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Case No.
WO235/1112
Accused
W.O Omura Kiyoshi (D1)
Sgt. Nishida Masato (D2)
S/M Kawazumi Jun (D3)
S/M Yoshioka Eizo (D4)
Sgt. Kawai Hisao (D5)
Court
Military Court for the Trial of War Criminals No. 5
Charge
First Charge (against all accused)
Committing a War Crime
“in that they, between 26th September 1944 and 15 November 1944 at the Yaumati Police Station Building, Kowloon, the first named accused as the Warrant Officer in charge of the special branch of the Kowloon District Kempeitai and the rest of the Accused as members of the Kowloon District Kempeitai were, in violation of th laws and usages of war, concerned in the ill-treatment of civilian residents of the New Territories, Hong Kong causing them physical suffering which led to the deaths of Chan Yan (alies Chan Ah Yan), Lau Yuk Kwong, Yuen Fook, Sheng Wan Wah, Ip Hing, Lau Ngau, Lau Lin, Wan Sang Kee, Wan Yung Sang, Wan Yong Kun, Lee Yip, Lau Hong, Lau Leung, Tsang Hing, Wan Yong Shek, Wan Yong Fuk, Tse Yuen Po and Tse Yao Fong (Alias Tse Kow).”
Second Charge (against D1, D2, D3)
Committing a War Crime
“in that they between 27th October 1943 and 30th October 1944 at the Headquarters of the Kowloon District Kempei tai the accused Omura Kiyoshi as the Warrant Officer in charge of the Special Branch of the Kowloon District K.T. and the accused Nashida Masato and Kawazumi Jun as members of the said Special Branch were, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of Hong Kong and in particular of Mrs. John Siew, Walter Fong Ching, Hui Shu Pui, Ng Yau Hing, Warren Chin Fen, Ng Tai Hing, Ng Wei Chuen, Chung Shuet Ying, Kandhara Singh, Ng Wai Kee, Yeung Heung and Tang Ho Leung
Third Charge (against D3)
Committing a War crime
“in that he between 20 Dec 1944 and 31 Jan 1945 at the Taipo Gendarmerie (a sub-station of the Kowloon district Kem-peitai) was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of the New Territories and in particular of Cheng Kwai, Lam Kiu Wai, Lam Chung Sik, Lam Wah, Lam Ying Yuen, Cheung Fuk Yin, Chung Chik Hung, Lam Tin Kau, Cheng Po and Lam Shui Ki causing them physical sufering in consequence of which the said Lam Tin Kau, Cheng Po and Lam Shui Ki died.
Committing a War Crime
“in that they, between 26th September 1944 and 15 November 1944 at the Yaumati Police Station Building, Kowloon, the first named accused as the Warrant Officer in charge of the special branch of the Kowloon District Kempeitai and the rest of the Accused as members of the Kowloon District Kempeitai were, in violation of th laws and usages of war, concerned in the ill-treatment of civilian residents of the New Territories, Hong Kong causing them physical suffering which led to the deaths of Chan Yan (alies Chan Ah Yan), Lau Yuk Kwong, Yuen Fook, Sheng Wan Wah, Ip Hing, Lau Ngau, Lau Lin, Wan Sang Kee, Wan Yung Sang, Wan Yong Kun, Lee Yip, Lau Hong, Lau Leung, Tsang Hing, Wan Yong Shek, Wan Yong Fuk, Tse Yuen Po and Tse Yao Fong (Alias Tse Kow).”
Second Charge (against D1, D2, D3)
Committing a War Crime
“in that they between 27th October 1943 and 30th October 1944 at the Headquarters of the Kowloon District Kempei tai the accused Omura Kiyoshi as the Warrant Officer in charge of the Special Branch of the Kowloon District K.T. and the accused Nashida Masato and Kawazumi Jun as members of the said Special Branch were, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of Hong Kong and in particular of Mrs. John Siew, Walter Fong Ching, Hui Shu Pui, Ng Yau Hing, Warren Chin Fen, Ng Tai Hing, Ng Wei Chuen, Chung Shuet Ying, Kandhara Singh, Ng Wai Kee, Yeung Heung and Tang Ho Leung
Third Charge (against D3)
Committing a War crime
“in that he between 20 Dec 1944 and 31 Jan 1945 at the Taipo Gendarmerie (a sub-station of the Kowloon district Kem-peitai) was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of the New Territories and in particular of Cheng Kwai, Lam Kiu Wai, Lam Chung Sik, Lam Wah, Lam Ying Yuen, Cheung Fuk Yin, Chung Chik Hung, Lam Tin Kau, Cheng Po and Lam Shui Ki causing them physical sufering in consequence of which the said Lam Tin Kau, Cheng Po and Lam Shui Ki died.
