Dublin Core
Title
WO235/1048
Description
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.”
Legal Case Item Type Metadata
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
1946-12-07
1946-12-09
Judgement Date
1946-12-09
Judgement Confirmation Date
1947-12-15
Judgement Promulgation Date
1947-12-16
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
Dublin Core
Title
WO235/927
Description
First Charge: Committing a War Crime
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Capt J.A. NORRIS of the Winnipeg Grenadiers, Canadian Army, by beating him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Second Charge: Committing a War Crime
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Major F.T. ATKINSON, Royal Rifles of Canada, Canadian Army by kicking him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Third Charge: Committing a War Crime
“in that he, at Hong Kong between the 15th day of June and the 30th day of November 1944 when a member of the staff of the Japanese Gendarmerie Headquarters, in violation of the laws and usages of war, was concerned in the ill-treatment of civilian residents of Hong Kong under arrest at 67-69 Kimberley Road, Stanley Gaol and other places, resulting in the death of Mr. Power, Ip Kam Wing, So Shing Hon and Enrique Lee, and physical sufferings to others of the said persons and in particular to Mrs M.V. Power, Mr R.P. Chilote, Dr. V.N. Atienza, Mr. A.E.P. Guest, Mr. G. Sang, Mr Mohd Yousif Khan , Lam Sik and Wong Sui Poy”.
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Capt J.A. NORRIS of the Winnipeg Grenadiers, Canadian Army, by beating him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Second Charge: Committing a War Crime
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Major F.T. ATKINSON, Royal Rifles of Canada, Canadian Army by kicking him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Third Charge: Committing a War Crime
“in that he, at Hong Kong between the 15th day of June and the 30th day of November 1944 when a member of the staff of the Japanese Gendarmerie Headquarters, in violation of the laws and usages of war, was concerned in the ill-treatment of civilian residents of Hong Kong under arrest at 67-69 Kimberley Road, Stanley Gaol and other places, resulting in the death of Mr. Power, Ip Kam Wing, So Shing Hon and Enrique Lee, and physical sufferings to others of the said persons and in particular to Mrs M.V. Power, Mr R.P. Chilote, Dr. V.N. Atienza, Mr. A.E.P. Guest, Mr. G. Sang, Mr Mohd Yousif Khan , Lam Sik and Wong Sui Poy”.
Legal Case Item Type Metadata
Case No.
WO235/927
Accused
Inouye Kanao
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge: Committing a War Crime
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Capt J.A. NORRIS of the Winnipeg Grenadiers, Canadian Army, by beating him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Second Charge: Committing a War Crime
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Major F.T. ATKINSON, Royal Rifles of Canada, Canadian Army by kicking him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Third Charge: Committing a War Crime
“in that he, at Hong Kong between the 15th day of June and the 30th day of November 1944 when a member of the staff of the Japanese Gendarmerie Headquarters, in violation of the laws and usages of war, was concerned in the ill-treatment of civilian residents of Hong Kong under arrest at 67-69 Kimberley Road, Stanley Gaol and other places, resulting in the death of Mr. Power, Ip Kam Wing, So Shing Hon and Enrique Lee, and physical sufferings to others of the said persons and in particular to Mrs M.V. Power, Mr R.P. Chilote, Dr. V.N. Atienza, Mr. A.E.P. Guest, Mr. G. Sang, Mr Mohd Yousif Khan , Lam Sik and Wong Sui Poy”.
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Capt J.A. NORRIS of the Winnipeg Grenadiers, Canadian Army, by beating him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Second Charge: Committing a War Crime
“in that he at Hong Kong, on or about the twenty first day of December 1942, when an interpreter on the Prisoner of War Camp Staff at Sham Shuipo Camp, in violation of the laws and usages of war, did assault Major F.T. ATKINSON, Royal Rifles of Canada, Canadian Army by kicking him in full view of the Canadian prisoners of war whilst they were drawn up on parade”.
Third Charge: Committing a War Crime
“in that he, at Hong Kong between the 15th day of June and the 30th day of November 1944 when a member of the staff of the Japanese Gendarmerie Headquarters, in violation of the laws and usages of war, was concerned in the ill-treatment of civilian residents of Hong Kong under arrest at 67-69 Kimberley Road, Stanley Gaol and other places, resulting in the death of Mr. Power, Ip Kam Wing, So Shing Hon and Enrique Lee, and physical sufferings to others of the said persons and in particular to Mrs M.V. Power, Mr R.P. Chilote, Dr. V.N. Atienza, Mr. A.E.P. Guest, Mr. G. Sang, Mr Mohd Yousif Khan , Lam Sik and Wong Sui Poy”.
Background
The Accused (called “Kamloops Kids” or “Yankee”) was a Canada-born Japanese. He returned to Japan to study. He was later conscripted as an interpreter in May 1942 and was sent to Hong Kong. He became a civilian Interpreter in the Prisoner of War (‘POW’) Camp Headquarters.
The charges concerned the Accused’s alleged participation in torture and maltreatment of persons in detention, during his service as Interpreter for the Japanese Gendarmerie (Kempeitai) and for the Army at the POW Camp at Sham Shuipo.
The charges concerned the Accused’s alleged participation in torture and maltreatment of persons in detention, during his service as Interpreter for the Japanese Gendarmerie (Kempeitai) and for the Army at the POW Camp at Sham Shuipo.
Allegations
The Prosecution argued that from the moment the Accused arrived in Hong Kong, he was employed only as an Interpreter and only by the Gendarmerie.
On the First and Second Charge
The Prosecution alleged that the Accused assaulted two Canadian officers on 21st December 1942 (Capt. JA Norris and Major JT Atkinson) in full view of other Canadian POWs.
The Prosecution case was that Norris was subjected to beating, humiliation and insult, while Atkinson was subjected to kicking.
On the point of Superior Orders, the Prosecution cited the Yamashita line of authorities and argued that the Accused was acting “off his own bat” altogether.
On the Third Charge
The Prosecution alleged that the Accused ill-treated certain civilian residents of Hong Kong, some of whose deaths were attributable to such ill-treatment. The Prosecution argued that “if the accused has anything whatsoever to do with any of this ill-treatment he was concerned in them”, even though the Prosecution sought to argue that he actually took part in them.
On the question of actual ill-treatment, it was alleged that the Accused actually took part in torture, based on the testimony given by several witnesses. This testimony tended to show that those, who had been subject to ill-treatment with the Accused on the scene, or being the torturer himself, were either severely injured or died soon after. The torture methods included beating, whipping, burning, “water torture”, and the “aeroplane torture”.
In the course of its closing submission, the Prosecution acknowledged some difficulties in attributing the death of certain civilians as being a logical consequence of the ill-treatment inflicted by the Accused.
On the First and Second Charge
The Prosecution alleged that the Accused assaulted two Canadian officers on 21st December 1942 (Capt. JA Norris and Major JT Atkinson) in full view of other Canadian POWs.
The Prosecution case was that Norris was subjected to beating, humiliation and insult, while Atkinson was subjected to kicking.
On the point of Superior Orders, the Prosecution cited the Yamashita line of authorities and argued that the Accused was acting “off his own bat” altogether.
On the Third Charge
The Prosecution alleged that the Accused ill-treated certain civilian residents of Hong Kong, some of whose deaths were attributable to such ill-treatment. The Prosecution argued that “if the accused has anything whatsoever to do with any of this ill-treatment he was concerned in them”, even though the Prosecution sought to argue that he actually took part in them.
On the question of actual ill-treatment, it was alleged that the Accused actually took part in torture, based on the testimony given by several witnesses. This testimony tended to show that those, who had been subject to ill-treatment with the Accused on the scene, or being the torturer himself, were either severely injured or died soon after. The torture methods included beating, whipping, burning, “water torture”, and the “aeroplane torture”.
In the course of its closing submission, the Prosecution acknowledged some difficulties in attributing the death of certain civilians as being a logical consequence of the ill-treatment inflicted by the Accused.
Defence
The Defence challenged the jurisdiction of the War Crimes Court, arguing it was never intended that British subjects should be tried by War Crimes courts. He was born in British Columbia, and should rightly be tried by a Canadian court.
The Defence started by quoting Wheaton’s International Law (1944) that “justice inclines to the view that war crimes are not attributable to individuals”. The Defence focused on two lines of argument, one being Superior Orders for the first and the second charge, and another being insufficiency of evidence, for the the third charge.
On the first and the second charge
The Defence emphasized that the Accused had to obey the orders given to him by his superior, one Lt. Sakaino. The alleged acts were, in any event, approved by the superior who was present at the scene. The Accused argued that he could not be held primarily responsible as he only followed orders. He also asked the Court to remember the true nature of the Japanese system – how difficult it was for people who were caught in the system to revolt against it.
On the third charge
The Accused was a civilian. Although some of the victims died after being held by the Gendarmerie, the proper person who had them in custody should bear responsibly. The Accused was not responsible. On the allegations of specific victims and witnesses who testified during the trial, the Defence principally challenged the sufficiency of evidence, specifically the absence of evidence of ill-treatment in some instances. The Defence also observed that when there was some ill-treatment, the Accused was not particularly or specifically identified.
The Defence closed by saying that the Accused acted on orders all the time. It noted that some witnesses actually acknowledged the kindness and help of the Accused.
The Defence started by quoting Wheaton’s International Law (1944) that “justice inclines to the view that war crimes are not attributable to individuals”. The Defence focused on two lines of argument, one being Superior Orders for the first and the second charge, and another being insufficiency of evidence, for the the third charge.
On the first and the second charge
The Defence emphasized that the Accused had to obey the orders given to him by his superior, one Lt. Sakaino. The alleged acts were, in any event, approved by the superior who was present at the scene. The Accused argued that he could not be held primarily responsible as he only followed orders. He also asked the Court to remember the true nature of the Japanese system – how difficult it was for people who were caught in the system to revolt against it.
On the third charge
The Accused was a civilian. Although some of the victims died after being held by the Gendarmerie, the proper person who had them in custody should bear responsibly. The Accused was not responsible. On the allegations of specific victims and witnesses who testified during the trial, the Defence principally challenged the sufficiency of evidence, specifically the absence of evidence of ill-treatment in some instances. The Defence also observed that when there was some ill-treatment, the Accused was not particularly or specifically identified.
The Defence closed by saying that the Accused acted on orders all the time. It noted that some witnesses actually acknowledged the kindness and help of the Accused.
Prosecutor
Major G.B. Puddicombe (Victoria Rifles, Canada)
Defence Counsel
Lieut. J.R. Haggan, R.E.
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Prosecution Witnesses
Lt. Col. – R.C. Cooper (War Crimes Investigation Team, Land Forces, Hong Kong)
Capt. Chan Ying-hung (War Crimes Investigation Team, Land Forces, Hong Kong)
Lam Sik (Employee, Cable and Wireless, Ltd.)
Capt. F.V. Collison (War Crimes Investigation Team, Land Forces, Hong Kong)
Mrs. Mary Violet Power (Spouse of a victim.)
Rampal Chilote (Civil Servant)
A. Madar (Manager, Lebel Trading Company, Hong Kong)
Wilfred Lawrence (Wireless Operator, Hong Kong Government Radio)
Dr V.N. Atienza (Medical Practitioner)
Lai Chak Po (Clerk and Interpreter, Kowloon Magistrates Court)
Gonzalo Sang (Unemployed)
A.E.P. Guest (Government Wireless Supervisor)
Leung Hing-lin (Unemployed)
Ip Iu-ting (Clerk, Asiatic Petroleum Co. Ltd.)
Rahmed Khan (Chief Indian Warder, Stanley Prison)
J.W. Anderson (Medical Practitioner)
Defence Witnesses
Inouye Kanao (Accused. Gendarmerie Interpreter)
Trial Dates
1946-05-22
1946-05-23
1946-05-24
1946-05-25
1946-05-27
Judgement Date
1946-05-27
Judgement
Held:
1. The Accused was guilty on the first and the second charge;
2. The Accused was guilty on the third charge, subject to a special finding as follows: “COMMITTING A WAR CRIME, in that he, at Hong Kong between June 15 and November 13, 1944, when a member of the staff of the Japanese Gendarmerie Headquarters, in violation of the laws and usages of war, was concerned in the ill-treatment of civilian residents of Hong Kong under arrest at 67-69 Kimberley Road, Stanley Gaol and other places, resulting in the physical sufferings of Enrique Lee, Mrs M.V. Power, Mr R.P. Chilote, Dr. V.N. Atienza, Mr. A.E.P. Guest, Mr. G. Sang, Mr Mohd Yousif Khan and Lam Sik.”
[N.B. this was not confirmed]
1. The Accused was guilty on the first and the second charge;
2. The Accused was guilty on the third charge, subject to a special finding as follows: “COMMITTING A WAR CRIME, in that he, at Hong Kong between June 15 and November 13, 1944, when a member of the staff of the Japanese Gendarmerie Headquarters, in violation of the laws and usages of war, was concerned in the ill-treatment of civilian residents of Hong Kong under arrest at 67-69 Kimberley Road, Stanley Gaol and other places, resulting in the physical sufferings of Enrique Lee, Mrs M.V. Power, Mr R.P. Chilote, Dr. V.N. Atienza, Mr. A.E.P. Guest, Mr. G. Sang, Mr Mohd Yousif Khan and Lam Sik.”
[N.B. this was not confirmed]
Petition
The Accused petitioned:
1. He had been prejudiced in his defence by the non-availability of certain witnesses;
2. The verdict was against the weight of evidence;
3. The sentence was unduly severe in the light of the evidence;
4. Inadequate consideration was given to his role as an Interpreter;
5. The Military Court which tried him had no jurisdiction and was therefore incompetent since he was a Canadian subject.
In light of confirmation from the Colonial Office that the Accused was born in Canada, the Judge Advocate advised that the petition be allowed on 14 November 1946. The proceedings were not confirmed. Innouye Kanau’s conviction was overturned and he was then tried in the Supreme Court of Hong Kong where he was convicted of High Treason.
1. He had been prejudiced in his defence by the non-availability of certain witnesses;
2. The verdict was against the weight of evidence;
3. The sentence was unduly severe in the light of the evidence;
4. Inadequate consideration was given to his role as an Interpreter;
5. The Military Court which tried him had no jurisdiction and was therefore incompetent since he was a Canadian subject.
In light of confirmation from the Colonial Office that the Accused was born in Canada, the Judge Advocate advised that the petition be allowed on 14 November 1946. The proceedings were not confirmed. Innouye Kanau’s conviction was overturned and he was then tried in the Supreme Court of Hong Kong where he was convicted of High Treason.
Sentence Imposed
Death by hanging.
Note: He was eventually hanged, but not under this proceeding.
Note: He was eventually hanged, but not under this proceeding.
Keywords
Hong Kong; Interpreter; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Imperial Japanese Army; Civilians; Place of Detention; Prisoner of War; Prisoner of War Camp; "concerned in"; Committed; Torture; Cruel Inhuman or Degrading Treatment; Killing; Direct perpetration; Beating; Unlawful Killing; War Crimes; Violations of laws and customs of war; Command Responsibility; Yamashita; Wheaton; Superior Orders; Mitigating circumstances; Jurisdiction Challenge; Judgement not confirmed
Remarks
See Case No. HKRS 163-1-216 (from Hong Kong Public Records Office)
Case File Remarks
In this case, the Accused was initially tried and convicted of war crimes. Evidence emerged that he had, as he had alleged, been born in Canada. The judgement was not confirmed, and the matter was sent to the Supreme Court in Hong Kong for trial for the crime of treason. We have obtained copies of the original War Crimes trial. We have not obtained copies of the Supreme Court file (which is at the Hong Kong Public Records Office), but we have made a case note of this.
Dublin Core
Title
WO235/1117
Description
Committing a War Crime
“in that he at Shanghai between 1st September, 1942, and 30th November, 1942, as a Sergeant in the Shanghai Kempeitai, was, in violation of the Laws and Usages of War, concerned in the ill-treatment of civilian residents of Shanghai and in particular of HENRY FORSYTHE PRINGLE, ALEXANDER HAINDRAVA, ERNEST LE ROY HEALEY, MORRIS JOSEPH SOULEVITCH, BORIS S. FRANK, THE REVEREND W.E. HUDSPETH, KENNETH WILLIAM JOHNSTONE, and WILLIAM SLADE BUNGEY detained in the cells of the Headquarters of the Shanghai Kempeitai at the BRIDGE HOUSE, causing them all physical suffering”.
“in that he at Shanghai between 1st September, 1942, and 30th November, 1942, as a Sergeant in the Shanghai Kempeitai, was, in violation of the Laws and Usages of War, concerned in the ill-treatment of civilian residents of Shanghai and in particular of HENRY FORSYTHE PRINGLE, ALEXANDER HAINDRAVA, ERNEST LE ROY HEALEY, MORRIS JOSEPH SOULEVITCH, BORIS S. FRANK, THE REVEREND W.E. HUDSPETH, KENNETH WILLIAM JOHNSTONE, and WILLIAM SLADE BUNGEY detained in the cells of the Headquarters of the Shanghai Kempeitai at the BRIDGE HOUSE, causing them all physical suffering”.
Legal Case Item Type Metadata
Case No.
WO235/1117
Accused
Sergeant Major Yokohata Toshiro
Court
Military Court for the Trial of War Criminals [unknown]
Charge Date
1948-12-06
Charge
Committing a War Crime
“in that he at Shanghai between 1st September, 1942, and 30th November, 1942, as a Sergeant in the Shanghai Kempeitai, was, in violation of the Laws and Usages of War, concerned in the ill-treatment of civilian residents of Shanghai and in particular of HENRY FORSYTHE PRINGLE, ALEXANDER HAINDRAVA, ERNEST LE ROY HEALEY, MORRIS JOSEPH SOULEVITCH, BORIS S. FRANK, THE REVEREND W.E. HUDSPETH, KENNETH WILLIAM JOHNSTONE, and WILLIAM SLADE BUNGEY detained in the cells of the Headquarters of the Shanghai Kempeitai at the BRIDGE HOUSE, causing them all physical suffering”.
“in that he at Shanghai between 1st September, 1942, and 30th November, 1942, as a Sergeant in the Shanghai Kempeitai, was, in violation of the Laws and Usages of War, concerned in the ill-treatment of civilian residents of Shanghai and in particular of HENRY FORSYTHE PRINGLE, ALEXANDER HAINDRAVA, ERNEST LE ROY HEALEY, MORRIS JOSEPH SOULEVITCH, BORIS S. FRANK, THE REVEREND W.E. HUDSPETH, KENNETH WILLIAM JOHNSTONE, and WILLIAM SLADE BUNGEY detained in the cells of the Headquarters of the Shanghai Kempeitai at the BRIDGE HOUSE, causing them all physical suffering”.
Background
The Accused was a Sergeant Major, attached to the Legal Section of the Northern Branch section of the Shanghai Kempeitai. He worked at Bridge House, which was a place of detention for civilian residents who had been arrested by the Kempeitai on suspicion of being agents of the Allies (espionage).
The Shanghai Kempeitai was assigned to extract confessions from the detainees. The members were under pressure from their superiors to produce evidence of espionage. The Judge Advocate, in reviewing the case, submitted that “it appears that the authorities were not concerned as to whether in fact that individuals were guilty of espionage so long as they were able to satisfy their superiors by the production of an admission of guilt. The methods employed in extracting these “confessions” from people who were mostly innocent” included torture.
The Accused pleaded guilty, but the submission was rejected by the court after hearing the Accused’s character witness, Major Albert Edward Kyte. This meant the proceedings had to follow the regular pattern for trials on a not-guilty plea.
The Shanghai Kempeitai was assigned to extract confessions from the detainees. The members were under pressure from their superiors to produce evidence of espionage. The Judge Advocate, in reviewing the case, submitted that “it appears that the authorities were not concerned as to whether in fact that individuals were guilty of espionage so long as they were able to satisfy their superiors by the production of an admission of guilt. The methods employed in extracting these “confessions” from people who were mostly innocent” included torture.
The Accused pleaded guilty, but the submission was rejected by the court after hearing the Accused’s character witness, Major Albert Edward Kyte. This meant the proceedings had to follow the regular pattern for trials on a not-guilty plea.
Allegations
The Prosecution called no witnesses to testify about what had happened at Bridge House in Shanghai, and 2 witnesses on secondary issues. The case was supported by numerous Affidavits/Sworn Statements/Depositions by persons claiming to have been ill-treated by the Accused (among them, Alexander Haindrava, Ernest Le Roy Healey, Henry Forsythe Pringle and Kenneth William Johnstone). These contained allegations that the Accused engaged in maltreatment of detained persons, including through the direct application of various forms of torture, including “water torture”, hanging, thrusting spikes under the fingernails, burning, beating and electrical shocks.
In his testimony, Major Kyte stated that the Accused had told him that “he had used the Water treatment on Pringle, Frank and Healey and that he had also given electrical treatment”.
In his testimony, Major Kyte stated that the Accused had told him that “he had used the Water treatment on Pringle, Frank and Healey and that he had also given electrical treatment”.
Defence
At trial, the Accused did not testify or call any witnesses.
However, the Defence raised the good character of the Accused. He was said to be a Nichirenist, a devout Buddhist and to have been deeply ashamed of his actions. Three main arguments were raised:
(a) The Accused did what he did on the instructions of his superiors, specially that his superior, Sgt. Major Tomura allegedly ordered the torture in order to produce evidence of espionage in order to satisfy his own superiors, and in relation to the treatment of specific detainees such as B. S. Frank and H.F. Pringle;
(b) The Accused was completely repentant for what he did and readily confessed to his crimes; and
(c) Punishment would have a very harsh impact on his family.
The Defence stressed the following in its submissions for mitigation: “Japanese military training emphasizes one thing above all others. That is, that when an order, legal or illegal, is given by a superior officer, the order will be implicitly obeyed”. It stressed the importance of repentance and the potential for reformation. “It is now recognized that a man’s environment plays a large part in causing him to commit crime, and that the penalty for any crime committed should be considered in the light of the character of the convicted man as well as in the act perpetrated by him”.
However, the Defence raised the good character of the Accused. He was said to be a Nichirenist, a devout Buddhist and to have been deeply ashamed of his actions. Three main arguments were raised:
(a) The Accused did what he did on the instructions of his superiors, specially that his superior, Sgt. Major Tomura allegedly ordered the torture in order to produce evidence of espionage in order to satisfy his own superiors, and in relation to the treatment of specific detainees such as B. S. Frank and H.F. Pringle;
(b) The Accused was completely repentant for what he did and readily confessed to his crimes; and
(c) Punishment would have a very harsh impact on his family.
The Defence stressed the following in its submissions for mitigation: “Japanese military training emphasizes one thing above all others. That is, that when an order, legal or illegal, is given by a superior officer, the order will be implicitly obeyed”. It stressed the importance of repentance and the potential for reformation. “It is now recognized that a man’s environment plays a large part in causing him to commit crime, and that the penalty for any crime committed should be considered in the light of the character of the convicted man as well as in the act perpetrated by him”.
Prosecutor
Maj. Peter Clague, Royal Artillery, Office of the Deputy Director of Legal services, CHQ, FARELF
Defence Counsel
Mr Kakehi Masao, LLB, Barrrister at Law, Tokyo
Judges
President: Lt.-Col S. R. Kerr
Members: Major B.H. Craig, the Buffs; cap H.M. McLeod-Martin, Middleser Regiment
Members: Major B.H. Craig, the Buffs; cap H.M. McLeod-Martin, Middleser Regiment
Advisory Officer
Capt. W.R.L. Herries, Royal Sussex Regiment
Prosecution Witnesses
Albert Edward Kyte (Officer)
Peter Clague (Prosecutor)
Trial Dates
1948-12-09
1948-12-11
1948-12-20
Judgement Date
1948-12-20
Judgement Confirmation Date
1948-12-20
Judgement Promulgation Date
1949-02-18
Judgement
Guilty
Petition
The Accused submitted a Petition on 21 December 1948. Eight supporting Petitions were filed by Japanese persons supporting his case. The Accused complained, inter alia, about the inconsistency of the sentencing practices. Specifically, he argued that despite making a guilty plea (rejected), and showing genuine remorse and helpfulness (confirmed by the testimony of Major Kyte, the Officer Commanding British Minor War Crimes Liaison Section in Tokyo), he received an unduly severe sentence. He compared his 15 year sentence to the 12 year sentence imposed on the unrepentant Sgt. Yoshida Bunzo in a connected case tried before a panel (Case No. 235/116) presided over by Lt. Col. Massie. Unlike this case, that case involved maltreatment to death, and the unrepentant accused there got a lighter sentence.
In reviewing the case, the Judge Advocate commented that the Accused’s own Petition “discloses no new grounds, in my view, for interfering with the Finding and Sentence of the Court and subject therefore to any mitigation of the Sentence. I am of the opinion that the Finding and Sentence of the Court may be confirmed”. As for the eight third-party Petitions, they all submitted that considerable hardship would be caused to the Accused’s relatives if a heavy sentence were to be imposed. The Judge Advocate advised the Confirming Officer to “bear in mind these petitions” in reviewing the 15 year sentence.
In relation to the sentence that was imposed, the Judge Advocate advised that “the actions of the Accused towards these prisoners were so cruel that he knew perfectly well that he was acting entirely contrary to all conceptions of humanity and if he had wished to do so, he could have refrained from carrying out the alleged acts of brutality which were deliberate acts of commission and did not arise as a result of negligence”.
As for the claim of repentance, the Judge Advocate advised that “this trial was convened to determine the guilt and to punish the accused for his past conduct and not for his present attitude which may perhaps be influenced by the fact that he has now been divested of his former powers”.
In the circumstances, the Judge Advocate contended that the 15-year imprisonment sentence was reasonable.
In reviewing the case, the Judge Advocate commented that the Accused’s own Petition “discloses no new grounds, in my view, for interfering with the Finding and Sentence of the Court and subject therefore to any mitigation of the Sentence. I am of the opinion that the Finding and Sentence of the Court may be confirmed”. As for the eight third-party Petitions, they all submitted that considerable hardship would be caused to the Accused’s relatives if a heavy sentence were to be imposed. The Judge Advocate advised the Confirming Officer to “bear in mind these petitions” in reviewing the 15 year sentence.
In relation to the sentence that was imposed, the Judge Advocate advised that “the actions of the Accused towards these prisoners were so cruel that he knew perfectly well that he was acting entirely contrary to all conceptions of humanity and if he had wished to do so, he could have refrained from carrying out the alleged acts of brutality which were deliberate acts of commission and did not arise as a result of negligence”.
As for the claim of repentance, the Judge Advocate advised that “this trial was convened to determine the guilt and to punish the accused for his past conduct and not for his present attitude which may perhaps be influenced by the fact that he has now been divested of his former powers”.
In the circumstances, the Judge Advocate contended that the 15-year imprisonment sentence was reasonable.
Sentence Imposed
15 years imprisonment
Keywords
Shanghai; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; “concerned in”; Torture; Cruel Inhuman or Degrading Treatment; Guilty Plea; Mitigating circumstances; Superior Orders; War Crimes; Violations of laws and customs of war
Remarks
This was one of two new courts established after completion of the work of the original two war crimes courts, to deal with cases from Shanghai.
The handling of the guilty plea warrants closer observation. The plea was rejected by the Court after hearing Major Kyte, the Officer Commanding British Minor War Crimes Liaison Section in Tokyo, as a Defence character witness. He testified that his experience of interrogating the Accused was “the first time that I ever interrogated a Japanese kempei who was honest, frank and apparently regretted his actions”. The Court gave no reason for rejecting the guilty plea, and this was the only actual testimony that could have caused the Court to turn the plea into a not guilty plea. In his petition against the conviction and the 15 year sentence imposed, the Accused pointed out “that the Court in this case had no grounds on which to alter my plea, and that I was prejudiced by such an alteration”. His complaint was that because a number of affidavits were filed on behalf of the prosecution, he did not have an opportunity for cross-examination.
The handling of the guilty plea warrants closer observation. The plea was rejected by the Court after hearing Major Kyte, the Officer Commanding British Minor War Crimes Liaison Section in Tokyo, as a Defence character witness. He testified that his experience of interrogating the Accused was “the first time that I ever interrogated a Japanese kempei who was honest, frank and apparently regretted his actions”. The Court gave no reason for rejecting the guilty plea, and this was the only actual testimony that could have caused the Court to turn the plea into a not guilty plea. In his petition against the conviction and the 15 year sentence imposed, the Accused pointed out “that the Court in this case had no grounds on which to alter my plea, and that I was prejudiced by such an alteration”. His complaint was that because a number of affidavits were filed on behalf of the prosecution, he did not have an opportunity for cross-examination.
Dublin Core
Title
WO235/1116
Description
First charge
Committing a War Crime (against D1, D2)
“in that at Shanghai between about the 1st July 1943 and 31st August 1943 the accused KINOSHITA Eiichi then Major General Commanding the Shanghai District Kempei-Tai, and the accused YOSHIDA Bunzo then a Corporal in the Foreign Section of the Special Branch at the Headquarters of the Western Branch of the Shanghai Kempei-Tai on Jessfield Road, were, in violation of the laws and usages of war, concerned in the ill-treatment of civilian residents of Shanghai and in particular of John Martin Watson, William Hutton and Hans Rechlim, causing them physical suffering and resulting in the death of the said William Hutton.”
Second charge (against D1)
Committing a War Crime
“in that he at Shanghai in or about the month of November 1942, was, in violation of the laws and usages of war, concerned in the ill-treatment of a Chinese male, VONG, a civilian resident of Shanghai which ill-treatment resulted in the death of VONG aforesaid.”
Third charge (against D1)
Committing a War Crime
“in that he at Shanghai between the 6th August 1942 and 29th November 1944 as head of the Shanghai Keimpei-Tai and as such responsible for the control of Kempei personnel and the management of the places of detention at Shanghai was in violation of the laws and usages of war concerned in the ill-treatment of civilian residents of Shanghai and in particular the Reverend W.H. Hudspeth, Henry Forsythe Pringle; Edwin Arthur Thompson; Kenneth William Johnstone; James Robert Canning; William Slade Bungey; Arthur Vincent Roovey Dean; C.D. Kocaroff; Patrick Samuel Gibbons, Alexander Haindrava; Morris Joseph Soulevitch; Evans Daw; Boris S. Frank; and Boris Topas detained in the cells of the Headquarters of the Shanghai Kempei Tai at the Bridge House and of Eric Davies; J.A. Cook; B.P. Young detained in the cells of the Union Jack Club on Myrburgh Road a section of the Western Branch of the Shanghai Kempei-Tai, causing them all physical suffering.”
Committing a War Crime (against D1, D2)
“in that at Shanghai between about the 1st July 1943 and 31st August 1943 the accused KINOSHITA Eiichi then Major General Commanding the Shanghai District Kempei-Tai, and the accused YOSHIDA Bunzo then a Corporal in the Foreign Section of the Special Branch at the Headquarters of the Western Branch of the Shanghai Kempei-Tai on Jessfield Road, were, in violation of the laws and usages of war, concerned in the ill-treatment of civilian residents of Shanghai and in particular of John Martin Watson, William Hutton and Hans Rechlim, causing them physical suffering and resulting in the death of the said William Hutton.”
Second charge (against D1)
Committing a War Crime
“in that he at Shanghai in or about the month of November 1942, was, in violation of the laws and usages of war, concerned in the ill-treatment of a Chinese male, VONG, a civilian resident of Shanghai which ill-treatment resulted in the death of VONG aforesaid.”
Third charge (against D1)
Committing a War Crime
“in that he at Shanghai between the 6th August 1942 and 29th November 1944 as head of the Shanghai Keimpei-Tai and as such responsible for the control of Kempei personnel and the management of the places of detention at Shanghai was in violation of the laws and usages of war concerned in the ill-treatment of civilian residents of Shanghai and in particular the Reverend W.H. Hudspeth, Henry Forsythe Pringle; Edwin Arthur Thompson; Kenneth William Johnstone; James Robert Canning; William Slade Bungey; Arthur Vincent Roovey Dean; C.D. Kocaroff; Patrick Samuel Gibbons, Alexander Haindrava; Morris Joseph Soulevitch; Evans Daw; Boris S. Frank; and Boris Topas detained in the cells of the Headquarters of the Shanghai Kempei Tai at the Bridge House and of Eric Davies; J.A. Cook; B.P. Young detained in the cells of the Union Jack Club on Myrburgh Road a section of the Western Branch of the Shanghai Kempei-Tai, causing them all physical suffering.”
Legal Case Item Type Metadata
Case No.
WO235/1116
Accused
Lieutenant-General Kinoshita Kiichi (D1)
Sergeant Yoshida Bunzo (D2)
Court
Military Court for the Trial of War Criminals [unknown]
Charge Date
1948-10-18
Charge
First charge
Committing a War Crime (against D1, D2)
“in that at Shanghai between about the 1st July 1943 and 31st August 1943 the accused KINOSHITA Eiichi then Major General Commanding the Shanghai District Kempei-Tai, and the accused YOSHIDA Bunzo then a Corporal in the Foreign Section of the Special Branch at the Headquarters of the Western Branch of the Shanghai Kempei-Tai on Jessfield Road, were, in violation of the laws and usages of war, concerned in the ill-treatment of civilian residents of Shanghai and in particular of John Martin Watson, William Hutton and Hans Rechlim, causing them physical suffering and resulting in the death of the said William Hutton.”
Second charge (against D1)
Committing a War Crime
“in that he at Shanghai in or about the month of November 1942, was, in violation of the laws and usages of war, concerned in the ill-treatment of a Chinese male, VONG, a civilian resident of Shanghai which ill-treatment resulted in the death of VONG aforesaid.”
Third charge (against D1)
Committing a War Crime
“in that he at Shanghai between the 6th August 1942 and 29th November 1944 as head of the Shanghai Keimpei-Tai and as such responsible for the control of Kempei personnel and the management of the places of detention at Shanghai was in violation of the laws and usages of war concerned in the ill-treatment of civilian residents of Shanghai and in particular the Reverend W.H. Hudspeth, Henry Forsythe Pringle; Edwin Arthur Thompson; Kenneth William Johnstone; James Robert Canning; William Slade Bungey; Arthur Vincent Roovey Dean; C.D. Kocaroff; Patrick Samuel Gibbons, Alexander Haindrava; Morris Joseph Soulevitch; Evans Daw; Boris S. Frank; and Boris Topas detained in the cells of the Headquarters of the Shanghai Kempei Tai at the Bridge House and of Eric Davies; J.A. Cook; B.P. Young detained in the cells of the Union Jack Club on Myrburgh Road a section of the Western Branch of the Shanghai Kempei-Tai, causing them all physical suffering.”
Committing a War Crime (against D1, D2)
“in that at Shanghai between about the 1st July 1943 and 31st August 1943 the accused KINOSHITA Eiichi then Major General Commanding the Shanghai District Kempei-Tai, and the accused YOSHIDA Bunzo then a Corporal in the Foreign Section of the Special Branch at the Headquarters of the Western Branch of the Shanghai Kempei-Tai on Jessfield Road, were, in violation of the laws and usages of war, concerned in the ill-treatment of civilian residents of Shanghai and in particular of John Martin Watson, William Hutton and Hans Rechlim, causing them physical suffering and resulting in the death of the said William Hutton.”
Second charge (against D1)
Committing a War Crime
“in that he at Shanghai in or about the month of November 1942, was, in violation of the laws and usages of war, concerned in the ill-treatment of a Chinese male, VONG, a civilian resident of Shanghai which ill-treatment resulted in the death of VONG aforesaid.”
Third charge (against D1)
Committing a War Crime
“in that he at Shanghai between the 6th August 1942 and 29th November 1944 as head of the Shanghai Keimpei-Tai and as such responsible for the control of Kempei personnel and the management of the places of detention at Shanghai was in violation of the laws and usages of war concerned in the ill-treatment of civilian residents of Shanghai and in particular the Reverend W.H. Hudspeth, Henry Forsythe Pringle; Edwin Arthur Thompson; Kenneth William Johnstone; James Robert Canning; William Slade Bungey; Arthur Vincent Roovey Dean; C.D. Kocaroff; Patrick Samuel Gibbons, Alexander Haindrava; Morris Joseph Soulevitch; Evans Daw; Boris S. Frank; and Boris Topas detained in the cells of the Headquarters of the Shanghai Kempei Tai at the Bridge House and of Eric Davies; J.A. Cook; B.P. Young detained in the cells of the Union Jack Club on Myrburgh Road a section of the Western Branch of the Shanghai Kempei-Tai, causing them all physical suffering.”
Background
According to the review of the case by the Judge Advocate [A. Sidney-Wilmot, Group Captain, DJAG, FAR EAST, 23 December 1948]:
“After the Japanese entered the War, the International Settlement of Shanghai was occupied by them and in about August 1942 Kinoshita was posted to Shanghai as General Officer Commanding the Kempei Tai with a rank of Major General and among his duties were the training, discipline and control of all Kempei Tai and the control and supervision of all places of detention there. The strength of the Kempei Tai in Shanghai was approximately 1600 in all of whom 1000 were in Kempeis and 500 Auxiliary Kempeis and the Command was divided into 8 Kempei Tai stations. Each of these stations had officers in charge who were of course responsible to General Kinoshita for the proper conduct of their affairs and certain of these Stations had places of detention as part of their establishments in which civilian prisoners were held. These were known as Bridge House, Myrburgh Road Gaol (the former Union Jack Club), Haiphong Road Camp and at 94 Jessfield Road, Shanghai. The Accused General Kinoshita had his office at Bridge House whilst according to his own evidence, Sergeant Yoshida was attached to the German affairs section at 94 Jessfield Road.”
[Note: the case refers to ‘detainees’ as ‘prisoners’.]
D1 was an officer of the Regular Imperial Japanese Army. Until 1937 he was an Infantry Officer but in the early part of that year he was transferred to the Kempei Branch and in August 1937 was promoted to the rank of Colonel. After the Japanese entered the war and when Shanghai was occupied, he was posted to Shanghai as General Officer Commanding the Kempei Tai with the rank of Major-General. His duties were the training, discipline and control of all Kempei Tai and the control and supervision of all places of detention there.
D2 was a Sergeant.
“After the Japanese entered the War, the International Settlement of Shanghai was occupied by them and in about August 1942 Kinoshita was posted to Shanghai as General Officer Commanding the Kempei Tai with a rank of Major General and among his duties were the training, discipline and control of all Kempei Tai and the control and supervision of all places of detention there. The strength of the Kempei Tai in Shanghai was approximately 1600 in all of whom 1000 were in Kempeis and 500 Auxiliary Kempeis and the Command was divided into 8 Kempei Tai stations. Each of these stations had officers in charge who were of course responsible to General Kinoshita for the proper conduct of their affairs and certain of these Stations had places of detention as part of their establishments in which civilian prisoners were held. These were known as Bridge House, Myrburgh Road Gaol (the former Union Jack Club), Haiphong Road Camp and at 94 Jessfield Road, Shanghai. The Accused General Kinoshita had his office at Bridge House whilst according to his own evidence, Sergeant Yoshida was attached to the German affairs section at 94 Jessfield Road.”
[Note: the case refers to ‘detainees’ as ‘prisoners’.]
D1 was an officer of the Regular Imperial Japanese Army. Until 1937 he was an Infantry Officer but in the early part of that year he was transferred to the Kempei Branch and in August 1937 was promoted to the rank of Colonel. After the Japanese entered the war and when Shanghai was occupied, he was posted to Shanghai as General Officer Commanding the Kempei Tai with the rank of Major-General. His duties were the training, discipline and control of all Kempei Tai and the control and supervision of all places of detention there.
D2 was a Sergeant.
Allegations
The Prosecution argued that D1 owed an overall responsibility for the alleged ill-treatment of the various persons mentioned in the charges.
D2 actually took part in the torture of Watson, Hutton and Rechlin who were mentioned in the 1st charge.
The Prosecution called various witnesses to show the inhumane living conditions where prisoners were held. Sanitary conditions were very poor and food was “totally inadequate”. D2 allegedly committed on prisoners “electric treatment” which consisted of sending electric shocks through their bodies by placing electrodes on tender parts of their bodies such as their navels, nipples, lips, noses and ears. Beatings and other tortures were also alleged.
A Chinese detainee, Vong, was allegedly beaten with a wooden stick and a thin iron pipe for 1.5 hours. A notice was also placed outside his cell saying he was to receive no food and no water. Torture and beatings to many other prisoners were alleged.
Several witnesses testified about the mistreatment and sufferings of William Hutton at Haiphong Road Camp and 94 Jessfield Road. After having been tortured for 11 days, he was seen by Allied doctors in detention, and one Dr. S.D. Sturton OBE testified about the condition he was in. According to him, between 2 August 1943 and 13 August 1943, Hutton was reduced from a healthy strong man to a demented wreck and ultimately a few days later died as a result of what he had endured.
The witnesses also spoke of the “horrors” of the camps in which they were detained: appalling conditions, lack of food and water and insanitary conditions.
D2 actually took part in the torture of Watson, Hutton and Rechlin who were mentioned in the 1st charge.
The Prosecution called various witnesses to show the inhumane living conditions where prisoners were held. Sanitary conditions were very poor and food was “totally inadequate”. D2 allegedly committed on prisoners “electric treatment” which consisted of sending electric shocks through their bodies by placing electrodes on tender parts of their bodies such as their navels, nipples, lips, noses and ears. Beatings and other tortures were also alleged.
A Chinese detainee, Vong, was allegedly beaten with a wooden stick and a thin iron pipe for 1.5 hours. A notice was also placed outside his cell saying he was to receive no food and no water. Torture and beatings to many other prisoners were alleged.
Several witnesses testified about the mistreatment and sufferings of William Hutton at Haiphong Road Camp and 94 Jessfield Road. After having been tortured for 11 days, he was seen by Allied doctors in detention, and one Dr. S.D. Sturton OBE testified about the condition he was in. According to him, between 2 August 1943 and 13 August 1943, Hutton was reduced from a healthy strong man to a demented wreck and ultimately a few days later died as a result of what he had endured.
The witnesses also spoke of the “horrors” of the camps in which they were detained: appalling conditions, lack of food and water and insanitary conditions.
Defence
The Defence took the complete denial approach.
D1 denied any knowledge of any ill-treatment of prisoners. He admitted that daily reports were given to his Headquarters by the officers in charge of the stations. But, he said he did not see them at all. He denied having received any reports concerning these prisoners and said that the prisoners would become accustomed to the foul odour from the lavatory buckets in the cells (the Prosecution argued that this indeed showed his “callous attitude towards the prisoners’ welfare”).
D2 also denied all the allegations. He claimed that in the course of his duties, he would not normally come into contact with the prisoners. He denied ever meeting some of the witnesses when they were detained.
D1 denied any knowledge of any ill-treatment of prisoners. He admitted that daily reports were given to his Headquarters by the officers in charge of the stations. But, he said he did not see them at all. He denied having received any reports concerning these prisoners and said that the prisoners would become accustomed to the foul odour from the lavatory buckets in the cells (the Prosecution argued that this indeed showed his “callous attitude towards the prisoners’ welfare”).
D2 also denied all the allegations. He claimed that in the course of his duties, he would not normally come into contact with the prisoners. He denied ever meeting some of the witnesses when they were detained.
Prosecutor
Maj. P Clague, Royal Artillery, Office of the Deputy Director of Legal Services, CHQ FARELF
Defence Counsel
Mr Kakehi Masao, LLB, Barrrister-at-Law, Tokyo
Judges
President: Lt.-Col L.A. Massie, Royal Scots Fusiliers, Solicitor
Members: Major B.H. Craig, The Buffs; Captn. H.M. McLeod-Martin, Middlesex Regiment
Members: Major B.H. Craig, The Buffs; Captn. H.M. McLeod-Martin, Middlesex Regiment
Advisory Officer
Capt. W.R.L. Herries, Royal Sussex Regiment
Prosecution Witnesses
Henry Forsythe Pringle (Superintendent)
James Robert Canning (Factory Manager)
John Martin Watson (Civilian)
John Macauley (Employee of Shanghai Electrical Construction Company)
Ronald Charles Henry Hillman (Factory Supervisor)
Reginald Eynstone (Civil servant)
James Edward Bienkinsop (Former Chief Inspector)
Eric Davies (Consulting Engineer)
Herbert John Collar (Employee of Imperial Chemicals)
B.P. Young (Employed by Chinese Government)
Alexaner Haindrava (Shipping Agent)
David Lionel Tong (Real Estate Agent)
Stephen Douglas Sturton (Doctor)
Albert Edward Kyte (Officer commanding British Minor War Crimes, Liaison Section)
James Matsuda (Unknown)
Defence Witnesses
Kinoshita Kiichi (Accused) (Lieutenant-General)
Federick Marcus Hall (Captain)
Yoshida Bunzo (Accused) (Sergeant)
Atsumi Tonojiro (Kempei Warrant Officer)
Honda Isemu (Kempei Sergeant-Major)
Yoshimi Taneyoshi (Medical Captain)
Sigiura Tadamoto (Major)
Court Witnesses
T Ellis, RN (Commander)
Takahashi Mikio (Defence Counsel)
Kiichi Makita (Court Interpreter)
Hiyama Seinoshin (Seaman)
Trial Dates
1948-10-25
1948-10-27
1948-10-28
1948-10-29
1948-10-30
1948-11-01
1948-11-02
1948-11-04
1948-11-05
1948-11-08
1948-11-09
1948-11-10
1948-11-11
1948-11-22
1948-11-24
Judgement Date
1948-11-24
Judgement Confirmation Date
1948-12-02
Judgement Promulgation Date
1949-01-17
Judgement
With special findings
D1:
1st charge: Guilty;
2nd charge: Guilty;
3rd charge: Guilty with the exception of the words “Arthur Vincent Rooney Lean.”
D2:
1st charge: Guilty with the exception of the words “John Martin Watson”.
D1:
1st charge: Guilty;
2nd charge: Guilty;
3rd charge: Guilty with the exception of the words “Arthur Vincent Rooney Lean.”
D2:
1st charge: Guilty with the exception of the words “John Martin Watson”.
Petition
Both the Accused petitioned against the finding and sentence. D1 petitioned that there was no evidence at trial that he was “concerned in” the alleged ill-treatment of the prisoners and suggested that the Court misinterpreted the words “concerned in” for “responsible for”. The Judge Advocate [A. Sidney-Wilmot, Group Captain, DJAG, FAR EAST, 23 December 1948] did not consider there to be any substance in this. D2’s petition was described by the Judge Advocate as a mere “repetition of his denial of knowledge of the offences alleged against him”, all of this was before the court.
The Judge Advocate advised as follows on the case. He found the trial to have been “well conducted”. “Broadly speaking the case for the prosecution was that Lieutenant General Kinoshita owed an overall responsibility for the alleged ill-treatment of the various persons mentioned in the charges whilst Sergeant Yoshida actually took part in the torture of Watson, Hutton and Rechlin who are mentioned in the first Charge.”
The Judge Advocate advised that the court was entirely justified in convicting Kinoshita (D1) in relation to the second charge, concerning the victim Vong. Kinoshita was the senior officer on the scene and “yet he did nothing whatever to alleviate Vong’s suffering”.
The Judge Advocate also advised, in relation to Accused Kinoshita (D1), “In my opinion he may be said to be responsible for and concerned in the numerous acts of cruelty practiced by his subordinates.” He knew of the treatment meted out to prisoners. “It was certainly his duty to know and he himself admitted that even without that knowledge he owed a moral responsibility (Page 213). I consider that the Court was justified in convicting Kinoshita of all the Charges.”
In relation to D2, the Judge Advocate assessed that “Having regard to the evidence of the Prosecution witnesses and in particular, Mr. Watson, Mr. Soloman and Mr. Hans Rechlin, I am of the opinion that the Court was justified in convicting Sergeant Yoshida Bunzo of the first Charge which was the only one upon which he was arraigned.”
In respect of the sentencing, “The maximum punishment to which the Court could have sentenced the accused was death and you will no doubt consider in all the circumstances as to whether the sentences of Life Imprisonment for General Kinoshita and 12 years Imprisonment for Sergeant Yoshida are just. I respectfully suggest that they are. The Court made no recommendation to mercy.”
The Judge Advocate advised that the petitions should be dismissed, and the findings and sentences confirmed.
In this case, five petitions for clemency were submitted from relatives and friends of the Accused Kinoshita (D1) after confirmation. On 16 March 1949, the Judge Advocate General considered the matter and repeated earlier advice that “once the Proceedings of a War Crimes trial are confirmed, Petitions submitted on behalf of or even by convicted persons themselves are out of time, are submitted without any authorization and are contrary to Regulation 10 of the Regulations for the Trial of War Criminals made pursuant to the Royal Warrant of 14 June 1945 (Army Order 51/1945); and that it is not incumbent on the confirming authority to take any action whatever on such Petitions.”
The Judge Advocate advised as follows on the case. He found the trial to have been “well conducted”. “Broadly speaking the case for the prosecution was that Lieutenant General Kinoshita owed an overall responsibility for the alleged ill-treatment of the various persons mentioned in the charges whilst Sergeant Yoshida actually took part in the torture of Watson, Hutton and Rechlin who are mentioned in the first Charge.”
