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Case No.
WO235/1037
Accused
Sergeant Tsubota Kanji
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
In that he “at Tsunwan Kempeitai Station, Hong Kong, between 1st July, 1943, on or about, and 31st December, 1944”, was, “in violation of the Laws and usages of war, concerned in the ill-treatment of Chinese civilians imprisoned in the said station causing the death of Lee Sau, Chang HonYing and Siu Kwai and other unidentified civilians aforesaid and causing physical sufferings to others, in particular Lam Sui, Siu Lin, Siu Ying, Fong Show, Siu Kwong Wu, Lum Shing, Siu Chow (otherwise spelt Chiu), Wong Fook and Eng Dong Hoi.”
In that he “at Tsunwan Kempeitai Station, Hong Kong, between 1st July, 1943, on or about, and 31st December, 1944”, was, “in violation of the Laws and usages of war, concerned in the ill-treatment of Chinese civilians imprisoned in the said station causing the death of Lee Sau, Chang HonYing and Siu Kwai and other unidentified civilians aforesaid and causing physical sufferings to others, in particular Lam Sui, Siu Lin, Siu Ying, Fong Show, Siu Kwong Wu, Lum Shing, Siu Chow (otherwise spelt Chiu), Wong Fook and Eng Dong Hoi.”
Background
The Accused was a Sergeant serving in the Kempeitai. He had been a "drawer" working in a company and was conscripted to the Japanese Army during the war. He said that he volunteered to be a Gendarme because the wages were 10 times that of ordinary soldiers so that he could send the money back to his poor family.
Lum was a local Chinese interpreter (no record that he was tried) who allegedly helped the Accused in torturing and interrogating the victims.
Lum was a local Chinese interpreter (no record that he was tried) who allegedly helped the Accused in torturing and interrogating the victims.
Allegations
There was evidence of torture, insanitary conditions in the cells, insufficient food and lack of medical treatment. The Prosecution sought to prove that the Accused was actively engaged in torture and allowed poor conditions to exist at the place of detention.
The Prosecution was also alleged that the Accused took an active part in the interrogation and the ill-treatment of detainees at the station. The use of “air-plane” torture, kicking, beating, and burning by cigarettes or lighted paper was alleged.
A former Commanding Officer, Major Hirao Yoshio, Commander of the Kowloon Kempetei HQ who himself was accused of War Crimes, was called to give evidence. He testified that medical supplies were limited and that food was plentiful.
The Prosecution was also alleged that the Accused took an active part in the interrogation and the ill-treatment of detainees at the station. The use of “air-plane” torture, kicking, beating, and burning by cigarettes or lighted paper was alleged.
A former Commanding Officer, Major Hirao Yoshio, Commander of the Kowloon Kempetei HQ who himself was accused of War Crimes, was called to give evidence. He testified that medical supplies were limited and that food was plentiful.
Defence
The Defence started by challenging the credibility of the Prosecution's witnesses. It alleged that Siu Kwong Wu, Lum Shing, Lam Sui, Siu Lin and Siu Chow were all employees of the Bakery of which Siu Ying was the proprietor. The Defence asked the Court to treat testimonies from all of them with caution as they were “all of one skin”.
It was alleged that Lum, the Chinese interpreter, was actually involved in a lot of the torturing and beating. The Defence suspected that, because Lum was not brought to trial, the bitter feelings which the witnesses felt towards Lum have been turned on to the Accused. The Defence also pointed out that the identity of Lum was confused with the Accused, in order to attack reliability of the witnesses' statements as to whether the Accused was present during the tortures.
Concerning the deaths of Siu Kwai, Chang Hon Ying, and Lee Sau, the Defence, based on the questioning of witnesses, deduced that the named people should have been released before their death, and that it was impossible for them to have died during their detention.
The Defence argued that Chang Hon Ying died from an illness not from being tortured. The alleged interrogation did not have anything to do with his death.
The testimony of Lam Sui in relation to the torture was hearsay evidence that should either have been excluded or be given very little weight.
The Defence also dealt with the alleged ill-treatment by suggesting that they were done with justification or by claiming misrepresentation in the testimonies. For example, it was argued that it was a “recognized common sense thing to take away belts or any string from a person who he is placed in a cell”, although it eventually caused the falling off of the trousers when he was hung in the air.