Background
The Accused were attached to the Kempeitai.
D1 was the Chief of the Special Branch of the Kempeitai. The case against him rested on his general responsibility, as Chief of the Special Branch of the Kempeitai, for the actions of his subordinates, during the investigations in the course of which ill-treatment and torture of detainees was carried out.
Several of the accused were captured in Canton, sent to Japan and then back to Hong Kong for trial.
D1 was the Chief of the Special Branch of the Kempeitai. The case against him rested on his general responsibility, as Chief of the Special Branch of the Kempeitai, for the actions of his subordinates, during the investigations in the course of which ill-treatment and torture of detainees was carried out.
Several of the accused were captured in Canton, sent to Japan and then back to Hong Kong for trial.
Allegations
The First Charge
All the Accused allegedly ill-treated an unspecified number of victims at the Yaumati Police Station, which led to the death of 17 of them.
The Second Charge
The first three Accused allegedly ill-treated civilians, particularly the 12 named persons in the charge, in the Kowloon Magistrates Court. No death was alleged.
The Third Charge
D3 allegedly ill-treated civilians in the Taipo Gendarmerie, in particular 10 named victims, causing the death of three of them.
Allegations as to each Accused:
D1: D1, as the Chief of the Special Branch of the Kempeitai, was responsible for the acts committed by his subordinates. There was no reliable evidence that he himself took part in the illtreatment. The Prosecution submitted that he must have known how his subordinates were treating prisoners and he actually admitted his responsibility for it.
D2: The Prosecution brought evidence showing D2 took an active part in the illtreatment and tortures of the victims. The Prosecution submitted that there could be no doubt about his guilt on both charges.
D3: On the first charge, one witness alleged being beaten by D3 with a bamboo pole at Yaumati Police Station. On the second and third charges, various witnesses alleged they were beaten by D3.
D4: D4 allegedly ill-treated and caused the death of three persons, Lau Yong Shek, Tse Yuen Po and Tse Yao Fong. Several witnesses were called to establish that the deaths were directly attributable to the ill-treatment and torture by D4.
D5: The Court held that there was insufficient evidence in relation to D5. He was acquitted, having submitted a no-case-to-answer plea at the end of the Prosecution’s case.
All the Accused allegedly ill-treated an unspecified number of victims at the Yaumati Police Station, which led to the death of 17 of them.
The Second Charge
The first three Accused allegedly ill-treated civilians, particularly the 12 named persons in the charge, in the Kowloon Magistrates Court. No death was alleged.
The Third Charge
D3 allegedly ill-treated civilians in the Taipo Gendarmerie, in particular 10 named victims, causing the death of three of them.
Allegations as to each Accused:
D1: D1, as the Chief of the Special Branch of the Kempeitai, was responsible for the acts committed by his subordinates. There was no reliable evidence that he himself took part in the illtreatment. The Prosecution submitted that he must have known how his subordinates were treating prisoners and he actually admitted his responsibility for it.
D2: The Prosecution brought evidence showing D2 took an active part in the illtreatment and tortures of the victims. The Prosecution submitted that there could be no doubt about his guilt on both charges.
D3: On the first charge, one witness alleged being beaten by D3 with a bamboo pole at Yaumati Police Station. On the second and third charges, various witnesses alleged they were beaten by D3.
D4: D4 allegedly ill-treated and caused the death of three persons, Lau Yong Shek, Tse Yuen Po and Tse Yao Fong. Several witnesses were called to establish that the deaths were directly attributable to the ill-treatment and torture by D4.
D5: The Court held that there was insufficient evidence in relation to D5. He was acquitted, having submitted a no-case-to-answer plea at the end of the Prosecution’s case.
Defence
The Defence first argued on evidential issues, complaining that witnesses were asked leading questions in their examination-in-chief. Much of the evidence relied on was also hearsay, as none of the witnesses was an eye-witness to the deaths that allegedly took place.
The Defence admitted that the listed victims were detained at the Kowloon District Gendarmerie. They were held as Communist guerillas and suspected of anti-Japanese activity. However, the Defence, for all of the Accused, denied all the alleged ill-treatment. The Defence also insisted the living conditions and the rations were sufficient for the detainees to live.
Finally, the Defence also raised the issue of mistaken identity in relation to D4, but this was denied by the Court.
The Defence admitted that the listed victims were detained at the Kowloon District Gendarmerie. They were held as Communist guerillas and suspected of anti-Japanese activity. However, the Defence, for all of the Accused, denied all the alleged ill-treatment. The Defence also insisted the living conditions and the rations were sufficient for the detainees to live.