The Judge Advocate advised that the court was entirely justified in convicting Kinoshita (D1) in relation to the second charge, concerning the victim Vong. Kinoshita was the senior officer on the scene and “yet he did nothing whatever to alleviate Vong’s suffering”.
The Judge Advocate also advised, in relation to Accused Kinoshita (D1), “In my opinion he may be said to be responsible for and concerned in the numerous acts of cruelty practiced by his subordinates.” He knew of the treatment meted out to prisoners. “It was certainly his duty to know and he himself admitted that even without that knowledge he owed a moral responsibility (Page 213). I consider that the Court was justified in convicting Kinoshita of all the Charges.”
In relation to D2, the Judge Advocate assessed that “Having regard to the evidence of the Prosecution witnesses and in particular, Mr. Watson, Mr. Soloman and Mr. Hans Rechlin, I am of the opinion that the Court was justified in convicting Sergeant Yoshida Bunzo of the first Charge which was the only one upon which he was arraigned.”
In respect of the sentencing, “The maximum punishment to which the Court could have sentenced the accused was death and you will no doubt consider in all the circumstances as to whether the sentences of Life Imprisonment for General Kinoshita and 12 years Imprisonment for Sergeant Yoshida are just. I respectfully suggest that they are. The Court made no recommendation to mercy.”
The Judge Advocate advised that the petitions should be dismissed, and the findings and sentences confirmed.
In this case, five petitions for clemency were submitted from relatives and friends of the Accused Kinoshita (D1) after confirmation. On 16 March 1949, the Judge Advocate General considered the matter and repeated earlier advice that “once the Proceedings of a War Crimes trial are confirmed, Petitions submitted on behalf of or even by convicted persons themselves are out of time, are submitted without any authorization and are contrary to Regulation 10 of the Regulations for the Trial of War Criminals made pursuant to the Royal Warrant of 14 June 1945 (Army Order 51/1945); and that it is not incumbent on the confirming authority to take any action whatever on such Petitions.”
Sentence Imposed
D1: Life Imprisonment;
D2: 12 years imprisonment.
D2: 12 years imprisonment.
Keywords
Shanghai; Civilians; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Unlawful arrest or detention; Place of detention; “concerned in”; Poor conditions of detention; Failure to provide adequate medical care; Beatings; Interrogation; Torture; Cruel Inhuman or Degrading Treatment; Unlawful killing; War Crimes; Doctor; Violations of the laws and customs of war
Remarks
The Judge Advocate’s review of the proceedings is unusually detailed, providing a good overview of the evidence brought about the conditions endured by prisoners of the Kempeitai in Shanghai.
Refer to the case of Sgt. Major Yokohata Toshiro, Case No. WO/235/1117.
This case was tried at Lyemun Barracks, Hong Kong. This was one of two courts established, after completion of the work of the original two war crimes courts, to deal with cases from Shanghai.
Refer to the case of Sgt. Major Yokohata Toshiro, Case No. WO/235/1117.
This case was tried at Lyemun Barracks, Hong Kong. This was one of two courts established, after completion of the work of the original two war crimes courts, to deal with cases from Shanghai.
Dublin Core
Title
WO235/1114
Description
Committing a War Crime
“in that he on the High Seas, on the 1st and 2nd October 1942, when Master of the Military Transport S.S. “LISBON MARU” and as such responsible for the lives and safety of about 1800 British Prisoners of War on board the said transport when it had been torpedoed and was in a sinking condition, in violation of the laws and usages of war, was concerned (a) in the battening down of the P.O.W. aforesaid in the ships hold whereby many died of suffocation and many underwent mental and physical sufferings and many others were trapped and drowned when the ship sank and (b) in his failure to provide for the use of the P.O.W. available boats and life jackets as a result many of them were drowned after the ship had sunk and many more underwent mental and physical sufferings.”
“in that he on the High Seas, on the 1st and 2nd October 1942, when Master of the Military Transport S.S. “LISBON MARU” and as such responsible for the lives and safety of about 1800 British Prisoners of War on board the said transport when it had been torpedoed and was in a sinking condition, in violation of the laws and usages of war, was concerned (a) in the battening down of the P.O.W. aforesaid in the ships hold whereby many died of suffocation and many underwent mental and physical sufferings and many others were trapped and drowned when the ship sank and (b) in his failure to provide for the use of the P.O.W. available boats and life jackets as a result many of them were drowned after the ship had sunk and many more underwent mental and physical sufferings.”
Legal Case Item Type Metadata
Case No.
WO235/1114
Accused
Kyoda Shigeru
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that he on the High Seas, on the 1st and 2nd October 1942, when Master of the Military Transport S.S. “LISBON MARU” and as such responsible for the lives and safety of about 1800 British Prisoners of War on board the said transport when it had been torpedoed and was in a sinking condition, in violation of the laws and usages of war, was concerned (a) in the battening down of the P.O.W. aforesaid in the ships hold whereby many died of suffocation and many underwent mental and physical sufferings and many others were trapped and drowned when the ship sank and (b) in his failure to provide for the use of the P.O.W. available boats and life jackets as a result many of them were drowned after the ship had sunk and many more underwent mental and physical sufferings.”
“in that he on the High Seas, on the 1st and 2nd October 1942, when Master of the Military Transport S.S. “LISBON MARU” and as such responsible for the lives and safety of about 1800 British Prisoners of War on board the said transport when it had been torpedoed and was in a sinking condition, in violation of the laws and usages of war, was concerned (a) in the battening down of the P.O.W. aforesaid in the ships hold whereby many died of suffocation and many underwent mental and physical sufferings and many others were trapped and drowned when the ship sank and (b) in his failure to provide for the use of the P.O.W. available boats and life jackets as a result many of them were drowned after the ship had sunk and many more underwent mental and physical sufferings.”
Background
The Accused was a civilian, the Master of the S.S. “Lisbon Maru”. He was in the service of the Imperial Japanese Army, attached 1/5 Cdo, (Lt.). As the Judge Advocate described the situation, Lt. Sugiyama was the senior Army officer on board and accordingly was the officer commanding troops in transit. The officer in charge of the POW draft was Lt. Wada. The vessel was under requisition by the Army. The status of the Accused was that of a civilian attached to the Army.
On 1 October 1942, the Lisbon Maru was on the High Seas en route from Hong Kong to Japan, carrying 1816 British POWs, 778 Japanese troops and other passengers and 1676 tons of freight.
On 1 October 1942, the Lisbon Maru was on the High Seas en route from Hong Kong to Japan, carrying 1816 British POWs, 778 Japanese troops and other passengers and 1676 tons of freight.
Allegations
At 0710 hours on 1 October 1942, the Lisbon Maru was struck by torpedoes fired by an Allied destroyer, which tore a hole in her stern. Lt. Wada ordered the POWs to remain in their holds, and sick POWs, who had been on deck, were taken in the No. 1 and No. 2 holds.
The water started to enter the Lisbon Maru.
Most of the Japanese on board were transferred to other Japanese vessels that had arrived on the scene, at 1720 hours and between 1840 and 2000 hours. Only the ship’s officers and crew, Lt. Sugiyama, Lt. Wada, 26 guards for the POWs and the POWs themselves were left on board. The Lisbon Maru was towed onto a sandbank with the object of beaching her
The hatches in the holds where the POWs were held were then closed at 2100 hours. The ventilation was clearly inadequate for the number of men there. During the night, conditions deteriorated. A few men fainted due to lack of fresh air, stench and heat. No food or water was provided to them (their last meal was on the evening of 30 September 1942). Messages were passed between the holds where the POWs were kept.
The next morning, sometime after 0800 hours, a few POWs succeeded in breaking out from No. 2 hold, and opened a steel bulkhead door leading to No. 4 hold. They were fired at by the Japanese guards and the POWs retreated into the holds.
At 0855, Lt. Sugiyama, Lt. Wada, the 26 POW guards and the ship’s officers abandoned ship. At about this time, the POWs came out of the holds. Some POWs jumped into the water and some remained on board until the ship sank. Some allegedly drowned in the sea. The ship had set sail without adequate life-vests (the Judge Advocate observed that the Prosecution acknowledged that the Accused had protested to the Embarkation Office at Hong Kong that the boats and rafts provided inadequate accommodation, but despite that the ship was passed by the Inspector of Shipping and he received his orders to sail and he sailed accordingly).
The water started to enter the Lisbon Maru.
Most of the Japanese on board were transferred to other Japanese vessels that had arrived on the scene, at 1720 hours and between 1840 and 2000 hours. Only the ship’s officers and crew, Lt. Sugiyama, Lt. Wada, 26 guards for the POWs and the POWs themselves were left on board. The Lisbon Maru was towed onto a sandbank with the object of beaching her
The hatches in the holds where the POWs were held were then closed at 2100 hours. The ventilation was clearly inadequate for the number of men there. During the night, conditions deteriorated. A few men fainted due to lack of fresh air, stench and heat. No food or water was provided to them (their last meal was on the evening of 30 September 1942). Messages were passed between the holds where the POWs were kept.
The next morning, sometime after 0800 hours, a few POWs succeeded in breaking out from No. 2 hold, and opened a steel bulkhead door leading to No. 4 hold. They were fired at by the Japanese guards and the POWs retreated into the holds.
At 0855, Lt. Sugiyama, Lt. Wada, the 26 POW guards and the ship’s officers abandoned ship. At about this time, the POWs came out of the holds. Some POWs jumped into the water and some remained on board until the ship sank. Some allegedly drowned in the sea. The ship had set sail without adequate life-vests (the Judge Advocate observed that the Prosecution acknowledged that the Accused had protested to the Embarkation Office at Hong Kong that the boats and rafts provided inadequate accommodation, but despite that the ship was passed by the Inspector of Shipping and he received his orders to sail and he sailed accordingly).
Defence
The Defence was based mainly on the status of the Accused as a civilian, and the limited scope of the authority and responsibility that he had. He claimed that as a civilian, he had no authority to issue orders to Japanese Army personnel on board. Although he could tender advice, but he was bound to obey orders issued to him by army officers.
The Accused argued that when he got Lt. Wada’s order to close the hatches in order to prevent attempt to escape or violence by the POWs, he actually protested on the grounds of lack of ventilation and danger to the lives of the POWs. He claimed he succeeded at first, but after a few hours, Lt. Wada approached him again with Lt. Sugiyama, giving a firm order to close the hatches. He could only conform to the order.
The Accused asserted that at 0845 hours, when he passed the orders to abandon ship to Lt. Wada, he specifically requested him to have the POWs brought out of the holds. Five minutes later, he saw the POWs emerging from the holds and jumping into the sea. The officers and crew abandoned ship a little after 0900 hours. The Accused stated that he tried to go down with his ship by tying himself to a stanchion. After submerging for 30 seconds that part of the ship came to the surface again, so he gave up the attempt. He went up to the boat deck and helped some POWs to launch the only boat then available and then urged other POWs to jump into the sea, but some were reluctant.
He concluded that the other ships standing by were rescuing Japanese personnel first. At 0940 hours, he jumped into the sea.
The Accused argued that when he got Lt. Wada’s order to close the hatches in order to prevent attempt to escape or violence by the POWs, he actually protested on the grounds of lack of ventilation and danger to the lives of the POWs. He claimed he succeeded at first, but after a few hours, Lt. Wada approached him again with Lt. Sugiyama, giving a firm order to close the hatches. He could only conform to the order.
The Accused asserted that at 0845 hours, when he passed the orders to abandon ship to Lt. Wada, he specifically requested him to have the POWs brought out of the holds. Five minutes later, he saw the POWs emerging from the holds and jumping into the sea. The officers and crew abandoned ship a little after 0900 hours. The Accused stated that he tried to go down with his ship by tying himself to a stanchion. After submerging for 30 seconds that part of the ship came to the surface again, so he gave up the attempt. He went up to the boat deck and helped some POWs to launch the only boat then available and then urged other POWs to jump into the sea, but some were reluctant.
He concluded that the other ships standing by were rescuing Japanese personnel first. At 0940 hours, he jumped into the sea.
Prosecutor
Maj. P.A.L. Vine, R.M
Defence Counsel
Mr Takashashi Mikio (Japanese Barrister) and Mr Nibun Yurito (Japanese Barrister)
Judges
President: Lt.Col. R.C. Laming, Barrister (Dept. of the JAG India)
Members: Lt.Cmdr. J. De G. Lamotte, R.N; Major J.T. Loranger (JAG Branch, Canadian Army)
Members: Lt.Cmdr. J. De G. Lamotte, R.N; Major J.T. Loranger (JAG Branch, Canadian Army)
Advisory Officer
2nd/ Lt. G.L. Falkoff (the Buffs)
Prosecution Witnesses
Major Y.H. Chan (Major)
S.J. Chen (Sergeant)
Major J.T.N Cross (Major)
Captain F.V. Collison (Captain)
Major Vine (Major)
Captain Yokota Minoru (Captain)
Imamura Ichiro (Paymaster Lieutenant-Commander)
H.M. Howell (Businessman)
Araki Kaname (Second Mate of the Lisbon Maru)
A.J.W. Evans (Manager of British Cigarette Company)
Joseph Hill (Crown Sergeant)
F.K. Garton (Wireless Engineer of Government)
G.C. Hamilton (Lieutenant)
Euchi Makita (Interpreter)
G.D.A. Gregory (Commander)
Defence Witnesses
Kyoda Shigeru (Civilian)
Niimori Genichiro (Interpreter)
Ando Tadashi (Major)
Higuchi Keichiro (Lieutenant-General)
Sasaki Yoichi (Court Interpreter)
Court Witnesses
T Ellis, RN (Commander)
Takahashi Mikio (Defence Lawyer)
Kiichi Makita (Court Interpreter)
Hiyama Seinoshin (Seaman)
Trial Dates
1946-10-23
1946-10-24
1946-10-25
1946-10-26
1946-10-28
1946-10-29
1946-10-30
1946-10-31
1946-11-01
1946-11-02
1946-11-04
1946-11-05
1946-11-08
1946-11-13
1946-11-14
1946-11-15
1946-11-16
1946-11-18
1946-11-19
1946-11-20
1946-11-21
1946-11-22
1946-11-28
1946-11-29
Judgement Date
1946-11-29
Judgement Confirmation Date
1947-02-18
Judgement Promulgation Date
1947-02-19
Judgement
Guilty except that the court found that two and not “many” POW died in the ship’s holds from the effects of the conditions in No. 1 hold and their already weakened state, and not from suffocation; that others and not “many others” were trapped and drowned when the ship sank, and except for the words “and in his failure to provide for the use of the POW available lifeboats and lifejackets, as a result many of them were drowned when the ship sank and many more underwent mental and physical sufferings.”
Petition
There is no record of a Petition on the file.
In reviewing the case, the Judge Advocate [FGT Davis, DJAG, South East Asia Land Forces, 11 February 1947] made the following observations.
“The only direct evidence of any deaths during the night was the statement of PW10 that two named persons died in No.1 hold; those two persons were suffering at the time from beri-beri (pp.143-4 of the proceedings).”
“All the POWs in Nos.1, 2 and 3 holds succeeded in coming up on deck before the ship sank (except the two who had died in No.1 hold during the night) but there was evidence that some P.O.W. were drowned in No. 4 hold. It is not clear exactly when the accused abandoned ship. According to a report he prepared immediately after the incident, (which was put in as evidence for the prosecution), it was at 0940 hours; the evidence of P.O.W. was that they did not notice him and that the ship appeared deserted when they emerged from the holds on the second occasion.”
“Life saving gear on board the “Lisbon Maru” consisted of 4 life-boats, 2 small “sampans”, 6 rafts and 2700 life jackets. The accused had protested to the Embarkation Office, Hong Kong, that the boats and rafts provided inadequate accommodation, but despite that the ship was passed by the Inspector of Shipping and he received his orders to sail and he sailed accordingly.”
For the Defence, the Judge Advocate noted that evidence was adduced “to the effect that a civilian master of a Japanese troopship under Army requisition had no authority to issue any orders to Japanese Army personnel on board his ship, though he could tender advice; that he was bound to obey orders issued to him by army officers acting in the course of their duty and concerning matters within the scope of his own duties; and that the Army officer commanding troops in transit had considerable authority and responsibility on board a troopship, having exclusive jurisdiction in the following matter, inter alia, so far as his troops were concerned:-
(a) issue of rations
(b) sanitation
(c) safety precautions while in transit
(d) distribution and use of life-jackets, life-boats and other life saving gear.
(e) abandoning ship in case of necessity”.
In relation to the sentence, the Judge Advocate observed that the defence of the Accused to the charge of battening down the hatches “was in effect that of obedience to superior orders”. “But such obedience is not a valid defence where the order is obviously unlawful. In this case the accused knew what consequence would result from closing the hatches and those consequences constituted a violation of laws and usages of war.”
“In regard to that part of the special finding that two and not many P.O.W. died in the ship’s holds from the effects of the No. 1 hold in their already weakened state and not from suffocation, the evidence shows that the two men concerned were suffering from beri-beri. Since the immediate cause of death was not established in either case, a more accurate finding would have been that their deaths were contributed to by the conditions in No.1 hold, but I think that is really what the court mean and I advise confirmation.”
In reviewing the case, the Judge Advocate [FGT Davis, DJAG, South East Asia Land Forces, 11 February 1947] made the following observations.
“The only direct evidence of any deaths during the night was the statement of PW10 that two named persons died in No.1 hold; those two persons were suffering at the time from beri-beri (pp.143-4 of the proceedings).”
“All the POWs in Nos.1, 2 and 3 holds succeeded in coming up on deck before the ship sank (except the two who had died in No.1 hold during the night) but there was evidence that some P.O.W. were drowned in No. 4 hold. It is not clear exactly when the accused abandoned ship. According to a report he prepared immediately after the incident, (which was put in as evidence for the prosecution), it was at 0940 hours; the evidence of P.O.W. was that they did not notice him and that the ship appeared deserted when they emerged from the holds on the second occasion.”
“Life saving gear on board the “Lisbon Maru” consisted of 4 life-boats, 2 small “sampans”, 6 rafts and 2700 life jackets. The accused had protested to the Embarkation Office, Hong Kong, that the boats and rafts provided inadequate accommodation, but despite that the ship was passed by the Inspector of Shipping and he received his orders to sail and he sailed accordingly.”
For the Defence, the Judge Advocate noted that evidence was adduced “to the effect that a civilian master of a Japanese troopship under Army requisition had no authority to issue any orders to Japanese Army personnel on board his ship, though he could tender advice; that he was bound to obey orders issued to him by army officers acting in the course of their duty and concerning matters within the scope of his own duties; and that the Army officer commanding troops in transit had considerable authority and responsibility on board a troopship, having exclusive jurisdiction in the following matter, inter alia, so far as his troops were concerned:-
(a) issue of rations
(b) sanitation
(c) safety precautions while in transit
(d) distribution and use of life-jackets, life-boats and other life saving gear.
(e) abandoning ship in case of necessity”.
In relation to the sentence, the Judge Advocate observed that the defence of the Accused to the charge of battening down the hatches “was in effect that of obedience to superior orders”. “But such obedience is not a valid defence where the order is obviously unlawful. In this case the accused knew what consequence would result from closing the hatches and those consequences constituted a violation of laws and usages of war.”
“In regard to that part of the special finding that two and not many P.O.W. died in the ship’s holds from the effects of the No. 1 hold in their already weakened state and not from suffocation, the evidence shows that the two men concerned were suffering from beri-beri. Since the immediate cause of death was not established in either case, a more accurate finding would have been that their deaths were contributed to by the conditions in No.1 hold, but I think that is really what the court mean and I advise confirmation.”
Sentence Imposed
7 years imprisonment
Keywords
High Seas; Lisbon Maru; Civilian Captain; Imperial Japanese Army; Prisoners of War; Transport of Prisoners of War; “concerned in”; Cruel Inhuman or Degrading Treatment; Unlawful killing; Ordered; Superior Orders; War Crimes; Violations of the laws and customs of war; Scope of responsibilities; Mitigating circumstances
Remarks
The Judge Advocate’s report about the trial is unusually detailed.
Link to the trial of the interpreter on the Lisbon Maru, Niimori Genichiro, Case No. WO/235/892.
See the account of Mr. Peter Vine and the extract from Mr. Tony Banham’s book The Sinking of the Lisbon Maru at the Hong Kong’s War Crimes Trials section of the website.
Link to the trial of the interpreter on the Lisbon Maru, Niimori Genichiro, Case No. WO/235/892.
See the account of Mr. Peter Vine and the extract from Mr. Tony Banham’s book The Sinking of the Lisbon Maru at the Hong Kong’s War Crimes Trials section of the website.
Dublin Core
Title
WO235/1112
Description
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.
Legal Case Item Type Metadata
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
1948-02-24
1948-02-25
1948-02-26
1948-02-27
1948-03-02
1948-03-03
1948-03-04
1948-03-05
1948-03-08
1948-03-09
1948-03-10
1948-03-11
1948-03-13
1948-03-15
1948-03-16
1948-03-17
1948-03-18
1948-03-19
1948-03-30
1948-03-31
Judgement Date
1948-03-31
Judgement Confirmation Date
1948-06-21
Judgement Promulgation Date
1948-06-21
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).
Dublin Core
Title
WO235/1107
Description
First Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment of Allied POWs. and Surrendered Personnel by the members of Units under his Command.”
Second Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of wounded and sick Members of Allied Forces that had fallen in their power.”
Third Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of Allied Personnel engaged exclusively in the collection, transport and treatment of the wounded and sick and in the administration of medical formations and establishments.”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of civilian residents of Hong Kong.”
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment of Allied POWs. and Surrendered Personnel by the members of Units under his Command.”
Second Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of wounded and sick Members of Allied Forces that had fallen in their power.”
Third Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of Allied Personnel engaged exclusively in the collection, transport and treatment of the wounded and sick and in the administration of medical formations and establishments.”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of civilian residents of Hong Kong.”
Legal Case Item Type Metadata
Case No.
WO235/1107
Accused
Lt. Gen. Ito Takeo
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment of Allied POWs. and Surrendered Personnel by the members of Units under his Command.”
Second Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of wounded and sick Members of Allied Forces that had fallen in their power.”
Third Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of Allied Personnel engaged exclusively in the collection, transport and treatment of the wounded and sick and in the administration of medical formations and establishments.”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of civilian residents of Hong Kong.”
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment of Allied POWs. and Surrendered Personnel by the members of Units under his Command.”
Second Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of wounded and sick Members of Allied Forces that had fallen in their power.”
Third Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of Allied Personnel engaged exclusively in the collection, transport and treatment of the wounded and sick and in the administration of medical formations and establishments.”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong, between the 17th and 31st December 1941, as Commander of the 38 Infantry Unit of the 38 Division, was, in Violation of the Laws and Usages of War, concerned in the killing and ill-treatment by Members of Units under his Command of civilian residents of Hong Kong.”
Background
This case concerned the Japanese invasion, leading to the occupation of Hong Kong, in December 1941.
The Accused was in command of the Infantry Group (Hohei Dan) of the 38th Division of the Japanese Army. He took part in the attack on and capture of Hong Kong. The attack was scheduled to begin on the night of 18/19 December 1941.
On the night of 18 December 1941, three Regiments of the Japanese Army attacked Hong Kong Island – the Tanaka Butai (Regiment) on the right landing at Sau Ki Wan; the Doi Butai (Regiment) in the centre landing at Tai Koo Docks and the Shoji Butai (Regiment) on the left landing at North Point.
The Accused was in command of the Infantry Group (Hohei Dan) of the 38th Division of the Japanese Army. He took part in the attack on and capture of Hong Kong. The attack was scheduled to begin on the night of 18/19 December 1941.
On the night of 18 December 1941, three Regiments of the Japanese Army attacked Hong Kong Island – the Tanaka Butai (Regiment) on the right landing at Sau Ki Wan; the Doi Butai (Regiment) in the centre landing at Tai Koo Docks and the Shoji Butai (Regiment) on the left landing at North Point.
Allegations
The Prosecution alleged that a number of atrocities were committed by Japanese troops in this period. These atrocities included the shooting and bayoneting to death of captured Allied troops and surrendered personnel, the unlawful killing of sick and wounded members of the Allied Forces, the unlawful killing of medical personnel, and the murder and rape of nurses as well as civilians (both British and Chinese). More specifically, the allegations were:
1. During the attack on Repulse Bay, Japanese troops committed various atrocities. When they took Sai Wan Hill, they captured a number of prisoners. They were placed in a concrete pill-box for several hours. They were called out and were bayoneted and their bodies tossed over a stone embankment. Two survived and gave evidence in person.
2. When the Japanese took the Salesian Mission, which was occupied by medical personnel, both military and civilians were made prisoners. Major Banfill, by his affidavit, claimed that it was done by an order. He also said that he saw them ''butcher'' wounded British officers and soldiers.
3. There was also wanton killing of two European residents at a reservoir pumping station.
4. At St. Stephen's College in Stanley, which was used as an ancillary hospital, the troops allegedly raped and murdered nurses, and brutally killed wounded soldiers.
5. Rape of nurses also occurred at the Jockey Club on the Race Course, where an emergency hospital was situated.
The Prosecution attempted to prove that the Accused was commanding the 38th Infantry Unit, consisting of three regiments, who were responsible for the atrocities. In particular, the Prosecution contended that Major Gen (then Col) Tanaka was at the time operating under the Accused’s command and hence that the Accused bore responsibility for the atrocities committed by Tanaka’s troops, especially in the Repulse Bay area.
The Prosecution referred to (1) the Manual of Military Law, Chapter XIV(a), Paragraph 56(c), (2) the Red Cross Convention, Chapter 1, Article 2, and (3) the Hague Convention, Section 1, Chapter 1, Article 1, Condition 1. The three sources of law provided the rights of Prisoners of War (‘POWs’) that the Japanese troops breached.
Finally, the Prosecution asked the Court “to take cognisance of the Law on the responsibility of a commander in the Field”, that he must take measures as are within his power to ensure inhuman acts do not occur.
1. During the attack on Repulse Bay, Japanese troops committed various atrocities. When they took Sai Wan Hill, they captured a number of prisoners. They were placed in a concrete pill-box for several hours. They were called out and were bayoneted and their bodies tossed over a stone embankment. Two survived and gave evidence in person.
2. When the Japanese took the Salesian Mission, which was occupied by medical personnel, both military and civilians were made prisoners. Major Banfill, by his affidavit, claimed that it was done by an order. He also said that he saw them ''butcher'' wounded British officers and soldiers.
3. There was also wanton killing of two European residents at a reservoir pumping station.
4. At St. Stephen's College in Stanley, which was used as an ancillary hospital, the troops allegedly raped and murdered nurses, and brutally killed wounded soldiers.
5. Rape of nurses also occurred at the Jockey Club on the Race Course, where an emergency hospital was situated.
The Prosecution attempted to prove that the Accused was commanding the 38th Infantry Unit, consisting of three regiments, who were responsible for the atrocities. In particular, the Prosecution contended that Major Gen (then Col) Tanaka was at the time operating under the Accused’s command and hence that the Accused bore responsibility for the atrocities committed by Tanaka’s troops, especially in the Repulse Bay area.
The Prosecution referred to (1) the Manual of Military Law, Chapter XIV(a), Paragraph 56(c), (2) the Red Cross Convention, Chapter 1, Article 2, and (3) the Hague Convention, Section 1, Chapter 1, Article 1, Condition 1. The three sources of law provided the rights of Prisoners of War (‘POWs’) that the Japanese troops breached.
Finally, the Prosecution asked the Court “to take cognisance of the Law on the responsibility of a commander in the Field”, that he must take measures as are within his power to ensure inhuman acts do not occur.
Defence
The Accused admitted that before the Hong Kong landings, he was in command of the 38thh Infantry Unit. But, he contended that as soon as the operations against the island began, there was a redistribution of forces. He claimed that he then became the commander of a body known as the Right Flank Force, while Tanaka commanded a parallel force known as the Left Flank Force. Both units were under the command of the G.O.C. 38th Division.
Furthermore, during the trial, the Accused testified that his forces engaged in decisive battle on the high hills. No troops of the Right Flank Force were to be led into the town area. He issued a strict prohibition against entering into civilian residences. He said this was because, unlike other wars on the Chinese mainland, the residents of Hong Kong had not evacuated yet. He wanted to minimize the damages and casualties. He was ''firmly convinced'' that the military discipline in his force was strictly maintained. He accepted that he bore responsibility for his subordinates’ actions, but maintained that they did not, in fact, commit any misconduct.
Furthermore, during the trial, the Accused testified that his forces engaged in decisive battle on the high hills. No troops of the Right Flank Force were to be led into the town area. He issued a strict prohibition against entering into civilian residences. He said this was because, unlike other wars on the Chinese mainland, the residents of Hong Kong had not evacuated yet. He wanted to minimize the damages and casualties. He was ''firmly convinced'' that the military discipline in his force was strictly maintained. He accepted that he bore responsibility for his subordinates’ actions, but maintained that they did not, in fact, commit any misconduct.
Prosecutor
Major M.I. Ormsby (West Yorkshire Regiment (The Prince of Wales’ Own), DAJAG, FARELF)
Assistant Prosecutor: Major J.T.N. Cross (Royal Artillery, DAJAG, War Crimes Legal Section, G.H.Q. FARELF).
Assistant Prosecutor: Major J.T.N. Cross (Royal Artillery, DAJAG, War Crimes Legal Section, G.H.Q. FARELF).
Defence Counsel
Mr Kunihiro Minoru (Lawyer of the Tokyo Bar Association)
Judges
President: Lt-Col. P. Warwick (R.A.S.C. Barrister-at-law)
Members: Major. V.E. Howse (King’s Own Royal Regiment), Capt. J. Benyon (Royal Engineers)
Members: Major. V.E. Howse (King’s Own Royal Regiment), Capt. J. Benyon (Royal Engineers)
Advisory Officer
2nd/Lt. G.L. Falkoff (The Buffs)
Prosecution Witnesses
Cheung Siu Ling (Teacher)
Capt. E.C. Watson (Captain)
Chan Yan Kwong (Merchant)
F.R. Zimmern (Stockbroker)
Henri Boesveld (Merchant)
Edward Charles Fincher (Falconer, member of Hong Kong Volunteer Defence Corps)
James Risley Winyard (Technical Staff (aircraft), member of Hong Kong Volunteer Defence Corps)
J.P. White (Costing Clerk, member of Hong Kong Volunteer Defence Corps)
Mrs. B. Ward (Unknown)
Yim Hung (?Boy?)
Lam Sam Yin (Cook)
Mrs. E.A. Fidoe (Nursing sister)
Miss Amy Williams (Matron)
S.D. Begg (Commercial Executive)
Chan Sai So (?Boy?)
Leung Wing Cho (Pumping Station Worker)
Chan Wei Fong (Unknown)
Col. L.T. Ride (Commandant of Hong Kong Volunteer Defence Corps)
J.M. Baud (Merchant)
Maj. General Tanaka Ryusaburu (Japanese Major-General)
Lee Yeuk Lan (Unknown)
Miss Lois Fearon (Unknown)
Maj. M.I. Ormsby (Unknown)
Defence Witnesses
Lt. Gen. Ito Takeo (Accused)
Col. Matsumoto Shoji (Japanese Colonel)
Sgt. Maj. Ishiyama Kakui (Japanese Sergeant-Major)
Tosaka Susumi (Staff officer of the 38th Division)
Lt-Gen. Higuchi Keishichiro (Japanese Lieutenant-General)
Trial Dates
1948-01-19
1948-01-20
1948-01-21
1948-01-22
1948-01-23
1948-01-24
1948-01-26
1948-01-27
1948-01-28
1948-01-29
1948-01-30
1948-02-06
Judgement Date
1948-02-06
Judgement
First and Second Charges: Guilty;
Third and Fourth Charges: Not Guilty.
Third and Fourth Charges: Not Guilty.
Petition
The Accused submitted a Petition on 19 February 1948, stressing that the killing and ill-treatment were not proved. The Accused did not deny his responsibility for supervising his subordinates, but he challenged the claim that they committed any crimes. In the light of the fundamental principle concerning the presumption of innocence, he argued, he should have been acquitted.
In reviewing the case, the Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 9 April 1948] observed that the Petition just repeated what was said at trial, and issues that had been considered by the Court.
The Judge Advocate noted the “wealth of evidence relating to atrocities committed by Japanese troops against all the classes of persons mentioned in the charges during the battle for Hong Kong.”
On the issue of the redistribution of Japanese forces for the operation against Hong Kong Island - the Defence claim (supported by witnesses) was that the troops responsible were actually under the direct control of the G.O.C. – the Judge Advocate assessed that: “Although it seems highly probable that this story was concocted by the Japanese witnesses for the purpose of this trial, there was little or no evidence to rebut it and at the same time there was evidence from other prosecution witnesses that Tanaka personally appeared and made a speech in the Repulse Bay area (at Eucliffe), the inference being that he was directly responsible for what was going on there or at least for failing to stop it.”
“In finding the accused guilty only on the first two charges and in awarding a sentence of imprisonment for only 12 years (as against 20 years awarded at an earlier trial to Tanaka for his part in similar activities) the Court evidently came to the conclusion that Ito’s responsibility was proved only in relation to atrocities against allied troops in the right flank sector.”
“The findings were undoubtedly in accordance with the evidence which the Court had before them and in the circumstances the sentence appears to be appropriate.”
The Judge Advocate advised that the Petition should be dismissed and the proceedings should be confirmed.
In reviewing the case, the Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 9 April 1948] observed that the Petition just repeated what was said at trial, and issues that had been considered by the Court.
The Judge Advocate noted the “wealth of evidence relating to atrocities committed by Japanese troops against all the classes of persons mentioned in the charges during the battle for Hong Kong.”
On the issue of the redistribution of Japanese forces for the operation against Hong Kong Island - the Defence claim (supported by witnesses) was that the troops responsible were actually under the direct control of the G.O.C. – the Judge Advocate assessed that: “Although it seems highly probable that this story was concocted by the Japanese witnesses for the purpose of this trial, there was little or no evidence to rebut it and at the same time there was evidence from other prosecution witnesses that Tanaka personally appeared and made a speech in the Repulse Bay area (at Eucliffe), the inference being that he was directly responsible for what was going on there or at least for failing to stop it.”
“In finding the accused guilty only on the first two charges and in awarding a sentence of imprisonment for only 12 years (as against 20 years awarded at an earlier trial to Tanaka for his part in similar activities) the Court evidently came to the conclusion that Ito’s responsibility was proved only in relation to atrocities against allied troops in the right flank sector.”
“The findings were undoubtedly in accordance with the evidence which the Court had before them and in the circumstances the sentence appears to be appropriate.”
The Judge Advocate advised that the Petition should be dismissed and the proceedings should be confirmed.
Sentence Imposed
Imprisonment of 12 years
Keywords
Battle for Hong Kong; 38th Infantry Unit; Imperial Japanese Army; Hong Kong; Civilians; Prisoners of War; Medical or related personnel; Medical formations and establishments; "concerned in"; Surrender; Prisoners of War; Sick or Wounded; Unlawful Killing; Sexual Violence; Torture; Cruel Inhuman or Degrading Treatment; Military Command Responsibility; War Crimes; Violations of laws and customs of war;
Manual of Military Law; Red Cross Convention; Hague Regulations/Rules 1907
Manual of Military Law; Red Cross Convention; Hague Regulations/Rules 1907
Remarks
Refer to the trials of Major General Tanaka Ryosaburo (Case No. WO/235/1030) and Major General Shoji Toshishige (Case No. WO/235/1015).
Dublin Core
Title
WO235/1106
Description
First charge (both): Committing a War Crime
In that they “at Shataukok between the 1st of August 1943 and the 31st of December 1944, the first named accused as Officer Commanding and the second named accused as a member of the Shataukok Gendarmerie, were, in Violation of the laws and usages or war, concerned in the illtreatment of civilian residents of Shataukok aforesaid such illteratment resulting in the deaths among others of Woo Yung, Choy Fok, Mo Ma Tai, Tang Fook, Yip Tin Cheung, Yip Sang, Yip Tin Sung, Lee Wah, Lee Yee Kwei, Lee Koon Kam, Mo Yeung and Mo Yee Choy.”
Second charge (Nakajima Tokuzo only): Committing a War Crime
In that he “at Shataukok, in the months of June and July 1943, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of Nam Chung Village.”
In that they “at Shataukok between the 1st of August 1943 and the 31st of December 1944, the first named accused as Officer Commanding and the second named accused as a member of the Shataukok Gendarmerie, were, in Violation of the laws and usages or war, concerned in the illtreatment of civilian residents of Shataukok aforesaid such illteratment resulting in the deaths among others of Woo Yung, Choy Fok, Mo Ma Tai, Tang Fook, Yip Tin Cheung, Yip Sang, Yip Tin Sung, Lee Wah, Lee Yee Kwei, Lee Koon Kam, Mo Yeung and Mo Yee Choy.”
Second charge (Nakajima Tokuzo only): Committing a War Crime
In that he “at Shataukok, in the months of June and July 1943, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of Nam Chung Village.”
Legal Case Item Type Metadata
Case No.
WO235/1106
Accused
Sgt. Maj. Kuwaki Kiyomori (D1)
Sgt. Nakajima Tokuzo (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
First charge (both): Committing a War Crime
In that they “at Shataukok between the 1st of August 1943 and the 31st of December 1944, the first named accused as Officer Commanding and the second named accused as a member of the Shataukok Gendarmerie, were, in Violation of the laws and usages or war, concerned in the illtreatment of civilian residents of Shataukok aforesaid such illteratment resulting in the deaths among others of Woo Yung, Choy Fok, Mo Ma Tai, Tang Fook, Yip Tin Cheung, Yip Sang, Yip Tin Sung, Lee Wah, Lee Yee Kwei, Lee Koon Kam, Mo Yeung and Mo Yee Choy.”
Second charge (Nakajima Tokuzo only): Committing a War Crime
In that he “at Shataukok, in the months of June and July 1943, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of Nam Chung Village.”
In that they “at Shataukok between the 1st of August 1943 and the 31st of December 1944, the first named accused as Officer Commanding and the second named accused as a member of the Shataukok Gendarmerie, were, in Violation of the laws and usages or war, concerned in the illtreatment of civilian residents of Shataukok aforesaid such illteratment resulting in the deaths among others of Woo Yung, Choy Fok, Mo Ma Tai, Tang Fook, Yip Tin Cheung, Yip Sang, Yip Tin Sung, Lee Wah, Lee Yee Kwei, Lee Koon Kam, Mo Yeung and Mo Yee Choy.”
Second charge (Nakajima Tokuzo only): Committing a War Crime
In that he “at Shataukok, in the months of June and July 1943, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents of Nam Chung Village.”
Background
Both Kuwaki (D1) and Nakajima (D2) were members of a Kempei section stationed at Shataukok during the material period. D1 was alleged to be the Officer in Charge of Shataukok Gendarmerie. The Shautaukok Gendarmerie carried out mass arrests in the nearby villages, due to suspicions that the villagers were taking part in “Communistic activities”. The detainees were kept in the Shataukok Headquarters and subjected to ill-treatment, in some instances leading to death.
Allegations
It was alleged that many prisoners suffered torture and ill-treatment at the hands of both Accused, which included savage beatings with sticks and iron rods, burning with cigarettes and lighted paper, beating with a hammer, starvation, water and aeroplane tortures and various other forms of ill-treatment.
D2 was alleged to have committed torture that caused the death of 7 prisoners. On one occasion, torture was committed by passing an electric shock through a prisoner, which caused his death.
D2 was alleged to have committed torture that caused the death of 7 prisoners. On one occasion, torture was committed by passing an electric shock through a prisoner, which caused his death.
Defence
Both Accused claimed that Shataukok was the centre of considerable anti-Japanese and "communistic activities" and because of this, a company of Japanese soldiers was despatched to try and restore order. Both claimed that the witnesses mixed up the Kempei soldiers under their control with this company of soldiers. They alleged that the latter were the ones who actually committed the tortures.
D1 claimed that he was never involved in any interrogations because he was hospitalized in that period due to inflammation of the appendix.
D2 claimed that he was in charge of administration and clerical work only and did not actually have time to interrogate any prisoner.
D1 claimed that he was never involved in any interrogations because he was hospitalized in that period due to inflammation of the appendix.
D2 claimed that he was in charge of administration and clerical work only and did not actually have time to interrogate any prisoner.
Prosecutor
Major J.T.N. Cross (Royal Army, DAJAG, FARELF)
Defence Counsel
Mr. Hirakawa Chiaki (Member of the Bar Association, Osaka)
Judges
President: Lt. Col R.C. Laming, Barrister (Dept of the JAG, India)
Members: Major R.S. Butterfield (Indian Grenadiers); Capt. J. Benyon (Royal Engineer)
Members: Major R.S. Butterfield (Indian Grenadiers); Capt. J. Benyon (Royal Engineer)
Advisory Officer
Lt. D.C.J. Banfield (The Buffs)
Prosecution Witnesses
Lo Koon Ping (Rice Bureau)
Capt. F.V. Collison (Captain)
Yip Yun (Shop Keeper)
Cheung Choy (Unknown)
Lo Pun (Villager, Prisoner)
Lee Fook (Villager, Prisoner)
Yip Kut Wai (Villager, Prisoner)
Yip Kut Pong (Unknown)
Yip Kut Wang (Villager, Prisoner)
Cheung Tai (Wife of Yip Sang)
Cheung Lam Fook (Villager, Prisoner)
George Tong (Acting Monitor)
Tsang Mo Cheung (Villager, Prisoner)
Tsang Chung Cheong (Villager, Prisoner)
Tsang Hing (Shop worker)
Cheung Choy (Villager, Prisoner)
Mo Yau (Villager, Prisoner)
Yau Koon Tai (Villager, Prisoner)
Tsang Bing Fook (Villager, Prisoner)
Tsang Kwai (Villager, Prisoner)
Soon Koon Tse (Villager, Prisoner)
Chung On (Villager, Prisoner)
Loo Kwai (Villager, Prisoner)
Chung Kok Man (Villager, Prisoner)
Tong Lui (Villager, Prisoner)
Major Hirao Yoshio (Japanese Major)
Yip Mao Heung (Villager, Prisoner)
Wan Sze (Villager, Prisoner)
Tsang Tsap Wan (Head of village)
Lee Loi (Villager, Prisoner)
Cheung Poo Mun (Doctor)
Tsang Tun (Unknown)
Defence Witnesses
Sgt. Maj. Kuwaki Kiyomori (Accused)
Sgt. Nakajima Tokuzo (Accused)
Shiozawa Kunio (Kempei Major)
Omura Kioshi (Kempei Warrant Officer)
Osa Tanpei (Warrant Officer)
Sgt. Maj. Hokazuno Yukuo (Sgt. Maj.)
Court Witnesses
Mr. Tse (Senior Clerk Interpreter)
Mr. Kwok (Interpreter)
Major Sharpe (D.A.D.H., H.Q. Land Forces)
Sgt. Hisao Kawai (Kampei Sergeant)
Trial Dates
1947-11-01
1947-11-03
1947-11-04
1947-11-05
1947-11-06
1947-11-07
1947-11-08
1947-11-10
1947-11-11
1947-11-12
1947-11-13
1947-11-14
1947-11-26
1947-11-27
1947-11-28
1947-11-29
1947-12-01
1947-12-02
1947-12-03
1947-12-04
1947-12-10
1947-12-11
1947-12-17
Judgement Date
1947-12-17
Judgement
D1:
First Charge: Guilty “except that the court finds that this accused was the officer Commanding the Shataukok Gendarmerie between 4th August 1943 and 15th June 1944 and not between 1st August 1943 and 31st December 1944 and except for the words “such ill treatment resulting in the deaths among others of Woo Yung, Choy Fok, Mo Ma Tai, Tang Fook, Yip Tin Cheung, Yip Sang, Yip Tin Sung, Lee Wah, Lee Yee Kwei, Lee Koon Kam, Mo Yeung and Mo Yee Choy”.
D2:
First Charge: Guilty “except that the Court finds that this accused was a member of the Shataukok Gendarmerie between August 1943 and 20th December 1944 and not between 1st August 1943 and 31th December 1944, and except for the words “among others” and the words “Choy Fuk”, “Mo Ma Tai”, “Tang Fook”, “Lee Yee Kwei”, “Lee Koon Kam”.
Second Charge: Guilty.
First Charge: Guilty “except that the court finds that this accused was the officer Commanding the Shataukok Gendarmerie between 4th August 1943 and 15th June 1944 and not between 1st August 1943 and 31st December 1944 and except for the words “such ill treatment resulting in the deaths among others of Woo Yung, Choy Fok, Mo Ma Tai, Tang Fook, Yip Tin Cheung, Yip Sang, Yip Tin Sung, Lee Wah, Lee Yee Kwei, Lee Koon Kam, Mo Yeung and Mo Yee Choy”.
D2:
First Charge: Guilty “except that the Court finds that this accused was a member of the Shataukok Gendarmerie between August 1943 and 20th December 1944 and not between 1st August 1943 and 31th December 1944, and except for the words “among others” and the words “Choy Fuk”, “Mo Ma Tai”, “Tang Fook”, “Lee Yee Kwei”, “Lee Koon Kam”.
Second Charge: Guilty.
Petition
D2 submitted a Petition against his sentence of death, alleging that security operations were necessary in Shataukok to control anti-Japanese and “Communistic activities”, and that the torture was committed by others, not him.
The Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 9 February 1948] concluded "There is ample evidence to justify the findings and the sentences and I advise that they be confirmed". In particular, he noted that there was ample proof that the deaths of the seven victims were the result of the tortures and beatings carried out by D2 himself.
The Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 9 February 1948] concluded "There is ample evidence to justify the findings and the sentences and I advise that they be confirmed". In particular, he noted that there was ample proof that the deaths of the seven victims were the result of the tortures and beatings carried out by D2 himself.
Sentence Imposed
D1: Imprisonment of 4 years;
D2: Death by hanging. Carried out at Stanley Prison, Hong Kong, on 9th March 1948.
D2: Death by hanging. Carried out at Stanley Prison, Hong Kong, on 9th March 1948.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Guerilla Activity; Anti-Japanese Activity; Communist Activities;
Place of Detention; "concerned in"; Commission; Interrogation; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Starvation; Failure to provide adequate food and/or care; Command Responsibility; Military Command Responsibility; Alibi; Mistaken Identity; War Crimes; Violations of laws and customs of war; Necessity
Place of Detention; "concerned in"; Commission; Interrogation; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Starvation; Failure to provide adequate food and/or care; Command Responsibility; Military Command Responsibility; Alibi; Mistaken Identity; War Crimes; Violations of laws and customs of war; Necessity
Remarks
Same lawyer represented both Accused.
Dublin Core
Title
WO235/1099
Description
Committing a War Crime
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused Capt. YOSHIMI as Doctor to all the P.O.W. Camp groups, the accused Lieut. ISHII as Camp Commandant of No. 6 Branch Group DAICHOKU and the remainder of the accused as members of the said No. 6 Branch Group Staff, being responsible for the well being of all British and Allied Prisoners of War, were, in Violation of the Laws and Usages of War, together concerned in the illtreatment of Allied Prisoners of War, resulting in the deaths of some and physical suffering to others of the said Prisoners of War.
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused Capt. YOSHIMI as Doctor to all the P.O.W. Camp groups, the accused Lieut. ISHII as Camp Commandant of No. 6 Branch Group DAICHOKU and the remainder of the accused as members of the said No. 6 Branch Group Staff, being responsible for the well being of all British and Allied Prisoners of War, were, in Violation of the Laws and Usages of War, together concerned in the illtreatment of Allied Prisoners of War, resulting in the deaths of some and physical suffering to others of the said Prisoners of War.
Legal Case Item Type Metadata
Case No.
WO235/1099
Accused
Capt. Yoshimi Taneyoshi (D1)
Lt. Ishii Minoru (D2)
Lt. Funaoka Masao (D3)
S/Maj. Yamamoto Katsundo (D4)
Sgt. Kawano Mitsutoshi (D5)
Sgt. Sato Atsushi (D6)
Cpl. Yamaguchi Kiyaoshige (D7)
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused Capt. YOSHIMI as Doctor to all the P.O.W. Camp groups, the accused Lieut. ISHII as Camp Commandant of No. 6 Branch Group DAICHOKU and the remainder of the accused as members of the said No. 6 Branch Group Staff, being responsible for the well being of all British and Allied Prisoners of War, were, in Violation of the Laws and Usages of War, together concerned in the illtreatment of Allied Prisoners of War, resulting in the deaths of some and physical suffering to others of the said Prisoners of War.
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused Capt. YOSHIMI as Doctor to all the P.O.W. Camp groups, the accused Lieut. ISHII as Camp Commandant of No. 6 Branch Group DAICHOKU and the remainder of the accused as members of the said No. 6 Branch Group Staff, being responsible for the well being of all British and Allied Prisoners of War, were, in Violation of the Laws and Usages of War, together concerned in the illtreatment of Allied Prisoners of War, resulting in the deaths of some and physical suffering to others of the said Prisoners of War.
Background
Capt. Yoshimi (D1) was Doctor to all POWs at Daichoku.
Lt Ishii (D2) was the Camp Commandant of No. 6 Branch Group, where the remaining accused (D3-7) were members of staff.
