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Case No.
WO235/1041
Accused
Capt.Ushiyama Yukio (D1)
S/M Ishiyama Kakue (D2)
S/M Morino Sakuzo (D3)
S/M Matsuyama Hiroshi (D4)
Charge
“COMMITTING A WAR CRIME, in that they, at Hong Kong, between the 30th December 1941 and the 17th February 1945, the accused Capt. USHIYAMA Yukio, as Commanding Officer of the Western Kempeitai Headquarters and the other named accused as members of the staff of the said Headquarters, in violation of the laws and usages of war were together concerned in the ill-treatment of persons in custody at the aforesaid Headquarters, causing the death of some and physical suffering to others”
Background
The case concerns alleged ill-treatment that occurred within the Western Kempeitai Headquarters. The Western Kempeitai Headquarters was housed first in the O.S.K. Building, later relocated to the Central Police Station in 1942.
The first Accused (D1) was the commanding officer of the Western Kempeitai (30 December 1941 – 17 February 1945).
The second Accused (D2) was a member of the staff of the said Headquarters for the same period of time.
The third Accused (D3) was the officer-in-charge of the special branch at the said Headquarters (14 May 1944 – February 1945).
The fourth Accused (D4) was a member of the staff of the said Headquarters (20 March 1942 – February 1945).
The first Accused (D1) was the commanding officer of the Western Kempeitai (30 December 1941 – 17 February 1945).
The second Accused (D2) was a member of the staff of the said Headquarters for the same period of time.
The third Accused (D3) was the officer-in-charge of the special branch at the said Headquarters (14 May 1944 – February 1945).
The fourth Accused (D4) was a member of the staff of the said Headquarters (20 March 1942 – February 1945).
Allegations
Regarding D1, it was alleged that because of the power of command, which he exercised during the period with which we are concerned, he was responsible for the unlawful conduct committed by his subordinates. Specifically, the Prosecution relied on the notion of “concerned in” to connote that the first accused was “senior in rank and appointment at the HQ…[and] in command of all kempeitai personnel and, as such, was unquestionably responsible for their actions”, when crimes were committed by such subordinates, the first Accused would be so “concerned in” such actions.
It was alleged, inter alia, that D1 initiated or ordered criminal actions against "prisoners" in custody. Alternatively, it was argued that he acquiesced such actions, connived in permitting them and knowingly failed to stop them.
In relation to the other Accused, it was alleged that they directly committed the alleged criminal conduct, which included indiscriminate beating of "prisoners" for prolonged periods, “water torture”, “aeroplane torture”, the "reckless execution" of "prisoners", deliberate starvation, keeping or detaining the detainees in filthy and indescribably insanitary living conditions etc. All these caused prisoners to be injured or killed, some were driven to suicide while some survived.
It was alleged, inter alia, that D1 initiated or ordered criminal actions against "prisoners" in custody. Alternatively, it was argued that he acquiesced such actions, connived in permitting them and knowingly failed to stop them.
In relation to the other Accused, it was alleged that they directly committed the alleged criminal conduct, which included indiscriminate beating of "prisoners" for prolonged periods, “water torture”, “aeroplane torture”, the "reckless execution" of "prisoners", deliberate starvation, keeping or detaining the detainees in filthy and indescribably insanitary living conditions etc. All these caused prisoners to be injured or killed, some were driven to suicide while some survived.
Defence
On D1
The Defence argued that the prosecutor had made no attempt to prove “ordering or initiating” crimes by D1. It also argued that there was insufficient evidence to prove acquiescence or failure to stop the crimes. The Defence argued this point on the basis of testimonies given by Prosecution witnesses.
On the point of knowledge of misconduct, the Defence argued that there was insufficient evidence suggesting that D1 knew of the crimes, if any. Also, “it would be obviously unfair if it should be presumed that the proving of [the alleged crimes] would make [the first Accused] criminally responsible merely on the ground that he held the position of a commandant”.
On the question of adequate steps to prevent such criminal conduct, the Defence argued that there was insufficient evidence to sustain the allegation. D1 had many other duties, and in such circumstances, he had “carried out his duties of supervision conscientiously”. On the specific allegations of starvation and living conditions, the Defence argued that the Prosecution failed to prove that D1 had responsibility/control over the supply of food and bedding.
The Defence argued that there was insufficient evidence to prove the alleged crimes had actually occurred. The Defence challenged the evidence of Prosecution witnesses and argued that they were either unreliable or contained contradictory testimonies. On the specific point of deaths, it was argued that these persons were just “vagrants and destitutes” found dying already and the Accused were only required to give them a roof over their heads.
On D2-D4
The Defence primarily argued that there was insufficient evidence to prove the guilt of the remaining Accused. It challenged the consistency of Prosecution witnesses. It attacked their credibility. Alternatively, the Defence approach was to deny outright that the Accused knew anything about crimes alleged, such as the killing of six policemen in the Central Police Station.
The Defence argued that the prosecutor had made no attempt to prove “ordering or initiating” crimes by D1. It also argued that there was insufficient evidence to prove acquiescence or failure to stop the crimes. The Defence argued this point on the basis of testimonies given by Prosecution witnesses.