Finally, the Defence also raised the issue of mistaken identity in relation to D4, but this was denied by the Court.
Prosecutor
Maj. M.I. Ormsby, the West Yorkshire Regiment (the Prince of Wales’ Own), DAJAG, FARELF.
Defence Counsel
Mr Matsuoka Yoshihiko (Lawyer of the Tokyo Supreme Court)
Judges
President: Lt-Col. P. Warwick, R.A.S.C. (Barrister-at-law)
Members: Maj. V.E. House, King’s Own Royal Regiment; Capt. J. Benyon, Royal Engineers.
Members: Maj. V.E. House, King’s Own Royal Regiment; Capt. J. Benyon, Royal Engineers.
Advisory Officer
2nd/ Lt. G.L. Falkoff (The Buffs)
Prosecution Witnesses
Capt F.V. Collison (Captain)
Wan Yin-Cheung (Hawker)
Tse Tin-Yuen (Farmer)
Tse Shek (Farmer)
Yan Yong-shu (Farmer)
Sheng Chung-on (Fisherman)
Sheng Sung (Fisherman, Farmer)
Tsang Kap (Farmer)
Cheng Kwai (Farmer)
Lam Kiu-Wai (Construction worker)
Lam Sang (Construction worker)
Lam Ying-Yuen (Farmer)
Cheung Fuk-Yin (Farmer)
Kandhara Singh (Unknown)
Tang Ho-Leung (Unemployed)
Ng Tai Hing (Coolie)
John Siew (Unknown)
Chung Shuet Ying (Unknown)
George Albert Lee (Worker at Gilman and Company, Engineering Department)
Defence Witnesses
Omura Kiyoshi (Chief)
Kawazumi Jun (Sergeant Major)
Nishida Masato (Sergeant)
Yoshioka Eizo (Sergeant Major)
Obata Chikuro (Gendarme Lieutenant)
Ogasawara Haruji (Sergeant Major)
Ishiyaka Kakui (Sergeant Major)
Kuwaki Kiyomori (Sergeant Major)
Godfrey Lewis Falkoff (Defence Advisory Officer)
Federick Howard Kew (Character witness) (Doctor of Dental Surgery)
Trial Dates
24-Feb-1948
25-Feb-1948
26-Feb-1948
27-Feb-1948
02-Mar-1948
03-Mar-1948
04-Mar-1948
05-Mar-1948
08-Mar-1948
09-Mar-1948
10-Mar-1948
11-Mar-1948
13-Mar-1948
15-Mar-1948
16-Mar-1948
17-Mar-1948
18-Mar-1948
19-Mar-1948
30-Mar-1948
31-Mar-1948
Judgement Date
31-Mar-1948
Judgement Confirmation Date
21-Jun-1948
Judgement Promulgation Date
21-Jun-1948
Judgement
D1:
First Charge: Guilty with the exception of the words, “LAU HONG, IP HING and WAN YONG KUN”;
Second Charge: Guilty with the exception of the words, “MRS. JOHN SIEW, WARREN CHIN FEN and KANDHARA SING.”
D2:
First Charge: Guilty with the exception of the words commencing “which led to the deaths of”, and ending “TSE KOI”;
Second Charge: Guilty with the exception of the words “NG WAI CHUEN”.
D3:
First Charge: Guilty with the exception of the words commencing “which led to the deaths of”, and ending “TSE KOI”;
Second Charge: Guilty with the exception of the words commencing “MRS JOHN SIEW”, and ending “WARREN CHIN FEN”, and from the words “CHUNG SHUET YING”, to “TANG HO LEUNG”;
Third Charge: Guitly with the exception of the words “LAM CHUNG SIK, LAM WAH, LAM YING-YUEN, CHEUNG CHIK-HUNG, LAM TIN-KAU, CHENG PO and LAM SHIU-KI”, and “in consequence of which the said LAM TIN-KAU, CHEUNG PO and LAM SHIU-KI died.”
D4:
First Charge: Guilty with the exception of the words commencing “CHAN YAU,” and ending, “YOANG [unidentified]” and the words “[unidentified] YONG-FUK”.
D5:
Acquitted: No case to answer.
First Charge: Guilty with the exception of the words, “LAU HONG, IP HING and WAN YONG KUN”;
Second Charge: Guilty with the exception of the words, “MRS. JOHN SIEW, WARREN CHIN FEN and KANDHARA SING.”
D2:
First Charge: Guilty with the exception of the words commencing “which led to the deaths of”, and ending “TSE KOI”;
Second Charge: Guilty with the exception of the words “NG WAI CHUEN”.