Lt Ishii (D2) was the Camp Commandant of No. 6 Branch Group, where the remaining accused (D3-7) were members of staff.
Allegations
The Prosecution alleged ill-treatment of detainees, which resulted in physical suffering and many deaths. Alleged maltreatment included beatings, torture, unjustified detention, insufficient food, water and clothing, lack of medical attention and supplies, unhealthy living conditions, theft of goods and inadequate anti-malarial precautions.
Specifically, D1, as the Doctor, allegedly failed to provide medical care and indiscriminately discharged patients and exposed them to work despite the fact that they were physically unfit. He also allegedly allowed his orderlies to put sick prisoners on physical training. 26 POWs died at his camp during his tenure of office.
D2 allegedly permitted severe beatings and other unjust punishments to be administered to POWs, having knowledge of the torture, lack of food, misappropriation of Red Cross supplies in the camp.
D3, as the Administrative Officer, allegedly made the existence of the POWs unbearable by unnecessarily prolonging roll calls, imposing collective punishments, reducing their rations, depriving them of their infrequent holidays by holding inspections, beating and permitting his sentries to beat and made the POWs work while sick, and misappropriating their funds and live-stock.
D4 and D5 were alleged to have carried out the beatings of several POWs.
D6 was the Camp Medical Sgt. He allegedly took part in making the sick do physical exercises and made them stand for unnecessarily long periods.
D7 was the Camp Medical Orderly. He allegedly beat the POWs and caused them physical and mental suffering.
Specifically, D1, as the Doctor, allegedly failed to provide medical care and indiscriminately discharged patients and exposed them to work despite the fact that they were physically unfit. He also allegedly allowed his orderlies to put sick prisoners on physical training. 26 POWs died at his camp during his tenure of office.
D2 allegedly permitted severe beatings and other unjust punishments to be administered to POWs, having knowledge of the torture, lack of food, misappropriation of Red Cross supplies in the camp.
D3, as the Administrative Officer, allegedly made the existence of the POWs unbearable by unnecessarily prolonging roll calls, imposing collective punishments, reducing their rations, depriving them of their infrequent holidays by holding inspections, beating and permitting his sentries to beat and made the POWs work while sick, and misappropriating their funds and live-stock.
D4 and D5 were alleged to have carried out the beatings of several POWs.
D6 was the Camp Medical Sgt. He allegedly took part in making the sick do physical exercises and made them stand for unnecessarily long periods.
D7 was the Camp Medical Orderly. He allegedly beat the POWs and caused them physical and mental suffering.
Defence
D1 denied that he was the doctor to all the POWs. He maintained that he was only responsible as technical adviser on medical matters to the Chief Commandant, who was responsible for the medical care and health of POWs. He attributed the shortage of drugs to the Chief of the Medical Department.
D2 denied that he was ever appointed Camp Commandant. He admitted one occasion when he was ordered to beat a POW but denied allegations of other ill-treatment.
D3 suggested that the rule in the camp was that a POW would only be treated as being sick if he bore a “tally” that he was sick. He admitted imposing collective punishment but denied misappropriation of POW properties or permitting his sentries to beat POWs and make sick POWs work.
D4, D5 and D6 denied taking part in beatings or other ill-treatment of POWs.
D7 admitted 4 assaults on POWs but denied other allegations of ill-treatment.
D2 denied that he was ever appointed Camp Commandant. He admitted one occasion when he was ordered to beat a POW but denied allegations of other ill-treatment.
D3 suggested that the rule in the camp was that a POW would only be treated as being sick if he bore a “tally” that he was sick. He admitted imposing collective punishment but denied misappropriation of POW properties or permitting his sentries to beat POWs and make sick POWs work.
D4, D5 and D6 denied taking part in beatings or other ill-treatment of POWs.
D7 admitted 4 assaults on POWs but denied other allegations of ill-treatment.
Prosecutor
Major M.I. Ormsby (West Yorks Regiment)
Defence Counsel
Mr. Tanaka Yutaka (Japanese Barrister)
Judges
President: Lt. Col. N.G. Wait (Intelligence Corps)
Members: Major A. Clayworth (Royal Army), Lt. D.C.J. Banfield (Buffs)
Members: Major A. Clayworth (Royal Army), Lt. D.C.J. Banfield (Buffs)
Advisory Officer
2nd/Liet. G.L. Falkoff (The Buffs)
Prosecution Witnesses
Rev. T.J. Pugh (Reverend)
Cap E.W. Sowerby (Captain)
Defence Witnesses
Yoshimi Taneyoshi (Army Medical Captain)
Ishii Minoru (Army Lieutenant)
Funaoka Masao (Army Lieutenant)
Yamamoto Katsundo (Sergeant Major)
Kawano Mitsutoshi (Army Sergeant)
Sato Atsushi (Army Medical Sergeant)
Yamaguchi Kiyaoshige (Soldier: Medical Second Class Private)
Col. Nakano Junichi (Army Colonel)
Sgt. Hakozaki Toshiaki (Sergeant)
Lt. Oita Yoshijiro (Army Lieutenant)
Wakasugi Jiro (Army Lieutenant)
Lt Hioki Shiro (Army Lieutenant)
Trial Dates
1947-11-17
1947-11-19
1947-11-21
1947-11-22
1947-11-24
1947-11-25
1947-11-26
1947-11-27
1947-11-28
1947-11-29
1947-12-02
1947-12-03
1947-12-04
1947-12-10
1947-12-11
Judgement Date
1947-12-11
Judgement
D1, D2, D3, D4, D5, D6, D7: Guilty
Petition
D1 and D2 lodged Petitions. According to the Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 4 February 1948], they were “merely reiterating” the evidence given at trial. D3 submitted a Petition for reduction of sentence.
In concluding his review of the case, the Judge Advocate advised that “There is sufficient evidence to support the Findings of Guilty and the Sentences are legal. I advise that the sentences be confirmed”. He advised that the Petitions should be dismissed.
In concluding his review of the case, the Judge Advocate advised that “There is sufficient evidence to support the Findings of Guilty and the Sentences are legal. I advise that the sentences be confirmed”. He advised that the Petitions should be dismissed.
Sentence Imposed
D1: Imprisonment of 7 years;
D2: Imprisonment of 8 years;
D3: Imprisonment of 4 years;
D4: Imprisonment of 1 years;
D5: Imprisonment of 6 months;
D6: Imprisonment of 18 months;
D7: Imprisonment of 8 years.
D2: Imprisonment of 8 years;
D3: Imprisonment of 4 years;
D4: Imprisonment of 1 years;
D5: Imprisonment of 6 months;
D6: Imprisonment of 18 months;
D7: Imprisonment of 8 years.
Keywords
Formosa; Imperial Japanese Army; Prisoners of War; Sick or wounded; Prisoner of War Camps; Poor conditions of detention; Collective punishment; Unlawful killing; Torture; Cruel Inhuman or Degrading Treatment; Beating; Neglect; Failure to provide adequate food and/or care; Failure to provide adequate medical care; Stealing; Doctor; "together concerned in"; Committed; War Crimes; Violations of laws and customs of war; Military Command Responsibility; Scope of responsibilities
Remarks
1 lawyer representing 7 Co-Accused.
See the related Formosa cases.
See the related Formosa cases.
Dublin Core
Title
WO235/1098
Description
Committing a War Crime
“in that he at Kowloon in the Colony of Hong Kong between the 8th Sept. 1943 and the 15th of August 1945, as Commanding Officer of the Kowloon Kempeitai of the Imperial Japanese Army, was in violation of the Laws and Usages of War, concerned in the inhumane treatment by his subordinate staff, of Chinese and other civilians held in the custody of the said Kempeitai HQ and some of its substations which inhumane treatment consisted of killing some and ill-treating others.
“in that he at Kowloon in the Colony of Hong Kong between the 8th Sept. 1943 and the 15th of August 1945, as Commanding Officer of the Kowloon Kempeitai of the Imperial Japanese Army, was in violation of the Laws and Usages of War, concerned in the inhumane treatment by his subordinate staff, of Chinese and other civilians held in the custody of the said Kempeitai HQ and some of its substations which inhumane treatment consisted of killing some and ill-treating others.
Legal Case Item Type Metadata
Case No.
WO235/1098
Accused
Major Hirao Yoshio
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that he at Kowloon in the Colony of Hong Kong between the 8th Sept. 1943 and the 15th of August 1945, as Commanding Officer of the Kowloon Kempeitai of the Imperial Japanese Army, was in violation of the Laws and Usages of War, concerned in the inhumane treatment by his subordinate staff, of Chinese and other civilians held in the custody of the said Kempeitai HQ and some of its substations which inhumane treatment consisted of killing some and ill-treating others.
“in that he at Kowloon in the Colony of Hong Kong between the 8th Sept. 1943 and the 15th of August 1945, as Commanding Officer of the Kowloon Kempeitai of the Imperial Japanese Army, was in violation of the Laws and Usages of War, concerned in the inhumane treatment by his subordinate staff, of Chinese and other civilians held in the custody of the said Kempeitai HQ and some of its substations which inhumane treatment consisted of killing some and ill-treating others.
Background
The Accused was the Commanding Officer of the Kowloon Kempeitai. Outside of his own HQ, he inspected the sub-stations in Kowloon and the New Territories regularly and kept in touch with subordinates by telephone. In these places, there was alleged to be inhuman treatment consisting of killing some and ill-treating others.
Note: this Accused also testified at the trial of Col. Noma and in the trials of the many of his subordinates who stood trial (see the Kowloon Kempeitai cases).
Note: this Accused also testified at the trial of Col. Noma and in the trials of the many of his subordinates who stood trial (see the Kowloon Kempeitai cases).
Allegations
According to the Prosecution, there were a number of incidents of ill-treatment that were committed by the Kempeitai under the command of the Accused. One of the incidents that Prosecution alleged concerned the ill-treatment and an alleged be-heading of 10 Chinese suspects.
Defence
The Defence started by arguing that responsibility for the ill-treatment and killing should be borne by his subordinates.
The Defence did not challenge the claim that there was torture in the Kempeitai stations, but contested the admissibility and reliability of witness testimonies. For example, he argued that some witness statements were hearsay – that they testified that they saw marks and scars on people, but it was not proved that they were caused by ill-treatment as they did not actually see the tortures being carried out.
For those who claimed to have been tortured, most of the facts were exaggerated. For example, the size of the pole used for beating was overstated. On further examination, a witness also admitted that he was beaten only once.
On unlawful deaths, the Defence also challenged the admissibility and reliability of witness statements. The Defence mainly argued that the Accused had no knowledge of executions. For example, in relation to one allegation, he claimed not to have been able to see the blood stains on the clothes of an executioner from a certain distance.
Also, the Defence alleged that the most damning evidence, provided by Leung Sui Chuen and Cheng Sing, was either false or self-contradictory.
The Defence did not challenge the claim that there was torture in the Kempeitai stations, but contested the admissibility and reliability of witness testimonies. For example, he argued that some witness statements were hearsay – that they testified that they saw marks and scars on people, but it was not proved that they were caused by ill-treatment as they did not actually see the tortures being carried out.
For those who claimed to have been tortured, most of the facts were exaggerated. For example, the size of the pole used for beating was overstated. On further examination, a witness also admitted that he was beaten only once.
On unlawful deaths, the Defence also challenged the admissibility and reliability of witness statements. The Defence mainly argued that the Accused had no knowledge of executions. For example, in relation to one allegation, he claimed not to have been able to see the blood stains on the clothes of an executioner from a certain distance.
Also, the Defence alleged that the most damning evidence, provided by Leung Sui Chuen and Cheng Sing, was either false or self-contradictory.
Prosecutor
Major R.C. Lai (Dept. of the JAG, India, Barrister at law)
Defence Counsel
Mr. Tanaka Yutaka (Japanese Barrister)
Judges
President: Lt. Col. N.G. Wait (Intelligence Corps)
Members: Major A. Clayworth (Royal Army), Capt. R.B.R. Gorely (King’s Royal Rifle Corps).
Members: Major A. Clayworth (Royal Army), Capt. R.B.R. Gorely (King’s Royal Rifle Corps).
Advisory Officer
2nd/Liet. G.L. Falkoff (The Buffs)
Prosecution Witnesses
Joseph Venpin (Employed during Japanese occupation, job unknown)
Jerome Edward Law (Interpreter)
Joseph Law (Employee in Kowloon District Gendarmerie HQ)
Sheng Sung (Prisoner)
Kent Ching (Clerk)
Tang Mo Kwai (Farmer)
Lam Wah (Farmer)
Shing Hing Lung (Fisherman)
Tsang For-Piu (Clerk)
Dr. Renalto Emilio Alveres (Assistant Pathologist)
Siu Ying (Baker)
Jules A. Siron (French typist)
Wong Fook (Detective Sergeant)
Lam Siu-chuen (China Underwriters Company)
Lo Hang (Unknown)
Chan Shing (Businessman)
Capt. F.V. Collison (Captain)
Defence Witnesses
Hirao Yoshio (Gendarmerie Major)
Kanazawa Asao (Gendarmerie Lieut. Colonel)
Shiozawa Kunio (Gendarme Major)
Trial Dates
1947-09-04
1947-09-05
1947-09-06
1947-09-08
1947-09-09
1947-09-10
1947-09-11
1947-09-12
1947-09-13
1947-09-15
1947-09-16
1947-11-03
1947-11-04
1947-11-05
1947-11-06
1947-11-07
1947-11-08
1947-11-11
1947-11-14
Judgement Date
1947-11-14
Judgement
Guilty of all charges
Petition
The Accused submitted a Petition. It raised no new issues, according to the Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 19 January 1948]. The Petition, according to the Judge Advocate, emphasized that he had “no discretionary powers, but was compelled to act in blind obedience to the orders of his C-in-C, Col Noma, and that whilst admitting administrative responsibility for the well-being of prisoners in his custody he disclaims criminal responsibility for the offences of his many subordinates whom he tried his best to supervise and control whilst handicapped by shortage of assistants, lack of transport, and disrupted telephonic communications.” The Judge Advocate advised dismissal of the Petition and the confirmation of findings and sentencing.
There was also a supporting Petition from Sgt. Nagahara Masakichi, said by the Judge Advocate to be irrelevant to the issues.
In reviewing the case, the Judge Advocate observed as follows. “The evidence discloses such similarity in purpose and mode of interrogation by accused’s subordinates of suspects in custody in different places under his command regularly visited by him, including his own HQ, as to lead to the conclusion that he knew of the illtreatment but did nothing to stop it.” At his own HQ, the evidence shows that “the accused must heard the screams of victims undergoing torture, that he frequently inspected his HQ compound where he must have seen the miserable plight of suspects confined in cells, and that on 8 December 1944 ten Chinese suspects were taken from these cells, bound, placed in a truck, driven to a secluded spot where they were never seen again. There is circumstantial evidence that they were illegally beheaded by accused’s subordinates and that accused knew of it. Blood was seen on the tunics of two of the escorting party on its return and a blood stained sword was handed over by one of the party to a superior order at the HQ in the presence of PW1 (Joseph VENPIN) who testified that a conversation ensued which indicated that the sword had just been used for beheading. PWI testified that on the day in question he saw an order approved by accused and Col Noma his superior officer, relating to the execution.”
As for the Accused’s testimony (on oath), the Judge Advocate reported that “At first he maintained that illtreatment and tortures as alleged could not possibly have occurred during his tenure in office, but under cross-examination he expressed the belief that the Prosecution witnesses had exaggerated the accounts of tortures.” The Accused denied any deaths in custody either through natural or unnatural causes, but the Prosecution showed that the witness’ testimony was inconsistent with what he said in the Noma trial.
In respect of sentencing, the Judge Advocate advised the Commander of Land Forces, Hong Kong as follows: “I suggest that you should consider commuting it to something less severe than the death penalty. The only evidence as to the accused’s knowledge of killings was that of PW1 (Joseph Venpin). This witness worked for the Japanese at the material times and must therefore be regarded to some extent as an accomplice. Moreover he is obviously a pretty despicable character and although the court were entitled to accept his evidence I am bound to say that I do not think much reliance should be placed on it in the absence of any corroboration on this important point.”
There was also a supporting Petition from Sgt. Nagahara Masakichi, said by the Judge Advocate to be irrelevant to the issues.
In reviewing the case, the Judge Advocate observed as follows. “The evidence discloses such similarity in purpose and mode of interrogation by accused’s subordinates of suspects in custody in different places under his command regularly visited by him, including his own HQ, as to lead to the conclusion that he knew of the illtreatment but did nothing to stop it.” At his own HQ, the evidence shows that “the accused must heard the screams of victims undergoing torture, that he frequently inspected his HQ compound where he must have seen the miserable plight of suspects confined in cells, and that on 8 December 1944 ten Chinese suspects were taken from these cells, bound, placed in a truck, driven to a secluded spot where they were never seen again. There is circumstantial evidence that they were illegally beheaded by accused’s subordinates and that accused knew of it. Blood was seen on the tunics of two of the escorting party on its return and a blood stained sword was handed over by one of the party to a superior order at the HQ in the presence of PW1 (Joseph VENPIN) who testified that a conversation ensued which indicated that the sword had just been used for beheading. PWI testified that on the day in question he saw an order approved by accused and Col Noma his superior officer, relating to the execution.”
As for the Accused’s testimony (on oath), the Judge Advocate reported that “At first he maintained that illtreatment and tortures as alleged could not possibly have occurred during his tenure in office, but under cross-examination he expressed the belief that the Prosecution witnesses had exaggerated the accounts of tortures.” The Accused denied any deaths in custody either through natural or unnatural causes, but the Prosecution showed that the witness’ testimony was inconsistent with what he said in the Noma trial.
In respect of sentencing, the Judge Advocate advised the Commander of Land Forces, Hong Kong as follows: “I suggest that you should consider commuting it to something less severe than the death penalty. The only evidence as to the accused’s knowledge of killings was that of PW1 (Joseph Venpin). This witness worked for the Japanese at the material times and must therefore be regarded to some extent as an accomplice. Moreover he is obviously a pretty despicable character and although the court were entitled to accept his evidence I am bound to say that I do not think much reliance should be placed on it in the absence of any corroboration on this important point.”
Sentence Imposed
Sentenced to death by hanging. Executed at Stanley Prison, Hong Kong, on 24 February 1948.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; "concerned in"; Military Command Responsibility; Civilians; War Crimes; Violations of laws and customs of war; Torture; Cruel Inhuman or Degrading Treatment; Poor conditions of detention; Failure to provide adequate food or care; Unlawful Killing; Arbitrary or summary punishment; Hearsay
Remarks
See all Kowloon Kempeitai cases from 8 September 1943 to 15 August 1945.
Dublin Core
Title
WO235/1093
Description
First Charge: Committing a War Crime
“in that he, at Hong Kong, between the 10th Feb. 1945 and the 15th Aug. 1945, was, in violation of the laws and usages of war, concerned in the illtreatment of prisoners in the custody of the Kempeitai causing the death of some and physical sufferings to others”
Second Charge: Committing a War Crime
“in that he, at Hong Kong, between the 1st June and 31st Aug. 1945 as Commander of the Kempeitai, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents, resulting in the death of many of the said civilians and in physical suffering to others, which illtreatment included deportation from Hong Kong aforesaid.”
“in that he, at Hong Kong, between the 10th Feb. 1945 and the 15th Aug. 1945, was, in violation of the laws and usages of war, concerned in the illtreatment of prisoners in the custody of the Kempeitai causing the death of some and physical sufferings to others”
Second Charge: Committing a War Crime
“in that he, at Hong Kong, between the 1st June and 31st Aug. 1945 as Commander of the Kempeitai, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents, resulting in the death of many of the said civilians and in physical suffering to others, which illtreatment included deportation from Hong Kong aforesaid.”
Legal Case Item Type Metadata
Case No.
WO235/1093
Accused
Colonel Kanazawa Asao
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge: Committing a War Crime
“in that he, at Hong Kong, between the 10th Feb. 1945 and the 15th Aug. 1945, was, in violation of the laws and usages of war, concerned in the illtreatment of prisoners in the custody of the Kempeitai causing the death of some and physical sufferings to others”
Second Charge: Committing a War Crime
“in that he, at Hong Kong, between the 1st June and 31st Aug. 1945 as Commander of the Kempeitai, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents, resulting in the death of many of the said civilians and in physical suffering to others, which illtreatment included deportation from Hong Kong aforesaid.”
“in that he, at Hong Kong, between the 10th Feb. 1945 and the 15th Aug. 1945, was, in violation of the laws and usages of war, concerned in the illtreatment of prisoners in the custody of the Kempeitai causing the death of some and physical sufferings to others”
Second Charge: Committing a War Crime
“in that he, at Hong Kong, between the 1st June and 31st Aug. 1945 as Commander of the Kempeitai, was, in violation of the laws and usages of war, concerned in the illtreatment of civilian residents, resulting in the death of many of the said civilians and in physical suffering to others, which illtreatment included deportation from Hong Kong aforesaid.”
Background
The Accused was the Commissioner of Police and succeeded Col. Noma as Chief of the Kempeitai in Hong Kong (see Case No. 999 - Col. Noma Kennosuke). Ill-treatment such as torture and lack of food, and killings, were alleged in the places of detention under the Accused's control.
Allegations
The Accused was alleged to have ordered the ill-treatment and killing of prisoners in the custody of the Kempeitai, and that he knew of their activities and either connived in permitting the alleged acts or failed to take adequate measures to prevent their occurrence.
Concerning the second charge, the Prosecution alleged that arbitrary and indiscriminate arrests of civilian residents were carried out under the order of the Accused. A “deportation scheme” was also ordered by the Accused which caused a lot of “indescribable suffering” and deaths.
Concerning the second charge, the Prosecution alleged that arbitrary and indiscriminate arrests of civilian residents were carried out under the order of the Accused. A “deportation scheme” was also ordered by the Accused which caused a lot of “indescribable suffering” and deaths.
Defence
The Defence started by complaining that the charge was vague, in that it did not “state specifically to what appointment the Accused held during the period stated”.
The Defence pointed out contradictions in the testimony of witnesses. It also claimed that the Prosecution failed to show that the cause of death was due to ill-treatment for which the Accused was responsible.
With respect to the power and responsibility of the Accused, the Defence argued that the Accused received orders from Major-General Shigeto, Commander-in-chief of the Kempeitai of South China Expeditionary Force. He could not have replaced the officers in the camp even if he knew of the ill-treatment committed by them. He also had to take orders from the “Governor of Hong Kong” at the time. This, the Defence argued, meant that he was not the one to be held responsible for the “deportation scheme”.
Furthermore, the lack of food and other supplies were not the responsibility of the Accused.
The Defence pointed out contradictions in the testimony of witnesses. It also claimed that the Prosecution failed to show that the cause of death was due to ill-treatment for which the Accused was responsible.
With respect to the power and responsibility of the Accused, the Defence argued that the Accused received orders from Major-General Shigeto, Commander-in-chief of the Kempeitai of South China Expeditionary Force. He could not have replaced the officers in the camp even if he knew of the ill-treatment committed by them. He also had to take orders from the “Governor of Hong Kong” at the time. This, the Defence argued, meant that he was not the one to be held responsible for the “deportation scheme”.
Furthermore, the lack of food and other supplies were not the responsibility of the Accused.
Prosecutor
Major R.C. Lai (Dept. of the JAG, India, Barrister-at-Law)
Defence Counsel
Mr Kawanami Shigekichi (a member of the Bar Association of Osaka)
Judges
President: Lt.Col. N.G. Wait (Intelligence Corps)
Members: Major A. Clayworth (Royal Artillery), Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Members: Major A. Clayworth (Royal Artillery), Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Advisory Officer
Lieut D.C.J. Banfield (The Buffs)
Prosecution Witnesses
P.J.N Purshotomdas(Unknown)
B.J. Young(Accountant)
Kartar Singh(Unknown)
I.S.A. Curreem(Bookkeeper)
H.P. Paul(Unknown)
Choi Lai Ching(Unknown)
Pang Iu Ki(Medical Practitioner)
Kishino Metha Lokoomall(Merchant)
KKS Parmar(Merchant)
Chan Lut Chau(Unknown)
Dr. P.T. Wu(Physician)
Yuen Man Ching(Unknown)
Lau Hei Lit(Shop owner)
Mohammed Khan(Motor Driver)
A.M. Omar(Unknown)
Ip Tin Shang(Chief Interpreter)
Yeung Kar Sing(Clerk)
Wong Chor Ki(Motion Pictures)
Cheung Wing Lok(Farmer)
Alfred Ho Siew Um(Secretary)
Osman Mohammed Omar(Unknown)
Arthur Tsang(Merchant)
Law Hin Kwong(Student)
Fan Kwok Leung(Farmer)
Kwok Chan(Banker)
Cheng Chung Wing(Insurance)
Kan Man(Insurance)
Li Kwai Sum(Unknown)
Lo Tam Sang(Driver)
L.T. Yeoh Trik Ee(Intelligence Officer)
Wong To Shing(Writer)
Ng Pak Hae(Businessman (fitting water pipes))
Capt F.V. Collision(Captain)
Defence Witnesses
Kanazawa Asao(Colonel)
Shiozawa Kunio(Major)
Capt Yatagai Sukeo(Captain)
Capt C.E. Watson(Captain)
L.T. M.J.L Thomas(Lieutenant)
Trial Dates
1947-09-26
1947-09-27
1947-09-29
1947-10-01
1947-10-02
1947-10-03
1947-10-04
1947-10-06
1947-10-07
1947-10-08
1947-10-09
1947-10-11
1947-10-13
1947-10-14
1947-10-15
1947-10-16
1947-10-17
1947-10-18
1947-10-20
1947-10-21
1947-10-22
1947-10-23
1947-10-30
Judgement Date
1947-10-30
Judgement
Guilty
Petition
Col. Kanazawa submitted a Petition on 13 November 1947, on the ground that evidence was insufficient. The Judge Advocate [unidentified Colonel, DJAG, Far East Land Forces, 20 January 1948] observed that it did not raise anything that had not already been considered at the trial.
In reviewing the case, the Judge Advocate observed as follows. “So far as the first charge is concerned there was no evidence before the Court to prove that the accused actively ordered or instigated his subordinates towards the illtreatment of persons in their custody. It was however established beyond doubt that during the whole of the accused tenure of office (6 months) deplorable conditions and frequent illtreatment of prisoners prevailed. There was I think just enough evidence for the Court to be able to infer that the accused could not have been ignorant of what was going on and was thus “concerned in” the illtreatment and its results by his failure effectively to exercise his authority to stop it. I advise therefore that the finding on this charge be confirmed”.
“As regards the finding of guilty on the second charge I am of opinion that it should NOT be confirmed. There was nothing inherently illegal in the deportation of undesirable residents from Hong Kong and as has already been pointed out the whole scheme was launched by the Governor with the qualified approval of the more responsible members of the population. There is no doubt that abuses occurred and that the conditions in which some of the deportees lived were bad. I am bound to say however that the weight of the evidence so far as it concerns the accused’s own actions in the matter tends to prove that he did all that could reasonably be expected of him to ensure that the deportations were carried out humanely and to meet the wishes of the local population.”
The Judge Advocate considered the sentence to be too severe and advised the Commander of Land Forces, Hong Kong, as follows:
“If you agree to withhold confirmation on the second charge you should consider commuting the death sentence to some less severe punishment. As I have already pointed out the case against the accused even on the first charge was comparatively weak and I do not think he deserves to be hanged on the basis of that charge alone. A stigma clearly attaches to any one who has held high rank in the Kempeitai and/or the gendarmerie and the fact that the accused succeeded to the command formerly held by the notorious Colonel Noma (who was tried and sentenced to death in April last year) no doubt had its effect on the minds of the Court. I would point out however that the case against NOMA was very much more damning than that against the present accused not only because Noma had held the command for over three years but also because he was proved to have personally ordered the illegal execution of at least one batch of innocent civilians.”
In reviewing the case, the Judge Advocate observed as follows. “So far as the first charge is concerned there was no evidence before the Court to prove that the accused actively ordered or instigated his subordinates towards the illtreatment of persons in their custody. It was however established beyond doubt that during the whole of the accused tenure of office (6 months) deplorable conditions and frequent illtreatment of prisoners prevailed. There was I think just enough evidence for the Court to be able to infer that the accused could not have been ignorant of what was going on and was thus “concerned in” the illtreatment and its results by his failure effectively to exercise his authority to stop it. I advise therefore that the finding on this charge be confirmed”.
“As regards the finding of guilty on the second charge I am of opinion that it should NOT be confirmed. There was nothing inherently illegal in the deportation of undesirable residents from Hong Kong and as has already been pointed out the whole scheme was launched by the Governor with the qualified approval of the more responsible members of the population. There is no doubt that abuses occurred and that the conditions in which some of the deportees lived were bad. I am bound to say however that the weight of the evidence so far as it concerns the accused’s own actions in the matter tends to prove that he did all that could reasonably be expected of him to ensure that the deportations were carried out humanely and to meet the wishes of the local population.”
The Judge Advocate considered the sentence to be too severe and advised the Commander of Land Forces, Hong Kong, as follows:
“If you agree to withhold confirmation on the second charge you should consider commuting the death sentence to some less severe punishment. As I have already pointed out the case against the accused even on the first charge was comparatively weak and I do not think he deserves to be hanged on the basis of that charge alone. A stigma clearly attaches to any one who has held high rank in the Kempeitai and/or the gendarmerie and the fact that the accused succeeded to the command formerly held by the notorious Colonel Noma (who was tried and sentenced to death in April last year) no doubt had its effect on the minds of the Court. I would point out however that the case against NOMA was very much more damning than that against the present accused not only because Noma had held the command for over three years but also because he was proved to have personally ordered the illegal execution of at least one batch of innocent civilians.”
Sentence Imposed
Sentenced to death by hanging. Executed at Stanley Prison, Hong Kong, on 17 February 1948.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; South China Expeditionary Force; "concerned in"; Unlawful Killings; Unlawful arrest and/or detention; Torture; Cruel Inhuman or Degrading Treatment; Neglect; Failure to provide adequate food and/or care; Poor conditions of detention; Ordering; Military Command Responsibility; Superior Orders; War Crimes; Violations of laws and customs of war
Remarks
Link to the case of his predecessor, Colonel Noma Kennosuke (WO/235/999), and all Hong Kong Kempeitai cases concerning events between 10 February 1945 and 15 August 1945.
The Judge Advocate’s strong recommendation for commutation of sentence from the death penalty was not followed.
The Judge Advocate’s strong recommendation for commutation of sentence from the death penalty was not followed.
Dublin Core
Title
WO235/1089
Description
Committing a War Crime
“in that on the High Seas at or about midnight of the 18th/19th March 1944, the accused Rear Admiral SAKONJU Naomasa as Commanding Officer of the 16th Squdron, South-West area Fleet, and the accused Captain MAYAZUMI HARUO, as Officer-in-command of M.I.J.M.S. “Tone”, were, in violation of the laws and usages of war, together concerned in the killing of approximately sixty-five survivors from the sinking of the British m.v. “Behar”, being members of the crew or passengers on the said vessel.”
“in that on the High Seas at or about midnight of the 18th/19th March 1944, the accused Rear Admiral SAKONJU Naomasa as Commanding Officer of the 16th Squdron, South-West area Fleet, and the accused Captain MAYAZUMI HARUO, as Officer-in-command of M.I.J.M.S. “Tone”, were, in violation of the laws and usages of war, together concerned in the killing of approximately sixty-five survivors from the sinking of the British m.v. “Behar”, being members of the crew or passengers on the said vessel.”
Legal Case Item Type Metadata
Case No.
WO235/1089
Accused
Rear Admiral Sakonju Naomasa (D1)
Captain Mayazumi Haruo (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that on the High Seas at or about midnight of the 18th/19th March 1944, the accused Rear Admiral SAKONJU Naomasa as Commanding Officer of the 16th Squdron, South-West area Fleet, and the accused Captain MAYAZUMI HARUO, as Officer-in-command of M.I.J.M.S. “Tone”, were, in violation of the laws and usages of war, together concerned in the killing of approximately sixty-five survivors from the sinking of the British m.v. “Behar”, being members of the crew or passengers on the said vessel.”
“in that on the High Seas at or about midnight of the 18th/19th March 1944, the accused Rear Admiral SAKONJU Naomasa as Commanding Officer of the 16th Squdron, South-West area Fleet, and the accused Captain MAYAZUMI HARUO, as Officer-in-command of M.I.J.M.S. “Tone”, were, in violation of the laws and usages of war, together concerned in the killing of approximately sixty-five survivors from the sinking of the British m.v. “Behar”, being members of the crew or passengers on the said vessel.”
Background
The Rear Admiral (D1) was at the relevant time in command of the 16th Squadron. Captain Mayazumi Haruo (D2) was in command of the Tone, which was part of the 7th Squadron, but was at the relevant time attached to the 16th Squadron for Operation Sayo No.1. Pursuant to this operation, the 16th Squadron was under orders to disrupt Allied communications in the Indian Ocean. Where possible, Allied ships were to be captured and taken to a friendly port. Where this was not feasible (for example, if captured more than 200 miles from the Cocos Islands), the ship was to be sunk. The minimum number of prisoners was to be taken for intelligence purposes.
Allegations
In accordance with these instructions, the Tone sighted and then sank the Behar on 9 March 1944, almost 600 miles from the Cocos Islands. The crew of the Tone rescued almost everybody from the Behar. From the flagship, D1 ordered, through signals, to “keep two or three prisoners. Take measures to dispose of the rest according to the decision.”
The Commander of the Tone (D2) failed to comply with this and a further order to “immediately dispose of the prisoners”. He kept all the captives alive on the pretext “still under interrogation” until arriving at Batavia on 15 March 1944. The Tone left for Singapore on 18 March 1944, and it was only then that some survivors of the Behar on board were killed.
The Commander of the Tone (D2) failed to comply with this and a further order to “immediately dispose of the prisoners”. He kept all the captives alive on the pretext “still under interrogation” until arriving at Batavia on 15 March 1944. The Tone left for Singapore on 18 March 1944, and it was only then that some survivors of the Behar on board were killed.
Defence
D2 challenged the word “disposal” in the order, and also the origin of the order (i.e whether it was from the Fleet or Squadron). D2 argued that he was just complying with the order in “disposing” of the survivors on the way to Singapore. He claimed that he protested against those orders from the start and until his arrival at Batavia. But his protest did not succeed. He had no choice but to execute the order when the Tone left Batavia for Singapore.
D1 claimed that the instructions as to disposal of prisoners was in accordance with Fleet Orders. He did not deny making the signals to the Tone. However, he added that D2 made no “serious effort” in seeing him on arrival at Batavia. He claimed that, as the emergency which existed at sea owing to possible enemy attack had ceased, he had actually ordered that prisoners be landed. He presumed that his order was complied with.
D2 also pointed out that the actual killing occurred when the Tone departed for Singapore, when there was no longer a chain of command between him and D2. Therefore, the responsibility of killing was entirely D2’s.
D1 claimed that the instructions as to disposal of prisoners was in accordance with Fleet Orders. He did not deny making the signals to the Tone. However, he added that D2 made no “serious effort” in seeing him on arrival at Batavia. He claimed that, as the emergency which existed at sea owing to possible enemy attack had ceased, he had actually ordered that prisoners be landed. He presumed that his order was complied with.
D2 also pointed out that the actual killing occurred when the Tone departed for Singapore, when there was no longer a chain of command between him and D2. Therefore, the responsibility of killing was entirely D2’s.
Prosecutor
Major J.T.H. Cross (R.A. D.A.J.A.G., War Crimes)
Defence Counsel
Mr. Kotani Isao (Member of the Osaka Bar Association) (representing Accused Sakonju), Mr. Sakai Yusuke (Former Judge of Naval Military Courts) (for Accused Mayazumi)
Judges
President: Lt. Col R.C. Laming (Barrister, General List, Indian Army)
Members: Major R.S. Butterfield (Indian Grenadiers); Lieut. Comdr. J.E.B. Smith (Royal Navy)
Members: Major R.S. Butterfield (Indian Grenadiers); Lieut. Comdr. J.E.B. Smith (Royal Navy)
Advisory Officer
Lieut D.C.J. Banfield (The Buffs)
Prosecution Witnesses
E.C. Watson(Captain)
Shimancuchi Momochiyo(Staff Officer)
Capt P.J. Green(Captain)
Nagai Kunio(Employee in Industrial Bank of Japan)
Mii Junsuko(Commander)
Seki Toshio(Unknown)
Tani Tetsuo(Commander)
Nagoshi Sabro(Translator)
Major J.T.N Cross(Major)
Defence Witnesses
Rear Admiral Sakonju Naomasa(Vice Admiral)
Mayazumi Haruo(Naval Captain)
Sugie Ichizo(Commander)
Yamamori Kamenosuke(Rear Admiral)
Noda Hiroshi(Commander)
Kawasaki Harumi(Naval Captain)
Tada Takeo(Vice Admiral)
Trial Dates
1947-09-19
1947-09-20
1947-09-22
1947-09-23
1947-09-24
1947-09-25
1947-09-26
1947-09-27
1947-09-29
1947-09-30
1947-10-01
1947-10-02
1947-10-03
1947-10-04
1947-10-06
1947-10-07
1947-10-08
1947-10-09
1947-10-11
1947-10-13
1947-10-14
1947-10-15
1947-10-16
1947-10-17
1947-10-18
1947-10-20
1947-10-21
1947-10-29
Judgement Date
1947-10-29
Judgement
D1, D2: Guilty
Petition
Petitions were submitted but were described by the Judge Advocate as disclosing “no material facts not before the court”.
The Judge Advocate pointed out there had been conflicting evidence in the case as to the exact position of the Tone after 16 March 1944, and as to whether the Admiral was personally seen by the Captain and stuck to his original orders, or whether he modified them making the actual killing the responsibility of the Captain. "The Court must have believed that the Admiral insisted on his orders being complied with and that the Captain was to blame to the extent of carrying out those orders which they both admitted to be contrary to International Law. The evidence was sufficient to support the findings."
The Judge Advocate pointed out that it was not clear if the death sentence was passed unanimously in accordance with Para.9 of the ALTSEA Regulations for the Trial of War Criminals.
The Judge Advocate pointed out there had been conflicting evidence in the case as to the exact position of the Tone after 16 March 1944, and as to whether the Admiral was personally seen by the Captain and stuck to his original orders, or whether he modified them making the actual killing the responsibility of the Captain. "The Court must have believed that the Admiral insisted on his orders being complied with and that the Captain was to blame to the extent of carrying out those orders which they both admitted to be contrary to International Law. The evidence was sufficient to support the findings."
The Judge Advocate pointed out that it was not clear if the death sentence was passed unanimously in accordance with Para.9 of the ALTSEA Regulations for the Trial of War Criminals.
Sentence Imposed
D1: Death by Hanging, executed at Stanley Prison, Hong Kong, on 21 January 1948;
D2: 7 years imprisonment.
D2: 7 years imprisonment.
Keywords
High Seas; Tone; Behar; Imperial Japanese Navy; Sinking of ship; Shipwrecked; Rescued; Unlawful Killing; "concerned in"; Ordered; Superior Orders; Miscommunication; War Crimes; Violations of laws and customs of war
Remarks
The Accused were represented by 2 Japanese Defence Counsel, one was a former judge of the Japanese Naval Military Court. Conflicting defences were run, as in several other cases. But here, each Accused got his own lawyer.
Dublin Core
Title
WO235/1078
Description
First Charge: Committing a War Crime
“in that he, at Hong Kong in or about the month of September 1943, was, in Violation of the Laws and Usages of war, concerned in the illtreatment of Li Chi Kwan, a civilian resident of Hong Kong aforesaid.”
Second Charge: Committing a War Crime
“in that he, at Kowloon in the Colony of Hong Kong between the 24th May 1945 and 1st June 1945, was, in violation of the Laws and Usages of War, concerned in the illtreatment of Chan Chor Bun and Wong Chor Key civilian residents of Hong Kong aforesaid.”
“in that he, at Hong Kong in or about the month of September 1943, was, in Violation of the Laws and Usages of war, concerned in the illtreatment of Li Chi Kwan, a civilian resident of Hong Kong aforesaid.”
Second Charge: Committing a War Crime
“in that he, at Kowloon in the Colony of Hong Kong between the 24th May 1945 and 1st June 1945, was, in violation of the Laws and Usages of War, concerned in the illtreatment of Chan Chor Bun and Wong Chor Key civilian residents of Hong Kong aforesaid.”
Legal Case Item Type Metadata
Case No.
WO235/1078
Accused
Sgt. Kuwano Nobuyuki
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge: Committing a War Crime
“in that he, at Hong Kong in or about the month of September 1943, was, in Violation of the Laws and Usages of war, concerned in the illtreatment of Li Chi Kwan, a civilian resident of Hong Kong aforesaid.”
Second Charge: Committing a War Crime
“in that he, at Kowloon in the Colony of Hong Kong between the 24th May 1945 and 1st June 1945, was, in violation of the Laws and Usages of War, concerned in the illtreatment of Chan Chor Bun and Wong Chor Key civilian residents of Hong Kong aforesaid.”
“in that he, at Hong Kong in or about the month of September 1943, was, in Violation of the Laws and Usages of war, concerned in the illtreatment of Li Chi Kwan, a civilian resident of Hong Kong aforesaid.”
Second Charge: Committing a War Crime
“in that he, at Kowloon in the Colony of Hong Kong between the 24th May 1945 and 1st June 1945, was, in violation of the Laws and Usages of War, concerned in the illtreatment of Chan Chor Bun and Wong Chor Key civilian residents of Hong Kong aforesaid.”
Background
This case concerns ill-treatment of three local Chinese in detention, allegedly at the hands of the Accused.
Allegations
In relation to the first charge, Li Chu Kwan alleged that he was arrested for being a spy and was beaten by the Accused with an axe handle, a belt, kicked, thrown to the ground and had his hands hammered.
As to the second charge, Chan Chor Bun stated that he was arrested by the Accused for the same reason and was beaten by the Accused and thrown onto the ground 10 times. He was also beaten with a rope and suspended until he became unconscious. He was also given “water torture” and kicked by the Accused.
Wong Chor Key also alleged he was arrested for the same reason. As he refused to confess, he was knocked about by 4 detectives in the presence of the Accused and subjected to "water torture". His chest was burnt with a cigarette and lighted paper was put in his trousers. He was beaten with a rope. He was suspended and hit with a chain. On another day, he was subjected to electric torture by the Accused.
As to the second charge, Chan Chor Bun stated that he was arrested by the Accused for the same reason and was beaten by the Accused and thrown onto the ground 10 times. He was also beaten with a rope and suspended until he became unconscious. He was also given “water torture” and kicked by the Accused.
Wong Chor Key also alleged he was arrested for the same reason. As he refused to confess, he was knocked about by 4 detectives in the presence of the Accused and subjected to "water torture". His chest was burnt with a cigarette and lighted paper was put in his trousers. He was beaten with a rope. He was suspended and hit with a chain. On another day, he was subjected to electric torture by the Accused.
Defence
The Defence generally disputed the facts of the Prosecution’s case. The Accused admitted interrogating Li Chu Kwan and the arrest of Wong Chor Key, but denied ill-treating them except for slapping the latter once. He also denied any knowledge of Chan Chor Bun.
The reliability of the statements provided by the alleged victims was also challenged.
The reliability of the statements provided by the alleged victims was also challenged.
Prosecutor
Major J.T.N. Cross (Royal Artillery, DAJAG War Crimes Legal Section, G.H.Q. FARKLF)
Defence Counsel
Mr. Hirakawa Chiaki (Japanese Lawyer)
Judges
President: Lt.-Col. N.G. Wait (Intelligence Corps)
Members: Major Clayworth (Royal Artillery), Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Members: Major Clayworth (Royal Artillery), Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Advisory Officer
2/Lt. G.L. Falkoff (2nd Buffs)
Prosecution Witnesses
Li Cho Kwan(Victim)
Lam Wah(Unemployed)
Chan Chor Bun(Victim)
Wong Chor Key(Victim)
Defence Witnesses
Kuwano Nobuyuki(Accused)
Kamada Yasushi(Former Sergeant/Major of the Gendarmerie)
Omura Kiyoshi(Warrant Officer)
Trial Dates
1947-08-20
1947-08-21
1947-08-22
1947-08-26
1947-08-27
1947-09-01
Judgement Date
1947-09-01
Judgement
First Charge: Not guilty;
Second Charge: Guilty with the exception of the words “Chan Chor Bun and” and the “s” in the word “residents.”
Second Charge: Guilty with the exception of the words “Chan Chor Bun and” and the “s” in the word “residents.”
Petition
There is no record of a Petition.
The Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces, 22 October 1947] advised as follows.
“It is not entirely clear why the Court acquitted the accused on the 1st charge and found him not guilty of illtreating Chan Chor Bun; presumably they considered the witnesses unreliable on these points. The evidence in respect of the illtreatment of Wong Chor Key is ample to support the conviction and I advise that the finding on the 2nd charge and the sentence be confirmed. It is not necessary to confirm the finding of acquittal on the 1st charge.”
The Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces, 22 October 1947] advised as follows.
“It is not entirely clear why the Court acquitted the accused on the 1st charge and found him not guilty of illtreating Chan Chor Bun; presumably they considered the witnesses unreliable on these points. The evidence in respect of the illtreatment of Wong Chor Key is ample to support the conviction and I advise that the finding on the 2nd charge and the sentence be confirmed. It is not necessary to confirm the finding of acquittal on the 1st charge.”
Sentence Imposed
Imprisonment of 18 months
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; Espionage; "concerned in"; Committed; Interrogation; Torture; Cruel Inhuman or Degrading Treatment; Beating; War Crimes; Violations of laws and customs of war
Dublin Core
Title
WO235/1073
Description
Committing a War Crime
“In that they at the New Territories, Hong Kong, between the end of February 1945, and the 15th August, 1945, the Accused Lieut. OBATA CHIKURO as Commanding Officer and the other Accused as members of the SHEUNG SHUI DISTRICT KEMPEITAI, were, in violation of the laws and usages of war, concerned in the illtreatment of Chinese residents in the New Territories causing the death of some and physical sufferings to other.”
“In that they at the New Territories, Hong Kong, between the end of February 1945, and the 15th August, 1945, the Accused Lieut. OBATA CHIKURO as Commanding Officer and the other Accused as members of the SHEUNG SHUI DISTRICT KEMPEITAI, were, in violation of the laws and usages of war, concerned in the illtreatment of Chinese residents in the New Territories causing the death of some and physical sufferings to other.”
Legal Case Item Type Metadata
Case No.
WO235/1073
Accused
Lt. Obata Chikuro (D1)
W/O. Takayama Masao (D2)
W/O. Yabuki Rikie (D3)
W/O. Oda Tanpei (D4)
S/M. Saruwatari Norishige (D5)
Sgt. Kebo Yoshiji (D6)
Sgt. Sasaki Yoshize (D7)
Senior Ptd. Watanabe Tamotsu (D8)
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“In that they at the New Territories, Hong Kong, between the end of February 1945, and the 15th August, 1945, the Accused Lieut. OBATA CHIKURO as Commanding Officer and the other Accused as members of the SHEUNG SHUI DISTRICT KEMPEITAI, were, in violation of the laws and usages of war, concerned in the illtreatment of Chinese residents in the New Territories causing the death of some and physical sufferings to other.”
“In that they at the New Territories, Hong Kong, between the end of February 1945, and the 15th August, 1945, the Accused Lieut. OBATA CHIKURO as Commanding Officer and the other Accused as members of the SHEUNG SHUI DISTRICT KEMPEITAI, were, in violation of the laws and usages of war, concerned in the illtreatment of Chinese residents in the New Territories causing the death of some and physical sufferings to other.”
Background
All the Accused were members of the Kempeitai, working in the New Territories during the material period.
D1 was the officer in charge of the District. The other Accused either served at the Headquarters or at the Sub-Station.
D1 was the officer in charge of the District. The other Accused either served at the Headquarters or at the Sub-Station.
Allegations
D1 was alleged to have tortured and beaten a detainee to death. On discovery, the corpse of this victim was found to have fractured ribs, and a broken left eye, and was covered with bruises.
D2 allegedly arrested PW26 (Fan Kwok Leung) and beat him with a rifle and poles, and also kicked his body until he lost consciousness. The victim testified that after he gained consciousness, he saw a person’s head being cut off with D2’s sword which D2 lent to another Japanese.
D3 allegedly arrested PW7 and tortured him twice. PW7 also claimed he saw three others being tortured by D3. A few other witnesses also stated that D3 tortured them.
D4 was in charge of Shataukok sub-station where and when the tortures happened. He was also said to have visited the interrogation rooms during the questioning time.
D5 allegedly ill-treated PWs 12, 14, 17, 18, 19, 20, 23, 24 and 25 when Sgt. Kebo Yoshiji (D6) was present.
D7 allegedly arrested, beat and hung up PW21, and was present when PW22 was tortured.
D8 allegedly arrested and tortured PW15.
D2 allegedly arrested PW26 (Fan Kwok Leung) and beat him with a rifle and poles, and also kicked his body until he lost consciousness. The victim testified that after he gained consciousness, he saw a person’s head being cut off with D2’s sword which D2 lent to another Japanese.