It was alleged that Lum, the Chinese interpreter, was actually involved in a lot of the torturing and beating. The Defence suspected that, because Lum was not brought to trial, the bitter feelings which the witnesses felt towards Lum have been turned on to the Accused. The Defence also pointed out that the identity of Lum was confused with the Accused, in order to attack reliability of the witnesses' statements as to whether the Accused was present during the tortures.
Concerning the deaths of Siu Kwai, Chang Hon Ying, and Lee Sau, the Defence, based on the questioning of witnesses, deduced that the named people should have been released before their death, and that it was impossible for them to have died during their detention.
The Defence argued that Chang Hon Ying died from an illness not from being tortured. The alleged interrogation did not have anything to do with his death.
The testimony of Lam Sui in relation to the torture was hearsay evidence that should either have been excluded or be given very little weight.
The Defence also dealt with the alleged ill-treatment by suggesting that they were done with justification or by claiming misrepresentation in the testimonies. For example, it was argued that it was a “recognized common sense thing to take away belts or any string from a person who he is placed in a cell”, although it eventually caused the falling off of the trousers when he was hung in the air.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr. Yoshizumi Tatsuichiro (Member of Yokohama Advocates Association)
Judges
President: Lt. Col R.C. Laming, Barrister (Dept of the JAG, India)
Members: Major R.S. Butterfield (Indian Grenadiers); Major J.T. Loranger (Canadian Army, JAG Branch)
Members: Major R.S. Butterfield (Indian Grenadiers); Major J.T. Loranger (Canadian Army, JAG Branch)
Advisory Officer
Lieut D.C.J. Banfield (The Buffs)
Prosecution Witnesses
Major M.I. Ormsby(Prosecutor)
Lee Ming(Tricycle coolie)
Fong Chow(Tricycle coolie)
Siu Ying(Baker)
Siu Kwong Wu(Hawker)
Lam Shing(Farmer)
Lam Sui(Baker)
Siu Lin(Farmer)
Wong Fook(Detective)
Defence Witnesses
Tsubota Kunji(Gendarme)
Major Shiozawa(Gendarme Major)
Major Hirao Yoshio(Gendarme Major)
Sgt. Ozawa Tomokichi(Kempei Sergeant)
Court Witnesses
Major Moodie(Major, Royal Army Medical Corps)
Trial Dates
17-Jun-1947
18-Jun-1947
19-Jun-1947
20-Jun-1947
21-Jun-1947
23-Jun-1947
27-Jun-1947
Judgement Date
27-Jun-1947
Judgement
Guilty except for the words “causing the death of Liu Sau, Chan HonYing and Siu Kwai and other [un]identified civilians as aforesaid”, and the words “others in particular” and the words “Wong Fook and Eng Dong Hoi”.
Petition
There is no record of a Petition.
In his review of the case, the Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces, 20 August 1947] reported as follows: “There is ample evidence on record, in spite of minor discrepancies, to support the prosecution case as regards illtreatment but it was not proved conclusively that the accused was responsible for the deaths averred in the charge.”
“The defence admit slapping suspects under interrogation but denied torture. It was said that the accused was an inexperienced N.C.O. and the actual evidence genius was the interpreter LUM. However, it was admitted that the accused was present and did not stop him when suspects were tortured by hanging by the wrists. It was also submitted that the prosecution evidence regarding WONG FOOK and ENG DONG HOI was most unreliable.”
“The evidence justifies the findings and I advise that the proceedings are confirmed.”
In his review of the case, the Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces, 20 August 1947] reported as follows: “There is ample evidence on record, in spite of minor discrepancies, to support the prosecution case as regards illtreatment but it was not proved conclusively that the accused was responsible for the deaths averred in the charge.”
“The defence admit slapping suspects under interrogation but denied torture. It was said that the accused was an inexperienced N.C.O. and the actual evidence genius was the interpreter LUM. However, it was admitted that the accused was present and did not stop him when suspects were tortured by hanging by the wrists. It was also submitted that the prosecution evidence regarding WONG FOOK and ENG DONG HOI was most unreliable.”
“The evidence justifies the findings and I advise that the proceedings are confirmed.”
Sentence Imposed
Imprisonment of 2 years
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; "concerned in"; Committed; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Poor conditions of detention; Failure to provide adequate food and/or care; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war; Mistaken Identity; Death from natural causes