D3:
First Charge: Guilty with the exception of the words commencing “which led to the deaths of”, and ending “TSE KOI”;
Second Charge: Guilty with the exception of the words commencing “MRS JOHN SIEW”, and ending “WARREN CHIN FEN”, and from the words “CHUNG SHUET YING”, to “TANG HO LEUNG”;
Third Charge: Guitly with the exception of the words “LAM CHUNG SIK, LAM WAH, LAM YING-YUEN, CHEUNG CHIK-HUNG, LAM TIN-KAU, CHENG PO and LAM SHIU-KI”, and “in consequence of which the said LAM TIN-KAU, CHEUNG PO and LAM SHIU-KI died.”
D4:
First Charge: Guilty with the exception of the words commencing “CHAN YAU,” and ending, “YOANG [unidentified]” and the words “[unidentified] YONG-FUK”.
D5:
Acquitted: No case to answer.
Petition
A single petition was jointly issued by the four convicted accused (D1 to D4) alleging:
1. The facts alleged were not supported by sufficient evidence;
2. Wrong legal interpretation of the facts
[“It is most proper to assume that measures were taken to inflict punishments to those who were engaged, in violation of the Laws of Land war-fare, in hostile activities against the Japanese. In the course of carrying out such counter-measures, however, the means and methods so applied were sometimes carried too far, and the excess so created has now become an object of criticism and judgment. Criminal responsibility may be discussed in the following two cases.
A. When the perpetrator has the knowledge of a crime or the prospect of a result (Intention)
B. When result was created with no prospect (Negligence)
In the English Law, in the killing of a person murder and manslaughter are classified. They both belong to the first category. In murder, the punishment is death, and in manslaughter, life imprisonment.
In the present case, the first charge may be considered as corresponding to the above second category, a crime committed under negligence. As manslaughter is punished with life-imprisonment, it must be deemed proper that the punishment be reduced to any term but death, in a case of the above second category. It is true, however, that the punishment is harsh in a Military Court, but the degree of the crime in this case was only negligence. In referring to Yoshiyoka [D4], therefore, it is the earnest desire of the Defence Counsel, that Yoshiyoka [D4] be given the privilege of commutation of his death sentence.
In the case of the accused Omura [D1], it has been already contended that he was not guilty of the charge because of the nature of the posts of the Chief of the Special Branch. If it was such, however, that Omura [D1] had to be held responsible for the conduct of his subordinates, the scope of his responsibility ought to be restricted to the extent of responsibility for negligence. That is to say he was not aware of the facts when he should have known of all the facts. Circumstanced as such, therefore, a light punishment would have been quite sufficient to deal with Omura [D1].
Then as regards the other two accused, again, the characteristics of the objects of the crimes committed, the duties assigned to the Gendarmerie at the time, general situations of the surrounding at the time, the persistence of superior orders, etc. may be taken into consideration and the punishments thereof deemed most natural to be widely reduced.”].
3. The punishment was too severe.
In reviewing the case, the Judge Advocate [unidentified Colonel, DJAG, Land Forces, 20 May 1948] observed as follows.
In relation to D1, his responsibility was borne out by the affidavit of his CO Major HIRAO Yoshio (Exhibit I) and the accused himself, in his unsworn statement (at page 240) admitted that in accordance with Major Hirao’s “doctrine of effectiveism” whereby actual results must be obtained. He and members of his Staff of the Special Branch “always tried to obtain the necessary effects.” According to the Judge Advocate, “This appears to be a clear admission of his responsibility, apart from the fact that he must have known how his subordinates were treating prisoners.”
“There is, however, no reliable evidence that he himself [D1] took part in the ill-treatment.”
As for D2, “There is ample evidence, on both the first and second charges, that this accused took an active part in the ill-treatment and tortures of the victims (see the evidence of P.Ws 2 to 6, and P.Ws 14 to 19, and affidavits Exhibits F.G.H.). There seems to be no question of his guilt on both charges, and of the suitability of the sentence.”
As for D3, “This accused directly and indirectly participated in the ill-treatment and torture of the victims. There appears to be little doubt of his guilt, and in the circumstances, the sentence does not seem unduly severe.”
As for D4, “The evidence of the five witnesses P.Ws 2 to 6 appears to establish beyond reasonable doubt that the deaths of these three men were directly attributable to the ill-treatment and tortures to which they were subjected by this accused. There appears to be no reason to disbelieve these witnesses, or to doubt the guilt of the accused. In the circumstances, the death sentence appears to be the only suitable one the Court could pass.”
The Judge Advocate advised dismissal of the petitions and confirmation of the findings and sentences.