D3 allegedly arrested PW7 and tortured him twice. PW7 also claimed he saw three others being tortured by D3. A few other witnesses also stated that D3 tortured them.
D4 was in charge of Shataukok sub-station where and when the tortures happened. He was also said to have visited the interrogation rooms during the questioning time.
D5 allegedly ill-treated PWs 12, 14, 17, 18, 19, 20, 23, 24 and 25 when Sgt. Kebo Yoshiji (D6) was present.
D7 allegedly arrested, beat and hung up PW21, and was present when PW22 was tortured.
D8 allegedly arrested and tortured PW15.
Defence
D1 admitted he was in charge of the various detachments and Kempeitai sub-stations during the material time. But, he stated that Cheung How died of gastro-enteritis. He denied that he had knowledge of any ill-treatment as alleged.
D2 stated that he was only ordered by Col. Karagawa to round up some suspects in the village. As for the beheading, he claimed that he only knew of it when he arrived at the spot after hearing during a meal. At the scene, he saw a Chinese with his head off, and Yamada (Accused in case 1057, on a separate charge) holding a pistol in his hand. He added that Yamada was wearing civilian clothes, but both he and Yamada were carrying a sword.
D3 denied any ill-treatment.
D4 admitted interrogating suspects but denied ill-treating them.
D5 admitted he was attached to the Shataukok sub-station and stated that 5 suspects were arrested, but denied ill-treating any of them.
D6 admitted he was present at the interrogation but denied any ill-treatment.
D7 claimed that he was in hospital during the material period and, therefore, had not carried out any ill-treatment.
D8 admitted taking prisoners for interrogation but denied ill-treating them.
D2 stated that he was only ordered by Col. Karagawa to round up some suspects in the village. As for the beheading, he claimed that he only knew of it when he arrived at the spot after hearing during a meal. At the scene, he saw a Chinese with his head off, and Yamada (Accused in case 1057, on a separate charge) holding a pistol in his hand. He added that Yamada was wearing civilian clothes, but both he and Yamada were carrying a sword.
D3 denied any ill-treatment.
D4 admitted interrogating suspects but denied ill-treating them.
D5 admitted he was attached to the Shataukok sub-station and stated that 5 suspects were arrested, but denied ill-treating any of them.
D6 admitted he was present at the interrogation but denied any ill-treatment.
D7 claimed that he was in hospital during the material period and, therefore, had not carried out any ill-treatment.
D8 admitted taking prisoners for interrogation but denied ill-treating them.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr. Hirose Washiro (Barrister of the Supreme Court, Tokyo)
Judges
President: Lt. Col R.C. Laming (Barrister, General List, Indian Army)
Members: Major R.S. Butterfield (Indian Grenadiers); Captain Benyon (R.E.)
Members: Major R.S. Butterfield (Indian Grenadiers); Captain Benyon (R.E.)
Advisory Officer
Lieut D.C.J. Banfield (The Buffs)
Prosecution Witnesses
F.V. Collison(Captain)
Choy Fat(Businessman)
Cheung Lok(Farmer)
Cheung Kok Tai(Farmer)
Lee Tak Ru(Hawker)
Lum Siu Mun(Hawker)
Mun Ying Sau(Farmer)
Mun Ping Tai(Policeman)
Cheung Wing Lok(Farmer)
Chung Wah Bing(Farmer)
Mun Sam Fook(Farmer)
Chung On(Farmer)
Cheung Kok Mun(Farmer)
Tong Lui(Farmer)
Kwan King(Photographer)
Hou Kan Mui(Fitter)
Tang Shun(Farmer)
Chung Kin Tai(Farmer)
Lee Yat Sung(Pharmacist)
Lee Fuk(Farmer)
Cham Sam chow(Stone Layer)
Chang Tin Sung(Farmer)
Lo Kwai(Farmer)
Tong Chau(Farmer)
Chan Fook Cheung(Businessman)
Pan Kwok Leung(Farmer)
Arthur Tsang(Businessman for fertilizer)
Wong Yuk Lum(Fisherman)
Chan Ying Choy(Unknown)
Lee San Yau(Farmer)
Kwok Lip Chai(Unknown)
Major Bretherton(Major)
Yip Keung Ki(Medical Practitioner)
R.J. Rew(Corporal)
Defence Witnesses
Obata Chikuro (Accused)(Lieutenant)
Sasaki Yoshisho(Soldier)
Watanabe Tanotsu(Superior Private)
Yabuki Rikie (Accused)(Warrant Officer)
Oda Tanpei (Accused)(Warrant Officer)
Saruwatari Merishige(Sergeant Major)
Kebo Yishiji(Sergeant)
Takayama Masao (Accused)(Warrant Officer)
Yoshioka Kiao(Sergeant)
Martin Geoffrey Leigh Thomas(Lieutenant)
Court Witnesses
J.R. Milne(Lieutenant)
M.I. Ormsby(Major)
Surgeon Commander Gurd(Commander)
Trial Dates
1947-08-05
1947-08-06
1947-08-07
1947-08-08
1947-08-09
1947-08-11
1947-08-12
1947-08-13
1947-08-14
1947-08-15
1947-08-16
1947-08-18
1947-08-19
1947-08-20
1947-08-21
1947-08-22
1947-08-25
1947-08-26
1947-08-27
1947-08-28
1947-08-29
1947-09-01
1947-09-02
1947-09-03
1947-09-04
1947-09-08
1947-09-09
1947-09-16
1947-09-17
Judgement Date
1947-09-17
Judgement
D1, D2, D3, D4, D5, D6, D8: Guilty
D7: Not Guilty
D7: Not Guilty
Petition
D1 submitted a Petition. He explained that at the time, anti-Japanese activities were rampant and he had a difficult task. Nevertheless, he did his best to control his subordinates.
D2 submitted a Petition repeating the arguments at trial, adding that even if he is convicted he should not be sentenced to death by hanging.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces] recommended confirmation of findings and sentences:
“There was ample evidence before the Court to support the convictions. As regards No. 2 Accused who was sentenced to be hanged, although he did not actually carry out the killing, three witnesses stated he was at the spot at the time and two witnesses stated that although he was speaking in Japanese which they did not understand he seemed to be directing the operation both before and after the killing. Further-more it seems that the Court came to the conclusion that he handed his sword to Yamada the actual killer. Yamada was in civilian clothes for the purpose of secrecy and would not be carrying a sword. DW9 (page 485) stated that he had know No. 2 Accused to carry a sword as a member of the Secret Armed Force without anyone knowing it. He would sometimes paint it black and use it as a walking stick. Evidently the Court did not believe the story”.
D2 submitted a Petition repeating the arguments at trial, adding that even if he is convicted he should not be sentenced to death by hanging.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces] recommended confirmation of findings and sentences:
“There was ample evidence before the Court to support the convictions. As regards No. 2 Accused who was sentenced to be hanged, although he did not actually carry out the killing, three witnesses stated he was at the spot at the time and two witnesses stated that although he was speaking in Japanese which they did not understand he seemed to be directing the operation both before and after the killing. Further-more it seems that the Court came to the conclusion that he handed his sword to Yamada the actual killer. Yamada was in civilian clothes for the purpose of secrecy and would not be carrying a sword. DW9 (page 485) stated that he had know No. 2 Accused to carry a sword as a member of the Secret Armed Force without anyone knowing it. He would sometimes paint it black and use it as a walking stick. Evidently the Court did not believe the story”.
Sentence Imposed
D1: Imprisonment of 12 years;
D2: Death by hanging;
D3: Imprisonment of 11 years;
D4: Imprisonment of 5 years;
D5: Imprisonment of 5 years;
D6: Imprisonment of 3 years;
D8: Imprisonment of 1 years.
D2: Death by hanging;
D3: Imprisonment of 11 years;
D4: Imprisonment of 5 years;
D5: Imprisonment of 5 years;
D6: Imprisonment of 3 years;
D8: Imprisonment of 1 years.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; Unlawful killing; Torture; Cruel Inhuman or Degrading Treatment; Ordered; Interrogation; Sickness or Disease; War Crimes; Violations of laws and customs of war; Death from natural causes
Remarks
1 lawyer representing 8 Co-Accused.
Dublin Core
Title
WO235/1057
Description
Committing a War Crime
“in that he, at Hong Kong between 1st June 1945 and 31st August 1945, was, in violation of the laws and usages of war concerned in the illtreatment of Li Wai Lam, Chang Kwan Woo, Ng Wo Shun, Ng Shing and othe Chinese, which illtreatment resulted in the death of Ng Shing and five other Chinese, names unknown and bodily suffering to the other aforesaid Chinese.”
“in that he, at Hong Kong between 1st June 1945 and 31st August 1945, was, in violation of the laws and usages of war concerned in the illtreatment of Li Wai Lam, Chang Kwan Woo, Ng Wo Shun, Ng Shing and othe Chinese, which illtreatment resulted in the death of Ng Shing and five other Chinese, names unknown and bodily suffering to the other aforesaid Chinese.”
Legal Case Item Type Metadata
Case No.
WO235/1057
Accused
S/M Kamada Yasushi
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that he, at Hong Kong between 1st June 1945 and 31st August 1945, was, in violation of the laws and usages of war concerned in the illtreatment of Li Wai Lam, Chang Kwan Woo, Ng Wo Shun, Ng Shing and othe Chinese, which illtreatment resulted in the death of Ng Shing and five other Chinese, names unknown and bodily suffering to the other aforesaid Chinese.”
“in that he, at Hong Kong between 1st June 1945 and 31st August 1945, was, in violation of the laws and usages of war concerned in the illtreatment of Li Wai Lam, Chang Kwan Woo, Ng Wo Shun, Ng Shing and othe Chinese, which illtreatment resulted in the death of Ng Shing and five other Chinese, names unknown and bodily suffering to the other aforesaid Chinese.”
Background
The Accused was senior NCO of Shaukiwan Kempeitai Detachment, Hong Kong. He was accused of maltreatment and torture, resulting in a number of deaths.
Allegations
The Prosecution alleged that five Chinese were arrested by the Accused and detained in the Shaukiwan Detention Station. The Accused allegedly tortured them, including by beating, burning of the private parts by pouring petrol or such like over the victim, placing a pencil between the fingers, throwing lighted cigarette ends inside the clothing of the prisoners, water torture and suspension to a beam.
Although there was no eye-witness testimony of ill-treatment leading to the deaths, the Prosecution submitted evidence inferring such a conclusion. A prisoner was seen being taken out from the cell by the Accused and returned to the cell – he died the next morning. Another returned in a dying condition but was removed from the cell again so witnesses could not tell whether he was dead.
Although there was no eye-witness testimony of ill-treatment leading to the deaths, the Prosecution submitted evidence inferring such a conclusion. A prisoner was seen being taken out from the cell by the Accused and returned to the cell – he died the next morning. Another returned in a dying condition but was removed from the cell again so witnesses could not tell whether he was dead.
Defence
The Accused admitted that he was in charge of the Criminal Section at Shaukiwan and admitted arresting Prosecution witnesses PW2, PW3, PW4 and interrogating them. But he denied all accusations of ill-treating them.
As to the alleged deaths, he denied that there were any deaths.
He also stressed that, among the five persons arrested, two were released.
As to the alleged deaths, he denied that there were any deaths.
He also stressed that, among the five persons arrested, two were released.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr. Hirakawa Chiaki (Japanese Lawyer)
Judges
President: Lt.Col. R.C. Laming (MBE, G.I.A. Barrister-at-Law)
Members: Major R.S. Butterfield (Ind. Grenadiers), Captain I.E. Gamble (Buffs att. R.A.)
Members: Major R.S. Butterfield (Ind. Grenadiers), Captain I.E. Gamble (Buffs att. R.A.)
Advisory Officer
Lt. D.C.J. Banfield (The Buffs)
Prosecution Witnesses
Major Ormsby(Major)
Chang Kwan Woo(Photographer)
Ng Wo Shun(Kitchen Worker)
Li Wai Lam(Mechanic)
Defence Witnesses
Kamada Yasushi(Sergeant Major)
Korozawa Hireo(Warrant Officer)
Matsunobu Shigeru(Sergeant Major)
George Tong(Interpreter)
Court Witnesses
Moodie(Unknown)
Stanley George Smith(Chief Inspector)
Trial Dates
1947-07-11
1947-07-12
1947-07-14
1947-07-15
1947-07-16
1947-07-17
1947-07-22
1947-07-30
Judgement Date
1947-07-30
Judgement
Guilty except that “the Court finds you guilty of being concerned in the illtreatment of Li Wai Lam, Chang Kwan Woo, Ng Wo Shun, and three other Chinese, names unknown, which illtreatment resulted in the death of two Chinese, names unknown and bodily suffering to the other aforesaid Chinese.”
Petition
The Accused submitted a Petition on 11 August 1947.
The Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces, 24 September 1947] described it as “merely repeating the arguments” in the trial, including allegations about the unreliability of evidence and witnesses’ statements and the lack of evidence in proving guilt.
An issue arose as to Prosecution witness 4 and an alleged conversation that the Accused claimed to have had with him during an adjournment of the Court. There was an allegation that he gave false testimony. The Judge Advocate pointed out that the witness was cross-examined on this and denied such a statement. In his Petition, the Accused also sought more time to bring forward more evidence in his defence, as he was apparently only given twelve days to prepare for trial. The Judge Advocate observed that at the start of trial, the Accused had confirmed that he was ready to proceed and made no such request for further witnesses during the proceedings.
The Judge Advocate observed that the Court brought in a special finding that the Accused was concerned in the ill-treatment of three named Chinese - Li Wai Lam, Chang Kwan Woo and Ng Wo Shun, and three other unidentified Chinese who were ill-treated to the extent that two of them died.
The Judge Advocate [unidentified Brigadier, DJAG, Far East Land Forces, 24 September 1947] described it as “merely repeating the arguments” in the trial, including allegations about the unreliability of evidence and witnesses’ statements and the lack of evidence in proving guilt.
An issue arose as to Prosecution witness 4 and an alleged conversation that the Accused claimed to have had with him during an adjournment of the Court. There was an allegation that he gave false testimony. The Judge Advocate pointed out that the witness was cross-examined on this and denied such a statement. In his Petition, the Accused also sought more time to bring forward more evidence in his defence, as he was apparently only given twelve days to prepare for trial. The Judge Advocate observed that at the start of trial, the Accused had confirmed that he was ready to proceed and made no such request for further witnesses during the proceedings.
The Judge Advocate observed that the Court brought in a special finding that the Accused was concerned in the ill-treatment of three named Chinese - Li Wai Lam, Chang Kwan Woo and Ng Wo Shun, and three other unidentified Chinese who were ill-treated to the extent that two of them died.
Sentence Imposed
Sentenced to death by hanging, executed on 14 October 1947.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; "concerned in"; Committed; Unlawful Killing; Torture; Cruel Inhuman or Degrading Treatment; Beating; War Crimes; Violations of laws and customs of war
Remarks
The Court visited the Central Police Station and the former Stanley Kempeitai Station. It examined various cells and rooms, and conducted tests to ascertain if the witnesses could indeed have heard what they said they heard. Witnesses were recalled to point out the various rooms that they referred to in earlier testimony.
Dublin Core
Title
WO235/1045
Description
“COMMITTING A WAR CRIME, in that he, at CHEUNG CHOW ISLAND in the Colony of Hong Kong between the 24th December 1944 and the 13th January 1945 when officer in charge of the CHEUNG CHOW KEMPEITAI STATION, was in violation of the laws and usages of war, concerned in maltreatment causing physical suffering to CHENG WO KWAI, LAM AH HENG, MAN FOOK, MAN YUK MUI, MAN SUI WA, CHOY SANG CHEUNG WA YUK and WONG MING also known as AH MING and FOOK TAI, all Chinese Civilian Residents of CHEUNG CHOW ISLAND.
Legal Case Item Type Metadata
Case No.
WO235/1045
Accused
Sgt. Major Honda Isamu
Court
Military Court for the Trial of War Criminals No. 7
Charge
“COMMITTING A WAR CRIME, in that he, at CHEUNG CHOW ISLAND in the Colony of Hong Kong between the 24th December 1944 and the 13th January 1945 when officer in charge of the CHEUNG CHOW KEMPEITAI STATION, was in violation of the laws and usages of war, concerned in maltreatment causing physical suffering to CHENG WO KWAI, LAM AH HENG, MAN FOOK, MAN YUK MUI, MAN SUI WA, CHOY SANG CHEUNG WA YUK and WONG MING also known as AH MING and FOOK TAI, all Chinese Civilian Residents of CHEUNG CHOW ISLAND.
Background
The Accused was the head of a Gendarmerie sub-station charged with the duty of maintaining law and order in Cheung Chow Island, situated a few miles west from Hong Kong Island.
Sometime between December 1944 and January 1945, the Accused received a report about some illegal dealings in rice. The civilians involved were arrested and brought before him for interrogation.
Sometime between December 1944 and January 1945, the Accused received a report about some illegal dealings in rice. The civilians involved were arrested and brought before him for interrogation.
Allegations
The Prosecution relied on the Hague Rules of 1907, which Japan was a party to.
The Prosecution alleged that during the investigation of the illegal rice trading incident, the Accused unlawfully maltreated the civilian suspects. During the interrogation, he summarily punished them. The maltreatment included the following: beating by bare fist or iron-rod loaded bamboo sticks causing injuries and bleeding, stress positions (eg. a victim was made to hold up a chair loaded with heavy weights for hours); “water torture” (i.e. pouring water into the mouth and nostrils).
The Prosecution alleged that during the investigation of the illegal rice trading incident, the Accused unlawfully maltreated the civilian suspects. During the interrogation, he summarily punished them. The maltreatment included the following: beating by bare fist or iron-rod loaded bamboo sticks causing injuries and bleeding, stress positions (eg. a victim was made to hold up a chair loaded with heavy weights for hours); “water torture” (i.e. pouring water into the mouth and nostrils).
Defence
The Defence argued that there was “but little convincing concurrence between the testimony given by the [prosecution witnesses] about the material points of” the case. It was argued that there was discord and inconsistency thus making the evidence presented insufficient.
The Accused denied committing any of the alleged atrocities. While admitting that there might be occasionally have been some slapping, hitting with bamboo sticks and splashing of water (but not “water torture”), these were done by “a man burning with natural disinterested indignation at the theft of the common property of that community”. The Defence argued that the testimonies given by various Prosecution witnesses were not reliable at all, exaggerated, or contradictory.
The Accused denied committing any of the alleged atrocities. While admitting that there might be occasionally have been some slapping, hitting with bamboo sticks and splashing of water (but not “water torture”), these were done by “a man burning with natural disinterested indignation at the theft of the common property of that community”. The Defence argued that the testimonies given by various Prosecution witnesses were not reliable at all, exaggerated, or contradictory.
Prosecutor
Major R.C. Lai (JAG Branch)
Defence Counsel
Mr. Takano Junjiro (Japanese Barrister)
Judges
President: Lt. Col. C.F. Ball (Department of JAG in India, Barrister-at-Law)
Members: Major M.I. Ormsby (West York Regt.); Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Members: Major M.I. Ormsby (West York Regt.); Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Advisory Officer
Capt. J.N. Whitehorn (Intelligence Corps)
Prosecution Witnesses
Cheng Wo-kwai(Fisherman. Victim)
Lai Ah-Heng(Victim)
Man Yuk-mui(Victim)
Man Sui-wa(Victim)
Choi Sang(Victim)
Kwan Man-Yee(Policeman, Water Gendarmerie attached to the Cheung Chow Gendarmerie)
Law Hok-nin(Chinese Herbalist)
Young Wai-lam(Medical Practitioner)
Capt. E.E. Williamson(Captain, War Crimes Unit)
Defence Witnesses
Sgt.-Maj. Honda Isamu(Accused. Sergeant Major, Gendarmerie, Japanese Army; Cheung Chow Gendarmerie.)
Maj-Gen. Nishiyama Keikichi(Major-General, Chief of the Medical Department, Formosan Army Corps, Japanese Army)
Trial Dates
1946-12-18
1946-12-19
1946-12-20
1946-12-21
Judgement Date
1946-12-21
Judgement Confirmation Date
1947-09-23
Judgement Promulgation Date
1947-09-27
Judgement
Held: Guilty as charged
Petition
The Accused petitioned. He argued that:
1. The verdict was against the weight of the evidence;
2. The sentence was unduly severe in the light of the evidence.
In his review of the case on 24 February 1947, the Judge Advocate [Brigadier FGT Davis, DJAG, South East Asia Land Forces] observed that “There were small discrepancies in the prosecution evidence in regard to the particular form of torture used on specific occasions, but there is no doubt that torture was used. The accused in his statement admits ill-treating persons during interrogation though he denies that it was so severe as alleged by the prosecution.”
Ultimately, he advised that “the finding of the court is supported by the evidence and I advice confirmation”.
1. The verdict was against the weight of the evidence;
2. The sentence was unduly severe in the light of the evidence.
In his review of the case on 24 February 1947, the Judge Advocate [Brigadier FGT Davis, DJAG, South East Asia Land Forces] observed that “There were small discrepancies in the prosecution evidence in regard to the particular form of torture used on specific occasions, but there is no doubt that torture was used. The accused in his statement admits ill-treating persons during interrogation though he denies that it was so severe as alleged by the prosecution.”
Ultimately, he advised that “the finding of the court is supported by the evidence and I advice confirmation”.
Sentence Imposed
5 years imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; Civilians; "concerned in"; Committed; Unlawful arrest and/or detention; Interrogation; Arbitrary or Summary Punishment; Torture; Cruel Inhuman or Degrading Treatment; War Crimes; Violations of laws and customs of war; Provocation; Mitigation; Hague Regulations/Rules 1907
Dublin Core
Title
WO235/1044
Description
First Charge (Against all Accused)
“COMMITTING A WAR CRIME, in that they at and near KARENKO, FORMOSA, between 1st July 1942 and 30th June 1943, the accused Col. NAKAO as Commandant Prisoner-of-War Camps Group, the accused Captain IMAMURA as Commandant of No. 4 Branch Camp and the accused Lieutenant. WAKASUGI as a member of the staff of the said Camp, being responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees resulting in physical suffering to many of them.”
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that at Formosa between July 1942 and June 1943, the accused as Commandant Prisoner-of-War Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, H.Q. Camp at DAICHOKU and at various in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
Third Charge (Against D2)
“COMMITTING A WAR CRIME, at or near SHIRAKAWA, FORMOSA, between 1st June and 31st December 1943, whilst Commandant of No. 4 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees causing suffering to many of them.”
Fourth Charge (Against D2)
“COMMITTING A WAR CRIME, at or near KOKUTSU, FORMOSA, between 16th May 1945 and 31st May 1945, whilst Commandant of No. 1 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of them.”
Fifth Charge (Against D3)
“COMMITTING A WAR CRIME, at TROKU, FORMOSA, between 1st November 1944 and 25th April 1945, whilst Commandant at TROKU Transit Camp and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
Sixth Charge (Against D3)
“COMMITTING A WAR CRIME, at SIRAKAWA, FORMOSA, between 25th April 1945 and 5th September 1945, whilst a member of the staff of the No. 4 Branch Camp was, contrary to the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
“COMMITTING A WAR CRIME, in that they at and near KARENKO, FORMOSA, between 1st July 1942 and 30th June 1943, the accused Col. NAKAO as Commandant Prisoner-of-War Camps Group, the accused Captain IMAMURA as Commandant of No. 4 Branch Camp and the accused Lieutenant. WAKASUGI as a member of the staff of the said Camp, being responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees resulting in physical suffering to many of them.”
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that at Formosa between July 1942 and June 1943, the accused as Commandant Prisoner-of-War Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, H.Q. Camp at DAICHOKU and at various in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
Third Charge (Against D2)
“COMMITTING A WAR CRIME, at or near SHIRAKAWA, FORMOSA, between 1st June and 31st December 1943, whilst Commandant of No. 4 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees causing suffering to many of them.”
Fourth Charge (Against D2)
“COMMITTING A WAR CRIME, at or near KOKUTSU, FORMOSA, between 16th May 1945 and 31st May 1945, whilst Commandant of No. 1 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of them.”
Fifth Charge (Against D3)
“COMMITTING A WAR CRIME, at TROKU, FORMOSA, between 1st November 1944 and 25th April 1945, whilst Commandant at TROKU Transit Camp and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
Sixth Charge (Against D3)
“COMMITTING A WAR CRIME, at SIRAKAWA, FORMOSA, between 25th April 1945 and 5th September 1945, whilst a member of the staff of the No. 4 Branch Camp was, contrary to the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
Legal Case Item Type Metadata
Case No.
WO235/1044
Accused
Col. Nakano Junichi (D1)
Capt. Imamura Yachashi (D2)
Lt. Wakasugi Jiro (D3)
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge (Against all Accused)
“COMMITTING A WAR CRIME, in that they at and near KARENKO, FORMOSA, between 1st July 1942 and 30th June 1943, the accused Col. NAKAO as Commandant Prisoner-of-War Camps Group, the accused Captain IMAMURA as Commandant of No. 4 Branch Camp and the accused Lieutenant. WAKASUGI as a member of the staff of the said Camp, being responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees resulting in physical suffering to many of them.”
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that at Formosa between July 1942 and June 1943, the accused as Commandant Prisoner-of-War Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, H.Q. Camp at DAICHOKU and at various in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
Third Charge (Against D2)
“COMMITTING A WAR CRIME, at or near SHIRAKAWA, FORMOSA, between 1st June and 31st December 1943, whilst Commandant of No. 4 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees causing suffering to many of them.”
Fourth Charge (Against D2)
“COMMITTING A WAR CRIME, at or near KOKUTSU, FORMOSA, between 16th May 1945 and 31st May 1945, whilst Commandant of No. 1 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of them.”
Fifth Charge (Against D3)
“COMMITTING A WAR CRIME, at TROKU, FORMOSA, between 1st November 1944 and 25th April 1945, whilst Commandant at TROKU Transit Camp and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
Sixth Charge (Against D3)
“COMMITTING A WAR CRIME, at SIRAKAWA, FORMOSA, between 25th April 1945 and 5th September 1945, whilst a member of the staff of the No. 4 Branch Camp was, contrary to the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
“COMMITTING A WAR CRIME, in that they at and near KARENKO, FORMOSA, between 1st July 1942 and 30th June 1943, the accused Col. NAKAO as Commandant Prisoner-of-War Camps Group, the accused Captain IMAMURA as Commandant of No. 4 Branch Camp and the accused Lieutenant. WAKASUGI as a member of the staff of the said Camp, being responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees resulting in physical suffering to many of them.”
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that at Formosa between July 1942 and June 1943, the accused as Commandant Prisoner-of-War Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, H.Q. Camp at DAICHOKU and at various in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
Third Charge (Against D2)
“COMMITTING A WAR CRIME, at or near SHIRAKAWA, FORMOSA, between 1st June and 31st December 1943, whilst Commandant of No. 4 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and civilian internees causing suffering to many of them.”
Fourth Charge (Against D2)
“COMMITTING A WAR CRIME, at or near KOKUTSU, FORMOSA, between 16th May 1945 and 31st May 1945, whilst Commandant of No. 1 Branch and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of them.”
Fifth Charge (Against D3)
“COMMITTING A WAR CRIME, at TROKU, FORMOSA, between 1st November 1944 and 25th April 1945, whilst Commandant at TROKU Transit Camp and as such responsible for the well-being of all British and Allied Prisoners-of-War in the said Camp, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
Sixth Charge (Against D3)
“COMMITTING A WAR CRIME, at SIRAKAWA, FORMOSA, between 25th April 1945 and 5th September 1945, whilst a member of the staff of the No. 4 Branch Camp was, contrary to the laws and usages of war concerned in the illtreatment of Prisoners-of-War causing suffering to many of the said Prisoners-of-War.”
Background
D1 was in command of a group of Prisoner-of-War (‘POW’) Camps in Formosa (later succeeded by Sazawa – WO 235/1029). Under his command there were five operating POW Camps. He was in charge of the third, Heito Camp.
D2 was a subordinate of D1, and was in charge of the fourth, Karenko Camp, later the Shirakawa Camp and also the Kokutsu Camp.
D3 worked under D1 and D2 at Karenko Camp and was in charge of the Troku Camp (a transit camp) and later the Sirakawa Camp as well.
D2 was a subordinate of D1, and was in charge of the fourth, Karenko Camp, later the Shirakawa Camp and also the Kokutsu Camp.
D3 worked under D1 and D2 at Karenko Camp and was in charge of the Troku Camp (a transit camp) and later the Sirakawa Camp as well.
Allegations
The Prosecution relied on both testimony of four ex-POWs also affidavits by high ranking officers to establish its case.
Examples of ill-treatment included beatings, wrongful confinement and parades, punishment (for not promising not to escape or to write to their own government to treat the Japanese POWs better). insufficient food which was also of a low quality, inadequate medical supplies and bad sanitation. All these allegedly caused many of the POWs to suffer from diseases and die. POWs were also forced to work regardless of their health condition. It was alleged that around 45 POWs died in Heito Camp during the relevant period.
Examples of ill-treatment included beatings, wrongful confinement and parades, punishment (for not promising not to escape or to write to their own government to treat the Japanese POWs better). insufficient food which was also of a low quality, inadequate medical supplies and bad sanitation. All these allegedly caused many of the POWs to suffer from diseases and die. POWs were also forced to work regardless of their health condition. It was alleged that around 45 POWs died in Heito Camp during the relevant period.
Defence
The Defence submitted that for criminal liability to attach to the Accused, “there must be either wrong intent or negligence”.
On Command Responsibility, it argued that in the view of the Japanese Army, “if a superior did all he could to prevent the commission of such criminal offences by doing his best to supervise, train or issue instructions or orders, he would not be held responsible, while if the superior had failed to take proper steps which he should have done, the consequences would be otherwise”.
On the point of Superior Orders, the Defence argued that “in the Japanese army the subordinates were bound absolutely and unconditionally to obey superior orders”. The notion of an unlawful superior order was only imposed in the British Military Manual in 1944 and not before. There was reference to the Nuremburg Judgement on the principle of nullum crimen sine lege.
D1 denied that he ever saw or had any knowledge of any ill-treatment. The food and medical supplies were provided by other authorities, over which he had no control. He visited the camp occasionally and did not see anything particularly wrong. He also denied that Col. Bunker died of starvation or that Red Cross parcels were pilfered.
D2 admitted that there were beatings by the guards and also that he himself beat some of the POWs on one occasion. He also admitted that he beat Maj. Gen. Sitwell. The third accused stated that he heard of beatings taking place and admitted the beating of a POW known as Barton.
Both D2 and D3 stated that they did their best as regards to food and medical supplies and also started vegetable gardens for prisoners. One Defence witness stated that only one POW died during the office of tD1.
On Command Responsibility, it argued that in the view of the Japanese Army, “if a superior did all he could to prevent the commission of such criminal offences by doing his best to supervise, train or issue instructions or orders, he would not be held responsible, while if the superior had failed to take proper steps which he should have done, the consequences would be otherwise”.
On the point of Superior Orders, the Defence argued that “in the Japanese army the subordinates were bound absolutely and unconditionally to obey superior orders”. The notion of an unlawful superior order was only imposed in the British Military Manual in 1944 and not before. There was reference to the Nuremburg Judgement on the principle of nullum crimen sine lege.
D1 denied that he ever saw or had any knowledge of any ill-treatment. The food and medical supplies were provided by other authorities, over which he had no control. He visited the camp occasionally and did not see anything particularly wrong. He also denied that Col. Bunker died of starvation or that Red Cross parcels were pilfered.
D2 admitted that there were beatings by the guards and also that he himself beat some of the POWs on one occasion. He also admitted that he beat Maj. Gen. Sitwell. The third accused stated that he heard of beatings taking place and admitted the beating of a POW known as Barton.
Both D2 and D3 stated that they did their best as regards to food and medical supplies and also started vegetable gardens for prisoners. One Defence witness stated that only one POW died during the office of tD1.
Prosecutor
Major D.G. McGregor (Solicitor, Black Watch)
Defence Counsel
Mr. Takano Junjiro (Japanese Barrister)
Judges
President: Lt. Col. N. G. Wait (Intelligence Corps)
Members: Major A Clayworth (Royal Artillery); Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Members: Major A Clayworth (Royal Artillery); Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Advisory Officer
Capt. J.N. Whitehorn (Intelligence Corps); Lieut. D.C.J. Banfield (the Buffs)
Prosecution Witnesses
Robert V. Gibbons(War Crimes Unit, HQ Land Forces, Hong Kong)
R.C.M. Comfort(Army Officer, British Army; Ex-prisoner, No.3 Branch Camp, Heito, Formosa.)
Major J.T.N. Cross(Officer Commanding No. 14 War Crimes Team; Ex-Prisoner of War in Kinkaseki Camp)
Tsutada Itsuo(Interpreter, Stanley Prison)
Warrant Officer J.O. Edwards(Warrant Officer, First Class, British Army, War Crimes, Hong Kong)
Kwok Po-Man(Chief Clerk, No. 14 War Crimes Investigation Team)
Defence Witnesses
Col. Nakano Junichi(First Accused, Chief Commandant POW Camps, Taiwan.)
Imamura Yayohachi(Second Accused, Member of the Staff, Karenko Camp)
Wakasugi Jiro(Third Accused, Member of the Staff, Karenko Camp)
Lt. Kuwahara Hiroshi(Army Lieutenant, Adjutant to the Chief Commandant, Headquarter, Taiwan POW Camps.)
Capt. Yoshimi Taneyoshi(Surgeon, Surgical Section, Taihoku Army Hospital)
Capt. Kojima Toshio(Army Captain, Branch Camp Commandant of the No. 3 Branch Camp in Heito.)
Capt. Matsumura Yoshio(Medical Orderly, Karenko Camp.)
Major Hirao Yoshio(Gendarme Major)
Capt. John Neville Whitehorn(Advisory Officer, No. 7 War Crimes Court, Hong Kong.)
George Tong(Interpreter, No. 7 War Crimes Court, Hong Kong)
Trial Dates
1947-04-10
1947-05-07
1947-05-08
1947-05-09
1947-05-10
1947-05-11
1947-05-12
1947-05-13
1947-05-14
1947-05-15
1947-05-16
Judgement Date
1941-07-28
Judgement Confirmation Date
1947-10-21
Judgement Promulgation Date
1947-10-27
Judgement
Held:
1. D1 and D2 were guilty of the first charge;
2. D1 was guilty of the second charge;
3. D2 was guilty of the third and fourth charges;
4. D3 was not guilty of the first and sixth charges but guilty on the fifth charge.
1. D1 and D2 were guilty of the first charge;
2. D1 was guilty of the second charge;
3. D2 was guilty of the third and fourth charges;
4. D3 was not guilty of the first and sixth charges but guilty on the fifth charge.
Petition
D1 petitioned. He argued that he was too busy getting the POW Camps ready and it was impossible for him to know the true situation. He was only able to make 3 visits to the Branch Camp. He had to rely on untrained subordinates.
D2 petitioned:
1. Within his sphere of authority (which was to “carry out the details of administration in accordance with the regulations”), he had not neglected his duty in any way.
2. The charge against him was too vague for him to identify what was actually proved against him.
3. All allegations against him were due to misunderstanding of his position and failure to realize that he was trying to help the POWs.
On 7 October 1947, the Judge Advocate advised that the petitions be dismissed and findings/sentences be dismissed [N.H. New, Brigadier, DJAG, ALFSEA].
The Judge Advocate observed the reliance on affidavits in this case, notably that the cases against D1, D3, D5 and D6 were entirely based on affidavits. "In general it appears that these affidavits are substantially true and many of the deponents corroborate one another". There was some concern about Exhibit TT, the affidavit of Capt Lowman. Even allowing for some exaggeration, the Judge Advocate concluded, "there was ample evidence to support the findings of guilty and the sentences to be confirmed. The findings of not guilty do not of course require confirmation".
This was a case with some delay. The Judge Advocate found that "it is not apparent why there was so long a delay in submitting the proceedings to this office for pre-confirmation advice, particularly as, owing to numerous adjournments, the trial itself was unusually protracted". No recommendations were made in respect of this.
D2 petitioned:
1. Within his sphere of authority (which was to “carry out the details of administration in accordance with the regulations”), he had not neglected his duty in any way.
2. The charge against him was too vague for him to identify what was actually proved against him.
3. All allegations against him were due to misunderstanding of his position and failure to realize that he was trying to help the POWs.
On 7 October 1947, the Judge Advocate advised that the petitions be dismissed and findings/sentences be dismissed [N.H. New, Brigadier, DJAG, ALFSEA].
The Judge Advocate observed the reliance on affidavits in this case, notably that the cases against D1, D3, D5 and D6 were entirely based on affidavits. "In general it appears that these affidavits are substantially true and many of the deponents corroborate one another". There was some concern about Exhibit TT, the affidavit of Capt Lowman. Even allowing for some exaggeration, the Judge Advocate concluded, "there was ample evidence to support the findings of guilty and the sentences to be confirmed. The findings of not guilty do not of course require confirmation".
This was a case with some delay. The Judge Advocate found that "it is not apparent why there was so long a delay in submitting the proceedings to this office for pre-confirmation advice, particularly as, owing to numerous adjournments, the trial itself was unusually protracted". No recommendations were made in respect of this.
Sentence Imposed
D1: 20 years imprisonment;
D2: 15 years imprisonment;
D3: 1 year imprisonment.
D2: 15 years imprisonment;
D3: 1 year imprisonment.
Keywords
Formosa; Prisoners of War; Prisoner of War Camp; Failure to provide adequate food and/or care; Poor conditions of detention; Failure to provide adequate medical care; Cruel Inhuman or Degrading Treatment; Red Cross Parcels; Starvation; Sick or wounded; "concerned in"; Ordered; Superior Orders; Death from natural causes; Scope of Responsibilities; War Crimes; Violations of laws and customs of war; British Military Manual
Remarks
Link to the other Formosa cases.
Dublin Core
Title
WO235/1041
Description
“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”
Legal Case Item Type Metadata
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
1947-07-07
1947-07-08
1947-07-09
1947-07-10
1947-07-16
1947-07-17
1947-07-18
1947-07-19
1947-07-21
1947-07-22
1947-07-30
1947-07-31
1947-08-01
1947-08-02
1947-08-05
1947-08-11
Judgement Date
1947-08-12
Judgement Confirmation Date
1947-10-09
Judgement Promulgation Date
1947-10-13
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.
Dublin Core
Title
WO235/1038
Description
Committing a War Crime
In that he “at Hong Kong between the 14th May, 1943 and the 29th June, 1943, was in violation of the laws and usages of war, concerned in the illtreatment of prisoners in custody at Mongkok Kempeitai Station causing physical sufferings to Marcus A. da Silva and George van Bergen.”
In that he “at Hong Kong between the 14th May, 1943 and the 29th June, 1943, was in violation of the laws and usages of war, concerned in the illtreatment of prisoners in custody at Mongkok Kempeitai Station causing physical sufferings to Marcus A. da Silva and George van Bergen.”
Legal Case Item Type Metadata
Case No.
WO235/1038
Accused
Sergeant Ozawa Tomukuchi
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
In that he “at Hong Kong between the 14th May, 1943 and the 29th June, 1943, was in violation of the laws and usages of war, concerned in the illtreatment of prisoners in custody at Mongkok Kempeitai Station causing physical sufferings to Marcus A. da Silva and George van Bergen.”
In that he “at Hong Kong between the 14th May, 1943 and the 29th June, 1943, was in violation of the laws and usages of war, concerned in the illtreatment of prisoners in custody at Mongkok Kempeitai Station causing physical sufferings to Marcus A. da Silva and George van Bergen.”
Background
The Accused was attached to the Kowloon District Kempeitai, in the Special Intelligence Section.
Allegations
The two alleged victims - Marcus A. da Silva and George van Bergen - testified of the ill-treatment they received, between 14-22 May 1943, at the hands of the Accused or Chinese policemen acting under his instructions. This was done in the course of Kempeitai investigations into a railway sabotage case. The Prosecution alleged that the Accused was present, and also personally interrogated the two victims. He allegedly whipped and kicked them during interrogation.
Defence
The Defence produced evidence that during the time when the two victims alleged to have been tortured by the Accused, he was in hospital and did not go to Mongkok Kempeitai Station.
The Defence claimed that the Accused was never in charge of the station. After his discharge from hospital, he was put in charge of the detainees at the station. This was after the dates that they said they had been tortured. He inspected them but he received no complaints from them or any unusual reports from the Chinese policemen on guard. He gave no orders for them to be interrogated or torture them or allow or induce the interpreters or Chinese policemen to torture them. He did not commit the alleged crimes, and it was not within the scope of his work.
The Defence also claimed that the identification parade was unreliable. It was pointed out that at the identification parade, Mr Van Bergen made a mistake in pointing out a man who tortured him and only until this man spoke and said he was in Tokyo did he realize his mistake.
The Defence also pointed out some contradictions in the testimonies. Some documents were claimed to be unreliable.
The Defence claimed that the Accused was never in charge of the station. After his discharge from hospital, he was put in charge of the detainees at the station. This was after the dates that they said they had been tortured. He inspected them but he received no complaints from them or any unusual reports from the Chinese policemen on guard. He gave no orders for them to be interrogated or torture them or allow or induce the interpreters or Chinese policemen to torture them. He did not commit the alleged crimes, and it was not within the scope of his work.
The Defence also claimed that the identification parade was unreliable. It was pointed out that at the identification parade, Mr Van Bergen made a mistake in pointing out a man who tortured him and only until this man spoke and said he was in Tokyo did he realize his mistake.
The Defence also pointed out some contradictions in the testimonies. Some documents were claimed to be unreliable.
Prosecutor
Major R.C. Lai (Dept. of the JAG, India)
Defence Counsel
Mr Sakai Yusuke (Japanese Barrister)
Judges
President: Lt. Col N.G. Wait (Int. Corps.)
Members: Major A. Clayworth (R.A.), Capt. R.B.R. Gorely (K.R.R.C.)
Members: Major A. Clayworth (R.A.), Capt. R.B.R. Gorely (K.R.R.C.)
Advisory Officer
Capt. J.N. Whitehorn (Intelligence Corps)
Prosecution Witnesses
Kwok Po Man(Chief Clerk, War Crimes Investigation Team)
Marcus Alberto da Silva(Solicitor)
Major Shiozawa Kunio(Commander, Kowloon District Gendarmerie)
George van Bergen(Merchant)
Defence Witnesses
Ozawa Tomokuchi(Accused)
Sgt. Nagahara Masakichi(Kempei)
Trial Dates
1947-06-25
1947-06-26
1947-06-28
Judgement Date
1947-06-28
Judgement
Guilty
Petition
There is no record of a Petition.
According to the Judge Advocate reviewing the case [unidentified Brigadier, DJAG, Far East Land Forces, 22 August 1947]: “Of the two stories before it, the court preferred to believe the prosecution version and there is sufficient evidence on record to support the findings. I advise confirmation of the proceedings”.
According to the Judge Advocate reviewing the case [unidentified Brigadier, DJAG, Far East Land Forces, 22 August 1947]: “Of the two stories before it, the court preferred to believe the prosecution version and there is sufficient evidence on record to support the findings. I advise confirmation of the proceedings”.
Sentence Imposed
Imprisonment of 1 year.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; "concerned in"; Committed; Torture; Cruel Inhuman or Degrading Treatment; War Crimes; Violations of laws and customs of war; Interrogation; Civilians; Alibi; Mistaken Identity
Dublin Core
Title
WO235/1037
Description
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.”
Legal Case Item Type Metadata
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
1947-06-17
1947-06-18
1947-06-19
1947-06-20
1947-06-21
1947-06-23
1947-06-27
Judgement Date
1947-06-27
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
Dublin Core
Title
WO235/1036
Description
Committing a War Crime
in that they “at or near KINKASEKI CAMP, FORMOSA, between 14th November, 1942, and January, 1944, whilst members of the Camp Staff were, contrary to the Laws and usages of war, together concerned in the illtreatment of Prisoners of War in their custody, causing suffering to the said Prisoners of War.”
in that they “at or near KINKASEKI CAMP, FORMOSA, between 14th November, 1942, and January, 1944, whilst members of the Camp Staff were, contrary to the Laws and usages of war, together concerned in the illtreatment of Prisoners of War in their custody, causing suffering to the said Prisoners of War.”
Legal Case Item Type Metadata
Case No.
WO235/1036
Accused
Lt. Oita Yoshijiro (D1)
Lt. Ashida Tsumoru (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
in that they “at or near KINKASEKI CAMP, FORMOSA, between 14th November, 1942, and January, 1944, whilst members of the Camp Staff were, contrary to the Laws and usages of war, together concerned in the illtreatment of Prisoners of War in their custody, causing suffering to the said Prisoners of War.”
in that they “at or near KINKASEKI CAMP, FORMOSA, between 14th November, 1942, and January, 1944, whilst members of the Camp Staff were, contrary to the Laws and usages of war, together concerned in the illtreatment of Prisoners of War in their custody, causing suffering to the said Prisoners of War.”
Background
Lt. Oita Yoshijiro (D1) was the Officer in Charge of the camp under Captain Wakayama during the period mentioned in the charge. Ashida Tsumoru (D2) was a Lieutenant in the same camp.
Allegations
D1 was accused of committing three specific acts of brutality: (1) fifteen hospital patients were paraded and made to stand for four hours; (2) eleven POWs were made to stand to attention, beaten and then made to work all day; (3) some POWs were made to run round in a circle on a cold morning. D1 was accused of having threateningly waved a golf club to encourage those who did not move fast enough.
There was also a forced march of certain of the POWs from Zeho to Kinkaseki, during which those who were unable to keep up due to sickness were abused. D2 was said to have taken part and to have been the OIC. D2 was accused of being the OIC of the brutality by D1 described above.
One witness testified and sworn statements from three people (John Owen Edwards, James Frederick Crossley, Yoshida Hokosaku) were submitted.
There was also a forced march of certain of the POWs from Zeho to Kinkaseki, during which those who were unable to keep up due to sickness were abused. D2 was said to have taken part and to have been the OIC. D2 was accused of being the OIC of the brutality by D1 described above.
One witness testified and sworn statements from three people (John Owen Edwards, James Frederick Crossley, Yoshida Hokosaku) were submitted.
Defence
The Defence started by describing the amount of evidence produced as “surprisingly small”, and asserting that the evidence failed to prove the allegations beyond a reasonable doubt.
It was also pointed out that none of the witnesses, in person or in the document, actually alleged they had actually suffered ill-treatment. All of them only claimed that they saw ill-treatment. The defence asked the Court to draw its own conclusion from this evidence.
In rebutting Crossley’s (PW2) testimony that D1 beat the prisoners, the defence alleged that that the witness failed to say whether a scabbard sword or a golf club was used. It was suggested that if he could see clearly enough to identify D1, he must have been able to know which of the two was used.
Concerning the forced march, it was suggested that a march of such distance along a road should not cause any grave difficulties to the average soldier on a normal day and under normal conditions. On top of that, although the Prosecution may argue that the weather made it “difficult for the prisoners”, D2 was only acting under the orders of his Camp Commandant and acted in accordance with his instructions.
A number of Japanese medical officers testified and suggested that the POWs were in a fit condition to make the march. It was also claimed that before the march, not one of the POWs complained that he was not fit for it or took advantage of the opportunity to travel in the bus provided for the sick.
On lack of food in the camp, D2 claimed that it was not his responsibility but the Camp’s Commandant.
Concerning the patients, D2 claimed that a bus was actually arranged for them. He made it clear to the POWs through the interpreter that this facility was available. Some POWs did not use it because they were suspicious of it and tried to walk on their own. Concerning the forced standing, it was claimed to be due to delay, but not by any negligence on the part of D2.
Finally, concerning the ill-treatment and beating, it was said that D2 “did everything possible both before and during the march to ensure that the guards did not ill-treat the prisoners”.
It was also pointed out that none of the witnesses, in person or in the document, actually alleged they had actually suffered ill-treatment. All of them only claimed that they saw ill-treatment. The defence asked the Court to draw its own conclusion from this evidence.
In rebutting Crossley’s (PW2) testimony that D1 beat the prisoners, the defence alleged that that the witness failed to say whether a scabbard sword or a golf club was used. It was suggested that if he could see clearly enough to identify D1, he must have been able to know which of the two was used.
Concerning the forced march, it was suggested that a march of such distance along a road should not cause any grave difficulties to the average soldier on a normal day and under normal conditions. On top of that, although the Prosecution may argue that the weather made it “difficult for the prisoners”, D2 was only acting under the orders of his Camp Commandant and acted in accordance with his instructions.
A number of Japanese medical officers testified and suggested that the POWs were in a fit condition to make the march. It was also claimed that before the march, not one of the POWs complained that he was not fit for it or took advantage of the opportunity to travel in the bus provided for the sick.
On lack of food in the camp, D2 claimed that it was not his responsibility but the Camp’s Commandant.
Concerning the patients, D2 claimed that a bus was actually arranged for them. He made it clear to the POWs through the interpreter that this facility was available. Some POWs did not use it because they were suspicious of it and tried to walk on their own. Concerning the forced standing, it was claimed to be due to delay, but not by any negligence on the part of D2.
