surrendered persons.
3. Such orders might have been issued; if they were issued at all, they were issued by commanders of other Regiments (Butai).
4. The Accused had no knowledge of any ill treatment. Even if he saw that the POWs were tied up, he was informed that they were tied up because they tried to escape. The lack of knowledge rendered it impossible for him to allow or induce any illegal conduct at all.
It was not disputed that criminal acts might have been committed. But, it was not clear whether these acts were committed by troops under the control of the Accused.
The Defence pointed to specific witnesses’ affidavits/testimonies and argued that the discrepancies or inconsistencies therein were sufficient to raise doubt in the identity of the perpetrator of the crimes.
It was also argued that even if criminal acts were committed by the troops under the command of the Accused, he could not be held responsible for them, for he had, at all times, correctly carried out his duties as a commander and supervised his subordinates. Among the points made were the following:
1. The Accused had a practice of guiding and instructing his subordinates so that the POWs and others would be treated in accordance with International Law. Generally, no specific orders were issued to avoid having to issue orders for imaginary situations. Subordinates were educated and that was all. The Accused already did more than the usual practice.
2. He had never issued any orders that might infringe International Law. He took all reasonable steps to ensure that his men observed the rules of war with regard to prisoners and surrendered persons.
3. Such orders might have been issued; if they were issued at all, they were issued by commanders of other Regiments (Butai).
4. The Accused had no knowledge of any ill treatment. Even if he saw that the POWs were tied up, he was informed that they were tied up because they tried to escape. The lack of knowledge rendered it impossible for him to allow or induce any illegal conduct at all.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr. Yamana Toshio (Doctor of Jurisprudence (Japan); Doctor of Philosophy (US))
Judges
President: Lt. Col. R.C. Laming (Barrister, Indian Army)
Members: Major R.S. Butterfield (Indian Grenadiers); Capt E.R. Busfired (R.A.C.)
Members: Major R.S. Butterfield (Indian Grenadiers); Capt E.R. Busfired (R.A.C.)
Advisory Officer
Lieut. D.C.J. Banfield (The BUFFS)
Prosecution Witnesses
Capt. Watson(War Crimes Investigation Team, Hong Kong)
Major G.B. Puddicombe(Major, Victoria Rifle, Canada. Officer-In-Charge, Canadian War Crimes Liaison Section, Hong Kong Detachment)
Major Banfill(Major, R.C.A.M.C. (Reserve Officer); Medical Officer, Royal Rifles of Canada.)
Mr. Wiseman(R.A.S.C.; Ex-prisoner of war)
Ah Tim alias Cheung Tim(Local Storeman, No. 9 Oilfield Stores, Kowloon)
Chan Yam Kwong(Merchant)
Mr. Martin Tso Him Chi(Employee, Bank of Communications)
Col.-Lt. Ride, C.B.E.(Professor, University of Hong Kong; Army Colonel, British Army; In command of the Field Ambulance.)
Mr. G.A. Lemay(Member of the H.K.V.D.C.; Ex-prisoner)
Mr. J.P. White(Costing Clerk; Member of the H.K.V.D.C.)
Mr. J.M. Baud(Manager, N.J.S. Bath & Co.)
Madame OHL(Unknown)
Mr. Woulfe Flanagan(Employee, Import & Export Department)
Mr. Henri Boesveld(Unknown)
Lai Kowk(Civilian, Li Shou Son Village, Aberdeen)
Major J.T.N. Cross(Major; No. 14 War Crimes Investigation Team)
Defence Witnesses
Major General Tanaka Ryosaburo(Accused. Army Colonel, Regimental Commander, 229th Regiment)
Capt. Diggens(Army Officer, Section Officer of the 52 Graves Concentration Unit)
Miss Lois Fearon(Unknown)
Major General Shoji(Army Major General, Commander, 230th Infantry Regiment, 38th Division, Japanese Army)
Capt. Ushiyama Sukeo(Gendarme Captain, Headquarter under the command of Col. NOMA.)
Capt. Hunter(Captain, Royal Army Medical Corps, British Military Hospital.)
Saito Noboru(Interpreter, No. 5 War Crimes Court)
Court Witnesses
Major. L. H. Clifford(Devon Regiments, Officer-In-Charge, Japanese Suspected Personnel Stanley Gaol.)
Major A.S. Moodie(Major, R.A.M.C., D.A.D.H., H.Q., Land Forces)
Lieut Banfield(Lieutenant, 2nd Bn. BUFFS, attached to the No. 5 War Crimes Court as Advisory Officer.)