On the point of knowledge of misconduct, the Defence argued that there was insufficient evidence suggesting that D1 knew of the crimes, if any. Also, “it would be obviously unfair if it should be presumed that the proving of [the alleged crimes] would make [the first Accused] criminally responsible merely on the ground that he held the position of a commandant”.
On the question of adequate steps to prevent such criminal conduct, the Defence argued that there was insufficient evidence to sustain the allegation. D1 had many other duties, and in such circumstances, he had “carried out his duties of supervision conscientiously”. On the specific allegations of starvation and living conditions, the Defence argued that the Prosecution failed to prove that D1 had responsibility/control over the supply of food and bedding.
The Defence argued that there was insufficient evidence to prove the alleged crimes had actually occurred. The Defence challenged the evidence of Prosecution witnesses and argued that they were either unreliable or contained contradictory testimonies. On the specific point of deaths, it was argued that these persons were just “vagrants and destitutes” found dying already and the Accused were only required to give them a roof over their heads.
On D2-D4
The Defence primarily argued that there was insufficient evidence to prove the guilt of the remaining Accused. It challenged the consistency of Prosecution witnesses. It attacked their credibility. Alternatively, the Defence approach was to deny outright that the Accused knew anything about crimes alleged, such as the killing of six policemen in the Central Police Station.
Prosecutor
Major R.C. Lai (Dept. of JAG, India, Barrister-at-Law)
Defence Counsel
Mr. Koochi Murata (Japanese Lawyer, Barrister, Tokyo Supreme Court)
Judges
President: Lt. Col. N.G. Wait (Int. Corps.)
Members: Major A. Clayworth (R.A.); R.B.R. Gorely (K.R.R.C.)
Members: Major A. Clayworth (R.A.); R.B.R. Gorely (K.R.R.C.)
Advisory Officer
Lieut. D.C.J. Banfield (The BUFFS)
Prosecution Witnesses
Major Chan Ying-Hung(Solicitor, Legal Major, War Crimes Investigation Unit.)
Capt. E.C. Watson(Captain, General List, No. 14 War Crimes Team, Hong Kong)
Kogi Kazuo(Lieut-Colonel, Imperial Japanese Army)
Choy Tak(Merchant in crude oil business)
K.W. Chaun(Dental Surgeon)
Tam Choi(Police Constable, Hong Kong Police)
Man Yeung(Cashier, Man Yeung Teahouse)
Yip Pit-Van(Medical Student, University of Hong Kong)
Dr. S.S. Ramler(Medical Practitioner)
Mrs. Chester Bennet(Ex-Prisoner of the Japanese Army)
Tseng Pei-fu(Unemployed, Former policeman, Central Police Station under the command of Ushiyama.)
Pong Sau-ying(Unknown (Spouse of Chau Man-Kwong, prisoner executed by the Japanese Army))
A.K. Omar(Employee, Daily Farm; Ex-Prisoner of War at the Central Police Station)
Lau Chung Yiu(Civil Servant, Hong Kong Government; Ex-prisoner, Western Gendarmerie at Former Victoria Gaol.)
Aaron Landau(Restaurant Keeper, Ex-Prisoner at the Central Police Station.)
Tang Kai-wing(Employee, Land Officer; Ex-Prisoner at the Western Gendarmerie)
Mrs Mary E. Silver Dorabojee(Ex-Prisoner, Central Police Station)
Miss Nancy Yip(Cashier, Jimmy?s Kitchen; Ex-Prisoner, Central Police Station)
Luk Koon-Chun(Employee, General Post Office; Ex-Prisoner, Central Police Station)
Defence Witnesses
Capt. Ushiyama Yukio(First Accused)
Sgt.-Maj. Ishiyama Kakue(Second Accused, Gendarme Sergeant-Major, Hong Kong Island Western District Gendarmerie)
Sgt.-Maj. Morino Sakuzo(Third Accused, Kempei Sergeant-Major, Western District Gendarmerie, Kempeitai.)
Matsuyama Hiroshi(Gendarmerie Sergeant-Major, Western District Gendarmerie)
Capt. Yatagai Sukeo(Kempei Captain, Hong Kong Kempei Headquarter)
Lt. Tanaka Hitoshi(Army Lieutenant, staff of the Hong Kong POW Camp (Chief, Information Bureau/Commanding Officer, Argyle Camp))
Ohtsuka Sekitaro(Head, a General Department Store; Temporary Interpreter, Gendarmerie Headquarter.)