Finally, concerning the ill-treatment and beating, it was said that D2 “did everything possible both before and during the march to ensure that the guards did not ill-treat the prisoners”.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr. Kawanami Shigekichi (Member of the Bar Association of Osaka)
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)
Major J.T.N. Cross(Major; prisoner of the Japanese)
Defence Witnesses
Lt. OitaYoshijiro(Accused)
Lt. Ashida Tsumoru(Accused)
Kuwabara Hirose(Former Army Lieutenant)
Kuribayashi Shigeru(Medical Orderly)
Tashiro Toranosuke(Medical Sergeant)
Ueno Mitsuo(Army Medical Corporal)
Trial Dates
1947-07-02
1947-07-03
1947-07-04
1947-07-08
Judgement Date
1947-07-08
Judgement
Lt. Oita Yoshijiro: Guilty of the charge except that “the court find that dates of the charge should be from 14th November 1942 until March 1943, and except for the word “together”.
Lt. Ashida Tsumoru: Not Guilty.
Lt. Ashida Tsumoru: Not Guilty.
Petition
There is no record of any Petitions.
The Judge Advocate [Unidentified Brigadier, DJAG, Far East Land Forces, 20 August 1947] advised that the findings and sentences be confirmed. "There was no evidence that No. 2 accused actually took part in the beating but merely that he was in charge of the escort party and walked up and down the P.O.W. column while they were on the march. There was ample evidence to convict No. 1 accused."
The Judge Advocate [Unidentified Brigadier, DJAG, Far East Land Forces, 20 August 1947] advised that the findings and sentences be confirmed. "There was no evidence that No. 2 accused actually took part in the beating but merely that he was in charge of the escort party and walked up and down the P.O.W. column while they were on the march. There was ample evidence to convict No. 1 accused."
Sentence Imposed
Imprisonment of 18 months of D1 (Lt.Oita).
Keywords
Formosa; Prisoners of War; Sick and wounded; Prisoner of War Camp; Imperial Japanese Army; "concerned in"; Committed; Ordered; Cruel Inhuman or Degrading Treatment; War Crimes; Violations of laws and customs of war; Neglect; Failure to provide adequate food and/or care; Starvation; Failure to provide adequate medical care; Marching; Forced transfer/deportation; Ordered; Superior Orders; Marching; Command Responsibility; Military Command Responsibility
Remarks
See the other Kinkaseki Camp cases: WO/235/954; WO/235/1028; WO/235/905.
Dublin Core
Title
WO235/1030
Description
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”
Legal Case Item Type Metadata
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
1947-04-08
1947-04-09
1947-04-10
1947-04-21
1947-04-22
1947-04-23
1947-04-24
1947-04-25
1947-04-26
1947-04-28
1947-04-29
1947-04-30
1947-05-01
1947-05-05
1947-05-21
1947-05-22
Judgement Date
1947-05-22
Judgement Confirmation Date
1947-07-30
Judgement Promulgation Date
1947-08-05
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).
Dublin Core
Title
WO235/1029
Description
First Charge (Against all Accused)
“COMMITTING A WAR CRIME, in that they at or near SHIROKAWA FORMOSA, between July 1943 and August 1945, the accused Colonel SAZAWA as Commandant Prisoner-of-War Camps Group, the accused Lieutenant HIOKI as Commandant of No. 4 Branch Camp, SHIROKAWA and the accused Corporal MATSUMURA as a member of the medical staff of the said Camp, being responsible for the well being of British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, were in violation of the laws and usages of war were together concerned in the illtreatment of Prisoners-of-War and civilians resulting in physical sufferings to many of them."
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that he at Formosa between July 1943 and March 1945 as Commandant Prisoner-of-war Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, at Headquarter Camp at DAICHOKU and in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
“COMMITTING A WAR CRIME, in that they at or near SHIROKAWA FORMOSA, between July 1943 and August 1945, the accused Colonel SAZAWA as Commandant Prisoner-of-War Camps Group, the accused Lieutenant HIOKI as Commandant of No. 4 Branch Camp, SHIROKAWA and the accused Corporal MATSUMURA as a member of the medical staff of the said Camp, being responsible for the well being of British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, were in violation of the laws and usages of war were together concerned in the illtreatment of Prisoners-of-War and civilians resulting in physical sufferings to many of them."
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that he at Formosa between July 1943 and March 1945 as Commandant Prisoner-of-war Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, at Headquarter Camp at DAICHOKU and in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
Legal Case Item Type Metadata
Case No.
WO235/1029
Accused
Col. Sazawa Hideo (D1)
Lt. Hioki Shiro (D2)
Corpl. Matsumura Yoshio (D3)
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge (Against all Accused)
“COMMITTING A WAR CRIME, in that they at or near SHIROKAWA FORMOSA, between July 1943 and August 1945, the accused Colonel SAZAWA as Commandant Prisoner-of-War Camps Group, the accused Lieutenant HIOKI as Commandant of No. 4 Branch Camp, SHIROKAWA and the accused Corporal MATSUMURA as a member of the medical staff of the said Camp, being responsible for the well being of British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, were in violation of the laws and usages of war were together concerned in the illtreatment of Prisoners-of-War and civilians resulting in physical sufferings to many of them."
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that he at Formosa between July 1943 and March 1945 as Commandant Prisoner-of-war Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, at Headquarter Camp at DAICHOKU and in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
“COMMITTING A WAR CRIME, in that they at or near SHIROKAWA FORMOSA, between July 1943 and August 1945, the accused Colonel SAZAWA as Commandant Prisoner-of-War Camps Group, the accused Lieutenant HIOKI as Commandant of No. 4 Branch Camp, SHIROKAWA and the accused Corporal MATSUMURA as a member of the medical staff of the said Camp, being responsible for the well being of British and Allied Prisoners-of-War and civilian internees in the said No. 4 Branch Camp, were in violation of the laws and usages of war were together concerned in the illtreatment of Prisoners-of-War and civilians resulting in physical sufferings to many of them."
Second Charge (Against D1)
“COMMITTING A WAR CRIME, in that he at Formosa between July 1943 and March 1945 as Commandant Prisoner-of-war Camps Group and as such responsible for the well-being of all British and Allied Prisoners-of-War and civilian internees in Formosa, was in violation of the laws and usages of war concerned in the illtreatment of Prisoners-of-War and internees at No. 1 Branch Camp KINKASEKI, No. 2 Branch Camp TAICHU, No. 3 Branch Camp HEITO, at Headquarter Camp at DAICHOKU and in transit resulting in the deaths of a number of the said Prisoners-of-War, and in physical suffering to many Prisoners-of-War, and civilian internees.”
Background
D1 was in command of several Prisoner of War (‘POW’) camps in Formosa. He succeeded Col. Nakano, and he was later succeeded by Major Uete.
There were six POW camps in total: The No. 1 Kinkaseki Camp; The No. 2 Kaichyu Camp; The No. 3 Heito Camp; The No. 4 Shirakawa Camp; No. 5 Mokasaku (Taihoku) Camp and No. 6 Daichoku (Taihoku) Camp.
D2 was the Commandant of the Shirokawa Camp.
D3 was a Medical Orderly of the Shirokawa Camp.
There were six POW camps in total: The No. 1 Kinkaseki Camp; The No. 2 Kaichyu Camp; The No. 3 Heito Camp; The No. 4 Shirakawa Camp; No. 5 Mokasaku (Taihoku) Camp and No. 6 Daichoku (Taihoku) Camp.
D2 was the Commandant of the Shirokawa Camp.
D3 was a Medical Orderly of the Shirokawa Camp.
Allegations
The Prosecution tendered numerous affidavits, and called live witnesses who were formerly POWs in Formosa, to establish its case. The Prosecution argued that there was ample evidence on record to show, inter alia, that food was insufficient, medical facilities were inadequate, the sick were made to work, actions in the nature of reprisal were taken against officers who refused to work, prisoners were generally ill-treated, mainly by being slapped and beaten, and that several deaths occurred which might well have been saved had a more humanitarian outlook been adopted by the authorities concerned.
Specifically, the Prosecution alleged that there were: exposure of prisoners to ridicule, mass punishment, imposition of cruel rules, perpetual work, insanitary living conditions, withdrawing of Red Cross supplies, total lack of air-raid shelters, utter lack of food amounting to a deliberate policy of starvation.
The Prosecution argued that the Accused were responsible because “by their individual positions of authority they were instrumental in carrying out a shameful system and their liability urged because they either actively committed the various offences, or condoned them”. Alternatively, it was argued that the Accused “failed to carry out the duty imposed upon them by the laws and usages of war towards the prisoners under their charge”.
Specifically, the Prosecution alleged that there were: exposure of prisoners to ridicule, mass punishment, imposition of cruel rules, perpetual work, insanitary living conditions, withdrawing of Red Cross supplies, total lack of air-raid shelters, utter lack of food amounting to a deliberate policy of starvation.
The Prosecution argued that the Accused were responsible because “by their individual positions of authority they were instrumental in carrying out a shameful system and their liability urged because they either actively committed the various offences, or condoned them”. Alternatively, it was argued that the Accused “failed to carry out the duty imposed upon them by the laws and usages of war towards the prisoners under their charge”.
Defence
The Defence sought to deny that the bad conditions were of their making. The Accused themselves and their witnesses, on oath, gave evidence to prove that rations were fixed by higher authority and not by themselves, that medical facilities depended on outside supplies and that the sick were treated by POW doctors.
It was denied that reprisals were taken against POWs refusing to work, but it was admitted that routine orders and regulations were “more strictly enforced”.
As regards slappings and beatings, D1 never administered any himself and did all he could to stop such misdeeds.
D2 and D3 admitted to slapping but maintained that the Prosecution grossly exaggerated the gravity of the offences which were merely in the nature of minor admonishments. They expressed regret and would never have done so, save that they lost their tempers at the unreasonable attitude of the offenders.
In short, the thrust of the Defence was that the Accused, each in his own way, and to his own capacity, did all that was possible for the prisoners in very difficult circumstances.
It was denied that reprisals were taken against POWs refusing to work, but it was admitted that routine orders and regulations were “more strictly enforced”.
As regards slappings and beatings, D1 never administered any himself and did all he could to stop such misdeeds.
D2 and D3 admitted to slapping but maintained that the Prosecution grossly exaggerated the gravity of the offences which were merely in the nature of minor admonishments. They expressed regret and would never have done so, save that they lost their tempers at the unreasonable attitude of the offenders.
In short, the thrust of the Defence was that the Accused, each in his own way, and to his own capacity, did all that was possible for the prisoners in very difficult circumstances.
Prosecutor
Major R.C. Lai (Dep. Of the JAG, India, Barrister)
Defence Counsel
Mr. Tanaka Yutaka (Japanese Barrister)
Judges
President: Lt. Col. N. G. Wait (Intelligence Corps)
Members: Major A Clayworth (Royal Artillery); Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Members: Major A Clayworth (Royal Artillery); Capt. R.B.R. Gorely (King’s Royal Rifle Corps)
Advisory Officer
Capt. J.N. Whitehorn (Intelligence Corps)
Prosecution Witnesses
W/O Edwards(Warrant Officer, First Class, British Army)
Tsutada Itsuo(Interpreter for Capt. Mackay)
R.C.M. Comfort(Army Officer, British Army; Ex-prisoner, No.3 Branch Camp, Heito, Formosa.)
Yamanaka Robert(Two/Three Start Private; Interpreter, No. 4 Camp, Formosa)
Major J.T.N. Cross(Officer Commanding No. 14 War Crimes Team, Ex-Prisoner of War in Kinkaseki Camp)
Defence Witnesses
Colonel Sazawa Hideo(D1, Chief Commandant POW Camps, Formosa.)
Cpl Matsumura Yoshio(D3, Medical Corporal, Japanese Army, No. 4 Camp Shirakawa and No. 6 Camp Daichuko, Formosa)
Capt. Imamura Yayohachi(Captain, Japanese Army, attached to No. 4 (Shirakawa); No. 1 (Kinkaseki) and the Kokutsu Camp.)
Lt. Kuwabara Hiroshi(Army Lieutenant, Adjutant to the Chief Commandant, Headquarter, Taiwan POW Camps.)
Lt. Ishii Minoru(Branch Camp Commandant, No. 5 POW Camp, Formosa.)
Capt. Kojima Toshio(Army Captain, Branch Camp Commandant of the No. 2 Branch Camp in Taichu.)
Sgt-Maj. Yamamoto Katsuto(Army Sergeant-Major, worked at the No. 4 Branch Camp of the Formosa POW Camp.)
Trial Dates
1947-05-21
1947-05-22
1947-05-23
1947-05-24
1947-05-27
1947-05-28
1947-05-29
1947-05-30
1947-05-31
1947-06-02
1947-06-03
1947-06-04
1947-06-05
1947-06-09
Judgement Date
1947-06-09
Judgement Confirmation Date
1947-08-14
Judgement Promulgation Date
1947-08-19
Judgement
Held:
1. All Accused were guilty of the first charge;
2. D1 was guilty of the second charge except for the words “ No. 2 Branch Camp, TAICHU”.
1. All Accused were guilty of the first charge;
2. D1 was guilty of the second charge except for the words “ No. 2 Branch Camp, TAICHU”.
Petition
D1 petitioned:
1. The location of the POW camps; accommodation; allotment of the POWs; rationing; and assignment of work were stipulated by the regulations made by the Commander-in-Chief of the Taiwan Army prior to his assumption of duties.
2. All medical sanitary arrangement of the camps had been made by the Chief of the Medical Department of the Taiwan Army prior to his assumption of duties.
3. He did not take measures of reprisal although the enforcement of regulations was sometimes stricter.
4. He had no knowledge of any ill-treatment and had tried to prevent such occurrences.
5. The deaths of the POWs in the Kinkaseki mine should be blamed on the Nippon Mining Company since the Company had the responsibility to direct the work of the POWs therein.
6. The sentence was unduly severe in light of the evidence.
D2 petitioned. He argued that:
1. He had no connection whatsoever with the alleged matters and did not know anything about them.
2. There were discrepancies in the Prosecution’s evidence.
The Judge Advocate advised that the petitions be dismissed and the findings and sentences confirmed [6 August 1947, unidentified Brigadier, DJAG, Southeast Asia Land Forces]. The lighter sentences may be because "There is some evidence to suggest that at times the accused, the 1st and specially the second, had behaved with a certain degree of co-operation."
1. The location of the POW camps; accommodation; allotment of the POWs; rationing; and assignment of work were stipulated by the regulations made by the Commander-in-Chief of the Taiwan Army prior to his assumption of duties.
2. All medical sanitary arrangement of the camps had been made by the Chief of the Medical Department of the Taiwan Army prior to his assumption of duties.
3. He did not take measures of reprisal although the enforcement of regulations was sometimes stricter.
4. He had no knowledge of any ill-treatment and had tried to prevent such occurrences.
5. The deaths of the POWs in the Kinkaseki mine should be blamed on the Nippon Mining Company since the Company had the responsibility to direct the work of the POWs therein.
6. The sentence was unduly severe in light of the evidence.
D2 petitioned. He argued that:
1. He had no connection whatsoever with the alleged matters and did not know anything about them.
2. There were discrepancies in the Prosecution’s evidence.
The Judge Advocate advised that the petitions be dismissed and the findings and sentences confirmed [6 August 1947, unidentified Brigadier, DJAG, Southeast Asia Land Forces]. The lighter sentences may be because "There is some evidence to suggest that at times the accused, the 1st and specially the second, had behaved with a certain degree of co-operation."
Sentence Imposed
D1: 15 years imprisonment;
D2: 4 years imprisonment;
D3: 10 years imprisonment.
D2: 4 years imprisonment;
D3: 10 years imprisonment.
Keywords
Formosa; Imperial Japanese Army; Prisoners of War; Prisoner of War Camps; "together concerned in"; Committed; Torture; Cruel Inhuman or Degrading Treatment; Unlawful killing; Poor conditions of detention; Neglect; Failure to provide adequate food and/or care; Starvation; Failure to provide adequate medical care; Stealing; Red Cross parcels; Humanitarian aid; Reprisal; Collective Punishment; Arbitrary or summary punishment; Discipline of Prisoners of War; Policy; Scope of responsibilities; Orders; Superior Orders; War Crimes; Violations of laws and customs of war
Remarks
1 lawyer for 3 co-accused.
See the related Formosa cases, especially that of Lt. Tamaki Koji et al (Case No. WO/235/982).
See the related Formosa cases, especially that of Lt. Tamaki Koji et al (Case No. WO/235/982).
Dublin Core
Title
WO235/1028
Description
“COMMITTING A WAR CRIME, in that they at KINKASEKI, FORMOSA, between December 1942 and May 1945, being on the staff of the KINKASEKI Nippon Mining Coy., and as such being responsible for the safety and welfare of the British and American Prisoners of War employed in the mine under their supervision, were, in violation of the laws and usages of war, concerned in the illtreatment of the aforesaid Prisoners of War, contributing to the death of some of them and causing physical sufferings to the others.”
Legal Case Item Type Metadata
Case No.
WO235/1028
Accused
Toda Mitsugu (D1)
Nakamura Katsumi (D2)
Yonemura Matsatoshi (D3)
Nagai Takegoro “Ghost” (D4)
Cho Kun Toku “Frying Pan” (D5)
Takeichi Seichi “Nelson” (D6)
Utsonomiya Kozo “Charlie Chaplin” (D7)
Zushi Teruo “Eagle and Don R” (D8)
Suenobu Fumio “Blackie” (D9)
Court
Military Court for the Trial of War Criminals No. 5
Charge
“COMMITTING A WAR CRIME, in that they at KINKASEKI, FORMOSA, between December 1942 and May 1945, being on the staff of the KINKASEKI Nippon Mining Coy., and as such being responsible for the safety and welfare of the British and American Prisoners of War employed in the mine under their supervision, were, in violation of the laws and usages of war, concerned in the illtreatment of the aforesaid Prisoners of War, contributing to the death of some of them and causing physical sufferings to the others.”
Background
The Accused were all civilians in the service of the Imperial Japanese Army. They were on the staff of the Kinkaseki Nippon Mining Co., whose objects were mining for copper. D1 was the General Manager of the mine. D2 was the Chief of the Mining Department. D3 was a Liaison Officer between the Prisoners of War (‘POW’) Camp and the mining company. D4, D5, D6, D7, D8 and D9 were foremen working in the mine and were in charge of the operations.
The POW camps in the vicinity of the mine provided the manpower for the mine. There were six POW Camps in total: the No. 1 Kinkaseki Camp; the No. 2 Kaichyu Camp; the No. 3 Heito Camp; the No. 4 Shirakawa Camp; the No. 5 Mokasaku (Taihoku) Camp and the No. 6 Daichoku (Taihoku) Camp). POWs were sent daily to work in the said mine. On their arrival at the mine, they would be put under the authority of the mining company's staff, who would supervise and provide them with equipment for mining purposes.
The POW camps in the vicinity of the mine provided the manpower for the mine. There were six POW Camps in total: the No. 1 Kinkaseki Camp; the No. 2 Kaichyu Camp; the No. 3 Heito Camp; the No. 4 Shirakawa Camp; the No. 5 Mokasaku (Taihoku) Camp and the No. 6 Daichoku (Taihoku) Camp). POWs were sent daily to work in the said mine. On their arrival at the mine, they would be put under the authority of the mining company's staff, who would supervise and provide them with equipment for mining purposes.
Allegations
The Prosecution argued that the conditions at the mine, which consisted of three floors, were abominable. The heat was excessive, there were falling rocks and deep pools. The personal equipment given to the POWs were also very poor, such as cardboard hats, inefficient lamps and sandals. Accidents inside the mine caused deaths and injuries. Yet, no steps were taken to remedy the situation, or to improve the equipments or the working environment.
The hanchos (guards) were alleged to have regularly beaten, by bare fists or sometimes with hammers, the POWs working in the mine.
On the question of attribution of responsibility, the Prosecution accepted that the “overall and complete” responsibility of the POWs both in the Camp and in the mine rested with the Camp Commandant. However, it was also argued that the Mining Company was “responsible for the safety and welfare of the POWs whilst employed in the mine under their supervision” and that the company cannot disclaim all responsibility over their new employees.
It was argued that the responsibility for deaths and injuries of the POWs within the mine rested solely with the Mining Company, and had nothing to do with the Japanese Army including the POW Camp commandants.
The hanchos (guards) were alleged to have regularly beaten, by bare fists or sometimes with hammers, the POWs working in the mine.
On the question of attribution of responsibility, the Prosecution accepted that the “overall and complete” responsibility of the POWs both in the Camp and in the mine rested with the Camp Commandant. However, it was also argued that the Mining Company was “responsible for the safety and welfare of the POWs whilst employed in the mine under their supervision” and that the company cannot disclaim all responsibility over their new employees.
It was argued that the responsibility for deaths and injuries of the POWs within the mine rested solely with the Mining Company, and had nothing to do with the Japanese Army including the POW Camp commandants.
Defence
The Defence argued that the POW working parties made their fellow POWs work in the Kinkaseki mine.
The Military authority knew the mine was not “suitable” for POW labour. The application for POW labour by the Mining Company was only a “formal” one upon the request of the authority. The fact was that the POWs were under the “direct control of the POW Branch Camp Commandant”.
D1 and D2 argued that they were not responsible for anything that happened to the POWs in the mine because they were under the jurisdiction of the camp authorities. The Prosecution rebutted this by submitting the “Regulations concerning the supervision of labour of Prisoners of War in Kinkaseki Mine of the Nippon Mining Co", which provided in Art. 7 that "The Commandant of the POW camp group shall be held responsible for the supervision and guarding of the POWs even during working hours prescribed in the preceding article. However the responsibility for matters pertaining to work lies with the Nippon Mining Co.".
For D1
D1 had no connection with the working parties and had never served in the army as a civilian. As such, those who supervised the POWs had nothing to do with him.
Second, it was argued that the Nippon Mining Company did not actually employ POWs to work. They were made to work by the Military. The Company only participated in the “guidance of the POWs” under the supervision of the authorities.
Thirdly, it was argued that in any case, the responsibility for practical work matters rested with the technical supervisor and not the general manager of the company. The hanchos (guards) were hired and paid for by the Company. Once they were dispatched to the POW working parties, they were under the “direct control” of the Military (as “attached personnel”). Under circumstances, their acts were not attributable to the Accused.
Lastly, D1 duly investigated accidents and reported them to the Governor General’s headquarters in Formosa. He received confirmation that the deaths in question were not due to any negligence on the Company’s part.
For D2
The defence argued that since the POWs were forced to work under the supervision of D2, who was a technical supervisor, it would be unreasonable to hold him liable. They were still under the control of the POW commandant. Additionally, D2 tried his best to improve the situation, despite the difficulties in obtaining supplies outside Formosa.
For D3
It was argued that D3 did not hold any position of responsibility in the Mining Department. Nevertheless, he endeavored to treat the POWs humanely and tried to improve the situation as best as he could.
For the remaining Accused
It was not denied that there were occasional beatings. However, such beatings were “justified”.
It was argued that “quite naturally, the POW(s) did everything possible to upset the smooth running of the mine” such that it had “effects on the nerves” of the Accused. It was inevitable that there would be tension between the Accused and the POWs, who were untrained and not being fed properly by the Authority. As such, under such extremely stressful situation, it was no wonder that the Accused lost their tempers occasionally.
The Military authority knew the mine was not “suitable” for POW labour. The application for POW labour by the Mining Company was only a “formal” one upon the request of the authority. The fact was that the POWs were under the “direct control of the POW Branch Camp Commandant”.
D1 and D2 argued that they were not responsible for anything that happened to the POWs in the mine because they were under the jurisdiction of the camp authorities. The Prosecution rebutted this by submitting the “Regulations concerning the supervision of labour of Prisoners of War in Kinkaseki Mine of the Nippon Mining Co", which provided in Art. 7 that "The Commandant of the POW camp group shall be held responsible for the supervision and guarding of the POWs even during working hours prescribed in the preceding article. However the responsibility for matters pertaining to work lies with the Nippon Mining Co.".
For D1
D1 had no connection with the working parties and had never served in the army as a civilian. As such, those who supervised the POWs had nothing to do with him.
Second, it was argued that the Nippon Mining Company did not actually employ POWs to work. They were made to work by the Military. The Company only participated in the “guidance of the POWs” under the supervision of the authorities.
Thirdly, it was argued that in any case, the responsibility for practical work matters rested with the technical supervisor and not the general manager of the company. The hanchos (guards) were hired and paid for by the Company. Once they were dispatched to the POW working parties, they were under the “direct control” of the Military (as “attached personnel”). Under circumstances, their acts were not attributable to the Accused.
Lastly, D1 duly investigated accidents and reported them to the Governor General’s headquarters in Formosa. He received confirmation that the deaths in question were not due to any negligence on the Company’s part.
For D2
The defence argued that since the POWs were forced to work under the supervision of D2, who was a technical supervisor, it would be unreasonable to hold him liable. They were still under the control of the POW commandant. Additionally, D2 tried his best to improve the situation, despite the difficulties in obtaining supplies outside Formosa.
For D3
It was argued that D3 did not hold any position of responsibility in the Mining Department. Nevertheless, he endeavored to treat the POWs humanely and tried to improve the situation as best as he could.
For the remaining Accused
It was not denied that there were occasional beatings. However, such beatings were “justified”.
It was argued that “quite naturally, the POW(s) did everything possible to upset the smooth running of the mine” such that it had “effects on the nerves” of the Accused. It was inevitable that there would be tension between the Accused and the POWs, who were untrained and not being fed properly by the Authority. As such, under such extremely stressful situation, it was no wonder that the Accused lost their tempers occasionally.
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
W/O Edwards(Warrant Officer, First Class, British Army)
Sgt. Ito(Member, SEATIC Detachment, Hong Kong; Interpreter No. 14, War Crimes Court)
[No record]([No record])
Sazawa Hideo(Second Chief Commandant in Formosa (of all camps))
Hanagaki Yoshio(Interpreter)
Major J.T.N. Cross(Officer Commanding No. 14 War Crimes Team; Ex-Prisoner of War in Kinkaseki Camp)
Nakano Junichi(Chief Camp Commandant of POW Camps in Formosa)
Captain Imamura Yohashi(Camp Commandant, No. 1 Kinkaseki POW Camp.)
George Tong(Interpreter, No. 7 War Crimes Court)
Defence Witnesses
Toda Mitsugu(D1, Director of the Nippon Kogyo Kabushiki Kaisha; Branch Manager in Formosa; General Manager of the Kinkaseki mine.)
Nakamura Katsumi(D2, Mine Production Manager / Assistant to the Chief of the Mining Department.)
L.O. Thomson(Public Works Department, Road and Tunnel Office.)
Yonemura Masatoshi(D3, Member, Mining Department, Kinkaseki Mine.)
Nagai Takegoro(D4, Apprentice and Hancho, Kinkaseki Mine.)
Takeichi Seichi(D5, Foreman, Neichu Metre Dan, Kinkaseki Mine.)
Utsonomiya Koso(D6, In charge of the POW Work, Kinkaseki Mine.)
Zushi Teruo(D8, Foreman, Kinkaseki Mine.)
Suenobu Fumio(D9, Foreman, Kinkaseki Mine.)
Tahara Iwao(Ex-Army Officer)
Suzuki Nobuo(Lieutenant, Japanese Army)
Ueno Mitsuo(Medical Orderly, Kinkaseki Camp)
Kuirabayashi Shigeru(Medical Corporal, Medical N.C.O., Kinkaseki Camp.)
Court Witnesses
Nakano Junichi(Chief Camp Commandant of POW Camps in Formosa [Co-Accused in Case 1044])
Trial Dates
1947-05-07
1947-05-08
1947-05-09
1947-05-10
1947-05-12
1947-05-13
1947-05-14
1947-05-15
1947-05-16
1947-05-17
1947-05-19
1947-05-20
1947-05-21
1947-05-22
1947-05-23
1947-05-28
Judgement Date
1947-05-28
Judgement Confirmation Date
1947-08-08
Judgement Promulgation Date
1947-08-13
Judgement
Held:
1. D1 was guilty.
2. D2 was guilty.
3. D3 was not guilty.
4. D4, D5, D6, D7, D8 and D9 were guilty except for the words “contributing to the death of some of them”.
1. D1 was guilty.
2. D2 was guilty.
3. D3 was not guilty.
4. D4, D5, D6, D7, D8 and D9 were guilty except for the words “contributing to the death of some of them”.
Petition
D1 petitioned. He argued that:
1. He was never attached to the Imperial Japanese Army and had never served as a civilian attached to the Japanese Army. The POWs were forced to his mine by the Military.
2. As such he should not be held responsible for the welfare of the POWs.
D2 petitioned. He argued that the sea routes to Formosa were all shut down, owing to the Allied Force’s activities, making the obtaining of supplies difficult. He did his best to replenish the depleted stock and also to keep the accident rate low. All the accidents recorded were due to natural causes and circumstances beyond his control.
D4, D5, D6, D7, D8 and D9 petitioned. They argued that:
1. It was not denied occasional beatings took place but it was actually on a much lesser scale than alleged by the Prosecution
2. The POWs tried to delay and hinder the production that naturally led to friction between the POWs and the foreman.
The Judge Advocate advised that the Petitions be dismissed and findings/sentences confirmed on 27 August 1946 [unidentified Brigadier, DJAG, South East Asia Land Forces]. The Judge Advocate observed that at a late stage of the proceedings, issues arose in relation to the identification of D4 and D7. However, "all the accused had already been identified by the live witness, PW1 and the photographs originally attached to the affidavits of the absent witnesses were compared with the likeness of the accused in the dock by the Court which was quite satisfied that the absent witnesses had not made any mistake in the identify of the accused".
1. He was never attached to the Imperial Japanese Army and had never served as a civilian attached to the Japanese Army. The POWs were forced to his mine by the Military.
2. As such he should not be held responsible for the welfare of the POWs.
D2 petitioned. He argued that the sea routes to Formosa were all shut down, owing to the Allied Force’s activities, making the obtaining of supplies difficult. He did his best to replenish the depleted stock and also to keep the accident rate low. All the accidents recorded were due to natural causes and circumstances beyond his control.
D4, D5, D6, D7, D8 and D9 petitioned. They argued that:
1. It was not denied occasional beatings took place but it was actually on a much lesser scale than alleged by the Prosecution
2. The POWs tried to delay and hinder the production that naturally led to friction between the POWs and the foreman.
The Judge Advocate advised that the Petitions be dismissed and findings/sentences confirmed on 27 August 1946 [unidentified Brigadier, DJAG, South East Asia Land Forces]. The Judge Advocate observed that at a late stage of the proceedings, issues arose in relation to the identification of D4 and D7. However, "all the accused had already been identified by the live witness, PW1 and the photographs originally attached to the affidavits of the absent witnesses were compared with the likeness of the accused in the dock by the Court which was quite satisfied that the absent witnesses had not made any mistake in the identify of the accused".
Sentence Imposed
D1: 1 year imprisonment;
D2: 5 years imprisonment;
D7: 4 years imprisonment;
D4: 10 years imprisonment;
D5: 7 years imprisonment;
D6: 2 years imprisonment;
D8: 10 years imprisonment;
D9: 3 years imprisonment.
D2: 5 years imprisonment;
D7: 4 years imprisonment;
D4: 10 years imprisonment;
D5: 7 years imprisonment;
D6: 2 years imprisonment;
D8: 10 years imprisonment;
D9: 3 years imprisonment.
Keywords
Formosa; Mine; Kinkaseki Nippon Mining Company; Imperial Japanese Army; Prisoners-of-War; Forced labour; Slave labour; Poor conditions of work; Cruel Inhuman or Degrading Treatment; Unlawful killing; "concerned in"; "contributing to"; Provocation; Necessity; Duress; Civilian Command Responsibility; War Crimes; Violations of laws and customs of war; Scope of responsibilities; Identification of accused; Death from natural causes
Remarks
1 Defence lawyer represented 9 Co-Accused.
See other related cases, for example, Case No. WO/235/954, WO/235/1036, WO/235/905, WO/235/1028.
See other related cases, for example, Case No. WO/235/954, WO/235/1036, WO/235/905, WO/235/1028.
Dublin Core
Title
WO235/1027
Description
“COMMITTING A WAR CRIME, in that he at Hong Kong, between October 1942 and the 15th August 1945 when Medical Officer in charge of Stanley Gaol Hospital and as such responsible for the well-being of British and Chinese prisoners who were patients therein, in violation of the laws and usages of war was concerned in the illtreatment of the said prisoners by failing to provide them with adequate medical attention including medicine, drugs and suitable diet, thereby contributing to the deaths of many of them and causing physical suffering to others.”
Legal Case Item Type Metadata
Case No.
WO235/1027
Accused
Sato Chochi
Court
Military Court for the Trial of War Criminals No. 7
Charge
“COMMITTING A WAR CRIME, in that he at Hong Kong, between October 1942 and the 15th August 1945 when Medical Officer in charge of Stanley Gaol Hospital and as such responsible for the well-being of British and Chinese prisoners who were patients therein, in violation of the laws and usages of war was concerned in the illtreatment of the said prisoners by failing to provide them with adequate medical attention including medicine, drugs and suitable diet, thereby contributing to the deaths of many of them and causing physical suffering to others.”
Background
The Accused was a Medical Officer in charge of the Hospital in Stanley Gaol. His official status was not very clear, but it was not denied that his responsibility was to look after patients admitted there. He had been appointed Health Officer of the Japanese Governor’s Office in Hong Kong in October 1944 at the same time as he was appointed Medical Officer of Stanley Gaol.
Allegations
It was first argued that he was actually responsible for the sick patients in the Stanley Gaol Hospital and retained the charge of the Hospital until the surrender. The Prosecution relied on the notion of “concerned in” to “connote that the accused was entrusted with the care and well being of the sick…at Stanley Gaol Hospital and as a medical officer, he was under obligation to render necessary medical aid and adequate diet to them, upon which the laws of ethics, profession and Nations insist.”
Specifically, it was argued that the Accused had premeditated medical (criminal) neglect calculated to inflict the utmost and wholly unwarranted suffering on the victims, some of whom eventually died. It was argued also that if the sufferings and deaths of some of the victims were attributable to the neglect, then the court was “entitled to presume the presence of malice as an ingredient of offence on the principal that one must be taken to intend the probable and natural consequence of one’s act” (Emphasis added).
The alleged neglect included a lack of medical attention (e.g. rare visits to the hospital), medicines and drugs that were “so essential to the recovering of the sick”; the inadequate and insufficient food supplied to those “whose only hope of survival depended upon proper and adequate food” and the lack of supervision of the staff of the hospital.
The Prosecution challenged the Accused’s “too-busy” argument. It argued that the only duties of the Accused, apart from those at the Hospital, were to give medical attention to the staff at the Governor-General’s Office, Signals Unit at Stanley and the Governor-General’s residence and the sanatorium of the Ordinance Depot and Restaurant.
Specifically, it was argued that the Accused had premeditated medical (criminal) neglect calculated to inflict the utmost and wholly unwarranted suffering on the victims, some of whom eventually died. It was argued also that if the sufferings and deaths of some of the victims were attributable to the neglect, then the court was “entitled to presume the presence of malice as an ingredient of offence on the principal that one must be taken to intend the probable and natural consequence of one’s act” (Emphasis added).
The alleged neglect included a lack of medical attention (e.g. rare visits to the hospital), medicines and drugs that were “so essential to the recovering of the sick”; the inadequate and insufficient food supplied to those “whose only hope of survival depended upon proper and adequate food” and the lack of supervision of the staff of the hospital.
The Prosecution challenged the Accused’s “too-busy” argument. It argued that the only duties of the Accused, apart from those at the Hospital, were to give medical attention to the staff at the Governor-General’s Office, Signals Unit at Stanley and the Governor-General’s residence and the sanatorium of the Ordinance Depot and Restaurant.
Defence
It was not disputed that the Accused was in charge of Medical Affairs at Stanley Gaol.
However, it was noted that he was an “extremely busy” person, being also appointed as the Medical Officer to the Hong Kong Governor-General’s Office, and had other duties. Additionally, the Accused was not given proper instruction when he was assigned concurrent duties at Stanley Gaol Hospital, which made his job extremely difficult. The Accused’s superior “did not state definitely the position and authority of [the Accused] although he should have done so”, making it more like an irregular or informal instruction rather than formal appointment.
On the question of medical attention, despite administrative difficulties and the unclear delineation of duties, the Accused tried his best to visit the hospital as often as he could.
On the question of diagnosis and treatment, since he was unable to visit the hospial frequently, the Accused had taken a number of measures to carry out his duties as efficiently as possible, such as by delegating the diagnosis function to other officers (who had some medical training), whose reports he would read.
On the question of medical supplies, the Defence argued that the responsibility for medical supplies rested with the Commissioner, and the Accused only had an advisory function on this matter. In any case, the Accused stated that he found the medical supplies to be sufficient when he visited the site. Naturally, some shortages were inevitable in times of war.
On the question of food, the Defence argued that the responsibility for rations rested with the Commissioner and the Accused only had an advisory function on this matter. The Accused asked for more rations, but his requests were unsuccessful. As such, he started the vegetable plots within the compound to make the Prison self-sufficient.
In relation to the supervision of subordinates, the prison staff was supervised by the Commissioner and their chief warder rather than the Accused. Despite this, the Accused as a medical officer, gave as detailed instructions as possible to the hospital staff regarding the health of the patients.
[Arguments on specific cases, deaths of patients are omitted.]
However, it was noted that he was an “extremely busy” person, being also appointed as the Medical Officer to the Hong Kong Governor-General’s Office, and had other duties. Additionally, the Accused was not given proper instruction when he was assigned concurrent duties at Stanley Gaol Hospital, which made his job extremely difficult. The Accused’s superior “did not state definitely the position and authority of [the Accused] although he should have done so”, making it more like an irregular or informal instruction rather than formal appointment.
On the question of medical attention, despite administrative difficulties and the unclear delineation of duties, the Accused tried his best to visit the hospital as often as he could.
On the question of diagnosis and treatment, since he was unable to visit the hospial frequently, the Accused had taken a number of measures to carry out his duties as efficiently as possible, such as by delegating the diagnosis function to other officers (who had some medical training), whose reports he would read.
On the question of medical supplies, the Defence argued that the responsibility for medical supplies rested with the Commissioner, and the Accused only had an advisory function on this matter. In any case, the Accused stated that he found the medical supplies to be sufficient when he visited the site. Naturally, some shortages were inevitable in times of war.
On the question of food, the Defence argued that the responsibility for rations rested with the Commissioner and the Accused only had an advisory function on this matter. The Accused asked for more rations, but his requests were unsuccessful. As such, he started the vegetable plots within the compound to make the Prison self-sufficient.
In relation to the supervision of subordinates, the prison staff was supervised by the Commissioner and their chief warder rather than the Accused. Despite this, the Accused as a medical officer, gave as detailed instructions as possible to the hospital staff regarding the health of the patients.
[Arguments on specific cases, deaths of patients are omitted.]
Prosecutor
Major R.C. Lai (Dept. of the JAG, India, Barrister)
Defence Counsel
Mr. Hasegawa Yukichi (Japanese Barrister)
Judges
President: Lt. Col. N.G. Wait (Intelligence Corps)
Members: Major Clayworth (Royal Artillery); Capt. R.B.R. Corely (King’s Royal Rifle Corps)
Members: Major Clayworth (Royal Artillery); Capt. R.B.R. Corely (King’s Royal Rifle Corps)
Advisory Officer
Capt. J.N. Whitehorn (Intelligence Corps.)
Prosecution Witnesses
Rahmet Khan(Chief Indian Warder, Stanley Prison)
Noboru Saito(Banker; Ex-prisoner, Stanley Goal)
Dr Harry Talbot(Doctor; Ex-prisoner, Stanley Gaol)
C.F. Miles(Chief Steward, Medical Department, Hong Kong Government)
Chan Wai-Chi (Woman)(Nurse, Stanley Goal Hospital)
Yeung Sze-Man(Clerk, Standard-Vacuum Company)
V.M. Morrison(Detective Sub-Inspector, No 2 Wan Chai Police Station)
Sgt Toy Ito(Sgt, Canadian Army attached to the War Crimes Investigation Unit)
Allan Harold Barwell(Medical Practitioner, Prison Medical Officer, Stanley Gaol)
Kenneth Harrison Uttley(Physician, Doctor, Tweed Bay Hospital)
Edward David Sykes(Merchant, Ex-prisoner, Stanley Gaol)
W.J. Anderson(Civil Servant, Ex-prisoner, Stanley Gaol)
Defence Witnesses
Lt. Sato Chochi(First Lieutenant, Medical Doctor, Japanese Army)
George Tong(Interpreter, No. 7 War Crimes Court)
Lt. Col. Kogi Kazuo(Lieutenant-Colonel, Legal Officer, Japanese Army)
Sgt Yamazaki Masao(Military Legal Sergeant, Warder, Hong Kong Prison (a.k.a Stanley Goal))
Sgt Suhara Sueichi(Army Sergeant, Assistant, Stanley Prison)
Sgt Itano Yoshitaro(Military Legal Sergeant, Warder, Hong Kong Prison (aka Stanley Goal))
Capt Uehara Kokichi(Gendarmerie Captain, Police Affairs Department, Governor General?s Office)
R.J. Hardy(On demobilization leave from the R.A.F)
Capt J.N. Whitehorn(Advisory Officer, No. 7 War Crimes Court)
Trial Dates
1947-05-30
1947-05-31
1947-06-02
1947-06-03
1947-06-04
1947-06-05
1947-06-06
1947-06-07
1947-06-09
1947-06-13
Judgement Date
1947-05-05
Judgement Confirmation Date
1947-07-30
Judgement Promulgation Date
1947-08-05
Judgement
Held: The Accused was guilty.
Petition
The Accused petitioned:
1. It was not proven that he had any legal responsibility in regard to the Stanley Gaol Hospital;
2. The judgement was not based on a sufficient inquiry from the medical point of view;
3. The sentence was unduly severe in light of the evidence
.
A number of supporting petitions were filed, they included:
1. One that was filed by several persons from the Accused's village. They asked for the Accused’s return.
2. One filed by Dr. Selwyn-Clarke (D.M.S. and also ex-prisoner of Stanley) that the Accused did much to alleviate the position in the hospital.
On 27 August 1946, the Judge Advocate [Brigadier N.H. New, DJAG, South East Asia Land Forces] advised that the findings and sentences be confirmed.
The Judge Advocate noted that on two occasions, the Prosecution misled the Court in a manner which might seriously have prejudiced the Accused. This arose in relation to cross-examination of witnesses as to statements they made in other proceedings. The Defence had attempted to question a witness as to a statement made in another trial, “as he was perfectly entitled to do”. The Prosecution challenged this, pushing the Defence to indicate exactly what the discrepancy between the two was. The Court supported this position. The Prosecutor argued that the statements made at the other trial should have been produced in court, before the relevant questions were put in cross-examination. The Judge Advocate advised that this was “nonsense”, as the “proceedings of an earlier trial are not themselves admissible in evidence though they may be used to refresh the memory of the witness”. The Judge Advocate advised that the Defence should have been allowed to question freely the witness as to the previous statement. If the witness admitted the correctness of it, then there would be no need to go further. Otherwise, the Defence should be allowed to call other witnesses (including members of that Court) to testify against the statement maker as to what was then said.
1. It was not proven that he had any legal responsibility in regard to the Stanley Gaol Hospital;
2. The judgement was not based on a sufficient inquiry from the medical point of view;
3. The sentence was unduly severe in light of the evidence
.
A number of supporting petitions were filed, they included:
1. One that was filed by several persons from the Accused's village. They asked for the Accused’s return.
2. One filed by Dr. Selwyn-Clarke (D.M.S. and also ex-prisoner of Stanley) that the Accused did much to alleviate the position in the hospital.
On 27 August 1946, the Judge Advocate [Brigadier N.H. New, DJAG, South East Asia Land Forces] advised that the findings and sentences be confirmed.
The Judge Advocate noted that on two occasions, the Prosecution misled the Court in a manner which might seriously have prejudiced the Accused. This arose in relation to cross-examination of witnesses as to statements they made in other proceedings. The Defence had attempted to question a witness as to a statement made in another trial, “as he was perfectly entitled to do”. The Prosecution challenged this, pushing the Defence to indicate exactly what the discrepancy between the two was. The Court supported this position. The Prosecutor argued that the statements made at the other trial should have been produced in court, before the relevant questions were put in cross-examination. The Judge Advocate advised that this was “nonsense”, as the “proceedings of an earlier trial are not themselves admissible in evidence though they may be used to refresh the memory of the witness”. The Judge Advocate advised that the Defence should have been allowed to question freely the witness as to the previous statement. If the witness admitted the correctness of it, then there would be no need to go further. Otherwise, the Defence should be allowed to call other witnesses (including members of that Court) to testify against the statement maker as to what was then said.
Sentence Imposed
8 years imprisonment
Keywords
Hong Kong; Health Officer; Governor's Office; Prison Hospital; Prisoners; War Crimes; Violations of laws and customs of war; Scope of responsibilities; "concerned in"; Torture; Cruel Inhumane or Degrading Treatment; Unlawful killing; Poor conditions of detention; Lack of adequate food and/or care; Failure to provide adequate medical care; Negligence; Civilian Command Responsibility; Mitigation
Dublin Core
Title
WO235/1021
Description
“COMMITTING A WAR CRIME, in that they, at ICHINOMIYA, JAPAN, on or about the 15 August 1945, the accused Colonel TAMURA Teiichi, as Commander of the 426th Regiment Infantry Regiment, the accused Major HIRANO Noboru as an officer on the Staff of the 147th Infantry Division, and the accused Captain FUJINO Masayo, as an Officer of the afore said 426th Regiment Infantry Regiment were, in violation of the laws and usages of war, together concerned in the killing of one FRED HOCKLEY, a Sub-Lieutenant of the Royal Naval Volunteer Reserve”.
Legal Case Item Type Metadata
Case No.
WO235/1021
Accused
Col. Tamura Teiichi (D1)
Major Hirano Noboru (D2)
Capt. Fujino Nasazo (D3)
Court
Military Court for the Trial of War Criminals No. 5
Charge
“COMMITTING A WAR CRIME, in that they, at ICHINOMIYA, JAPAN, on or about the 15 August 1945, the accused Colonel TAMURA Teiichi, as Commander of the 426th Regiment Infantry Regiment, the accused Major HIRANO Noboru as an officer on the Staff of the 147th Infantry Division, and the accused Captain FUJINO Masayo, as an Officer of the afore said 426th Regiment Infantry Regiment were, in violation of the laws and usages of war, together concerned in the killing of one FRED HOCKLEY, a Sub-Lieutenant of the Royal Naval Volunteer Reserve”.
Background
Sub Lt. Fred Hockley was a pilot who set out on a sortie from the aircraft carrier HMS Indefatigable on the morning of 15 August 1945. He was forced to bale out over Japanese territory. He landed uninjured at Chiba-Jen. He was captured by members of a civil defence unit, and turned over to the 426th Regiment, a part of the 147th Division.
There was evidence that all three Accused listened to the Emperor's speech of surrender on 15 August 1945. [Note: the case refers to the capitulation speech as a speech of surrender; the formal surrender came on 2 September 1945].
D1 was the Commanding Officer of the 426th Regiment.
D2 was the Staff-Officer of the 147th Division as an Intelligence Officer.
D3 was an Adjutant to D1.
The 426th Regiment reported the capture of Hockley to the 147th Division. Hockley was supposed to be transported to the Division for Interrogation. The arrangement broke down. After the Emperor’s speech of surrender was made, a telephone conversation took place between PW4 and PW3, with D2 in the same room as PW3 in the Divisional HQ. On D2's instruction, PW3 gave the order to the Regiment to “dispose of” (“shochi se”) Hockley themselves. The conversation was reported to D1. He ordered D3 to kill Hockley, in the dark so that the others would not know. D3 then killed the victim.
There was evidence that all three Accused listened to the Emperor's speech of surrender on 15 August 1945. [Note: the case refers to the capitulation speech as a speech of surrender; the formal surrender came on 2 September 1945].
D1 was the Commanding Officer of the 426th Regiment.
D2 was the Staff-Officer of the 147th Division as an Intelligence Officer.
D3 was an Adjutant to D1.
The 426th Regiment reported the capture of Hockley to the 147th Division. Hockley was supposed to be transported to the Division for Interrogation. The arrangement broke down. After the Emperor’s speech of surrender was made, a telephone conversation took place between PW4 and PW3, with D2 in the same room as PW3 in the Divisional HQ. On D2's instruction, PW3 gave the order to the Regiment to “dispose of” (“shochi se”) Hockley themselves. The conversation was reported to D1. He ordered D3 to kill Hockley, in the dark so that the others would not know. D3 then killed the victim.
Allegations
The Prosecution argued that this was a case of execution without trial and without the excuse that there was an attempt to escape on the part of the victim.
The Prosecution alleged that D2 ordered that the Regiment should “suitably dispose of or deal with the” Prisoner of War (Hockley), despite the fact that he had no authority to do so. He used the word “shochi-se”, which was later clarified as “finish with him in the mountains” on that night. It was submitted the word “shochi-se”, or whatever that was uttered, had a strong implication that D2 wanted to kill the victim. This was so, in particular when it was viewed against the fact that D2 did not report this to anybody, including his superior.
