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Case No.
WO235/1048
Accused
S.M. Ito Junichi
Court
Military Court for the Trial of War Criminals No. 7 (Retrial)
Charge
Committing a War Crime
“in that he, at Tsun Wan on or about the 17th August 1945, when a member of the Kempeitai, was, in violation of the laws and usages of war, concerned in the killing of YEN (otherwise spelt YUAN) YEE KWAN and another unknown Chinese, both civilians at that time in his custody.”
“in that he, at Tsun Wan on or about the 17th August 1945, when a member of the Kempeitai, was, in violation of the laws and usages of war, concerned in the killing of YEN (otherwise spelt YUAN) YEE KWAN and another unknown Chinese, both civilians at that time in his custody.”
Background
The Accused was a Sergeant Major, a member of the Kempeitai and a staff member of the Tsun Wan Gendarmerie. He was in charge of the Tsun Wan Kempeitai Detachment Post at the material time.
The accused was tried by a Military Court for the Trial of War Criminals on 24 September 1946 (see Case No. WO/235/914). The judgement in that case was not confirmed; this is a retrial of the case.
The accused was tried by a Military Court for the Trial of War Criminals on 24 September 1946 (see Case No. WO/235/914). The judgement in that case was not confirmed; this is a retrial of the case.
Allegations
The Accused killed two Chinese who were in his custody in the Tsun Wan Gendarmerie. This took place after the Japanese Emperor’s Surrender [Note: throughout this case, the Emperor’s Capitulation on 14 August 1945 is referred to as Surrender, even though the Surrender was actually on 2 September 1945].
Maj. Yoshio Hirao, the Commander of the Kowloon Kempeitai HQ, accused of War Crimes in his own case, was the Accused’s superior. He testified that at a meeting on 17 August 1945, he had actually ordered the release of all detained Chinese. The Accused did not follow his instructions.
The Prosecution addressed the matter of jurisdiction in its Closing Address. Although the killings took place on 17 August 1945 (after the ‘Surrender’), “no question arises as to the Court’s jurisdiction to hear a case describing events after the surrender because the Royal Warrants have provided for Courts to be set up to try suspects for offences committed in any war in which Great Britain finds herself engaged in since September 1939; and the surrender, though a cessation of hostilities, does not mean legally an end of the War”.
Maj. Yoshio Hirao, the Commander of the Kowloon Kempeitai HQ, accused of War Crimes in his own case, was the Accused’s superior. He testified that at a meeting on 17 August 1945, he had actually ordered the release of all detained Chinese. The Accused did not follow his instructions.
The Prosecution addressed the matter of jurisdiction in its Closing Address. Although the killings took place on 17 August 1945 (after the ‘Surrender’), “no question arises as to the Court’s jurisdiction to hear a case describing events after the surrender because the Royal Warrants have provided for Courts to be set up to try suspects for offences committed in any war in which Great Britain finds herself engaged in since September 1939; and the surrender, though a cessation of hostilities, does not mean legally an end of the War”.
Defence
The Accused pleaded “not guilty”.
He raised Superior Orders, “that he merely did the shooting on behalf of Sgt Otsu” and mistake of fact. It was presented in a slightly different way that it was in the original trial.
The Defence outlined the circumstances that led to the shooting. The two victims were among a group of seven who were taken into custody. The others were released, but the two men continued to be held as suspected communist guerillas. The Emperor capitulated on 14 August 1945.
On 17 August 1945, Major Yoshio Hirao called a meeting at which he ordered that “suitable steps” should be taken in respect of suspects in custody. The Accused claimed that he was ordered at this meeting to take “suitable steps” to deal with the persons in detention. According to his understanding of the order, to deal with the matter with “suitable steps”, there should be different treatment for persons suspected of serious crimes such as espionage and persons suspected of minor crimes such as robbery. Persons should be dealt with in accordance with the severity of the crime. He said that he clarified the order with Sgt. Otsu, who was in charge of investigating the matter and in contact with Major Hirao. The Accused considered Sgt Otsu reliable because he received direct orders from Major Hirao concerning the investigations of the Chinese.
According to the Accused, Sgt. Otsu told him the two men were not to be released but to be “finally dealt with”. In its closing statement, the Defence asserted that Sgt. Otsu asked that someone else should shoot the two men because he himself had arrested and examined them. He could not somehow bring himself to put an end to them. Since Sgt. Otsu and the Accused were the only persons who could take such drastic measures, the Accused “took on himself to execute the two Chinese guerillas.” He shot the two men on Sgt. Otsu’s behalf.
In relation to the mistake of fact, the Defence argued, in closing, that “the [Accused], had an honest and reasonable belief in the existence of a fact, that is the giving and the receiving of an order of the Commandment. In as much however as he had no proof of whether of not the order in question had really been issued, the [Accused] should not be held liable for ignorance or mistake of fact”
He raised Superior Orders, “that he merely did the shooting on behalf of Sgt Otsu” and mistake of fact. It was presented in a slightly different way that it was in the original trial.
The Defence outlined the circumstances that led to the shooting. The two victims were among a group of seven who were taken into custody. The others were released, but the two men continued to be held as suspected communist guerillas. The Emperor capitulated on 14 August 1945.