1. The facts alleged were not supported by sufficient evidence;
2. Wrong legal interpretation of the facts
[“It is most proper to assume that measures were taken to inflict punishments to those who were engaged, in violation of the Laws of Land war-fare, in hostile activities against the Japanese. In the course of carrying out such counter-measures, however, the means and methods so applied were sometimes carried too far, and the excess so created has now become an object of criticism and judgment. Criminal responsibility may be discussed in the following two cases.
A. When the perpetrator has the knowledge of a crime or the prospect of a result (Intention)
B. When result was created with no prospect (Negligence)
In the English Law, in the killing of a person murder and manslaughter are classified. They both belong to the first category. In murder, the punishment is death, and in manslaughter, life imprisonment.
In the present case, the first charge may be considered as corresponding to the above second category, a crime committed under negligence. As manslaughter is punished with life-imprisonment, it must be deemed proper that the punishment be reduced to any term but death, in a case of the above second category. It is true, however, that the punishment is harsh in a Military Court, but the degree of the crime in this case was only negligence. In referring to Yoshiyoka [D4], therefore, it is the earnest desire of the Defence Counsel, that Yoshiyoka [D4] be given the privilege of commutation of his death sentence.
In the case of the accused Omura [D1], it has been already contended that he was not guilty of the charge because of the nature of the posts of the Chief of the Special Branch. If it was such, however, that Omura [D1] had to be held responsible for the conduct of his subordinates, the scope of his responsibility ought to be restricted to the extent of responsibility for negligence. That is to say he was not aware of the facts when he should have known of all the facts. Circumstanced as such, therefore, a light punishment would have been quite sufficient to deal with Omura [D1].
Then as regards the other two accused, again, the characteristics of the objects of the crimes committed, the duties assigned to the Gendarmerie at the time, general situations of the surrounding at the time, the persistence of superior orders, etc. may be taken into consideration and the punishments thereof deemed most natural to be widely reduced.”].
3. The punishment was too severe.
In reviewing the case, the Judge Advocate [unidentified Colonel, DJAG, Land Forces, 20 May 1948] observed as follows.
In relation to D1, his responsibility was borne out by the affidavit of his CO Major HIRAO Yoshio (Exhibit I) and the accused himself, in his unsworn statement (at page 240) admitted that in accordance with Major Hirao’s “doctrine of effectiveism” whereby actual results must be obtained. He and members of his Staff of the Special Branch “always tried to obtain the necessary effects.” According to the Judge Advocate, “This appears to be a clear admission of his responsibility, apart from the fact that he must have known how his subordinates were treating prisoners.”
“There is, however, no reliable evidence that he himself [D1] took part in the ill-treatment.”
As for D2, “There is ample evidence, on both the first and second charges, that this accused took an active part in the ill-treatment and tortures of the victims (see the evidence of P.Ws 2 to 6, and P.Ws 14 to 19, and affidavits Exhibits F.G.H.). There seems to be no question of his guilt on both charges, and of the suitability of the sentence.”
As for D3, “This accused directly and indirectly participated in the ill-treatment and torture of the victims. There appears to be little doubt of his guilt, and in the circumstances, the sentence does not seem unduly severe.”
As for D4, “The evidence of the five witnesses P.Ws 2 to 6 appears to establish beyond reasonable doubt that the deaths of these three men were directly attributable to the ill-treatment and tortures to which they were subjected by this accused. There appears to be no reason to disbelieve these witnesses, or to doubt the guilt of the accused. In the circumstances, the death sentence appears to be the only suitable one the Court could pass.”
The Judge Advocate advised dismissal of the petitions and confirmation of the findings and sentences.
Sentence Imposed
D1: 20 years imprisonment;
D2: 20 years imprisonment;
D3: 12 years imprisonment;
D4: Death by hanging, executed on 29 June 1948 at Stanley Prison, Hong Kong;
D5: Not guilty
D2: 20 years imprisonment;
D3: 12 years imprisonment;
D4: Death by hanging, executed on 29 June 1948 at Stanley Prison, Hong Kong;
D5: Not guilty
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Guerilla activities; Anti-Japanese Activity; Communist Activities; “concerned in”; Unlawful arrest or detention; Interrogation; Place of detention; Poor conditions of detention; Failure to provide adequate food and/or care; Torture; Cruel Inhuman or Degrading Treatment; Beatings; Unlawful killing; War Crimes; Violations of the laws and customs of war; Mistaken identity
Remarks
There was one lawyer for 5 Co-Accused.
Refer to the case of Major Hirao Yoshio (Case No. W0/235/1098).
Refer to the case of Major Hirao Yoshio (Case No. W0/235/1098).