Regarding D1, it was submitted that he understood the order was “unkind” but he decided that it meant “to kill” the victim. He assumed that the order came from the Division but did not take steps to verify it. It was also argued that if he was sure that the order was a lawful one from the Division Commander, there was no reason that he asked the killing to be hidden from other soldiers. He knew that nothing in the regulation permitted an execution. The allegation that the Division ordered him to cover up the affair was also unsupported by any evidence.
Regarding D3, the Prosecution alleged that when he was ordered to kill, the language used was “Shokode Shochi Seyo” which could have meant “to kill”. D3 did so and then proceeded, as ordered, to dig a grave. He neither checked nor verified the order with the first Accused, which had not specified when the victim would be executed. It was argued that although some orders were passed on to him, while he could have been uncertain, he could have waited for clarification instead of carrying out the execution immediately.
The Prosecution alleged that D2 ordered that the Regiment should “suitably dispose of or deal with the” Prisoner of War (Hockley), despite the fact that he had no authority to do so. He used the word “shochi-se”, which was later clarified as “finish with him in the mountains” on that night. It was submitted the word “shochi-se”, or whatever that was uttered, had a strong implication that D2 wanted to kill the victim. This was so, in particular when it was viewed against the fact that D2 did not report this to anybody, including his superior.
Regarding D1, it was submitted that he understood the order was “unkind” but he decided that it meant “to kill” the victim. He assumed that the order came from the Division but did not take steps to verify it. It was also argued that if he was sure that the order was a lawful one from the Division Commander, there was no reason that he asked the killing to be hidden from other soldiers. He knew that nothing in the regulation permitted an execution. The allegation that the Division ordered him to cover up the affair was also unsupported by any evidence.
Regarding D3, the Prosecution alleged that when he was ordered to kill, the language used was “Shokode Shochi Seyo” which could have meant “to kill”. D3 did so and then proceeded, as ordered, to dig a grave. He neither checked nor verified the order with the first Accused, which had not specified when the victim would be executed. It was argued that although some orders were passed on to him, while he could have been uncertain, he could have waited for clarification instead of carrying out the execution immediately.
Defence
D1 and D3 admitted to being concerned in the killing of Hockley, but cited to Superior Orders, which they said were unambiguous. D2, on the other hand, denied ever having suggested, let alone ordered, the killing of Hockley.
The Defence, for D2, disputed the meaning of the word “shochi”. It argued that the word meant “to dispose of, to take measures or steps, to act or … to deal with” and there is not the “slightest suggestion that it could mean to kill”. The word used, according to D2, was “shochi seyo” which had no implication that the victim would be killed. Instead, he was to be treated in accordance with the rules.
D2 argued that the alleged “clarification” made by him did not happen, it was a lie. He observed that there was only one Prosecution witness on this (PW3, who filed an affidavit instead of testifying in the court), and the evidence was not corroborated.
D1 argued that he interpreted the message as “to kill”. This was because he thought the message was an emergency measure. He had no intention to kill. He only acted upon the order as given by the Division and transmitted to him. He could not ignore the order and had no choice.
D3, the direct perpetrator, argued that the order given to him was clear. The execution had to be carried out that very same night. What he had done was certainly within the scope of the order. He did so with the minimum amount of physical suffering to the victim. The Defence accepted that he was "concerned in" the killing, but argued there were extenuating circumstances warranting a lesser degree of responsibility.
The Defence, for D2, disputed the meaning of the word “shochi”. It argued that the word meant “to dispose of, to take measures or steps, to act or … to deal with” and there is not the “slightest suggestion that it could mean to kill”. The word used, according to D2, was “shochi seyo” which had no implication that the victim would be killed. Instead, he was to be treated in accordance with the rules.
D2 argued that the alleged “clarification” made by him did not happen, it was a lie. He observed that there was only one Prosecution witness on this (PW3, who filed an affidavit instead of testifying in the court), and the evidence was not corroborated.
D1 argued that he interpreted the message as “to kill”. This was because he thought the message was an emergency measure. He had no intention to kill. He only acted upon the order as given by the Division and transmitted to him. He could not ignore the order and had no choice.
D3, the direct perpetrator, argued that the order given to him was clear. The execution had to be carried out that very same night. What he had done was certainly within the scope of the order. He did so with the minimum amount of physical suffering to the victim. The Defence accepted that he was "concerned in" the killing, but argued there were extenuating circumstances warranting a lesser degree of responsibility.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr Murata Kiichi (Law Department of the Kyushu Imperial University, Japan
Judges
President: Lt. Col. R.C. Laming (M.B.E. General, Indian Army, Barrister)
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
H.D. Porter(Attorney-at-Law, United States Government, attached to the Legal Section, General Headquarters, Supreme Commander of Allied Forces.)
Noboru Saito(Interpreter)
Ishida Heichiro(Attached to Gohoku, No. 147 Division)
Shimomura Tetsuhiko(Attached to the 426th Infantry Regiment)
Hitomi Tadao(Sergeant-Major, 426th Infantry Regiment)
Sasaki Masataro(Lieutenant, 426th Infantry Regiment)
Defence Witnesses
Major Hirano(Second Accused)
Col. Tamura(First Accused. Regimental Commander, 426th Infantry Regiment.)
Capt Fujino Masazo(Third Accused. Adjutant to the Regimental Commander, 426th Infantry Regiment.)
Nanoshi Suboru(Interpreter, No. 5 Hong Kong War Crimes Court)
Trial Dates
1947-05-30
1947-05-31
1947-06-02
1947-06-03
1947-06-04
1947-06-05
1947-06-06
1947-06-07
1947-06-09
1947-06-13
Judgement Date
1947-06-13
Judgement Confirmation Date
1947-09-05
Judgement Promulgation Date
1947-09-12
Judgement
Held: All the Accused were guilty as charged.
Petition
A number of 3rd party petitions were filed:
1. One filed by the father, father-in-law and mother-in-law of D2. According to this joint petition, D2 “gave instruction to treat the pilot” rather than to “dispose of the pilot” and there was a misunderstanding.
2. One filed by the wife of D2, Ikuko Hirano. Her statement was similar to that of Takajiro Aoki below.
3. One filed by Hiroshi Tuwa for D2. He stated that he understood that D2's “true intention” was to send to the POW to the Army headquarter.
4. One filed by Takajiro Aoki, Ex-Captain to the 147th Division. This person's affidavit was put in as an exhibit at the trial (Exhibit K) but he did not testify. He stated that he was present when the telephone conversation took place and heard that D2 give instructions to “properly treat the POW as usual” which implied compliance to the POW regulations including: (1) to bring him to the Army Headquarters; and (2) to hand him to military police. As such, it was D1 who should be held responsible as he disobeyed the lawful order.
5. One filed by Mayusurui Haruo (Navy Capt.), Kanazawa Asao (Lt. Col.), Nagayama Moriyasu (Lt.), Tani Tetsuo (Navy Commander), Kogi Kazuo (Lt-Col, Judicial Dept.), Shiozawa Kunio (Gendarmerie), Otsuka Tadashi (Navy Lt.), Takayama Masao (W.O.), Nakanashi Mitsuo (Navy Lt.-Commander, Medical Dept.), Kawai Kensho (Army Major). These persons were all inmates at Stanley Prison. They stated that D2 was a sincere Christian and was fully conversant with the rules and regulations of the Army and they “could not have believe that such a man as he would be concerned in a murder case”, taking his religion into consideration.
6. One filed by Tamura Masaki, the second son of D1. He argued that D1 only executed an order (which in the Japanese Army, as a matter of custom, cannot be disobeyed without having to leave the army or to suffer punishment) and had no intention to execute the pilot at all. He also argued that it was D2 and D3 who should bear the greatest responsibility, he stated that D1 was convicted “simply because he was in a superior position – a case of superior responsibility – and his punishment must, it [seemed to him], much lighter than those of the two others”.
D1 petitioned:
1. He took the instruction from the Division as an order to kill the victim and he had no intention to kill whatsoever before such instruction;
2. He was “accustomed to obeying the order of [his] superior and had no option but to carry out the Division’s instruction”.
D2 petitioned. He argued that:
1. He gave the order such that “the prisoner should be dealt with suitably by the Regiment”. He meant that the prisoner should be dealt with in accordance with the Intelligence Service Regulations. He did not anticipate that the prisoner would be killed at all.
2. If the order was to kill, he should not be sentenced to death since he was only obeying the order. The order was not illegal and he should be acquitted.
D3 also petitioned. He argued that he was concerned in the killing of the victim, but he was given a direct order by his commander to kill. His actions were at all times in accordance with his orders. Although he was reluctant and tried to delay the execution, he had no choice but to kill eventually.
The Judge Advocate advised, on 27 August 1946, that the petitions be dismissed and sentences confirmed [unidentified Colonel, DJAG, Far East Land Forces]. In his assessment, the case against D2 was weaker than against D1 and D3 about whom "there can be no doubt as to the correctness of the Court's findings as regards these two Accused". He pointed out that "Superior orders are not of course a ground of defence for an offence such as this but the Court evidently considered that they afforded some mitigation in the case of the No.3 Accused and accordingly refrained from sentencing him to death".
In relation to the disputed conversation, the evidence was conflicting. The court, according to the Judge Advocate, "went to great trouble in enquiring what expression was actually used by Hirano and what meaning should be attached to it." According to the Judge Advocate, "It seems fairly clear that the original expression used was 'Shochi se', an ambiguous word which apart from the meanings referred to above may have a sinister import". Circumstantial evidence also provided further grounds for the court's decisions - the normal procedure for dealing with Prisoners of War was not followed, possibly in light of the confusion after the Emperor's speech.
"Reviewing the evidence against Hirano as a whole I think that the Court were justified in believing that when he issued instructions to the unit he intended that Hockley should be killed. The unsatisfactory nature of Hirano's own evidence and particularly his evasive answers on pp.88-94 of the record go some way to strengthen the prosecution case".
1. One filed by the father, father-in-law and mother-in-law of D2. According to this joint petition, D2 “gave instruction to treat the pilot” rather than to “dispose of the pilot” and there was a misunderstanding.
2. One filed by the wife of D2, Ikuko Hirano. Her statement was similar to that of Takajiro Aoki below.
3. One filed by Hiroshi Tuwa for D2. He stated that he understood that D2's “true intention” was to send to the POW to the Army headquarter.
4. One filed by Takajiro Aoki, Ex-Captain to the 147th Division. This person's affidavit was put in as an exhibit at the trial (Exhibit K) but he did not testify. He stated that he was present when the telephone conversation took place and heard that D2 give instructions to “properly treat the POW as usual” which implied compliance to the POW regulations including: (1) to bring him to the Army Headquarters; and (2) to hand him to military police. As such, it was D1 who should be held responsible as he disobeyed the lawful order.
5. One filed by Mayusurui Haruo (Navy Capt.), Kanazawa Asao (Lt. Col.), Nagayama Moriyasu (Lt.), Tani Tetsuo (Navy Commander), Kogi Kazuo (Lt-Col, Judicial Dept.), Shiozawa Kunio (Gendarmerie), Otsuka Tadashi (Navy Lt.), Takayama Masao (W.O.), Nakanashi Mitsuo (Navy Lt.-Commander, Medical Dept.), Kawai Kensho (Army Major). These persons were all inmates at Stanley Prison. They stated that D2 was a sincere Christian and was fully conversant with the rules and regulations of the Army and they “could not have believe that such a man as he would be concerned in a murder case”, taking his religion into consideration.
6. One filed by Tamura Masaki, the second son of D1. He argued that D1 only executed an order (which in the Japanese Army, as a matter of custom, cannot be disobeyed without having to leave the army or to suffer punishment) and had no intention to execute the pilot at all. He also argued that it was D2 and D3 who should bear the greatest responsibility, he stated that D1 was convicted “simply because he was in a superior position – a case of superior responsibility – and his punishment must, it [seemed to him], much lighter than those of the two others”.
D1 petitioned:
1. He took the instruction from the Division as an order to kill the victim and he had no intention to kill whatsoever before such instruction;
2. He was “accustomed to obeying the order of [his] superior and had no option but to carry out the Division’s instruction”.
D2 petitioned. He argued that:
1. He gave the order such that “the prisoner should be dealt with suitably by the Regiment”. He meant that the prisoner should be dealt with in accordance with the Intelligence Service Regulations. He did not anticipate that the prisoner would be killed at all.
2. If the order was to kill, he should not be sentenced to death since he was only obeying the order. The order was not illegal and he should be acquitted.
D3 also petitioned. He argued that he was concerned in the killing of the victim, but he was given a direct order by his commander to kill. His actions were at all times in accordance with his orders. Although he was reluctant and tried to delay the execution, he had no choice but to kill eventually.
The Judge Advocate advised, on 27 August 1946, that the petitions be dismissed and sentences confirmed [unidentified Colonel, DJAG, Far East Land Forces]. In his assessment, the case against D2 was weaker than against D1 and D3 about whom "there can be no doubt as to the correctness of the Court's findings as regards these two Accused". He pointed out that "Superior orders are not of course a ground of defence for an offence such as this but the Court evidently considered that they afforded some mitigation in the case of the No.3 Accused and accordingly refrained from sentencing him to death".
In relation to the disputed conversation, the evidence was conflicting. The court, according to the Judge Advocate, "went to great trouble in enquiring what expression was actually used by Hirano and what meaning should be attached to it." According to the Judge Advocate, "It seems fairly clear that the original expression used was 'Shochi se', an ambiguous word which apart from the meanings referred to above may have a sinister import". Circumstantial evidence also provided further grounds for the court's decisions - the normal procedure for dealing with Prisoners of War was not followed, possibly in light of the confusion after the Emperor's speech.
"Reviewing the evidence against Hirano as a whole I think that the Court were justified in believing that when he issued instructions to the unit he intended that Hockley should be killed. The unsatisfactory nature of Hirano's own evidence and particularly his evasive answers on pp.88-94 of the record go some way to strengthen the prosecution case".
Sentence Imposed
D1: Death by Hanging (16 September 1947);
D2: Death by Hanging (16 September 1947);
D3: 15 years imprisonment.
D2: Death by Hanging (16 September 1947);
D3: 15 years imprisonment.
Keywords
Japan; Captured airman; Prisoner of War; Imperial Japanese Army; Unlawful killing; Orders; Superior Orders; War Crimes; Violations of laws and customs of war; Mitigating Circumstances; Hierarchy; Emperor's capitulation; Miscommunication
Remarks
• An unusually large number of petitions were filed in this case, including from a person who should have testified as witness (i.e. Takajiro Aoki, who was present and heard the order being transmitted). His testimony was by way of affidavit.
• 1 Defence lawyer represented 3 Co-Accused, who had very conflicting defences.
• The killing took place after the capitulation by the Emperor.
• 1 Defence lawyer represented 3 Co-Accused, who had very conflicting defences.
• The killing took place after the capitulation by the Emperor.
Dublin Core
Title
WO235/1015
Description
Committing a War Crime
“in that he at Hong Kong between the 17th and 26th December 1941, when Commanding Officer of the 230th Infantry Regiment of the 38th Division of the Imperial Japanese Army, was, in violation of the laws and usages of wars, concerned in the ill-treatment and killing of British, Canadian, Chinese and Indian troops and Red Cross personnel after they had been taken prisoners of war”.
“in that he at Hong Kong between the 17th and 26th December 1941, when Commanding Officer of the 230th Infantry Regiment of the 38th Division of the Imperial Japanese Army, was, in violation of the laws and usages of wars, concerned in the ill-treatment and killing of British, Canadian, Chinese and Indian troops and Red Cross personnel after they had been taken prisoners of war”.
Legal Case Item Type Metadata
Case No.
WO235/1015
Accused
Major Gen. Shoji Toshishige
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that he at Hong Kong between the 17th and 26th December 1941, when Commanding Officer of the 230th Infantry Regiment of the 38th Division of the Imperial Japanese Army, was, in violation of the laws and usages of wars, concerned in the ill-treatment and killing of British, Canadian, Chinese and Indian troops and Red Cross personnel after they had been taken prisoners of war”.
“in that he at Hong Kong between the 17th and 26th December 1941, when Commanding Officer of the 230th Infantry Regiment of the 38th Division of the Imperial Japanese Army, was, in violation of the laws and usages of wars, concerned in the ill-treatment and killing of British, Canadian, Chinese and Indian troops and Red Cross personnel after they had been taken prisoners of war”.
Background
In the period 17-26 December 1941, the Accused was in command of the 230th Infantry Unit. This was one of the units that attacked and captured Hong Kong. About 200 Prisoners of War (‘POWs’) were captured, comprising British, Canadian, Chinese and Indian troops.
Allegations
The Prosecution alleged that the 230th Infantry Unit, under the command of the Accused, committed many abuses. Captured POWs were ill-treated. There was not sufficient space for the captives to lie down in the tiny hut that they were forced into. Those who tried to escape were attacked and killed. Others were forced to march to North Point and those who were not fit were left in the hut (they have not been seen since). One of the party collapsed during the march and was killed by the Japanese escort.
A party of St. John’s Ambulance bearers, wearing Red Cross brassards, came out of their shelter and surrendered. Every one of its members was killed by the Japanese. A party of the RMAC came out of the ADS to surrender – they were beaten, tied together and their Red Cross brassards torn off.
POWs were forced to walk on bare feet.
A party of St. John’s Ambulance bearers, wearing Red Cross brassards, came out of their shelter and surrendered. Every one of its members was killed by the Japanese. A party of the RMAC came out of the ADS to surrender – they were beaten, tied together and their Red Cross brassards torn off.
POWs were forced to walk on bare feet.
Defence
The Defence responded with a submission of no case to answer, without calling any witnesses.
The Defence contended that there was no proof that the 230th Infantry Unit had anything to do with these crimes.
It was accepted.
The Defence contended that there was no proof that the 230th Infantry Unit had anything to do with these crimes.
It was accepted.
Prosecutor
Major G.B. Puddicombe, (K.C. Advocate, The Victoria Rifles of Canada)
Defence Counsel
Mr Takano Junjiro (Japanese Barrister)
Judges
President: Lt. Col R.C. Laming, Barrister (Dept of the JAG, India)
Members: Major J.T. Loranger; Capt. K.R. Busfield (RAC)
Members: Major J.T. Loranger; Capt. K.R. Busfield (RAC)
Advisory Officer
Capt. J.N. Whitehorn (Inteeligence Corps)
Prosecution Witnesses
Maj G.B. Puddicombe(Prosecutor)
Capt E.C. Watson(Captain)
Sergeant Roy Ito(Canadian Intelligence Corps)
Alphonse Rigold(Interpreter with the War Crimes Investigation Unit, HK)
Capt. Uchiyama Yukio(Commander of the Western District Gendarmerie)
Edward Charles Fincher(Unknown)
James Risley Winyard(Lance-Corporal)
Francis R. Zimmern(Stockbroker)
George James White(Hong Kong Volunteer Defence Corps)
Cheung Shui Ling(School-teacher)
Lt.Col. J.A. Bailie(Canadian Army)
Ian Philip Tamworth(Hong Kong Volunteer Defence Corps)
Court Witnesses
Sasaki Yoichi(Interpreter to No. 5 War Crimes Court)
Trial Dates
1947-03-10
1947-03-11
1947-03-12
1947-03-13
1947-03-14
1947-03-17
Judgement Date
1947-03-17
Judgement
Not guilty – the Court accepted that there was no case to answer
Petition
N/A
Sentence Imposed
N/A
Keywords
Battle for Hong Kong; 38th Infantry Unit; Imperial Japanese Army; Hong Kong; Prisoners of War; Sick or wounded; Medical or related personnel; Medical formations and establishments; Red Cross; St Johns Ambulance; Surrender; "concerned in"; War Crimes; Violations of laws and customs of war; Prisoners of War; Unlawful Killing; Cruel Inhuman or Degrading Treatment; Military Command Responsibility
Remarks
Refer to the cases of Lt. Gen. Ito Takeo (Case No. WO/235/1107) and Major General Tanaka Ryosaburo (Case No. WO/235/1130).
Dublin Core
Title
WO235/1012
Description
First Charge (against all Accused)
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 15 August 1945 when members of the Prisoners-of-War Camp Staff under the command of the first named accused, and responsible for the well-being of British, Canadian and Dutch Prisoners-of-War interned in the SHAM SHUI PO Prisoners-of-War Camp were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Second Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 26 September 1942 or thereabouts when Commandant and Medical Officer respectively of all; Prisoners-of-War Camps in Hong Kong, and responsible for the well-being of British, and Canadian Prisoners-of-War, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Third Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between April 1942 and May 1944 or thereabouts when the accused Col. Tokunaga Isao and the accused Capt. Saito Shunkichi were respectively Commandant and Medical Officer of all Prisoners-of-War Camps in Hong Kong and the accused Lt. Tanaka Hitochi was Commandant of the UPPER ARGYLE STREET OFFICERS CAMP, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the said UPPER ARGYLE STREET OFFICER CAMP, were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fourth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between February 1942 and the 16 June 1942 or thereabouts when Commandant and Medical Officer in HONG KONG, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the INDIAN MILITARY HOSPITAL at ARGYLE STREET, KOWLOON, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fifth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between the 24 January 1942 and the 15 August 1945 or thereabouts when Commandant and Medical Officer of all Prisoners-of-War Camps in HONG KONG, and responsible for the well-being of British and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the BOWEN ROAD HOSPITAL, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoner-of-War resulting in the deaths of some and in physical sufferings to others.”
Sixth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at the Prisoners-of-War Camp HQ’s at FORFAR STREET, KOWLOON, HONG KONG, in or about the month of August 1942 when Commandant and intelligence officer respectively of the Prisoners-of-War Camp Headquarters, were in violation of the laws and usages of war, together concerned in the maltreatment of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Seventh Charge (against D1)
“COMMITTING A WAR CRIME in that he on or about the month of August 1942 when Commandant of all Prisoners-of-War Camp in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Eighth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about 14 September 1942 when Commandant of all Prisoners-of-War Camps in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Pte. V. Branson, L/Cpl. W.G. Byrne, P. Connely, Pte. J. Steppworth and Pte. M.T. Dunne, all British Prisoners-of-War in his custody and command.”
Ninth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about October 1942 and 15 August 1945 when Commandant of all Prisoners-of-War CAMPS IN HONG KONG, did, in violation of the laws and usages of war, misappropriate for his own use and benefit Red Cross supplies of food, medicine, clothes and other comforts intended for the Prisoners-of-War interned in Hong Kong, and further did permit and condone the misappropriation of such Red Cross supplies by his staff.”
Tenth Charge (against D1)
“COMMITTING A WAR CRIME in that he at divers places in HONG KONG between 24 January 1942 and 15 August 1945 when Commandant of all Prisoners-of-War Camps in Hong Kong, was, in violation of the laws and usages of war, concerned in the beating, torture and unlawful killing of numerous Chinese Civilians in Hong Kong aforesaid.”
Eleventh Charge (against D3)
“COMMITTING A WAR CRIME, in that he, at No. 167 ARGYLE STREET, KOWLOON, HONG KONG, in or about the month of August 1943 when Commandant of the UPPER ARGYLE STREET OFFICERS CAMP and concurrently O.i/c Intelligence Section, Prisoners-of-War Camps Headquarters, was, in violation of the laws and usages of war, concerned in the maltreatment of two unidentified Chinese Drivers and Lt. HADDOCK and one or more other British Prisoners-of-War then in his custody and command.”
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 15 August 1945 when members of the Prisoners-of-War Camp Staff under the command of the first named accused, and responsible for the well-being of British, Canadian and Dutch Prisoners-of-War interned in the SHAM SHUI PO Prisoners-of-War Camp were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Second Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 26 September 1942 or thereabouts when Commandant and Medical Officer respectively of all; Prisoners-of-War Camps in Hong Kong, and responsible for the well-being of British, and Canadian Prisoners-of-War, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Third Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between April 1942 and May 1944 or thereabouts when the accused Col. Tokunaga Isao and the accused Capt. Saito Shunkichi were respectively Commandant and Medical Officer of all Prisoners-of-War Camps in Hong Kong and the accused Lt. Tanaka Hitochi was Commandant of the UPPER ARGYLE STREET OFFICERS CAMP, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the said UPPER ARGYLE STREET OFFICER CAMP, were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fourth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between February 1942 and the 16 June 1942 or thereabouts when Commandant and Medical Officer in HONG KONG, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the INDIAN MILITARY HOSPITAL at ARGYLE STREET, KOWLOON, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fifth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between the 24 January 1942 and the 15 August 1945 or thereabouts when Commandant and Medical Officer of all Prisoners-of-War Camps in HONG KONG, and responsible for the well-being of British and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the BOWEN ROAD HOSPITAL, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoner-of-War resulting in the deaths of some and in physical sufferings to others.”
Sixth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at the Prisoners-of-War Camp HQ’s at FORFAR STREET, KOWLOON, HONG KONG, in or about the month of August 1942 when Commandant and intelligence officer respectively of the Prisoners-of-War Camp Headquarters, were in violation of the laws and usages of war, together concerned in the maltreatment of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Seventh Charge (against D1)
“COMMITTING A WAR CRIME in that he on or about the month of August 1942 when Commandant of all Prisoners-of-War Camp in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Eighth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about 14 September 1942 when Commandant of all Prisoners-of-War Camps in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Pte. V. Branson, L/Cpl. W.G. Byrne, P. Connely, Pte. J. Steppworth and Pte. M.T. Dunne, all British Prisoners-of-War in his custody and command.”
Ninth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about October 1942 and 15 August 1945 when Commandant of all Prisoners-of-War CAMPS IN HONG KONG, did, in violation of the laws and usages of war, misappropriate for his own use and benefit Red Cross supplies of food, medicine, clothes and other comforts intended for the Prisoners-of-War interned in Hong Kong, and further did permit and condone the misappropriation of such Red Cross supplies by his staff.”
Tenth Charge (against D1)
“COMMITTING A WAR CRIME in that he at divers places in HONG KONG between 24 January 1942 and 15 August 1945 when Commandant of all Prisoners-of-War Camps in Hong Kong, was, in violation of the laws and usages of war, concerned in the beating, torture and unlawful killing of numerous Chinese Civilians in Hong Kong aforesaid.”
Eleventh Charge (against D3)
“COMMITTING A WAR CRIME, in that he, at No. 167 ARGYLE STREET, KOWLOON, HONG KONG, in or about the month of August 1943 when Commandant of the UPPER ARGYLE STREET OFFICERS CAMP and concurrently O.i/c Intelligence Section, Prisoners-of-War Camps Headquarters, was, in violation of the laws and usages of war, concerned in the maltreatment of two unidentified Chinese Drivers and Lt. HADDOCK and one or more other British Prisoners-of-War then in his custody and command.”
Legal Case Item Type Metadata
Case No.
WO235/1012
Accused
Col. Tokunaga Isao (D1)
Capt. Saito Shunkichi (D2)
Lt. Tanaka Hitochi (D3)
Int. Tsutada Itsuo (D4)
Sgt. Harada Jotaro (D5)
Court
Military Court for the Trial of War Criminals No. [not stated]
Charge
First Charge (against all Accused)
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 15 August 1945 when members of the Prisoners-of-War Camp Staff under the command of the first named accused, and responsible for the well-being of British, Canadian and Dutch Prisoners-of-War interned in the SHAM SHUI PO Prisoners-of-War Camp were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Second Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 26 September 1942 or thereabouts when Commandant and Medical Officer respectively of all; Prisoners-of-War Camps in Hong Kong, and responsible for the well-being of British, and Canadian Prisoners-of-War, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Third Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between April 1942 and May 1944 or thereabouts when the accused Col. Tokunaga Isao and the accused Capt. Saito Shunkichi were respectively Commandant and Medical Officer of all Prisoners-of-War Camps in Hong Kong and the accused Lt. Tanaka Hitochi was Commandant of the UPPER ARGYLE STREET OFFICERS CAMP, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the said UPPER ARGYLE STREET OFFICER CAMP, were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fourth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between February 1942 and the 16 June 1942 or thereabouts when Commandant and Medical Officer in HONG KONG, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the INDIAN MILITARY HOSPITAL at ARGYLE STREET, KOWLOON, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fifth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between the 24 January 1942 and the 15 August 1945 or thereabouts when Commandant and Medical Officer of all Prisoners-of-War Camps in HONG KONG, and responsible for the well-being of British and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the BOWEN ROAD HOSPITAL, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoner-of-War resulting in the deaths of some and in physical sufferings to others.”
Sixth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at the Prisoners-of-War Camp HQ’s at FORFAR STREET, KOWLOON, HONG KONG, in or about the month of August 1942 when Commandant and intelligence officer respectively of the Prisoners-of-War Camp Headquarters, were in violation of the laws and usages of war, together concerned in the maltreatment of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Seventh Charge (against D1)
“COMMITTING A WAR CRIME in that he on or about the month of August 1942 when Commandant of all Prisoners-of-War Camp in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Eighth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about 14 September 1942 when Commandant of all Prisoners-of-War Camps in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Pte. V. Branson, L/Cpl. W.G. Byrne, P. Connely, Pte. J. Steppworth and Pte. M.T. Dunne, all British Prisoners-of-War in his custody and command.”
Ninth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about October 1942 and 15 August 1945 when Commandant of all Prisoners-of-War CAMPS IN HONG KONG, did, in violation of the laws and usages of war, misappropriate for his own use and benefit Red Cross supplies of food, medicine, clothes and other comforts intended for the Prisoners-of-War interned in Hong Kong, and further did permit and condone the misappropriation of such Red Cross supplies by his staff.”
Tenth Charge (against D1)
“COMMITTING A WAR CRIME in that he at divers places in HONG KONG between 24 January 1942 and 15 August 1945 when Commandant of all Prisoners-of-War Camps in Hong Kong, was, in violation of the laws and usages of war, concerned in the beating, torture and unlawful killing of numerous Chinese Civilians in Hong Kong aforesaid.”
Eleventh Charge (against D3)
“COMMITTING A WAR CRIME, in that he, at No. 167 ARGYLE STREET, KOWLOON, HONG KONG, in or about the month of August 1943 when Commandant of the UPPER ARGYLE STREET OFFICERS CAMP and concurrently O.i/c Intelligence Section, Prisoners-of-War Camps Headquarters, was, in violation of the laws and usages of war, concerned in the maltreatment of two unidentified Chinese Drivers and Lt. HADDOCK and one or more other British Prisoners-of-War then in his custody and command.”
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 15 August 1945 when members of the Prisoners-of-War Camp Staff under the command of the first named accused, and responsible for the well-being of British, Canadian and Dutch Prisoners-of-War interned in the SHAM SHUI PO Prisoners-of-War Camp were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Second Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at SHAM SHUI PO, HONG KONG, between the 24 January 1942 and the 26 September 1942 or thereabouts when Commandant and Medical Officer respectively of all; Prisoners-of-War Camps in Hong Kong, and responsible for the well-being of British, and Canadian Prisoners-of-War, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Third Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between April 1942 and May 1944 or thereabouts when the accused Col. Tokunaga Isao and the accused Capt. Saito Shunkichi were respectively Commandant and Medical Officer of all Prisoners-of-War Camps in Hong Kong and the accused Lt. Tanaka Hitochi was Commandant of the UPPER ARGYLE STREET OFFICERS CAMP, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the said UPPER ARGYLE STREET OFFICER CAMP, were, in violation of the laws and usages or war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fourth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between February 1942 and the 16 June 1942 or thereabouts when Commandant and Medical Officer in HONG KONG, and responsible for the well-being of British, and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the INDIAN MILITARY HOSPITAL at ARGYLE STREET, KOWLOON, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoners-of-War resulting in the deaths of some and in physical sufferings to others.”
Fifth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they in KOWLOON, HONG KONG, between the 24 January 1942 and the 15 August 1945 or thereabouts when Commandant and Medical Officer of all Prisoners-of-War Camps in HONG KONG, and responsible for the well-being of British and Canadian Prisoners-of-War serving on the medical staff and/or receiving treatment at the BOWEN ROAD HOSPITAL, HONG KONG, were, in violation of the laws and usages of war, together concerned in the inhumane treatment of the said Prisoner-of-War resulting in the deaths of some and in physical sufferings to others.”
Sixth Charge (against D1 and D2)
“COMMITTING A WAR CRIME, in that they at the Prisoners-of-War Camp HQ’s at FORFAR STREET, KOWLOON, HONG KONG, in or about the month of August 1942 when Commandant and intelligence officer respectively of the Prisoners-of-War Camp Headquarters, were in violation of the laws and usages of war, together concerned in the maltreatment of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Seventh Charge (against D1)
“COMMITTING A WAR CRIME in that he on or about the month of August 1942 when Commandant of all Prisoners-of-War Camp in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Sgt. J.O. Payne, L/Cpl G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis, all Canadian Prisoners-of-War then in their custody and command.”
Eighth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about 14 September 1942 when Commandant of all Prisoners-of-War Camps in HONG KONG, was, in violation of the laws and usages of war, concerned in the killing of Pte. V. Branson, L/Cpl. W.G. Byrne, P. Connely, Pte. J. Steppworth and Pte. M.T. Dunne, all British Prisoners-of-War in his custody and command.”
Ninth Charge (against D1)
“COMMITTING A WAR CRIME in that he at HONG KONG on or about October 1942 and 15 August 1945 when Commandant of all Prisoners-of-War CAMPS IN HONG KONG, did, in violation of the laws and usages of war, misappropriate for his own use and benefit Red Cross supplies of food, medicine, clothes and other comforts intended for the Prisoners-of-War interned in Hong Kong, and further did permit and condone the misappropriation of such Red Cross supplies by his staff.”
Tenth Charge (against D1)
“COMMITTING A WAR CRIME in that he at divers places in HONG KONG between 24 January 1942 and 15 August 1945 when Commandant of all Prisoners-of-War Camps in Hong Kong, was, in violation of the laws and usages of war, concerned in the beating, torture and unlawful killing of numerous Chinese Civilians in Hong Kong aforesaid.”
Eleventh Charge (against D3)
“COMMITTING A WAR CRIME, in that he, at No. 167 ARGYLE STREET, KOWLOON, HONG KONG, in or about the month of August 1943 when Commandant of the UPPER ARGYLE STREET OFFICERS CAMP and concurrently O.i/c Intelligence Section, Prisoners-of-War Camps Headquarters, was, in violation of the laws and usages of war, concerned in the maltreatment of two unidentified Chinese Drivers and Lt. HADDOCK and one or more other British Prisoners-of-War then in his custody and command.”
Background
This is the leading case concerning the treatment of Allied Prisoners-of-War (‘POWs’) held by the Imperial Japanese Army in POW camps across Hong Kong, covering the conditions of detention and also maltreatment including killings.
D1 was at all material times in charge of all POW Camps in Hong Kong and held overall responsibility for their proper administration. He was prosecuted on charges 1-10 inclusive.
D2 was on the first accused’s staff as medical officer in charge of all POW camps. He was prosecuted on charges 1-5.
D3 was Chief of the Intelligence or Information Section and was responsible for the investigation of documents and identity of POWs, he was also in April 1944 appointed adjutant. He was prosecuted on charges 1, 3, 6 and 11.
D4 and D5 were on the Camp staff. They were only prosecuted on the first charge.
D1 was at all material times in charge of all POW Camps in Hong Kong and held overall responsibility for their proper administration. He was prosecuted on charges 1-10 inclusive.
D2 was on the first accused’s staff as medical officer in charge of all POW camps. He was prosecuted on charges 1-5.
D3 was Chief of the Intelligence or Information Section and was responsible for the investigation of documents and identity of POWs, he was also in April 1944 appointed adjutant. He was prosecuted on charges 1, 3, 6 and 11.
D4 and D5 were on the Camp staff. They were only prosecuted on the first charge.
Allegations
The Prosecution argued that, after the consolidation of the occupation of Hong Kong, conditions in POW Camps deteriorated. The conditions were appalling. The senior Japanese officers did little, if anything, to improve matters and the subordinates followed suit. Owing to lack of proper supervision etc. many prisoners died unnecessarily and many were ill treated when they should never have been. Red Cross supplies were misdirected and misused. Escaping prisoners were shot without trial.
First, Second, Third, Fourth and Fifth Charge (The General Charges)
These charges were concerned with the alleged ill-treatment of POWs in various camps and hospitals in Hong Kong and with the general administration of them. They covered
• Inadequate accommodation, sanitation, food and clothing.
• Harsh treatment of sick POWs and failure to provide drugs and other facilities for their treatment.
• Beating and ill-treatment.
• Working parties sent on war work and dangerous projects.
• Inhumane working of POWs when physically unfit.
• Compulsory signing of a parole.
• Collective Punishment.
• General ill-treatment.
Sixth, Seventh and Eighth Charge (The POWs Escape Charges)
These charges concerned the escape and recapture of 4 named Canadian POWs and the attempted escape of 5 named British POWs. The 6th charge concerns the ill-treatment of the Canadians; the 7th charge related to the execution of the Canadians while the 8th charge related to the execution of the British (who attempted to escape by having dug a tunnel for that purpose but were caught before escaping).
Ninth Charge (The Misappropriation Charge)
This charge concerned the misappropriation of Red Cross supplies.
Tenth Charge (The Civilian Ill-Treatment Charge)
This charge concerned the ill-treatment and killing of Chinese civilians by D1. It was alleged that D1 knew and connived at such misdoings such as beatings, shootings and murder.
Eleventh Charge (The Civilian/POWs Ill-treatment Charge)
This charge also concerned the ill-treatment and killing of Chinese civilians, but by D3.
First, Second, Third, Fourth and Fifth Charge (The General Charges)
These charges were concerned with the alleged ill-treatment of POWs in various camps and hospitals in Hong Kong and with the general administration of them. They covered
• Inadequate accommodation, sanitation, food and clothing.
• Harsh treatment of sick POWs and failure to provide drugs and other facilities for their treatment.
• Beating and ill-treatment.
• Working parties sent on war work and dangerous projects.
• Inhumane working of POWs when physically unfit.
• Compulsory signing of a parole.
• Collective Punishment.
• General ill-treatment.
Sixth, Seventh and Eighth Charge (The POWs Escape Charges)
These charges concerned the escape and recapture of 4 named Canadian POWs and the attempted escape of 5 named British POWs. The 6th charge concerns the ill-treatment of the Canadians; the 7th charge related to the execution of the Canadians while the 8th charge related to the execution of the British (who attempted to escape by having dug a tunnel for that purpose but were caught before escaping).
Ninth Charge (The Misappropriation Charge)
This charge concerned the misappropriation of Red Cross supplies.
Tenth Charge (The Civilian Ill-Treatment Charge)
This charge concerned the ill-treatment and killing of Chinese civilians by D1. It was alleged that D1 knew and connived at such misdoings such as beatings, shootings and murder.
Eleventh Charge (The Civilian/POWs Ill-treatment Charge)
This charge also concerned the ill-treatment and killing of Chinese civilians, but by D3.
Defence
The two main lines of defence were firstly, that the Accused did all they could in the circumstances and secondly that Superior Orders had to be obeyed. The Accused admitted that minor offences had been committed, but the gravity of the acts was said to be exaggerated by the Prosecution.
First, Second, Third, Fourth and Fifth Charge (The General Charges)
In general terms, the Defence denied the claim of poor conditions in the camps.
For D1, it was argued that in some instances, the POWs themselves contributed to their own discomfort in that, for example, they traded their messing equipment for cigarettes. The main line of the Defence, was, however, that in spite of the lack of co-operation from other Military Departments, the accused did all in his power to ameliorate the lot of prisoners.
D2 argued that he was only responsible for supervising the POWs’ own medical officers in respect of diagnosis and treatment. He was never responsible for the health of the POWs. It was admitted that the sanitary equipment in its widest sense “left something to be desired”. But, the main line of defence was that he did his best in extremely difficult circumstances.
D3 argued that he was in no position either to control the guards directly all the time or to give orders to interpreters, and therefore should not to be held responsible for their misdeeds.
D4 and D5 accused argued that the Prosecution’s case was shaky with insufficient evidence. They admitted assaulting POWs but they denied these assaults as being as severe as averred by the Prosecution. They also relied on the Defence of superior order.
Sixth, Seventh and Eighth Charge (The POWs' Escape Charges)
For the seventh and eighth charges, the Accused pleaded the defence of Superior Orders from the Chief of Staff of the Governor-General’s Office. They carried out the orders, despite knowing that according to the law, POWs must have a trial before being executed.
Ninth Charge (The Misappropriation Charge)
The Defence made light of the Prosecution’s evidence. Such items that came his way were gifts. Such items came through theft by dock labourers or by POWs selling supplies in exchange for cigarettes etc.
Tenth Charge (The Civilian Ill-Treatment Charge)
The Defence mainly argued that there was insufficient evidence to support the charge. There was weak, contradictory or exaggerated testimony given by Prosecution witnesses.
Eleventh Charge (The Civilian/POW Ill-Treatment Charge)
The Defence mainly argued that there was insufficient evidence to support the charge based on weak, contradictory or exaggerated testimony given by Prosecution witnesses.
First, Second, Third, Fourth and Fifth Charge (The General Charges)
In general terms, the Defence denied the claim of poor conditions in the camps.
For D1, it was argued that in some instances, the POWs themselves contributed to their own discomfort in that, for example, they traded their messing equipment for cigarettes. The main line of the Defence, was, however, that in spite of the lack of co-operation from other Military Departments, the accused did all in his power to ameliorate the lot of prisoners.
D2 argued that he was only responsible for supervising the POWs’ own medical officers in respect of diagnosis and treatment. He was never responsible for the health of the POWs. It was admitted that the sanitary equipment in its widest sense “left something to be desired”. But, the main line of defence was that he did his best in extremely difficult circumstances.
D3 argued that he was in no position either to control the guards directly all the time or to give orders to interpreters, and therefore should not to be held responsible for their misdeeds.
D4 and D5 accused argued that the Prosecution’s case was shaky with insufficient evidence. They admitted assaulting POWs but they denied these assaults as being as severe as averred by the Prosecution. They also relied on the Defence of superior order.
Sixth, Seventh and Eighth Charge (The POWs' Escape Charges)
For the seventh and eighth charges, the Accused pleaded the defence of Superior Orders from the Chief of Staff of the Governor-General’s Office. They carried out the orders, despite knowing that according to the law, POWs must have a trial before being executed.
Ninth Charge (The Misappropriation Charge)
The Defence made light of the Prosecution’s evidence. Such items that came his way were gifts. Such items came through theft by dock labourers or by POWs selling supplies in exchange for cigarettes etc.
Tenth Charge (The Civilian Ill-Treatment Charge)
The Defence mainly argued that there was insufficient evidence to support the charge. There was weak, contradictory or exaggerated testimony given by Prosecution witnesses.
Eleventh Charge (The Civilian/POW Ill-Treatment Charge)
The Defence mainly argued that there was insufficient evidence to support the charge based on weak, contradictory or exaggerated testimony given by Prosecution witnesses.
Prosecutor
Major G.B. Puddicombe, Advocate (The Victoria Rifles of Canada)
Defence Counsel
Mr. Fujita Tetsuo (Japanese Barrister, Judge of the Court of Hiroshima)
Mr. Hagezawa
Mr. Hagezawa
Judges
President: Lt. Col. R.C. Laming (Dept. of JAG, India, Barrister-at-Law)
Members: Major J.T. Loranger (JAG Department, Canadian Army) Capt K.R. Busfield (R.A.C.)
Members: Major J.T. Loranger (JAG Department, Canadian Army) Capt K.R. Busfield (R.A.C.)
Advisory Officer
Lt. J. Benyon R.E.
Prosecution Witnesses
Lt-Col. J.N.B. Crawford(Lieutenant-Colonel, Royal Canadian Medical Corps; Ex-Prisoner-of-War)
Roy Ito(Sergeant, Canadian Intelligence Corpsl Interpreter and Translator, War Crimes Investigation Team, Hong Kong)
Capt. F.V. Collison(Captain, No. 14 War Crimes Investigation Team, Hong Kong)
Dr. A.M. Rodrigues(Medical Practitioner, Hong Kong Volunteer Field Ambulance; Ex-Prisoner-of-War)
Sgt. F. Nogami(Sgt. Major, Canadian Intelligence Corps, Linguist attached to SECIC)
Major G.B. Puddicombe (Prosecutor)(Major, Victoria Rifles of Canadian Army. Officer in charge of the Canadian War Crimes Liaison Detachment, Japanese Area, Hong Kong)
Mr. Tse Dickuan(Clerk, War Crimes Investigation Unit)
Lt.-Col . E.J.R. Mitchell(Commander. Hong Kong Volunteer Defence Corps; Manager, Manufacturers? Life Insurance Company. Ex-Prisoner-of-War)
Mr. Prophet(Chartered Accountant; Member, Hong Kong Volunteer Defence Force; Ex-Prisoner-of-War)
Sgt.Major. Lewis(Warrant Officer, Class II, Royal Artillery; Ex-Prisoner-of-War)
Mr. T.A.Pearce(Employee, John D Hutchinson & Co.; Lieutenant, Royal Artillery; Ex-Prisoner-of-War)
Major C.F. Miles(Chief Steward of the Hong Kong Government Medical Department)
Dr. J.W. Anderson(Surgeon; Temporary Major, Royal Army Medical Corps, Hong Kong)
Lt. Col. E.C. Frederick(Lieut-Colonel; Ex-Prisoner-of-War)
Mr. H.F. Hopkin(Mercantile Assistant, Jardine Matheson & Co. Ltd.; Ex-Prisoner-of-War)
Mr. R. Nazarin(Accountant/Acting Manager, Harry Wickin & Co.)
Mr. Lewis Guy(Chemist, Manager, of the Wholesale Department, Watson & Co.)
Dr. Coombes(Medical Practitionerl Port Health Officer, Port Health Officer; Physician, R.A.M.C.; Ex-Prisoner-of-War)
Mr. Wan Kwok Chin(Storage Clerk, Dairy Farm)
Mr. Fogwill(Health Inspector Member, H.K.R.N.V.R.; Ex-Prisoner-of-War)
Mr. Rowan(Pharmacist, Kwong Wah Drug Company)
Mr. Leung Kwok Tai(Senior Laboratory Assistant, Hong Kong Government Bacteriological Institute; Technical Expert for the Japanese Occupying Power.)
Mr. T.P. Jackson(Officer Superintendent of the British Consul General in Canton.; Ex-Prisoner-of-War)
Kochi Shegekajiro(English Interpreter, Japanese Army)
Mr. A. Mabb(Insurance Officer; Ex-Prisoner-of-War)
Lt.Col. Baillie(Lt.-Col., 1st Battalion, Winnipeg Grenadier, Canadian Army, Ex-Prisoner-of-War)
Capt. H.C. Glover(Sub-L.t, Hong Kong Royal Navy Volunteer Reserve; Ex-Prisoner-of-War)
Mr. De Silva(Employee, Sherbrock Insurance Life Agency; Lieutenant, H.K.V.D.C.; Ex-Prisoner-of-War)
Mr. Palmer(Mercantile Assistant, Brice Bradley & Co.; Ex-Prisoner-of-War)
Mr. E.P. Wiseman(Lieutenant, Acting Captain, Royal Army Service Corps Ex-Prisoner-of-War)
Mr.W. Stoker(Lieutenant, H.K.V.D.C.; Ex-Prisoner-of-War)
Mr. Henry K.Y. Hsu(Director and Manager, New Asiatic Chemical Works)
Tong Met(Employee, Sam Lee)
Sano Ukio(Member, Japanese Army)
Mr. Victal(Employee, Macao Radio Club; Private Salesman)
Mr. Matsuda(Interpreter, POW Headquarter, Forfar Street)
Mr. Leung Lui(Motor car driver)
Mak Kee Shing(Employee, POW Camps at Forfar Street)
Mr. Eugene Mak(Overseer, Kai Tak Aerodrome)
Lt.Col. Kerr(Lieut-Col., Officer Commanding War Crimes Investigation Team)
Mr. G.A.v. Hall(Architect, PWD Hong Kong; Ex-Prisoner-of-War)
Mr. E. Newton(Manager Nestles; Ex-Prisoner-of-War)
Niimori Genichiro(Civilian Interpreter, Japanese Army (See the Lisbon Maru Case))
Major Lightbody(Major, Royal Artillery)
Mr. Tausz(Manager, Refrigeration Department, Gillman & Co.; Ex-Prisoner-of-War)
Mr. Baretto(British subject)
Foon Kit Fong(Employee, first accused?s Officer)
Mr. T.R. Ingram(Employee, Architect?s Officer of Public Works, Hong Kong; Ex-internee)
Major Ando(Major, 10th Area Army, Staff Officer, Formosa)
Mr. Kwok(Senior Clerk)
Defence Witnesses
Col. Tokunaga Isao(First Accused)
Dr./ Capt. Saito Shunkichi(Second Accused)
Lieut Tanaka Hitoshi(Third Accused)
Interpreter Tsutada(Fourth Accused)
Harada Jotaro(Fifth accused)
Major General Shoji Toshishige(Army Major General, Japanese Army)
Capt. Ushiyama Yokio(Gendarme Captain)
Major Hirao Yoshio(Gendarme Major, C.O. Kowloon District)
Interpreter Inouye(Interpreter, Sham Shui Po POW Camp)
Cpl. Seino(Army Captain)
Major Ando(Major, 10th Area Army, Staff Officer, Formosa)
Mr. Evans(Manager, British Cigarette Company; Ex-internee. (was on board of Lisbon Maru))
Mr. L.J. Silva(Clerk, Hong Kong and Shanghai Bank; Ex-internee)
Court Witnesses
Mr. H.J. Armstrong(Solicitor)
Trial Dates
1946-10-17
1946-10-18
1946-10-19
1946-11-30
1946-12-03
1946-12-04
1946-12-05
1946-12-06
1946-12-07
1946-12-09
1946-12-10
1946-12-11
1946-12-12
1946-12-13
1946-12-14
1946-12-16
1946-12-17
1946-12-18
1946-12-19
1946-12-20
1946-12-21
1946-12-23
1946-12-24
1946-12-27
1946-12-28
1947-01-02
1947-01-03
1947-01-04
1947-01-06
1947-01-07
1947-01-08
1947-01-09
1947-01-10
1947-01-11
1947-01-13
1947-01-14
1947-01-15
1947-01-16
1947-01-17
1947-01-18
1947-01-20
1947-01-21
1947-01-22
1947-01-23
1947-01-24
1947-01-25
1947-01-27
1947-01-28
1947-01-29
1947-01-30
1947-02-06
1947-02-12
1947-02-14
Judgement Date
1947-02-14
Judgement Confirmation Date
1947-06-25
Judgement Promulgation Date
1947-07-02
Judgement
Held:
1. On the first charge:
• D1 was guilty, except that the court found that he held the command of the POW Camp Staff Hong Kong between 31th January 1942 and 15th August 1945 or thereabouts.