On 17 August 1945, Major Yoshio Hirao called a meeting at which he ordered that “suitable steps” should be taken in respect of suspects in custody. The Accused claimed that he was ordered at this meeting to take “suitable steps” to deal with the persons in detention. According to his understanding of the order, to deal with the matter with “suitable steps”, there should be different treatment for persons suspected of serious crimes such as espionage and persons suspected of minor crimes such as robbery. Persons should be dealt with in accordance with the severity of the crime. He said that he clarified the order with Sgt. Otsu, who was in charge of investigating the matter and in contact with Major Hirao. The Accused considered Sgt Otsu reliable because he received direct orders from Major Hirao concerning the investigations of the Chinese.
According to the Accused, Sgt. Otsu told him the two men were not to be released but to be “finally dealt with”. In its closing statement, the Defence asserted that Sgt. Otsu asked that someone else should shoot the two men because he himself had arrested and examined them. He could not somehow bring himself to put an end to them. Since Sgt. Otsu and the Accused were the only persons who could take such drastic measures, the Accused “took on himself to execute the two Chinese guerillas.” He shot the two men on Sgt. Otsu’s behalf.
In relation to the mistake of fact, the Defence argued, in closing, that “the [Accused], had an honest and reasonable belief in the existence of a fact, that is the giving and the receiving of an order of the Commandment. In as much however as he had no proof of whether of not the order in question had really been issued, the [Accused] should not be held liable for ignorance or mistake of fact”
Prosecutor
Maj. D.G. McGregor, Worcestershire Regt. Solicitor of the Supreme Court, New South Wales, Sydney
Defence Counsel
Fujita Tetsuo, a Judge in the Local Court, Hiroshima, Japan.
Judges
President: Lt. Col. C.F. Hall
Members: Major M.I. Ormsby, West Yorks; Major H.Barker, Seaforth Highlanders
Members: Major M.I. Ormsby, West Yorks; Major H.Barker, Seaforth Highlanders
Advisory Officer
Capt. Whitehorn
Prosecution Witnesses
Sgt-Maj. A.R. Hamidon (Interpreter, War Crimes, Hong Kong)
Sgt Roy Ito (Interpreter, War Crimes Unit)
Major Hirao Yoshio (Commandant, Kowloon District Gendarmerie)
Mrs Ng Yuet-Hing (Civilian, spouse of a victim)
Defence Witnesses
Ito Junichi (Accused) (Major, in charge of the Tsun Wan Station)
Sgt-Maj. Ogasawara Haruchi (Sergeant-Major, in charge of the Police Affairs Department of the Kowloon District Gendarmerie)
Trial Dates
07-Dec-1946
09-Dec-1946
Judgement Date
09-Dec-1946
Judgement Confirmation Date
15-Dec-1947
Judgement Promulgation Date
16-Dec-1947
Judgement
Guilty
Petition
The Accused submitted a petition against the sentence which, according to the Judge Advocate [F.G.T. Davis, Brigadier, DJAG South East Asia Land Forces, 20 February 1947], just repeated his defence at trial and the arguments advanced by his counsel and did not disclose any fresh matters.
According to the Judge Advocate, there was no evidence that any Superior Orders were given. In fact, Major Hirao denied ever having issued such an order. “It is clear from the evidence that the Accused acted on his own initiative in conjunction with Sgt. Otsu in shooting the two civilians who, as he was aware, had not had a trial.”
The Judge Advocate advised confirmation of the proceedings. He did, however, draw the Commander’s attention to the possibility of reducing the sentence “if you consider that there are any mitigating circumstances to justify such a course”.
On 2 September 1947, a Judge Advocate [no identification on the letter] wrote to the Commander of Land Force Hong Kong on the matter of Ito Juniichi. He pointed out that there had been a long delay in the confirmation process because of the loss of documents on board an aircraft that had gone missing. He suggested that the Commander may wish, on “humanitarian grounds”, to commute the death penalty.
The petition was dismissed and the sentence was confirmed.
According to the Judge Advocate, there was no evidence that any Superior Orders were given. In fact, Major Hirao denied ever having issued such an order. “It is clear from the evidence that the Accused acted on his own initiative in conjunction with Sgt. Otsu in shooting the two civilians who, as he was aware, had not had a trial.”
The Judge Advocate advised confirmation of the proceedings. He did, however, draw the Commander’s attention to the possibility of reducing the sentence “if you consider that there are any mitigating circumstances to justify such a course”.
On 2 September 1947, a Judge Advocate [no identification on the letter] wrote to the Commander of Land Force Hong Kong on the matter of Ito Juniichi. He pointed out that there had been a long delay in the confirmation process because of the loss of documents on board an aircraft that had gone missing. He suggested that the Commander may wish, on “humanitarian grounds”, to commute the death penalty.
The petition was dismissed and the sentence was confirmed.
Sentence Imposed
Death by hanging; carried out on 23 September 1946 at Stanley Prison.
Keywords
Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; “concerned in”; Unlawful Killing; Superior Orders; Mistake; War Crimes; Violations of laws and customs of war
Remarks
Refer to the cases of Major Ito Junichi, Case No. WO/235/914 and Major Yoshio Hirao, Case No. WO/235/1098