Trial Dates
08-Apr-1947
09-Apr-1947
10-Apr-1947
21-Apr-1947
22-Apr-1947
23-Apr-1947
24-Apr-1947
25-Apr-1947
26-Apr-1947
28-Apr-1947
29-Apr-1947
30-Apr-1947
01-May-1947
05-May-1947
21-May-1947
22-May-1947
Judgement Date
22-May-1947
Judgement Confirmation Date
30-Jul-1947
Judgement Promulgation Date
05-Aug-1947
Judgement
Held:
1. The Accused was guilty of the first and second charges;
2. The Accused was not guilty of third charge.
1. The Accused was guilty of the first and second charges;
2. The Accused was not guilty of third charge.
Petition
The Accused petitioned. He argued that no commanding officer should be liable for the acts of subordinates unless “he ordered or induced or allowed his subordinates to behave illegally or he neglected his duties, as a commanding officer, in the supervision and guidance of his subordinates.” However, he had never ordered, induced nor allowed any ill-treatment or killing of POWs. He also gave every instruction to his subordinates to prevent conduct contrary to International Law. He had also supervised and instructed his subordinates and carried out his duties as a commander. Furthermore:
• The Prosecution’s evidence and witnesses’ testimony contained discrepancies, contradictions and unreasonable statements and as such rendered the truth regarding the alleged events doubtful.
• The sentence was unduly severe.
The Judge Advocate [unidentified Brigadier, DJAG, Southeast Asia Land Forces, 17 July 1947] advised dismissal of the petition as it did not disclose any “new factors materially affecting the issue which were not before the court”. It repeated the theme that the accused had done all that could be reasonably required of him to control his troops and that if atrocities did in fact occur, he was not to blame as they were committed in violation of his orders and without his consent.
The Judge Advocate observed that the prosecution “established beyond any reasonable doubt that the specific atrocities alleged did in fact occur and there was no room for reasonable doubt that the Tanaka Butai was implicated except as regards the incident referred to in the third charge”. The prosecution brought evidence intended to show that Tanaka failed to exercise control over his men and failed to ensure against brutalities being committed by his men. “There is evidence to show that the accused was quite indifferent to the misdeeds of his men in regard to prisoners or surrendered personnel, or at any rate he took no firm measures to control their activities, despite the fact that, on his own admission, he was apprehensive as to how his troops might behave.”
The Judge Advocate observed that “the testimony adduced by them [the defence] raised a doubt in the mind of the court with regard to the third charge (viz. in so far as the accused’s unit might well NOT have been concerned in that particular atrocity). The accused was accordingly acquitted on that charge.”
“The evidence supports the findings of the court on the first two charges and it is quite clear that the accused must have known that such acts were being performed by his men as to infringe the rules of warfare. To that extent the accused may be said to have been “concerned in” the atrocities complained of.”
• The Prosecution’s evidence and witnesses’ testimony contained discrepancies, contradictions and unreasonable statements and as such rendered the truth regarding the alleged events doubtful.
• The sentence was unduly severe.
The Judge Advocate [unidentified Brigadier, DJAG, Southeast Asia Land Forces, 17 July 1947] advised dismissal of the petition as it did not disclose any “new factors materially affecting the issue which were not before the court”. It repeated the theme that the accused had done all that could be reasonably required of him to control his troops and that if atrocities did in fact occur, he was not to blame as they were committed in violation of his orders and without his consent.
The Judge Advocate observed that the prosecution “established beyond any reasonable doubt that the specific atrocities alleged did in fact occur and there was no room for reasonable doubt that the Tanaka Butai was implicated except as regards the incident referred to in the third charge”. The prosecution brought evidence intended to show that Tanaka failed to exercise control over his men and failed to ensure against brutalities being committed by his men. “There is evidence to show that the accused was quite indifferent to the misdeeds of his men in regard to prisoners or surrendered personnel, or at any rate he took no firm measures to control their activities, despite the fact that, on his own admission, he was apprehensive as to how his troops might behave.”
The Judge Advocate observed that “the testimony adduced by them [the defence] raised a doubt in the mind of the court with regard to the third charge (viz. in so far as the accused’s unit might well NOT have been concerned in that particular atrocity). The accused was accordingly acquitted on that charge.”
“The evidence supports the findings of the court on the first two charges and it is quite clear that the accused must have known that such acts were being performed by his men as to infringe the rules of warfare. To that extent the accused may be said to have been “concerned in” the atrocities complained of.”
Sentence Imposed
20 years imprisonment
Keywords
Battle for Hong Kong; 38th Infantry Unit; 299th Regiment; Imperial Japanese Army; Hong Kong; Civilians; Prisoners of War; Medical or related personnel; Medical formations and establishments; Detention Centre; "concerned in"; War Crimes; Violations of laws and customs of war; Surrender; Prisoners of War; Sick or Wounded; Unlawful killing; Sexual violence; Abduction; Disappearance; Torture; Cruel Inhuman or Degrading Treatment; Forced Labour; Military Command Responsibility; Yamashita; Superior Orders
Remarks
On 13 May 1947, the Court conducted an ‘on site visit’. It proceeded to the Repulse Bay Hotel Garage to inspect the scene. The Court reassembled at the Repulse Bay Hotel Garage on the same day (the Court, Accused, Counsel, Advisory Officer, interpreters, monitor and shorthand writer). The Accused was questioned further. The Court later walked along the road and asked the Accused to answer the questions along the way.
Refer to the trials of Major General Shoji Toshishige (Case No. WO/235/1015) and Lt. Gen. Ito Takeo (Case No. WO/235/1107).
Refer to the trials of Major General Shoji Toshishige (Case No. WO/235/1015) and Lt. Gen. Ito Takeo (Case No. WO/235/1107).