• D2 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between the dates as found in the special finding as to the first accused.
• D3 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between 31 January 1942 and 1 April 1945 and not between 24 January 1942 and 15 Aguust 1945 or thereabouts, and except for the words, “in the death of some”.
• D4 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between April 1942 and 31 August 1945 when he was transferred from POW Camp staff, but continued to reside at SHAM SHUI PO POW Camp until he finally left Hong Kong at the end of October 1943 or thereabouts, and except for the words, “in the death of some”.
• D5 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between 1 October 1943 and 15 August 1945 or thereabouts and not between 24 January 1942 and 15 August 1945 or thereabouts an except for the words “in the deaths of some”.
2. On the second charge:
• D1 and D2 were guilty except that the Court found that the dates in respect of both these accused should be between 31 January 1942 and 26 September 1942 or thereabouts and not between 24 January 1942 and 26 September 1942 or thereabouts, and except, in respect of both these accused, for the words “in the deaths of some”.
3. On the third charge:
• D1 and D3 were guilty, except for the words “in the death of some”.
• D2 was guilty.
4. On the fourth charge:
• D1 and D2 were not guilty.
5. On the fifth charge:
• D1 and D2 were guilty, except that the Court found that these two Accused were respectively Commandant and Medical Officer of all POW Camps in Hong Kong between 31 January 1942 and 15 August 1945 or thereabouts and not between 24 January 1942 and 15 August 1935 or thereabouts.
6. On the sixth charge:
• D1 was guilty.
• D3 was not guilty.
7. On the seventh, eighth and ninth charge:
• D1 was guilty.
8. On the tenth charge:
• D1 was not guilty.
9. On the eleventh charge:
• D1 was not guilty.
1. On the first charge:
• D1 was guilty, except that the court found that he held the command of the POW Camp Staff Hong Kong between 31th January 1942 and 15th August 1945 or thereabouts.
• D2 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between the dates as found in the special finding as to the first accused.
• D3 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between 31 January 1942 and 1 April 1945 and not between 24 January 1942 and 15 Aguust 1945 or thereabouts, and except for the words, “in the death of some”.
• D4 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between April 1942 and 31 August 1945 when he was transferred from POW Camp staff, but continued to reside at SHAM SHUI PO POW Camp until he finally left Hong Kong at the end of October 1943 or thereabouts, and except for the words, “in the death of some”.
• D5 was guilty, except that the court found that he was a member of the POW Camp Staff Hong Kong between 1 October 1943 and 15 August 1945 or thereabouts and not between 24 January 1942 and 15 August 1945 or thereabouts an except for the words “in the deaths of some”.
2. On the second charge:
• D1 and D2 were guilty except that the Court found that the dates in respect of both these accused should be between 31 January 1942 and 26 September 1942 or thereabouts and not between 24 January 1942 and 26 September 1942 or thereabouts, and except, in respect of both these accused, for the words “in the deaths of some”.
3. On the third charge:
• D1 and D3 were guilty, except for the words “in the death of some”.
• D2 was guilty.
4. On the fourth charge:
• D1 and D2 were not guilty.
5. On the fifth charge:
• D1 and D2 were guilty, except that the Court found that these two Accused were respectively Commandant and Medical Officer of all POW Camps in Hong Kong between 31 January 1942 and 15 August 1945 or thereabouts and not between 24 January 1942 and 15 August 1935 or thereabouts.
6. On the sixth charge:
• D1 was guilty.
• D3 was not guilty.
7. On the seventh, eighth and ninth charge:
• D1 was guilty.
8. On the tenth charge:
• D1 was not guilty.
9. On the eleventh charge:
• D1 was not guilty.
Petition
The Director of Medical Services petitioned for D1. He stated that D1 could have prohibited all parcels to the POW Camps, and since he did not, he actually contributed to the welfare of the POWs held there. Therefore, the petition argued, he should be committed to life imprisonment.
D1 petitioned. He argued that:
1. He had no special knowledge about health and medical standards. All was left to D2 and the Governor-General’s Officer.
2. He did his best to take an interest in the general health of the POWs and tried to source medicines from Canton and even Japan.
3. There was been gross distortion of facts or mistakes in the prosecution witnesses’ testimony.
4. Under Prisoner of War Camp Regulations, he had to obey his commander’s order, including order on the execution of POWs.
5. He did not embezzle the Red Cross supplies for the POWs and did not allow any subordinate to do so.
D2 petitioned. He argued that:
1. The verdict was against the weight of evidence.
2. The health of the POWs rested with their own medical officer. The accused did all he could to ensure the best conditions for the POWs. He also tried to reflect the situation to the Commandant, who was himself limited by Regulations.
3. His request for a better budget to improve the situation was rejected by the “higher circles”.
4. He had no control over POW medical staff, who were responsible for the diagnosis and treatment of sick POWs which might have resulted in the harsh treatment of the POWs.
5. The number of deaths was mainly attributable to epidemics and disease caused by overcrowding, something that he had no control over.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 9 May 1947] assessed that the sentences “reflect the opinion of the court regarding the degrees of guilt attributable to each accused”. The Judge Advocate recommended commuting the death sentence of D2. Although he was “undoubtedly guilty of criminal and callous neglect in the highest degree”, his offences were offences of omission rather than of commission. It was apparent that he was present (in his medical capacity) at the execution of the victims (7th Charge). “It is possible that the Court might have been influenced by this when considering sentence, even though Saito was not joined in the seventh charge”.
The Judge Advocate recommended that “except so far as you may vary the sentences awarded to Saito, the Petitions be dismissed and the proceedings confirmed”.
Note: The file contains a note from the same Judge Advocate, dated 14 July 1946, which notes that the Commander of Land Forces, Hong Kong, as Confirming Officer, had commuted the sentences of Col. Tokunaga and Capt. Saito. The Judge Advocate suggested that the Confirming Officer “was probably influenced by the petition from Dr. Selwyn Clarke”. “There was of course a wide distinction between the facts proved against Tokunaga and those proved against Saito and in my opinion there was no good reason to commute the death sentence on the former.”
D1 petitioned. He argued that:
1. He had no special knowledge about health and medical standards. All was left to D2 and the Governor-General’s Officer.
2. He did his best to take an interest in the general health of the POWs and tried to source medicines from Canton and even Japan.
3. There was been gross distortion of facts or mistakes in the prosecution witnesses’ testimony.
4. Under Prisoner of War Camp Regulations, he had to obey his commander’s order, including order on the execution of POWs.
5. He did not embezzle the Red Cross supplies for the POWs and did not allow any subordinate to do so.
D2 petitioned. He argued that:
1. The verdict was against the weight of evidence.
2. The health of the POWs rested with their own medical officer. The accused did all he could to ensure the best conditions for the POWs. He also tried to reflect the situation to the Commandant, who was himself limited by Regulations.
3. His request for a better budget to improve the situation was rejected by the “higher circles”.
4. He had no control over POW medical staff, who were responsible for the diagnosis and treatment of sick POWs which might have resulted in the harsh treatment of the POWs.
5. The number of deaths was mainly attributable to epidemics and disease caused by overcrowding, something that he had no control over.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 9 May 1947] assessed that the sentences “reflect the opinion of the court regarding the degrees of guilt attributable to each accused”. The Judge Advocate recommended commuting the death sentence of D2. Although he was “undoubtedly guilty of criminal and callous neglect in the highest degree”, his offences were offences of omission rather than of commission. It was apparent that he was present (in his medical capacity) at the execution of the victims (7th Charge). “It is possible that the Court might have been influenced by this when considering sentence, even though Saito was not joined in the seventh charge”.
The Judge Advocate recommended that “except so far as you may vary the sentences awarded to Saito, the Petitions be dismissed and the proceedings confirmed”.
Note: The file contains a note from the same Judge Advocate, dated 14 July 1946, which notes that the Commander of Land Forces, Hong Kong, as Confirming Officer, had commuted the sentences of Col. Tokunaga and Capt. Saito. The Judge Advocate suggested that the Confirming Officer “was probably influenced by the petition from Dr. Selwyn Clarke”. “There was of course a wide distinction between the facts proved against Tokunaga and those proved against Saito and in my opinion there was no good reason to commute the death sentence on the former.”
Sentence Imposed
D1: death by hanging, commuted to imprisonment of life;
D2: death by hanging, commuted to 20 years imprisonment
D3: 3 years imprisonment
D4: 2 years imprisonment
D5: 1 year imprisonment
D2: death by hanging, commuted to 20 years imprisonment
D3: 3 years imprisonment
D4: 2 years imprisonment
D5: 1 year imprisonment
Keywords
Hong Kong; Imperial Japanese Army; Civilians; Prisoners of War; Prisoner of War Camps; Medical or related personnel; Sick or wounded; "together concerned in"; Committed; Permitted; Condoned; Torture; Cruel Inhumane or Degrading Treatment; Beatings; Unlawful Killing; Poor conditions of detention; Failure to provide adequate food and/or care; Failure to provide adequate medical care; Stealing; Red Cross parcels; Attempted escape; Discipline of Prisoners of War; Arbitrary or summary punishment; Forced labour; Dangerous work; ; Deaths from natural causes; Superior Orders; Scope of responsibilities; War Crimes; Violations of laws and customs of war; Prisoner of War Camp Regulations
Remarks
1 lawyer represented 5 Co-Accused.
Dublin Core
Title
WO235/1007
Description
Committing a War Crime
“in that they at Hong Kong, between the 13th August, 1943 and the 19th February, 1945, when the accused SHIBATA SHIGEO was Commanding Officer of the EASTERN KEMPEITAI HEADQUARTERS and the accused OBA Takao was a member of the said Headquarters, were, in violation of the laws and usages of war, together concerned in the ill treatment of civilian residents while in custody of the said Headquarters causing the death of some and physical sufferings to others.”
“in that they at Hong Kong, between the 13th August, 1943 and the 19th February, 1945, when the accused SHIBATA SHIGEO was Commanding Officer of the EASTERN KEMPEITAI HEADQUARTERS and the accused OBA Takao was a member of the said Headquarters, were, in violation of the laws and usages of war, together concerned in the ill treatment of civilian residents while in custody of the said Headquarters causing the death of some and physical sufferings to others.”
Legal Case Item Type Metadata
Case No.
WO235/1007
Accused
Capt. Shibata Shigeo (D1)
Sgt. Maj. Oba Takao (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that they at Hong Kong, between the 13th August, 1943 and the 19th February, 1945, when the accused SHIBATA SHIGEO was Commanding Officer of the EASTERN KEMPEITAI HEADQUARTERS and the accused OBA Takao was a member of the said Headquarters, were, in violation of the laws and usages of war, together concerned in the ill treatment of civilian residents while in custody of the said Headquarters causing the death of some and physical sufferings to others.”
“in that they at Hong Kong, between the 13th August, 1943 and the 19th February, 1945, when the accused SHIBATA SHIGEO was Commanding Officer of the EASTERN KEMPEITAI HEADQUARTERS and the accused OBA Takao was a member of the said Headquarters, were, in violation of the laws and usages of war, together concerned in the ill treatment of civilian residents while in custody of the said Headquarters causing the death of some and physical sufferings to others.”
Background
The first Accused (D1) was the Officer in Charge of the Eastern Kempeitai H.Q. in Hong Kong, and the second Accused (D2) was a member of his staff.
The Prosecution led evidence to prove that ill-treatment on a wide scale was meted out to civilian prisoners who were detained at the H.Q. Prisoners were beaten, "water" torture and “aeroplane” torture were used. A fierce Alsatian dog was kept there and used to savage prisoners during interrogation. Much of this evidence was of a general nature but there were specific allegations of ill-treatment by D2 personally.
The Prosecution led evidence to prove that ill-treatment on a wide scale was meted out to civilian prisoners who were detained at the H.Q. Prisoners were beaten, "water" torture and “aeroplane” torture were used. A fierce Alsatian dog was kept there and used to savage prisoners during interrogation. Much of this evidence was of a general nature but there were specific allegations of ill-treatment by D2 personally.
Allegations
The Prosecution alleged:
(1) Imprisonment of civilian residents and ill-treatment at the hands of Japanese gendarmes of the Eastern Kempeitai Headquarters, under conditions which are wholly unacceptable to normal standards of civilization;
(2) The torture which the victims suffered and their detention, amidst sordid surroundings, drove some to try and take their own life in sheer desperation;
(3) Several persons paid the supreme penalty of losing their lives under torture;
(4) Others survived with scars on their bodies, and with terible experiences.
As for D1, the Prosecution asked the Court to consider 1) whether D1, as the Commander, was liable for all the consequences which flowed out of the acts ordered by him, 2) whether D1 was instrumental in carrying out the policy of deliberate ill-treatment of civilians, and 3) whether D1 acquiesced in such acts, was concerned in them or knowingly failed to stop them.
D2 was alleged to be a consenting party to a continuous and systematic persecution and a part of the wider organization which made such tortures possible, by his active participation in the maltreatment of prisoners and prolonged attachment to the Eastern Kempeitai HQs.
The Prosecution relied on various witnesses who described the scene where D1 and D2 carried out their alleged criminal activities.
(1) Imprisonment of civilian residents and ill-treatment at the hands of Japanese gendarmes of the Eastern Kempeitai Headquarters, under conditions which are wholly unacceptable to normal standards of civilization;
(2) The torture which the victims suffered and their detention, amidst sordid surroundings, drove some to try and take their own life in sheer desperation;
(3) Several persons paid the supreme penalty of losing their lives under torture;
(4) Others survived with scars on their bodies, and with terible experiences.
As for D1, the Prosecution asked the Court to consider 1) whether D1, as the Commander, was liable for all the consequences which flowed out of the acts ordered by him, 2) whether D1 was instrumental in carrying out the policy of deliberate ill-treatment of civilians, and 3) whether D1 acquiesced in such acts, was concerned in them or knowingly failed to stop them.
D2 was alleged to be a consenting party to a continuous and systematic persecution and a part of the wider organization which made such tortures possible, by his active participation in the maltreatment of prisoners and prolonged attachment to the Eastern Kempeitai HQs.
The Prosecution relied on various witnesses who described the scene where D1 and D2 carried out their alleged criminal activities.
Defence
The Defence explained the poor living conditions of the prison as being due to shortage of food and transportation caused by Allied bombings. They also pointed out the need to conduct necessary arrests to maintain law and order in the territory.
The Defence attacked some witness statements by claiming exaggeration, inaccuracy, and mistakes of observation due to distance. It was also submitted that the witnesses failed to show that the dead bodies they saw were the result of ill-treatment by the Accused. Furthermore, every witness testified that they were given food twice a day, which is evidence that contradicts the claim that the Accused caused death by starvation in the prison.
D2 pleaded for the Court to be lenient, as the offence was minor.
The Defence attacked some witness statements by claiming exaggeration, inaccuracy, and mistakes of observation due to distance. It was also submitted that the witnesses failed to show that the dead bodies they saw were the result of ill-treatment by the Accused. Furthermore, every witness testified that they were given food twice a day, which is evidence that contradicts the claim that the Accused caused death by starvation in the prison.
D2 pleaded for the Court to be lenient, as the offence was minor.
Prosecutor
Major R.C. Lai, I.A.O.C. (Judge Advocate General’s Department, India)
Defence Counsel
Mr. Yamana Toshiso (Doctor of Law, Professor of International Law, Nihon University, Law Department, Tokyo)
Judges
President: Lt.Col. R.C. Laming (Dept of JAG India, Barrister-at-Law)
Members: Major J.T. Loranger; Capt. I. Gamble MC (JAG Branch, Canadian Army, 2nd Buffs)
Members: Major J.T. Loranger; Capt. I. Gamble MC (JAG Branch, Canadian Army, 2nd Buffs)
Advisory Officer
Capt. Kostiloff (1st Ghurka Rifles)
Prosecution Witnesses
Bea Con Yah(Lieutenant, Interpreter)
Sgt Roy ITC(Seatic Detachment, Hong Kong)
Lau Wing(Policeman)
Lau U Ting(Policeman)
Tang Kuen(Policeman)
Hoshu(Policeman)
George Samuel Ladd(Unknown)
Kung Chik Yan(Mattress Manufacturer / Police)
Tyebsee Barma(Merchant)
Dennis Victor(Dance hall operator)
A.N. Olison(Unknown)
Leung Kong(Army)
Sister Marie(Hospital worker)
Beatrice Chan(British Prison Department)
Dr. Silva Nicholas Varcassoff(Medical practitioner)
Tseng Yu Hao(Exporter and importer ? a business man)
Cheung Hok Ting(Telephone operator at hospital)
Defence Witnesses
Capt Shibata Shigeo(Accused)
OBA Takao(Accused)
William Albert Shea(Unknown)
Lt. Cel. Kawazawa Asae(Former Kempeitai)
Matsunobu Shigeru(Former Kempaitai)
Sgt Maj Kamaba(Unknown)
Trial Dates
1947-02-10
1947-02-11
1947-02-14
1947-02-17
1947-02-19
1947-02-20
1947-02-21
1947-02-22
1947-02-23
1947-02-26
1947-02-28
1947-03-03
1947-03-04
1947-03-07
Judgement Date
1947-03-07
Judgement Confirmation Date
1947-06-03
Judgement Promulgation Date
1947-06-19
Judgement
D1 – Not Guilty;
D2 – Guilty “except that the Court finds that the dates should be from October 1943 till 19th February 1945 and not from 13th August 1943 till 19th February 1945; and except for the words “together”, “the death of same” and “to others.”
D2 – Guilty “except that the Court finds that the dates should be from October 1943 till 19th February 1945 and not from 13th August 1943 till 19th February 1945; and except for the words “together”, “the death of same” and “to others.”
Petition
D2 petitioned. He admitted that he ill-treated a person at the Eastern Kempetai but submitted that the sentence was too severe.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947], observed that the Prosecution led evidence to show that ill-treatment on a wide scale was meted out to civilian prisoners who were detained in the Headquarters. “Much of this evidence was of a general nature but there were specific allegations of ill-treatment by No. 2 accused personally.”
The Judge Advocate advised that “In my opinion the defence was not very convincing and it appears that a conviction on the grounds of [Accused No.1’s] general responsibility as a commanding officer could have been sustained. No. 2 Accused admitted beating one prisoner and tying him to a tree, but stated that it was done when he was excited as the prisoner would not confess to his crime. He denied all the other allegations against him.”
The Judge Advocate advised that the petition be dismissed and the findings and sentence against D2 be confirmed.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947], observed that the Prosecution led evidence to show that ill-treatment on a wide scale was meted out to civilian prisoners who were detained in the Headquarters. “Much of this evidence was of a general nature but there were specific allegations of ill-treatment by No. 2 accused personally.”
The Judge Advocate advised that “In my opinion the defence was not very convincing and it appears that a conviction on the grounds of [Accused No.1’s] general responsibility as a commanding officer could have been sustained. No. 2 Accused admitted beating one prisoner and tying him to a tree, but stated that it was done when he was excited as the prisoner would not confess to his crime. He denied all the other allegations against him.”
The Judge Advocate advised that the petition be dismissed and the findings and sentence against D2 be confirmed.
Sentence Imposed
D2 – 3 years imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; together "concerned in"; Committed; Acquiesced; Military Command Responsibility; War Crimes; Violations of laws and customs of war; Persecution; Policy; Widespread; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Starvation; Suicide; Poor conditions of detention; Failure to provide adequate food and/or care; Failure to provide adequate medical care; Necessity
Remarks
Same lawyer - a Professor of International Law - represented both Co-Accused.
The Court visited the Eastern Gendarme Headquarters.
The Court visited the Eastern Gendarme Headquarters.
Dublin Core
Title
WO235/999
Description
Committing a War Crime
“In that, the accused, at Hong Kong between the 25th December 1941 and the 18th January 1945, as head of the Kempeitai and as such responsible for public order, the control of Kempei personnel and for the management of places of detention at Hong Kong aforesaid, was, in violation of the law of usages of war, concerned in the illtreatment of civilian residents, as a result of which numbers of them died or were unlawfully killed by members of the Japanese Forces, and many others underwent physical suffering.”
“In that, the accused, at Hong Kong between the 25th December 1941 and the 18th January 1945, as head of the Kempeitai and as such responsible for public order, the control of Kempei personnel and for the management of places of detention at Hong Kong aforesaid, was, in violation of the law of usages of war, concerned in the illtreatment of civilian residents, as a result of which numbers of them died or were unlawfully killed by members of the Japanese Forces, and many others underwent physical suffering.”
Legal Case Item Type Metadata
Case No.
WO235/999
Accused
Col. Noma Kennosuke
Court
Military Court for the Trial of War Criminals No. 7
Charge Date
1946-10
Charge
Committing a War Crime
“In that, the accused, at Hong Kong between the 25th December 1941 and the 18th January 1945, as head of the Kempeitai and as such responsible for public order, the control of Kempei personnel and for the management of places of detention at Hong Kong aforesaid, was, in violation of the law of usages of war, concerned in the illtreatment of civilian residents, as a result of which numbers of them died or were unlawfully killed by members of the Japanese Forces, and many others underwent physical suffering.”
“In that, the accused, at Hong Kong between the 25th December 1941 and the 18th January 1945, as head of the Kempeitai and as such responsible for public order, the control of Kempei personnel and for the management of places of detention at Hong Kong aforesaid, was, in violation of the law of usages of war, concerned in the illtreatment of civilian residents, as a result of which numbers of them died or were unlawfully killed by members of the Japanese Forces, and many others underwent physical suffering.”
Background
The Accused, Colonel Noma Kennosuke, was the Commanding Officer of the Gendarmerie, otherwise known as the Kempeitai, in Hong Kong from the time of invasion in December 1941 to February 1945. His successor was Col. Kanazawa Asao (see Case No. WO/235/1093).
During this time, he was allegedly responsible for, inter alia, public order, control of the Kempeitai and also the management of various places of detention.
During this time, he was allegedly responsible for, inter alia, public order, control of the Kempeitai and also the management of various places of detention.
Allegations
The Prosecution sought to establish that Noma was a commander responsible for his subordinates’ violations of the laws and customs of war, including (1) Mismanagement of places of detention resulting in overcrowding, starvation, torturing, refusal of medical attention and consequential sufferings and deaths (2) Illegal executions and (3) Mass deportation of civilians from Hong Kong from about 1942 or 1943.
Mismanagement of places of detention
In respect of the first charge, the Prosecution adduced evidence from 8 different Gendarmerie stations concerning mistreatment, beating, torture, inadequate food and water and refusal to provide medical attention and the use of dogs to harass and interrogate detainees. The Prosecution argued that they had been committed by Japanese Gendarmes under the Accused’s control, and that the Accused had knowledge or otherwise warnings which he recklessly disregarded. Such knowledge was acquired from statements or complaints made by persons including the then Governor-General Isogai, members of the Chinese Co-Operative Council or from the Accused’s presence during the alleged mistreatment, and inference of such knowledge from the scale of occurrence and short distance from the Accused’s headquarters.
Illegal executions
In respect of the second charge, the Prosecution argued that there had been execution of civilians without trial. The Prosecution relied on testimonies and the admission made by the Accused that he was aware of the illegality of execution without a trial but he ordered his men to do so.
Mass “deportation” of civilians
The Prosecution argued that there had been a mass “deportation” scheme in which the Accused had volunteered to participate. It was alleged that the scheme was to remove impoverished persons to various places including the open sea; Bias Bay (now Daya Bay); Low Chow (now part of the Po Toi Islands); Mirs Bay (also known as Dapeng Bay). This was done owing to a shortage of food in Hong Kong. The policy ultimately led to the indiscriminate "deportation" of persons – including children and those who had employment. The Prosecution argued that the arrest and “deportation” of these persons was indiscriminate. The Prosecution also said that these were done with the knowledge of the Accused, who had admitted being aware that the Gendarmes were not following instructions.
Overall, the Prosecution submitted that the Accused failed to take adequate steps to correct the aforementioned acts, with the result that the detainees’ situation worsened and persons were executed in as late as 1944. The deportation scheme remained operational until 1945.
Mismanagement of places of detention
In respect of the first charge, the Prosecution adduced evidence from 8 different Gendarmerie stations concerning mistreatment, beating, torture, inadequate food and water and refusal to provide medical attention and the use of dogs to harass and interrogate detainees. The Prosecution argued that they had been committed by Japanese Gendarmes under the Accused’s control, and that the Accused had knowledge or otherwise warnings which he recklessly disregarded. Such knowledge was acquired from statements or complaints made by persons including the then Governor-General Isogai, members of the Chinese Co-Operative Council or from the Accused’s presence during the alleged mistreatment, and inference of such knowledge from the scale of occurrence and short distance from the Accused’s headquarters.
Illegal executions
In respect of the second charge, the Prosecution argued that there had been execution of civilians without trial. The Prosecution relied on testimonies and the admission made by the Accused that he was aware of the illegality of execution without a trial but he ordered his men to do so.
Mass “deportation” of civilians
The Prosecution argued that there had been a mass “deportation” scheme in which the Accused had volunteered to participate. It was alleged that the scheme was to remove impoverished persons to various places including the open sea; Bias Bay (now Daya Bay); Low Chow (now part of the Po Toi Islands); Mirs Bay (also known as Dapeng Bay). This was done owing to a shortage of food in Hong Kong. The policy ultimately led to the indiscriminate "deportation" of persons – including children and those who had employment. The Prosecution argued that the arrest and “deportation” of these persons was indiscriminate. The Prosecution also said that these were done with the knowledge of the Accused, who had admitted being aware that the Gendarmes were not following instructions.
Overall, the Prosecution submitted that the Accused failed to take adequate steps to correct the aforementioned acts, with the result that the detainees’ situation worsened and persons were executed in as late as 1944. The deportation scheme remained operational until 1945.
Defence
The Defence argued firstly, that Prosecution witnesses were biased against the Japanese and exaggerated the situation. The Defence based its challenge to the first charge primarily on this. It also claimed that dogs that were used to harass prisoners might not belong to the Gendarmerie. The responsibility regarding food supply rested with the Governor-General and not the Accused. It was also alleged that there was in fact no overcrowding nor intolerable situations; and that there had been a “certain extent” of medical attention being given.
On the point of what the Accused actually knew, the Defence submitted that the Accused could not have heard the screams of the victims of torture (in the same building); that the witness testimony concerning his presence on the scene of the torture was unreliable; that the Accused had always warned his subordinates about proper interrogation procedures.
Regarding the second charge, the Defence argued (in addition to the submission on unreliable evidence), the Accused was sometimes “compelled” to order executions further to the directions of the-then Chief of Staff. The Accused had protested such order and had also warned his subordinates that this would be an extraordinary measure.
On the issue of “deportation”, the Defence admitted there was a “plan to reduce the population” under the jurisdiction of the Governor-General. The Civil Affairs Department was responsible for the plan with, inter alia, cooperation from the Gendarmerie, which later took over the control of the execution of the plan. However, the Defence alleged that the Accused continually opposed the plan until he received an order from the Governor-General. The Defence argued that those evicted were only beggars, vagrants, minor offenders, people without rice ration cards and illegal immigrants. It argued that there could have been a mistake in the deportation policy, but that should not be blamed on the Kempeitai, but on the Civil Affairs Department and the Governor-General who insisted on stern application of the policy. The Accused only faithfully executed the order from his superiors.
Furthermore, the Defence argued that there was only one instance of illegal execution, an isolated incident, which was also done pursuant to a superior order. It also submitted that he lacked knowledge of any illegal acts since he had been continually cautioning his subordinates. When he had knowledge of some misconduct, he had imposed severe punishments on the offenders. Therefore, he would have punished the wrongdoer had he been informed of the alleged acts. Furthermore, he should not be blamed for the lack of knowledge since the lower subordinates were supervised by District Commanders, who were already supervised by the Accused by requiring daily reports or weekly meetings.
On the point of what the Accused actually knew, the Defence submitted that the Accused could not have heard the screams of the victims of torture (in the same building); that the witness testimony concerning his presence on the scene of the torture was unreliable; that the Accused had always warned his subordinates about proper interrogation procedures.
Regarding the second charge, the Defence argued (in addition to the submission on unreliable evidence), the Accused was sometimes “compelled” to order executions further to the directions of the-then Chief of Staff. The Accused had protested such order and had also warned his subordinates that this would be an extraordinary measure.
On the issue of “deportation”, the Defence admitted there was a “plan to reduce the population” under the jurisdiction of the Governor-General. The Civil Affairs Department was responsible for the plan with, inter alia, cooperation from the Gendarmerie, which later took over the control of the execution of the plan. However, the Defence alleged that the Accused continually opposed the plan until he received an order from the Governor-General. The Defence argued that those evicted were only beggars, vagrants, minor offenders, people without rice ration cards and illegal immigrants. It argued that there could have been a mistake in the deportation policy, but that should not be blamed on the Kempeitai, but on the Civil Affairs Department and the Governor-General who insisted on stern application of the policy. The Accused only faithfully executed the order from his superiors.
Furthermore, the Defence argued that there was only one instance of illegal execution, an isolated incident, which was also done pursuant to a superior order. It also submitted that he lacked knowledge of any illegal acts since he had been continually cautioning his subordinates. When he had knowledge of some misconduct, he had imposed severe punishments on the offenders. Therefore, he would have punished the wrongdoer had he been informed of the alleged acts. Furthermore, he should not be blamed for the lack of knowledge since the lower subordinates were supervised by District Commanders, who were already supervised by the Accused by requiring daily reports or weekly meetings.
Prosecutor
Major D.G. McGregor (Black Watch)
Defence Counsel
Yoshizumi Tatsuichi (Japan, Barrister-at-law)
The Court denied the Accused’s request for an English Defence Counsel.
The Court denied the Accused’s request for an English Defence Counsel.
Judges
President: Lt. Col. C.F. Bell (Dept. of JAG, India, Barrister-at-law); Members: Major M.I. Ormsby (West Yorks Regiment); Capt R.B.R. Gorely (King’s Royal Rifle Corps.)
Advisory Officer
Capt. J.N. Whitehorn
Prosecution Witnesses
Capt. Henry Claude Glover(Capt. Of British Army attached to War Crimes Investigation)
Lt. Yau Dick-yee(Intelligence Officer)
Sgt/Major Akamatsu Keisuke(Gendarme attached to the Western District)
Insp. David Mann(Police Officer)
Matsuda Kinichiro(Interpreter to David Mann)
J.A. Stericker(Factory Manager)
Lt.-Col. Kogi Kasuo(Prosecutor at Court-Martial, Person-in-Charge of the Stanley Prison)
Lt.-Col. Kanazawa Asao(Person-in-Charge of the Police Affairs Department of the Government-General)
Dr. Siegfried Ramler(Physician)
George Tong(Court Interpreter of the No. 7 War Crimes Court)
Fred Nogami(Linguist, War Crimes Investigation Unit, C.S.M., Canadian Intelligence Corps)
Cheng Kwai(Construction Businessman)
Lam Wah(Farmer)
Lam Kiu-Wai(Construction Businessman)
Jerome Edward Law(Merchant)
Joseph Venpin(Merchant)
Lau Yiu-Tung(Police Interpreter, Stanley Police Station)
Ho Shu(Policeman, Causeway and Taikoo Station)
Tang Kuen(Policeman, Police Training School and Eastern Gendarmerie)
William Hong Sling(Unknown position, Government Relief Section)
Cyril Munro Faure(Merchant)
George Samuel Ladd(Accountant)
Archibald Gilbert Gardner(Merchant)
Miss Beatrice Chan(Unemployed (On Pension))
Cheng Sung(Farmer)
Denis Victor(Owner of a Dancing Hall)
Noma Isame(Interpreter)
Tsang Pei-Fu(Unemployed, had worked in the gaol in the Central Police State / Western Gendarmerie)
Edward David Sykes(Merchant)
Tam Choi(Policeman, Western District Gendarmerie)
Lai Chung-Yiu(Junior Clerk in the Government Service.)
Cheng Mo-Ching(Unknown (Spouse of an arrestee))
Dr. Kwok-Wing Chuan(Dental Practitioner)
Abdul Kadir Omar(Supervisor, Hong Kong Diary Farm, Ice and Cold Storage Co. Ltd.)
Mrs. Mary E. Silva Dorabjee(Unknown)
Capt. Rudy Choy(Land Forces, Hong Kong)
Wu Wai(Professor in Accounting)
Frederick Tyndall(Assistant Engineer and Manager, Hong Kong Gas Co.)
Lau Shiu-Chuen(Unknown, Broadcasting Station.)
Dinga Dharamdas Sehwani(Merchant)
Choy Hing-Cheung(Mechanic)
Rampal Ghilote(Civil Servant)
Inouye Kanao(Interpreter, Hong Kong Gendarmerie Headquarter)
Ho Fook-Sang(Rent Collector)
Chan Wai-Chi(Unknown (Spouse of a detainee))
Li Koon-Chun(Merchant)
Chan Heung-Pak(Secretary, Kwong Fat Yuen Hong; Chinese Co-operative Council.)
Major Chan Ying Hung(Legal Major, War Crimes Investigation Unit, Hong Kong)
To Wai(Interpreter and Translator)
Sir Robert Hormus Kotewall(Merchant)
Tsang Mau-Ting(Unknown (Spouse of a detainee))
Kwok Po-Man(Assistant Chief Clerk, War Crimes Investigation Unit)
Pang Yam-Sing(Fisherman. Formerly Watchman of the Swimming Sheds)
Charles Alexander Allen(Journalist, South China Morning Post)
Lai Kam-Shing(Fish Merchant)
Li Chung-Ching(Building Contractor)
Kwok Kin-Wang(Merchant)
Kan Man(Merchant)
David Ronald Holmes(Officer, British Army Aid Group)
Major Douglas Gordon McGregor(Prosecutor, No. 7 War Crimes Court)
Defence Witnesses
Col. Noma Kennosuke(Accused)
Capt. Yatagai Sukeo(Assistant to the Chief of Hong Kong Gendarmerie)
Major Shiozawa Kunio(Gendarme Major)
Hayashi Sadataro(Gendarme Sergeant/Major)
Hirao Yoshio(Gendarme Major)
Lt. Imamure Ichiro(Lieutenant-Commander, Intelligence Section)
Capt. Shibeta Shigeo(Gendarme Captain, Eastern District Gendermerie)
Robert Steen Smith(Assistant Crown Solicitor, Hong Kong Government)
Sgt. Nagahara Masakichi(Gendarme Sergeant)
Capt. Yushiyama Yukio(Gendarme Captain)
Capt. John Neville Whitehorn(Advisory Officer, No. 7 War Crimes Court)
Ichiko Hiroshi(Interpreter, War Crimes Court)
Yamamoto Tomonori(Interpreter, War Crimes Court)
Sgt. Matsuda Kenichi(Gendarme Sergeant)
Trial Dates
1946-12-24
1946-12-28
1946-12-30
1946-12-31
1947-01-02
1947-01-03
1947-01-04
1947-01-06
1947-01-07
1947-01-08
1947-01-09
1947-01-10
1947-01-11
1947-01-13
1947-01-14
1947-01-16
1947-02-10
1947-02-11
1947-02-12
1947-02-13
1947-02-14
1947-02-15
1947-02-17
1947-02-18
1947-02-24
Judgement Date
1947-02-24
Judgement Confirmation Date
1947-05-14
Judgement Promulgation Date
1947-05-23
Judgement
Held:
1. The Accused was guilty;
2. The Accused be sentenced to death by hanging.
1. The Accused was guilty;
2. The Accused be sentenced to death by hanging.
Petition
There is no record of a petition.
According to the review of the Judge Advocate on 18 April 1947 [Unidentified Brigadier, DJAG, South East Asia Land Forces], “there was ample evidence to support the findings of the court and I advise confirmation of the proceedings”. He observed that “There is no doubt that detention, torture and deaths through various causes, including illegal execution, can be laid at the door of the gendarmerie and that the Accused was implicated. During the trial he admitted that he had ordered the execution without trial of certain civilians at the command of the Chief of Staff.”
The Judge Advocate reported that the Defence pointed out that several Prosecution witnesses were collaborators and might well be motivated by a desire to curry favour with the British administration. “The evidence of witnesses showed many discrepancies and defence counsel sought to attack their credibility. It was also argued that the Accused was a conscientious officer and that malpractices, if any, on the part of his subordinates were done without his knowledge or consent.”
According to the review of the Judge Advocate on 18 April 1947 [Unidentified Brigadier, DJAG, South East Asia Land Forces], “there was ample evidence to support the findings of the court and I advise confirmation of the proceedings”. He observed that “There is no doubt that detention, torture and deaths through various causes, including illegal execution, can be laid at the door of the gendarmerie and that the Accused was implicated. During the trial he admitted that he had ordered the execution without trial of certain civilians at the command of the Chief of Staff.”
The Judge Advocate reported that the Defence pointed out that several Prosecution witnesses were collaborators and might well be motivated by a desire to curry favour with the British administration. “The evidence of witnesses showed many discrepancies and defence counsel sought to attack their credibility. It was also argued that the Accused was a conscientious officer and that malpractices, if any, on the part of his subordinates were done without his knowledge or consent.”
Sentence Imposed
Death Penalty, carried out on 27 May 1947 at Stanley Prison, Hong Kong
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; Interrogation; Forced transfer/deportation; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Neglect; Starvation; Failure to provide adequate food and/or care; Poor conditions of detention; Ordering; "concerned in"; Military Command Responsibility; Ordered; Superior Orders; Duress; Mitigating Circumstances; War Crimes; Violations of laws and customs of war
Remarks
Link to the case of his successor, Col. Kanazawa Asao (WO/235/1093), and all Hong Kong Kempeitai cases from 25 December 1941 to 10 February 1945.
Dublin Core
Title
WO235/993
Description
“Committing a war crime in that they at LANTAU ISLAND between 18 Aug. 45 and 26 Aug. 45 in violation of the laws and usages of war were together concerned in the beating, torture and maltreatment of inhabitants of the SILVER MINE BAY district of LANTAU aforesaid and in the killing of nine of the said inhabitants.”
Legal Case Item Type Metadata
Case No.
WO235/993
Accused
Lt. Kishi Yasuo (D1)
Lt. Matsumoto Chozaburo (D2)
W.O. Yanagizawa Sadao (D3)
S.M. Kodama Mitsutoshi (D4)
S.M. Uchida Hiroshi (D5)
Sjt. Jomori Riichi (D6)
Sjt. Sato Yoshio (D7)
Sjt. Yoshikawa Gunichi (D8)
Cpl. Kamishiro Katsumasa (D9)
L/Cpl. Takenaka Sekimatsu (D10)
L/Cpl. Ando Takashi (D11)
1/Pte. Takahashi Harukiko (D12)
Pte. Nishizawa Kenro (D13)
Pte. Uemura Gisaku (D14)
Pte. Okamoto Kichitaro (D15)
Court
Military Court for the Trial of War Criminals No. [not specified]
Charge
“Committing a war crime in that they at LANTAU ISLAND between 18 Aug. 45 and 26 Aug. 45 in violation of the laws and usages of war were together concerned in the beating, torture and maltreatment of inhabitants of the SILVER MINE BAY district of LANTAU aforesaid and in the killing of nine of the said inhabitants.”
Background
All the Accused were members of the Imperial Japanese Army. In August 1945, they were responsible for the Silver Mine Bay district of the Island of Lantau. D1 was the Company Commander. D2 was in charge of the unit in Silver Mine Bay under D1.
The events took place between 19-27 August 1945, after the company was attacked by Chinese guerillas. This was after the Japanese Emperor’s capitulation on 15 August 1945. The Japanese repulsed the attack. They proceeded to three villages in the neighbourhood. They allegedly burned and looted the villages, and killed some of the villagers, including women, and arrested 300 others.
The events took place between 19-27 August 1945, after the company was attacked by Chinese guerillas. This was after the Japanese Emperor’s capitulation on 15 August 1945. The Japanese repulsed the attack. They proceeded to three villages in the neighbourhood. They allegedly burned and looted the villages, and killed some of the villagers, including women, and arrested 300 others.
Allegations
The Prosecution alleged that D1 was absent from his company at the time and the orders were given by D2. The arrested persons were taken to a swimming shed on a beach and were tied to stakes and beaten.
When D1 returned, he resumed control and interrogated two Chinese elders, Tsang Sau and Lam Fook, and eventually beheaded them. The same evening, several villagers were beaten and tortured by D1 and his subordinates.
The next day, all the villagers were released except 20 men who continued to be detained. The detained men were tied up to poles, beaten and maltreated again. The Japanese made no attempt to supply food and they were dependent on relatives to bring food to them. Two more Chinese, So Po Wa and Leung Tung Cheong, were executed by D5 on the orders of D2.
On 22 August 1945, the Japanese raided another village and shot a Chinese called Lam Tsah. Lam Kuan was also arrested and later executed by D1.
When D1 returned, he resumed control and interrogated two Chinese elders, Tsang Sau and Lam Fook, and eventually beheaded them. The same evening, several villagers were beaten and tortured by D1 and his subordinates.
The next day, all the villagers were released except 20 men who continued to be detained. The detained men were tied up to poles, beaten and maltreated again. The Japanese made no attempt to supply food and they were dependent on relatives to bring food to them. Two more Chinese, So Po Wa and Leung Tung Cheong, were executed by D5 on the orders of D2.
On 22 August 1945, the Japanese raided another village and shot a Chinese called Lam Tsah. Lam Kuan was also arrested and later executed by D1.
Defence
D1 admitted he arrested and executed three Chinese. But, he said that the guerillas had attacked the garrison and that all measures taken by him were in Self Defence. According to the Defence, “he was charged by his Commanding Officer with the preservation of law and order on the Island…and might use any weapons in self defence”. D1 asserted that the villages he later raided had actively aided the guerillas. Under International Law, he was allowed to take offensive measures against civilians who had taken up arms against the Japanese. He denied torturing any of the arrested persons.
D2 also raised Self Defence. He admitted having ordered the execution of two Chinese but denied the alleged torture or maltreatment. He sought to justify the executions as a preventive measure against further attacks.
D3 and 4 admitted being present at the scene and taking part in the operations against the guerillas, but denied being present at or concerned in the executions. They also denied the alleged torture and maltreatment, by claiming that evidence of witnesses was either false or too grossly exaggerated to be reliable.
D5 admitted he had executed two Chinese but said it was done according to the orders of D2. He had no alternative but to obey. He added that he fully believed the two executed Chinese were members of the guerillas force so he did not consider it was unlawful to execute them. He also denied any tortures or maltreatments.
D9 said he was not concerned in any executions or killings. With regard to torture and maltreatment, he said the most he had done was slap the Chinese who had attempted to escape from the beach, which he was authorized to do so. He denied using water torture or beating with sticks.
D7, 8, 10, 13, 14 were in charge of the Chinese tied up on the beach. They said they had acted entirely on Superior Orders and denied the alleged torture or maltreatment. D8 admitted slapping some Chinese but said it was under the order of D1. D13 and 14 said they merely guarded the arrested persons and did not beat any of them.
D15 was an interpreter and said that he had been identified so many times because of his constant presence, due to his role as interpreter. He said much evidence from witnesses was false. A witness was also called on his behalf to testify as to his good character.
D6 and 11 admitted being members of the unit but claimed that they were not present at the time of the alleged offence. They called witnesses to support their alibis which the court accepted.
D12 was not called upon for his defence, as there was no evidence against him.
D2 also raised Self Defence. He admitted having ordered the execution of two Chinese but denied the alleged torture or maltreatment. He sought to justify the executions as a preventive measure against further attacks.
D3 and 4 admitted being present at the scene and taking part in the operations against the guerillas, but denied being present at or concerned in the executions. They also denied the alleged torture and maltreatment, by claiming that evidence of witnesses was either false or too grossly exaggerated to be reliable.
D5 admitted he had executed two Chinese but said it was done according to the orders of D2. He had no alternative but to obey. He added that he fully believed the two executed Chinese were members of the guerillas force so he did not consider it was unlawful to execute them. He also denied any tortures or maltreatments.
D9 said he was not concerned in any executions or killings. With regard to torture and maltreatment, he said the most he had done was slap the Chinese who had attempted to escape from the beach, which he was authorized to do so. He denied using water torture or beating with sticks.
D7, 8, 10, 13, 14 were in charge of the Chinese tied up on the beach. They said they had acted entirely on Superior Orders and denied the alleged torture or maltreatment. D8 admitted slapping some Chinese but said it was under the order of D1. D13 and 14 said they merely guarded the arrested persons and did not beat any of them.
D15 was an interpreter and said that he had been identified so many times because of his constant presence, due to his role as interpreter. He said much evidence from witnesses was false. A witness was also called on his behalf to testify as to his good character.
D6 and 11 admitted being members of the unit but claimed that they were not present at the time of the alleged offence. They called witnesses to support their alibis which the court accepted.
D12 was not called upon for his defence, as there was no evidence against him.
Prosecutor
Capt. J.F. Reilly, Staff Capt. (Legal) HQ. ALFSEA
Defence Counsel
Capt. M. Croft, R.A.S.C
Judges
President: Lt-Col. J.C. Stewart (Dept. of JAG in India) (Solicitor)
Members: Major. M.I. Ormsby (West Yorks. R.), Capt. B.N. Kaul (Frontier Force R.)
Members: Major. M.I. Ormsby (West Yorks. R.), Capt. B.N. Kaul (Frontier Force R.)
Prosecution Witnesses
Tsang Lai-Fook(Village Elder)
Chow Por-Po(Farmer)
Tsang Lin(Businessman)
Ko Ting-Fung(Worker, Great China Match Company)
Young Tsun-Dart(Secretary, Yamati Ferry Company)
Wong Yee(Villager)
Tsang Chi-Shing(Businessman)
Tam Ling(Farmer)
Fong Lam(Villager)
Lau Nam(Villager)
Lam Mau-Fook(Farmer)
Ho Tam(Farmer)
To Piu(Farmer)
Lee Yan(Farmer)
Lam Sze-Ling(Farmer)
To kan(Villager)
Lam Ling-Kui(Unknown)
Lam Wing(Villager)
Tsang Yuk-Ming(Villager)
Wan Kam-Ho(Unknown)
Ho Kwai-Sang(Coolie of Cheung Chau Public School)
To Hi-Yeung(Farmer)
Ho Yick(Businessman)
Li Chak(Unknown)
Fan Fook(Farmer)
Ng Ying(Wife of deceased)
Yin Kuk(Unknown)
Chief Inspector Leonard Tiler(Chief Inspector)
Yeung Wing Yau(Villager)
Lo Lan(Unknown)
Oe Harukichi(Corporal, Japanese Army)
Sasaki Munihiko(1st Cl. Ptd. Japanese Army)
Kuriyama Jirokichi(Sasaki Munihiko)
Yamamoto Ishitaro(Soldier, Japanese Army)
Defence Witnesses
Kishi Yasuo(D1)
Yamashita Kasuo(Lt-Colonel, Japanese Army)
Yasuhara Toshio(Captain, Japanese Army)
Yoshinari Mikio(Sergeant)
Matsuba Masatoshi(Soldier, Japanese Army)
Matsuhoto Chosaburo(D2)
Yanagizawa Sadao(D3)
Kodama Mitsuitoshi(D4)
Uchida Hiroshi(D5)
Jomori Riichi(D6)
Okawa Shiro(Soldier, Japanese Army)
Sato Yoshio(Sergeant)
Yoshikawa Gunichi(D8)
Kamishiro Katsumasa(D9)
Takenaka Sekimatsu(Corporal)
Ando Takashi(D11)
Kiraki Yoshinori(Unknown)
Matsuo Yasuo(Soldier)
Nishizawa Kenro(Soldier)
Uemura Gisaku(Third Class Private)
Okamoto Kichitaro(Second Class Private)
Nishu Utsuki(Buddhist Church Worker)
Trial Dates
1946-03-28
1946-03-29
1946-03-30
1946-04-01
1946-04-02
1946-04-03
1946-04-04
1946-04-05
1946-04-06
1946-04-08
1946-04-10
1946-04-11
1946-04-12
1946-04-13
1946-04-15
1946-04-16
1946-04-17
1946-04-18
1946-04-20
1946-04-23
1946-04-24
1946-04-25
Judgement Confirmation Date
1946-04-25
Judgement
Held:
1. D1, D2, D3, D4, D5, D9: Convicted of the full charge with the substitution of the word “six” for “nine”;
2. D7, D8, D10, D13, D14, D15: Convicted of being concerned in beating, torture and maltreatment;
3. D6, D11, D12: Acquitted.
1. D1, D2, D3, D4, D5, D9: Convicted of the full charge with the substitution of the word “six” for “nine”;
2. D7, D8, D10, D13, D14, D15: Convicted of being concerned in beating, torture and maltreatment;
3. D6, D11, D12: Acquitted.
Petition
All convicted Accused submitted petitions against the findings and sentences of the Court. The Judge Advocate [unidentified Brigadier, DJAG, Allied Land Forces, SEA, 11 June 1946] advised that all the petitions were “mere repetitions of the defence of the accused put forward at trial”.