Trial Dates
07-Jul-1947
08-Jul-1947
09-Jul-1947
10-Jul-1947
16-Jul-1947
17-Jul-1947
18-Jul-1947
19-Jul-1947
21-Jul-1947
22-Jul-1947
30-Jul-1947
31-Jul-1947
01-Aug-1947
02-Aug-1947
05-Aug-1947
11-Aug-1947
Judgement Date
12-Aug-1947
Judgement Confirmation Date
09-Oct-1947
Judgement Promulgation Date
13-Oct-1947
Judgement
Held:
1. D1, D2 and D3 were guilty;
2. D4 was not guilty.
1. D1, D2 and D3 were guilty;
2. D4 was not guilty.
Petition
D1 filed a detailed petition. He argued that:
1. The finding was prejudiced by the Panel and the Defence counsel (D1 had sought to change his counsel during the trial; the application was rejected);
2. There was insufficient prima facie evidence;
3. Certain witness statements were false;
4. He had never admitted anything regarding the alleged criminal acts;
5. The sentence was too severe.
A number of petitions were filed on behalf of D1, they included:
1. One filed by Kanazawa Asao (O.I.C., the Police Affairs Section, Governor-General’s Office) which stated his own version of the events which allegedly supported the innocence of D1;
2. One filed by Kawai Yoshimasa (Classmate and close friend of D1) to support his belief that D1 was innocent;
3. One filed by Hatsuichi Ikegami (friend of D1) to support his belief that D was innocent;
4. Major Morino Sakuzo (Kempeitai Sergeant，Co-Accused) argued that D1 had no actual control over the performance of the Kempeitai. As he was too busy/occupied, such control rested with W/O Sakamoto and other junior officer. D1 was in no position to be held responsible for minor matters. He noted that D1’s instruction on interrogation was to “treat the suspects properly and with kindness” and that he “cautioned his subordinates that beating or any other form of torture was never to be applied…violations of these intructions were to be dealt with severely”;
5. One jointly filed by Toda Mitsugu, Nakamura Katsumi, Utsunomiya Kozo, Suyenobu Fumio, Nagai Takegoro, Matsumura Toshio, Dzushi Teruo, Cho Kun Toku, Uyete Taichi, Oita Yoshiyiro, Takenchi Suyeichi, Imamura Yaohachi, as co-prisoners of D1 to support their belief that D1 was innocent.
D2 petitioned. He argued that:
1. Although he admitted that there were some beatings, they were conducted without malice or his “temporary feelings”;
2. He used Jiujitsu to defend himself;
3. There was insufficient evidence to prove torture;
4. The sentence was too severe.
D3 petitioned. He argued that:
1. There was insufficient prima facie evidence;
2. Certain witnesses’ statements were false;
3. The sentence was too severe.
There is no reviewing officer report by a Judge Advocate on the file.
[The petitions appear to reiterate issues that were raised at trial.]
1. The finding was prejudiced by the Panel and the Defence counsel (D1 had sought to change his counsel during the trial; the application was rejected);
2. There was insufficient prima facie evidence;
3. Certain witness statements were false;
4. He had never admitted anything regarding the alleged criminal acts;
5. The sentence was too severe.
A number of petitions were filed on behalf of D1, they included:
1. One filed by Kanazawa Asao (O.I.C., the Police Affairs Section, Governor-General’s Office) which stated his own version of the events which allegedly supported the innocence of D1;
2. One filed by Kawai Yoshimasa (Classmate and close friend of D1) to support his belief that D1 was innocent;
3. One filed by Hatsuichi Ikegami (friend of D1) to support his belief that D was innocent;
4. Major Morino Sakuzo (Kempeitai Sergeant，Co-Accused) argued that D1 had no actual control over the performance of the Kempeitai. As he was too busy/occupied, such control rested with W/O Sakamoto and other junior officer. D1 was in no position to be held responsible for minor matters. He noted that D1’s instruction on interrogation was to “treat the suspects properly and with kindness” and that he “cautioned his subordinates that beating or any other form of torture was never to be applied…violations of these intructions were to be dealt with severely”;
5. One jointly filed by Toda Mitsugu, Nakamura Katsumi, Utsunomiya Kozo, Suyenobu Fumio, Nagai Takegoro, Matsumura Toshio, Dzushi Teruo, Cho Kun Toku, Uyete Taichi, Oita Yoshiyiro, Takenchi Suyeichi, Imamura Yaohachi, as co-prisoners of D1 to support their belief that D1 was innocent.
D2 petitioned. He argued that:
1. Although he admitted that there were some beatings, they were conducted without malice or his “temporary feelings”;
2. He used Jiujitsu to defend himself;
3. There was insufficient evidence to prove torture;
4. The sentence was too severe.
D3 petitioned. He argued that:
1. There was insufficient prima facie evidence;
2. Certain witnesses’ statements were false;
3. The sentence was too severe.
There is no reviewing officer report by a Judge Advocate on the file.
[The petitions appear to reiterate issues that were raised at trial.]
Sentence Imposed
D1 - Death by Hanging. Carried out on 21st October 1947;
D2 – 15 years imprisonment;
D3 – 6 years imprisonment.
D2 – 15 years imprisonment;
D3 – 6 years imprisonment.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; "together concerned in", Committed; Ordered; Military Command Responsibility; Civilians; Starvation; Torture; Cruel Inhuman or Degrading Treatment; Beatings; Arbitrary or summary punishment; Unlawful killings; Poor conditions of detention; Failure to provide adequate medical care; Failure to provide adequate food and/or care; Suicide; War Crimes; Violations of laws and customs of war; Self Defence
Remarks
1 lawyer representing 4 Co-Accused.