The Judge Advocate observed the following.
“The case was long and involved the calling of many witnesses to identify the accused and establish individual acts of torture and maltreatment against such of them as were found guilty. There was no doubt that on 19 August 45 an attack was made on the Japanese garrison at Lantau by guerillas. There was however no evidence that this guerilla force was implemented or assisted by the villagers whom the Japanese subsequently arrested and executed. This incident occurred during the uneasy period between the Mikado’s speech and the formal surrender and while the Japanese were during this period entitled to defend themselves against attack, they were not entitled to execute anyone without trial, least of all innocent villagers. Accused 1 and 2 admitted having ordered these illegal executions and there was ample evidence before the court to identify such of the other accused as were convicted of torturing and maltreatment of the villagers. It is clear that accused 5 apart from carrying out some of the executions took a leading and enthusiastic part in organizing and inflicting the torture. The degree of culpability of the other accused is reflected in the sentences awarded by the Court.”
He advised that the findings and charges be confirmed, and the petitions be dismissed.
The Judge Advocate noted that the Prosecutor in this case was withdrawn from further prosecutions at war crimes trials.
The Judge Advocate observed the following.
“The case was long and involved the calling of many witnesses to identify the accused and establish individual acts of torture and maltreatment against such of them as were found guilty. There was no doubt that on 19 August 45 an attack was made on the Japanese garrison at Lantau by guerillas. There was however no evidence that this guerilla force was implemented or assisted by the villagers whom the Japanese subsequently arrested and executed. This incident occurred during the uneasy period between the Mikado’s speech and the formal surrender and while the Japanese were during this period entitled to defend themselves against attack, they were not entitled to execute anyone without trial, least of all innocent villagers. Accused 1 and 2 admitted having ordered these illegal executions and there was ample evidence before the court to identify such of the other accused as were convicted of torturing and maltreatment of the villagers. It is clear that accused 5 apart from carrying out some of the executions took a leading and enthusiastic part in organizing and inflicting the torture. The degree of culpability of the other accused is reflected in the sentences awarded by the Court.”
He advised that the findings and charges be confirmed, and the petitions be dismissed.
The Judge Advocate noted that the Prosecutor in this case was withdrawn from further prosecutions at war crimes trials.
Sentence Imposed
1. D1, D2, D5: Death by hanging;
2. D3, D9: 10 years imprisonment;
3. D8: 8 years imprisonment;
4. D4: 5 years imprisonment;
5. D7, D10, D13, D14, D15: 2 years imprisonment
2. D3, D9: 10 years imprisonment;
3. D8: 8 years imprisonment;
4. D4: 5 years imprisonment;
5. D7, D10, D13, D14, D15: 2 years imprisonment
Keywords
Hong Kong; Imperial Japanese Army; Civilians; Guerilla activity; "together concerned in"; Committed; Order; Superior Order; Alibi; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Arbitrary or summary punishment; Attempted escape; Self Defence; Reprisal; Command Responsibility; War Crimes; Violations of laws and customs of war
Remarks
1 defence counsel for 15 co-Accused.
Japan capitulated on 15 August 1945, with the formal surrender of Hong Kong to Rear Admiral Sir Cecil Harcourt taking place on 16 September 1945. The events in this case took place between capitulation and formal surrender.
See the accounts of Mr. Peter Vine and Mr. Chan Sui-jueng elsewhere on this website.
Japan capitulated on 15 August 1945, with the formal surrender of Hong Kong to Rear Admiral Sir Cecil Harcourt taking place on 16 September 1945. The events in this case took place between capitulation and formal surrender.
See the accounts of Mr. Peter Vine and Mr. Chan Sui-jueng elsewhere on this website.
Dublin Core
Title
WO235/982
Description
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they at Heito Camp, Formosa, between July 1942 and March 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to many and contributing to the death of some.”
Second Charge (against first Accused)
“COMMITTING A WAR CRIME, in that they at Kokutsu Camp, Formosa, between May and August 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to the said POWs.”
“COMMITTING A WAR CRIME, in that they at Heito Camp, Formosa, between July 1942 and March 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to many and contributing to the death of some.”
Second Charge (against first Accused)
“COMMITTING A WAR CRIME, in that they at Kokutsu Camp, Formosa, between May and August 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to the said POWs.”
Legal Case Item Type Metadata
Case No.
WO235/982
Accused
Lt. Tamaki Koji (D1)
Sgt. Chiba Arashi (D2)
Sgt. Fujiie Horoji (D3)
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they at Heito Camp, Formosa, between July 1942 and March 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to many and contributing to the death of some.”
Second Charge (against first Accused)
“COMMITTING A WAR CRIME, in that they at Kokutsu Camp, Formosa, between May and August 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to the said POWs.”
“COMMITTING A WAR CRIME, in that they at Heito Camp, Formosa, between July 1942 and March 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to many and contributing to the death of some.”
Second Charge (against first Accused)
“COMMITTING A WAR CRIME, in that they at Kokutsu Camp, Formosa, between May and August 1945, whilst members of the Camp Staff of Heito Camp were in violation of the laws and usages of war together concerned in the ill-treatment of Prisoners of War in their custody, causing suffering to the said POWs.”
Background
All the Accused were members of the staff of one of the Japanese Prisoners of War (‘POW’) Camps in Formosa (Taiwan) – the Heito Camp (also known as Camp No. 3) located in the south of Formosa.
The first Accused (D1) was a work manager and administrative officer of the Camp and was later promoted to Camp Commandant. The second Accused (D2) was a Quartermaster Assistant and N.C.O. at the Camp, and the third Accused (D3) was a Medical Corporal, later promoted to the rank of Sergeant.
D1 was also second in command and Administrative Officer at Kokutsu Camp.
In essence, the case was about ill-treatment of POWs, causing suffering to all and death to some of them.
The first Accused (D1) was a work manager and administrative officer of the Camp and was later promoted to Camp Commandant. The second Accused (D2) was a Quartermaster Assistant and N.C.O. at the Camp, and the third Accused (D3) was a Medical Corporal, later promoted to the rank of Sergeant.
D1 was also second in command and Administrative Officer at Kokutsu Camp.
In essence, the case was about ill-treatment of POWs, causing suffering to all and death to some of them.
Allegations
Charge One (Heito Camp)
This was a joint charge against all Accused.
Regarding the first Accused, the prosecution sought to establish that he personally inspired a policy of ill-treatment, humiliation and degradation of POWs and that the POWs were in fact his “bêtes noires”.
It was alleged that the ill-treatment committed against the POWs included beating irrespective of their states of health (using bare fist or bamboo poles or sabers); insufficient food for all POWs (e.g. 480g of rice daily maximum for heavy workers, sometimes arbitrarily taken away); starvation; misappropriation of Red Cross food and supplies; forcing the sick to do manual work; failure to provide air raid shelters; collective punishment; forcing POWs to kneel for hours under the sun; holding in stress positions (e.g. “up position” of push-ups or the ”hands down” treatment ) for hours etc.
The inadequate diet and care caused the POWs to become malnourished, thus indirectly or directly causing the prevalence of diseases such as malaria and beri-beri among the POWs.
D2 was alleged to have viciously beaten a number of POWs. He was also said to have misappropriated Red Cross supplies.
D3 was alleged to be responsible for denial of medical treatment to the sick. He also participated willingly in the first Accused’s policy of forcing the sick to work and also in beating a number of POWs.
Charge Two (Kokutsu Camp)
This was just against D1. It was alleged that he continued his policy of ill-treatment of POWs, resulting in physical suffering to the POWs, in the Kokutsu Camp.
This was a joint charge against all Accused.
Regarding the first Accused, the prosecution sought to establish that he personally inspired a policy of ill-treatment, humiliation and degradation of POWs and that the POWs were in fact his “bêtes noires”.
It was alleged that the ill-treatment committed against the POWs included beating irrespective of their states of health (using bare fist or bamboo poles or sabers); insufficient food for all POWs (e.g. 480g of rice daily maximum for heavy workers, sometimes arbitrarily taken away); starvation; misappropriation of Red Cross food and supplies; forcing the sick to do manual work; failure to provide air raid shelters; collective punishment; forcing POWs to kneel for hours under the sun; holding in stress positions (e.g. “up position” of push-ups or the ”hands down” treatment ) for hours etc.
The inadequate diet and care caused the POWs to become malnourished, thus indirectly or directly causing the prevalence of diseases such as malaria and beri-beri among the POWs.
D2 was alleged to have viciously beaten a number of POWs. He was also said to have misappropriated Red Cross supplies.
D3 was alleged to be responsible for denial of medical treatment to the sick. He also participated willingly in the first Accused’s policy of forcing the sick to work and also in beating a number of POWs.
Charge Two (Kokutsu Camp)
This was just against D1. It was alleged that he continued his policy of ill-treatment of POWs, resulting in physical suffering to the POWs, in the Kokutsu Camp.
Defence
The Defence argued first, that there was a policy concerning the treatment of POWs, formulated by the Chief Camp Commandant, Col Sazawa. In essence, the policy provided that (1) there should be a peaceful atmosphere and (2) POWs should be sent back home once the war ended. The policy required staff to:
(1) maintain the POWs health;
(2) give the best rations possible;
(3) encourage self-sufficiency;
(4) maintain strict guarding; and
(5) maintain strict discipline among Japanese soldiers.
D1 formulated his policy on the basis of these and thus the four rules were developed: (i) take anti-disease measures (ii) increase the work efficiency of POWs (iii) provide amenities and recreations (iv) improve the rations. D1 was only trying to implement the official policy into practice
On the issue of forced labour, it was argued that:
(1) there was no policy that there would be a fixed amount of labour each day, therefore there was no reason for the Accused to compel anyone to work;
(2) the medical officers of the POWs were the ones that should be held responsible for sending the sick to work, the Japanese officers had no role in such orders;
(3) officers were not actually forced to work as the POW’s working hours were only 5-5.5 hours a day with one day off each week.
On the issue of rations, these were fixed by the regulations of the army authorities. The branch camp commandant had no alternative but to carry out the order – and in fact there was extra food provided to the POW such as sweet potatoes, meat, fruit and sugar. The sick would be provided with porridge, rice gruel, eggs, milk, soup and fruits.
On the issue of medical supplies, from the outset, the supplies were not adequate. The Accused had actually improved the situation. Although there might have been some shortages for some specific types of medicine, the condition was certainly not as bad as being “insufficient”, in particular taking into account the Red Cross supplies. It was also argued that, after all, the sick and the death rate did not differ too much from the other camps.
On the issue of misappropriation of humanitarian aid, at a later stage, only the POW medics had access to the warehouse in which the Red Cross supplies were stored. Therefore, the Japanese army could not have misappropriated them.
On those specific allegations of ill-treatment, the Defence argued either a lack of evidence or that the evidence was insufficient to form the basis of a concrete finding and in any case be insufficient to find a “policy” to ill-treat the POWs as alleged by the Prosecution.
(1) maintain the POWs health;
(2) give the best rations possible;
(3) encourage self-sufficiency;
(4) maintain strict guarding; and
(5) maintain strict discipline among Japanese soldiers.
D1 formulated his policy on the basis of these and thus the four rules were developed: (i) take anti-disease measures (ii) increase the work efficiency of POWs (iii) provide amenities and recreations (iv) improve the rations. D1 was only trying to implement the official policy into practice
On the issue of forced labour, it was argued that:
(1) there was no policy that there would be a fixed amount of labour each day, therefore there was no reason for the Accused to compel anyone to work;
(2) the medical officers of the POWs were the ones that should be held responsible for sending the sick to work, the Japanese officers had no role in such orders;
(3) officers were not actually forced to work as the POW’s working hours were only 5-5.5 hours a day with one day off each week.
On the issue of rations, these were fixed by the regulations of the army authorities. The branch camp commandant had no alternative but to carry out the order – and in fact there was extra food provided to the POW such as sweet potatoes, meat, fruit and sugar. The sick would be provided with porridge, rice gruel, eggs, milk, soup and fruits.
On the issue of medical supplies, from the outset, the supplies were not adequate. The Accused had actually improved the situation. Although there might have been some shortages for some specific types of medicine, the condition was certainly not as bad as being “insufficient”, in particular taking into account the Red Cross supplies. It was also argued that, after all, the sick and the death rate did not differ too much from the other camps.
On the issue of misappropriation of humanitarian aid, at a later stage, only the POW medics had access to the warehouse in which the Red Cross supplies were stored. Therefore, the Japanese army could not have misappropriated them.
On those specific allegations of ill-treatment, the Defence argued either a lack of evidence or that the evidence was insufficient to form the basis of a concrete finding and in any case be insufficient to find a “policy” to ill-treat the POWs as alleged by the Prosecution.
Prosecutor
Major R.C. Lai (JAG Branch, Barrister-at-law)
Defence Counsel
Takano Junjiro (Japanese Barrister-at-law)
Judges
President: Lt. Col. C.F. Ball (Dept. of JAG, India, Barrister-at law)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt Capt. E.F. Gower, Royal Artillery
Members: Major M.I. Ormsby (West Yorks Regiment); Capt Capt. E.F. Gower, Royal Artillery
Advisory Officer
Capt. J.N .Whitehorn (J.M. Int. Corps)
Prosecution Witnesses
R.C.M. Comfort (Lieutenant, Royal Army; Former POW, Heito Camp)
D. Nicholson (Captain, U.S. Army; Former POW, Heito Camp)
Warrant Officer John Edwards (Warrant Officer, 1st Class, Royal Corps of Signals)
Major J.T.N. Cross (Royal Artillery; Former POW, Kokutsu POW Camp)
Defence Witnesses
Lt. Tamaki Koji (Accused, Army First Lieutenant attached to the POW Camp in the Formosan Army; Commandant, Heito Camp; Administrative Officer, Kokutsu Camp.)
Sgt Chiba Arashi (Accused, N.C.O., Heito Camp, Formosa)
Sgt Fujiie Horoji (Accused, Employee, Sugar Company; Coporal/Sergeant, Medical Section, Heito Camp)
Col Sazawa Hideo (Army Colonel, Headquarters of the Formosan Army; Chief Commandant of the POW Camps in Formosa)
Lt. Ashida Tsumoru (First Lieutenant, Japanese Army (Illegible) Section, Heito Camp.)
Capt Yoshimi Taneyoshi (Captain, Medical Officer, Head POW Camps in Formosa)
Capt Imamura Yayohachi (Army Captain, Kinkaseki Mine, Formosa; Commandant, Kokutsu Camp.)
Trial Dates
1947-01-20
1947-01-21
1947-01-22
1947-01-24
1947-01-25
1947-01-27
1947-01-28
1947-01-29
1947-01-30
1947-01-31
1947-02-01
1947-02-03
1947-02-07
Judgement Date
1947-02-07
Judgement Confirmation Date
1947-04-12
Judgement Promulgation Date
1947-04-14
Judgement
Held - All were guilty of the charges.
Petition
The Accused petitioned:
1. The verdict was against the weight of evidence;
2. The sentence was unduly severe.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 31 March 1947] noted that because of the preponderance of affidavit evidence, the defence could not cross-examine the deponents.
The Judge Advocate recommended that “the petition be dismissed and the findings and sentences confirmed”.
1. The verdict was against the weight of evidence;
2. The sentence was unduly severe.
In reviewing the case, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 31 March 1947] noted that because of the preponderance of affidavit evidence, the defence could not cross-examine the deponents.
The Judge Advocate recommended that “the petition be dismissed and the findings and sentences confirmed”.
Sentence Imposed
D1: 15 years imprisonment;
D2: 12 years imprisonment;
D3: 12 years imprisonment;
D4: 3 years imprisonment.
D2: 12 years imprisonment;
D3: 12 years imprisonment;
D4: 3 years imprisonment.
Keywords
Formosa; Imperial Japanese Army; Prisoners of War; Prisoner of War Camp; Sick or Wounded; "together concerned in"; Committed;
Starvation; Forced Labour; Poor conditions of detention; Failure to provide adequate medical care; Failure to provide adequate food and/or care; Torture; Cruel Inhuman or Degrading Treatment; Stealing; Red Cross parcels; Humanitarian aid; Collective punishment; Arbitrary or summary punishment; Medical or related personnel; Policy; Scope of responsibilities; War Crimes; Violations of laws and customs of war; Prisoner of War Camp Regulations; Mitigating factors; Death from natural causes
Starvation; Forced Labour; Poor conditions of detention; Failure to provide adequate medical care; Failure to provide adequate food and/or care; Torture; Cruel Inhuman or Degrading Treatment; Stealing; Red Cross parcels; Humanitarian aid; Collective punishment; Arbitrary or summary punishment; Medical or related personnel; Policy; Scope of responsibilities; War Crimes; Violations of laws and customs of war; Prisoner of War Camp Regulations; Mitigating factors; Death from natural causes
Remarks
1 lawyer representing 4 Co-Accused.
See the related Formosa cases, especially the case of Col. Sazawa Hideo et al, Case No. WO/235/1029.
See the related Formosa cases, especially the case of Col. Sazawa Hideo et al, Case No. WO/235/1029.
Dublin Core
Title
WO235/954
Description
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they, at or near KOKUTSU CAMP, FORMOSA, between 15th May, 1845 and 5th September, 1945 whilst members of the Camp Staff were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody, causing suffering to the said Prisoners-of-War”.
Second Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they, at KINKASEKI CAMP, FORMOSA, between 1st January, 1944 and 16th June 1945, were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody causing suffering to the said Prisoners-of-War.
“COMMITTING A WAR CRIME, in that they, at or near KOKUTSU CAMP, FORMOSA, between 15th May, 1845 and 5th September, 1945 whilst members of the Camp Staff were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody, causing suffering to the said Prisoners-of-War”.
Second Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they, at KINKASEKI CAMP, FORMOSA, between 1st January, 1944 and 16th June 1945, were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody causing suffering to the said Prisoners-of-War.
Legal Case Item Type Metadata
Case No.
WO235/954
Accused
Lt. Suzuki Nebuo (D1)
Lt. Tamara Iwao (D2)
S/M Furuo Tatsuo (D3)
Sgt Nakajima Miteshi (D4)
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they, at or near KOKUTSU CAMP, FORMOSA, between 15th May, 1845 and 5th September, 1945 whilst members of the Camp Staff were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody, causing suffering to the said Prisoners-of-War”.
Second Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they, at KINKASEKI CAMP, FORMOSA, between 1st January, 1944 and 16th June 1945, were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody causing suffering to the said Prisoners-of-War.
“COMMITTING A WAR CRIME, in that they, at or near KOKUTSU CAMP, FORMOSA, between 15th May, 1845 and 5th September, 1945 whilst members of the Camp Staff were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody, causing suffering to the said Prisoners-of-War”.
Second Charge (against D1, D2 and D3)
“COMMITTING A WAR CRIME, in that they, at KINKASEKI CAMP, FORMOSA, between 1st January, 1944 and 16th June 1945, were contrary to the laws and usages of war, together concerned in the ill-treatment of Prisoners-of-War in their custody causing suffering to the said Prisoners-of-War.
Background
The Accused were members of the staff of two Japanese Prisoners of War (‘POW’) Camps in Formosa (Taiwan) - the Kinkaseki Camp and the Kokutsu Camp.
The Kinkaseki Camp was infamous because the POWs in that camp were made to work in a nearby mine (The Nippon Kogyo Mine) in near-primitive conditions with high temperatures (as high as 95F), falling rocks and deep pools etc. POWs worked without proper equipment, food supply and water. There were allegations that sick POWs were forced to work in the mine, regardless of their health.
This case concerned life at the Kokutsu and Kinkaseki camps. The Prosecution attempted to argue that there was a policy of sustained cruelty, calculated to make a misery of the lives of the POWs in the camps.
The Kinkaseki Camp was infamous because the POWs in that camp were made to work in a nearby mine (The Nippon Kogyo Mine) in near-primitive conditions with high temperatures (as high as 95F), falling rocks and deep pools etc. POWs worked without proper equipment, food supply and water. There were allegations that sick POWs were forced to work in the mine, regardless of their health.
This case concerned life at the Kokutsu and Kinkaseki camps. The Prosecution attempted to argue that there was a policy of sustained cruelty, calculated to make a misery of the lives of the POWs in the camps.
Allegations
On the first charge (The Kokutsu Camp)
Regarding D1, it was alleged that he regularly mistreated the POWs by beating them. As far as particular incidents are concerned, he was alleged to have tied up POWs who were caught stealing sugar for a long time (allegedly 3 days under the sun, rain and insects, some were tied up after they were injured and without receiving any treatment) (e.g. Daly was left there with a dislocated jaw). The Accused was also alleged to have forced injured POWs to march in “pitiful conditions” for long distances during the evacuation of the Camp.
D2 was alleged, as the officer in charge of work at the camp, to have forced the POWs to work “like slaves”. They were beaten to force them to work.
D3 supervised a march of the POWs during the evacuation of the Camp. POWs marched through a dangerous route. The Accused permitted and took part in kicking and beating the POWs. He was also alleged to have forced the POWs to work long hours without food and rest and to have beaten the POWs.
D4 was alleged to be responsible for regular beatings (for reason such as that they were “idle”), and abusing the POWs by increasing the work quota everyday.
On the Second Charge (The Kinkaseki Camp)
Regarding D1, it was alleged that he, as the Orderly Officer, slapped, beat the prisoners and forced them to work in gruelling conditions in the mine near the Kinkaseki camp.
Regarding D2, it was also alleged that he, as the Orderly Officer, was present during and supervised the interrogation of a POW named Daly. Daly was “savagely handled” after suffering some ill-treatment from D2.
Regarding D3, it was alleged that he was “notoriously brutal” to the POWs (mistreating them by kicking and beating them) and took an active part in forcing the ill to work in the mine. It was alleged that he mistreated a POW named Barrett, who was found stealing a quantity of carbide, by beating him. He also burned Barrett by forcing him under the tap so that water and carbide combined and chemical reaction ensued.
Regarding D1, it was alleged that he regularly mistreated the POWs by beating them. As far as particular incidents are concerned, he was alleged to have tied up POWs who were caught stealing sugar for a long time (allegedly 3 days under the sun, rain and insects, some were tied up after they were injured and without receiving any treatment) (e.g. Daly was left there with a dislocated jaw). The Accused was also alleged to have forced injured POWs to march in “pitiful conditions” for long distances during the evacuation of the Camp.
D2 was alleged, as the officer in charge of work at the camp, to have forced the POWs to work “like slaves”. They were beaten to force them to work.
D3 supervised a march of the POWs during the evacuation of the Camp. POWs marched through a dangerous route. The Accused permitted and took part in kicking and beating the POWs. He was also alleged to have forced the POWs to work long hours without food and rest and to have beaten the POWs.
D4 was alleged to be responsible for regular beatings (for reason such as that they were “idle”), and abusing the POWs by increasing the work quota everyday.
On the Second Charge (The Kinkaseki Camp)
Regarding D1, it was alleged that he, as the Orderly Officer, slapped, beat the prisoners and forced them to work in gruelling conditions in the mine near the Kinkaseki camp.
Regarding D2, it was also alleged that he, as the Orderly Officer, was present during and supervised the interrogation of a POW named Daly. Daly was “savagely handled” after suffering some ill-treatment from D2.
Regarding D3, it was alleged that he was “notoriously brutal” to the POWs (mistreating them by kicking and beating them) and took an active part in forcing the ill to work in the mine. It was alleged that he mistreated a POW named Barrett, who was found stealing a quantity of carbide, by beating him. He also burned Barrett by forcing him under the tap so that water and carbide combined and chemical reaction ensued.
Defence
Preliminary Observation: The ultra vires argument
First of all, the defence argued that the Accused were all asked to do things that were outside of their power or beyond their authority. They were also asked to do things that were outside their scope of ability. The Defence also noted the “very peculiar nature of the obedience of the subordinates in the Japanese Army to the orders of their superiors”.
D1
Regarding D1, the Defence relied on his testimony and that of Capt Immamura (the superior of D1). They said that the plan to send the POWs to work in the mine came from the Headquarters of the Formosa Army with the approval of the Japanese Government. It was also argued that insofar as foodstuffs were concerned, the rations were the same for Japanese officials and the POWs, who were, in fact, entitled to extra food from the Nippon Mining Company. It was also said that “no one went into the mine bare-footed”.
Additionally, the Defence argued that there was no Japanese Medical Officer in Kinkaseki. There were only a few orderlies, who were only to do liaison work and to ensure medical supplies upon requests.
It was argued that the decision to send POWs to work lay “exclusively” with Medical Officers and Medical Orderlies who were with the POWs (eg. Lt. Col. Crossley). As such, the Japanese orderlies were not to be held responsible for any relevant decisions. Some of the sick volunteered to work in order to get a regular ration (note: a sick POW would get a smaller ration).
The Defence denied the alleged incident of tying up the POWs under the sun and the allegation that they were detained in a cell. In the case of Daly, it was said that D1 was told that Daly “had the habit of dislocating his jaw” and therefore had bandages on his cheek. D1 had no knowledge of any injury.
Concerning the march after the evacuation of the camp, D1 denied responsibility by arguing, inter alia, that the POWs voluntarily participated in the march since they wanted to leave. No promise was given that boats would be provided to carry the sick. In any case, the sick could be treated in the nearby Japanese Military Hospital in Matsuyama.
D2
The Defence argued mainly along the line that insufficient evidence was provided. In relation to Daly, the Defence relied on some contradictory evidence presented by PW Fujiwara to disprove the alleged incident. For other incidents, the Defence argued that there was insufficient evidence to show that D2 was actually present at the scene, let alone that he ordered his subordinate to perpetrate the alleged crime.
D3
On the point of sending the sick to work, the Defence argued Superior Orders. It was claimed that “the accused could do nothing in this connection but discharge his duties as set out by his superior”, meaning that he had no discretion at all.
On the issue of ill-treating Barrett, D3 denied the incident. He said that instead, the carbide was confiscated and the victim was let go. It was also argued that “it is quite incomprehensible to any person of commonsense that BARRETT should have allowed the accused to do as he liked and have done nothing to protect himself”.
In relation to other incidents mentioned, D3 flatly denied what happened and mainly argued that he had no connection whatsoever to the alleged incidents. In one case, he admitted that he hit the POW, but argued that it was an accident.
D4
The defence here argued that D4 had no connection with the guards that beat the POWs, since he was with the other party who worked in entirely different places. He did not order any beating nor did he know about the beating until later on when he heard of it. There was no relationship between him and the incidents alleged.
First of all, the defence argued that the Accused were all asked to do things that were outside of their power or beyond their authority. They were also asked to do things that were outside their scope of ability. The Defence also noted the “very peculiar nature of the obedience of the subordinates in the Japanese Army to the orders of their superiors”.
D1
Regarding D1, the Defence relied on his testimony and that of Capt Immamura (the superior of D1). They said that the plan to send the POWs to work in the mine came from the Headquarters of the Formosa Army with the approval of the Japanese Government. It was also argued that insofar as foodstuffs were concerned, the rations were the same for Japanese officials and the POWs, who were, in fact, entitled to extra food from the Nippon Mining Company. It was also said that “no one went into the mine bare-footed”.
Additionally, the Defence argued that there was no Japanese Medical Officer in Kinkaseki. There were only a few orderlies, who were only to do liaison work and to ensure medical supplies upon requests.
It was argued that the decision to send POWs to work lay “exclusively” with Medical Officers and Medical Orderlies who were with the POWs (eg. Lt. Col. Crossley). As such, the Japanese orderlies were not to be held responsible for any relevant decisions. Some of the sick volunteered to work in order to get a regular ration (note: a sick POW would get a smaller ration).
The Defence denied the alleged incident of tying up the POWs under the sun and the allegation that they were detained in a cell. In the case of Daly, it was said that D1 was told that Daly “had the habit of dislocating his jaw” and therefore had bandages on his cheek. D1 had no knowledge of any injury.
Concerning the march after the evacuation of the camp, D1 denied responsibility by arguing, inter alia, that the POWs voluntarily participated in the march since they wanted to leave. No promise was given that boats would be provided to carry the sick. In any case, the sick could be treated in the nearby Japanese Military Hospital in Matsuyama.
D2
The Defence argued mainly along the line that insufficient evidence was provided. In relation to Daly, the Defence relied on some contradictory evidence presented by PW Fujiwara to disprove the alleged incident. For other incidents, the Defence argued that there was insufficient evidence to show that D2 was actually present at the scene, let alone that he ordered his subordinate to perpetrate the alleged crime.
D3
On the point of sending the sick to work, the Defence argued Superior Orders. It was claimed that “the accused could do nothing in this connection but discharge his duties as set out by his superior”, meaning that he had no discretion at all.
On the issue of ill-treating Barrett, D3 denied the incident. He said that instead, the carbide was confiscated and the victim was let go. It was also argued that “it is quite incomprehensible to any person of commonsense that BARRETT should have allowed the accused to do as he liked and have done nothing to protect himself”.
In relation to other incidents mentioned, D3 flatly denied what happened and mainly argued that he had no connection whatsoever to the alleged incidents. In one case, he admitted that he hit the POW, but argued that it was an accident.
D4
The defence here argued that D4 had no connection with the guards that beat the POWs, since he was with the other party who worked in entirely different places. He did not order any beating nor did he know about the beating until later on when he heard of it. There was no relationship between him and the incidents alleged.
Prosecutor
Major D.G. McGregor (Black Watch, Solicitor)
Defence Counsel
Takano Junjiro (Avocate, Supreme Court Tokyo)
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt R.B.R. Forely, (K.R.R.C.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt R.B.R. Forely, (K.R.R.C.)
Advisory Officer
Lt.Whitehorn (J.M. Int. Corps)
Prosecution Witnesses
Kanagaki Yoshio (Unknown)
Fujiwara Kiyotaka (Interpreter, Kinkaseki POW Camp)
Major J.T.N. Cross (Major, Royal Artillery)
W.O. Edwards (Warrant Officer, 1st Class, British Army)
Defence Witnesses
Lt. Suzuki Nobuo (Accused, Army Lieutenant)
Lt. Tahara Iwao (Accused, Army Lieutenant)
Sgt/Major Furuo Tatsuo (Accused, Army Sergeant Major.)
Sgt. Nakajima Mitoshi (Accused, Army Sergeant)
Capt. Imamura Yayohachi (Captain, Camp Commandant, Kinkaseki POW Camp)
Tamaki Koji (Army Lieutenant, Japanese Army)
Kuwabara Hiroshi (Army Lieutenant, Adjutant attached to POW H.Q. Formosa)
Ueno Mitsuo (Medical Corporal, No. 1 (Kinkaseki) POW Camp, Formosa)
Kawano Mitsutoshi (Army Sergeant, No. 1 (Kinkaseki) POW Camp, Formosa)
Yamaguchi Kiyochige (Medical First Class Private, Daichoku Camp)
Trial Dates
1946-11-21
1946-11-22
1946-11-23
1946-11-25
1946-11-26
1946-11-27
1946-12-02
Judgement Date
1946-12-02
Judgement Confirmation Date
1947-02-08
Judgement Promulgation Date
1947-02-10
Judgement
Held – All guilty as charged.
Petition
The accused petitioned:
1. the verdict was against the weight of evidence;
2. the sentences were unduly severe.
On 30 January 1946, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces] advised that the Petitions contained nothing new. He noted the sentences could be considered to be unduly severe in view of the fact that the Prosecution expressly excluded from their case against these Accused any question of the responsiblity for the employment of POW in the copper mines at the Kinkaseki and the working conditions there, which appear to have been the principal cases of suffering to the POWs therein. He suggested that the Commander of Land Forces Hong Kong may wish to consider remission, if he found the sentences unduly severe: “if so, it is open to you to make such remissions of the sentences as you may consider just.”
1. the verdict was against the weight of evidence;
2. the sentences were unduly severe.
On 30 January 1946, the Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces] advised that the Petitions contained nothing new. He noted the sentences could be considered to be unduly severe in view of the fact that the Prosecution expressly excluded from their case against these Accused any question of the responsiblity for the employment of POW in the copper mines at the Kinkaseki and the working conditions there, which appear to have been the principal cases of suffering to the POWs therein. He suggested that the Commander of Land Forces Hong Kong may wish to consider remission, if he found the sentences unduly severe: “if so, it is open to you to make such remissions of the sentences as you may consider just.”
Sentence Imposed
D1: 7 years imprisonment;
D2: 7 years imprisonment;
D3: 10 years imprisonment;
D4: 3 years imprisonment
D2: 7 years imprisonment;
D3: 10 years imprisonment;
D4: 3 years imprisonment
Keywords
Formosa; Imperial Japanese Army; Prisoners of War; Prisoner of War Camp; "together concerned in"; Committed; Forced labour; Poor conditions of detention; Unlawful killing; Torture; Cruel Inhuman or Degrading Treatment; Arbitrary or summary punishment; Marching; Forced evacuation or deportation; Poor working conditions; Failure to provide adequate food and/or care; Forced evacuation or displacement;
Policy; Scope of responsibilities; Provocation; Orders; Superior Orders; Hierarchy; War Crimes; Violations of the laws and customs of war; Provocation Discipline of Prisoners of War
Policy; Scope of responsibilities; Provocation; Orders; Superior Orders; Hierarchy; War Crimes; Violations of the laws and customs of war; Provocation Discipline of Prisoners of War
Remarks
1 defence lawyer for 4 Co-Accused.
Only 4 Prosecution witnesses, none of them ex-POWs from Kokutsu or Kinkaseki.
There are several linked cases, most notably Case No. WO/235/1028, WO/235/905, WO/235/954, WO/235/1036.
Only 4 Prosecution witnesses, none of them ex-POWs from Kokutsu or Kinkaseki.
There are several linked cases, most notably Case No. WO/235/1028, WO/235/905, WO/235/954, WO/235/1036.
Dublin Core
Title
WO235/937
Description
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they, at Hong Kong between 21st April 1943 when members of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, were, in violation of the laws and usages of war, together concerned as parties to the ill-treatment of civilian residents of Hong Kong aforesaid, in custody at the said headquarters, resulting in physical sufferings to them and in particular to Mr. Rudy Choy, Mr. F. Tyndall, Mr. Monaghan, Mr. Edmonston, Mr. G. Kotwall, Mr. Chester Bennett and Mr. Hyde.”
Second Charge (against Third Accused)
“COMMITTING A WAR CRIME, in that he, at Hong Kong between the 15th June 1943 and 30th September 1943 when a member of the Staff of the Kempeitai Headquarters, Central Police Station, did ill-treat Mrs. Chester Bennett a civilian in custody at the said Headquarters.”
“COMMITTING A WAR CRIME, in that they, at Hong Kong between 21st April 1943 when members of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, were, in violation of the laws and usages of war, together concerned as parties to the ill-treatment of civilian residents of Hong Kong aforesaid, in custody at the said headquarters, resulting in physical sufferings to them and in particular to Mr. Rudy Choy, Mr. F. Tyndall, Mr. Monaghan, Mr. Edmonston, Mr. G. Kotwall, Mr. Chester Bennett and Mr. Hyde.”
Second Charge (against Third Accused)
“COMMITTING A WAR CRIME, in that he, at Hong Kong between the 15th June 1943 and 30th September 1943 when a member of the Staff of the Kempeitai Headquarters, Central Police Station, did ill-treat Mrs. Chester Bennett a civilian in custody at the said Headquarters.”
Legal Case Item Type Metadata
Case No.
WO235/937
Accused
W.O Yabuki Rikie (D1)
Civ. Takemoto Otojiro (D2)
Civ. Ohtsuka Sekitaro (D3)
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge (against each Accused)
“COMMITTING A WAR CRIME, in that they, at Hong Kong between 21st April 1943 when members of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, were, in violation of the laws and usages of war, together concerned as parties to the ill-treatment of civilian residents of Hong Kong aforesaid, in custody at the said headquarters, resulting in physical sufferings to them and in particular to Mr. Rudy Choy, Mr. F. Tyndall, Mr. Monaghan, Mr. Edmonston, Mr. G. Kotwall, Mr. Chester Bennett and Mr. Hyde.”
Second Charge (against Third Accused)
“COMMITTING A WAR CRIME, in that he, at Hong Kong between the 15th June 1943 and 30th September 1943 when a member of the Staff of the Kempeitai Headquarters, Central Police Station, did ill-treat Mrs. Chester Bennett a civilian in custody at the said Headquarters.”
“COMMITTING A WAR CRIME, in that they, at Hong Kong between 21st April 1943 when members of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, were, in violation of the laws and usages of war, together concerned as parties to the ill-treatment of civilian residents of Hong Kong aforesaid, in custody at the said headquarters, resulting in physical sufferings to them and in particular to Mr. Rudy Choy, Mr. F. Tyndall, Mr. Monaghan, Mr. Edmonston, Mr. G. Kotwall, Mr. Chester Bennett and Mr. Hyde.”
Second Charge (against Third Accused)
“COMMITTING A WAR CRIME, in that he, at Hong Kong between the 15th June 1943 and 30th September 1943 when a member of the Staff of the Kempeitai Headquarters, Central Police Station, did ill-treat Mrs. Chester Bennett a civilian in custody at the said Headquarters.”
Background
The three Accused were members of the Hong Kong Gendarmerie and on the staff at the Supreme Court jail, where one of their duties was the interrogation of prisoners. D3 also worked at the Central Police Station.
D1 was a Warrant Officer.
D2 and D3 were civilians.
D1 was a Warrant Officer.
D2 and D3 were civilians.
Allegations
It was generally alleged that during the period April to June 1943, a number of civilians were imprisoned. They were interrogated at various times by the three accused. They were persistently tortured and ill-treated over a period of time “in a most vicious and cruel manner”. Forms of tortures included water torture, burning with cigarettes and beatings. The Prosecution, however, made clear that they were not charging the accused for the general prison conditions prevailing at the Supreme Court.
On the ill-treatment
The Prosecution brought evidence of abuse of detainees, some of whom were already dead at the time of trial. The Prosecution alleged that the three Accused committed various criminal acts against the persons interrogated. These included slapping, beating, “water torture” and hanging up. Boris Pasco (PW) was called to corroborate and confirm the various statements made by victims who did not testify in court.
On whether the Accused were personally responsible
The Prosecution argued that the evidence against the Accused, including from the identification parade, was corroborated by testimonies.
The Prosecution argued that even if Takemoto (D2) were to argue Superior Orders, it would not assist him since such an order to torture would be “something obviously unlawful”.
It was admitted that the evidence against D3 comprised mainly inferences. This was not as direct as those against the other Accused and might be too speculative for a conviction.
On the Second Charge
The Prosecution submitted that the evidence against D3 was clear and corroborated by the statement made by Ms Bennet, who was subjected to water torture, beating, starvation and other indignities – acts in which D3 took part.
Degree of Responsibility
It was argued that D1 should bear the greatest responsibility since he showed “a policy of consistent unremitting brutality of a type he admits he knew to be wrong and which had a visible effect on this unfortunate victims”. For the other Accused, the Prosecution noted that the aggravating facts might include: that they lived with the local community, yet they chose to ignore that community’s ideas of behaviour. D3 was well educated. He had “by inescapable inference a clear knowledge that what he was doing was unpardonable”.
On the ill-treatment
The Prosecution brought evidence of abuse of detainees, some of whom were already dead at the time of trial. The Prosecution alleged that the three Accused committed various criminal acts against the persons interrogated. These included slapping, beating, “water torture” and hanging up. Boris Pasco (PW) was called to corroborate and confirm the various statements made by victims who did not testify in court.
On whether the Accused were personally responsible
The Prosecution argued that the evidence against the Accused, including from the identification parade, was corroborated by testimonies.
The Prosecution argued that even if Takemoto (D2) were to argue Superior Orders, it would not assist him since such an order to torture would be “something obviously unlawful”.
It was admitted that the evidence against D3 comprised mainly inferences. This was not as direct as those against the other Accused and might be too speculative for a conviction.
On the Second Charge
The Prosecution submitted that the evidence against D3 was clear and corroborated by the statement made by Ms Bennet, who was subjected to water torture, beating, starvation and other indignities – acts in which D3 took part.
Degree of Responsibility
It was argued that D1 should bear the greatest responsibility since he showed “a policy of consistent unremitting brutality of a type he admits he knew to be wrong and which had a visible effect on this unfortunate victims”. For the other Accused, the Prosecution noted that the aggravating facts might include: that they lived with the local community, yet they chose to ignore that community’s ideas of behaviour. D3 was well educated. He had “by inescapable inference a clear knowledge that what he was doing was unpardonable”.
Defence
The Defence Counsel noted at the outset that the Accused were at a “great disadvantage since (1) there was the problem of imperfect translation and (2) that evidence given by victims may have be influenced by intentions of revenge.
On the First Charge
Relying on the testimony of Capt Yatagea, Ushiyama and Enimoto, it was argued that the acts alleged were not “concerted action”.
For D1, it was argued that Boris Pasco’s testimony was all hearsay and thus inadmissible since it was only second best. Only Rudy Choy’s evidence should be admitted. It was further said that D1 was not in charge of Rudy Choy’s case at all and had in any event only pushed him with bamboo stick but did not strike him. With respect to other victims, the Defence argued that there was not sufficient evidence against D1. In the case of Mr. Bennet, it was also argued that D1 was not in charge of his case.
In respect of the second and the third Accused (D2 and D3), it was submitted that they were both unwillingly pressed into the service of the Gendarmerie, it was most improbable for them to have committed the alleged acts. On top of that, it was noted that there was no evidence against the third Accused at all.
On the Second Charge
The Defence primarily argued along the line of insufficiency of evidence given by Mrs Bennet. It was also argued that a civilian interpreter would be “forced to be present to translate” at the scene of ill-treatment, but not to do more than that.
On the First Charge
Relying on the testimony of Capt Yatagea, Ushiyama and Enimoto, it was argued that the acts alleged were not “concerted action”.
For D1, it was argued that Boris Pasco’s testimony was all hearsay and thus inadmissible since it was only second best. Only Rudy Choy’s evidence should be admitted. It was further said that D1 was not in charge of Rudy Choy’s case at all and had in any event only pushed him with bamboo stick but did not strike him. With respect to other victims, the Defence argued that there was not sufficient evidence against D1. In the case of Mr. Bennet, it was also argued that D1 was not in charge of his case.
In respect of the second and the third Accused (D2 and D3), it was submitted that they were both unwillingly pressed into the service of the Gendarmerie, it was most improbable for them to have committed the alleged acts. On top of that, it was noted that there was no evidence against the third Accused at all.
On the Second Charge
The Defence primarily argued along the line of insufficiency of evidence given by Mrs Bennet. It was also argued that a civilian interpreter would be “forced to be present to translate” at the scene of ill-treatment, but not to do more than that.
Prosecutor
Major D.G. McGregor (Black Watch, Solicitor)
Defence Counsel
Mr. Takahashi Mikio (Japanese Barrister)
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Major W.M. Gray (The Cameronians, Scottish Rifles)
Prosecution Witnesses
Major K. Hussain (War Crimes Investigation Unit, HQ Land Forces)
Capt. Yatagea Sukeo (Adjutant to the Commanding Officer of the Hong Kong Gendarmerie)
Axel Olsson (Warehouse foreman)
Boris Pasco (Book Seller)
Leung Hing-lin (Unemployed)
Defence Witnesses
W/O Yabuki Rikie (Accused, Warrant Officer of the Gendarmerie)
Takemoto Otojiro (Accused, Manager of the South China Branch of an Insurance Company)
Sgt/Major Enimoto Toshio (Sergeant/Major, Gendarmerie)
Capt. Ushiyama Yukio (Commanding Officer, Western District Gendarmerie)
Trial Dates
1946-08-02
1946-08-03
1946-08-06
1946-08-07
1946-08-08
Judgement Date
1946-08-09
Judgement Confirmation Date
1946-12-04
Judgement Promulgation Date
1946-12-05
Judgement
Held:
1. D1 was guilty with the exception of the named: Mr. MONAGHAN, Mr. EDMONSTON, Mr. G KOTWALL, Mr. HYDE.
2. D2 was guilty by special finding as follows: “COMMITTING A WAR CRIME, in that he, at Hong Kong between April 21, 1943 and June 13, 1943, when a member of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, was in violation of the laws and usages of war, concerned as a party to the ill-treatment of a civilian resident of Hong Kong, in custody at the said headquarters resulting in physical suffering to him.”
3. D3 was not guilty of the first charge but guilty of the second charge with the exception that the ill-treatment charged took place in July 1944 and not in 1943.
1. D1 was guilty with the exception of the named: Mr. MONAGHAN, Mr. EDMONSTON, Mr. G KOTWALL, Mr. HYDE.
2. D2 was guilty by special finding as follows: “COMMITTING A WAR CRIME, in that he, at Hong Kong between April 21, 1943 and June 13, 1943, when a member of the Staff of the Kempeitai Headquarters, Supreme Court Building, in the service of the Occupying Power, was in violation of the laws and usages of war, concerned as a party to the ill-treatment of a civilian resident of Hong Kong, in custody at the said headquarters resulting in physical suffering to him.”
3. D3 was not guilty of the first charge but guilty of the second charge with the exception that the ill-treatment charged took place in July 1944 and not in 1943.
Petition
D3 petitioned:
1. The verdict was against the weight of evidence; and
2. The sentence was unduly severe in the light of the evidence.
On 18 November 1946, the Judge Advocate [unidentified Colonel, DJAG, Allied Land Forces, SEA] recommended dismissal of the petition and confirmation of the findings and the sentence.
“It may be pointed out here that on the first charge there was sufficient evidence against accused No. 1 YABUKI. There was also evidence against accused No. 2 and the court rightly found them guilty of the charge. Against the third accused, there was no evidence and he was rightly acquitted. As regards the 2nd charge the court has found the accused guilty of the charge with the exception that the ill-treatment charged took place in July 1944 and not in 1945”.
The Judge Advocate observed that the sentence of 6 years in the case of the third Accused “seems severe in view of the fact that he was acquitted on the first charge”. Nevertheless, he advised that the proceedings were in order and recommended confirmation of the sentences.
1. The verdict was against the weight of evidence; and
2. The sentence was unduly severe in the light of the evidence.
On 18 November 1946, the Judge Advocate [unidentified Colonel, DJAG, Allied Land Forces, SEA] recommended dismissal of the petition and confirmation of the findings and the sentence.
“It may be pointed out here that on the first charge there was sufficient evidence against accused No. 1 YABUKI. There was also evidence against accused No. 2 and the court rightly found them guilty of the charge. Against the third accused, there was no evidence and he was rightly acquitted. As regards the 2nd charge the court has found the accused guilty of the charge with the exception that the ill-treatment charged took place in July 1944 and not in 1945”.
The Judge Advocate observed that the sentence of 6 years in the case of the third Accused “seems severe in view of the fact that he was acquitted on the first charge”. Nevertheless, he advised that the proceedings were in order and recommended confirmation of the sentences.
Sentence Imposed
D1: 10 years imprisonment;
D2: 3 years imprisonment (subsequently remitted to 1 year imprisonment in the confirmation);
D3: 6 years imprisonment (subsequently remitted to 4 years imprisonment in the confirmation)
D2: 3 years imprisonment (subsequently remitted to 1 year imprisonment in the confirmation);
D3: 6 years imprisonment (subsequently remitted to 4 years imprisonment in the confirmation)
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; Civilians; "together concerned as parties"; Committed; Military Command Responsibility; Superior Orders; Interrogation; Torture; Cruel Inhuman or Degrading Treatment; Beating; Policy; War Crimes; Violations of laws and customs of war; Hearsay
Remarks
One lawyer for three Co-Accused.
Dublin Core
Title
WO235/921
Description
First Charge: Committing a War Crime
“in that he at Hong Kong on or about the 27th April 1942, when a member of the Kempeitai, in violation of the laws and usages of war, was concerned in the maltreatment of Sgt. Lloyd, a British Prisoner of War in custody at SHAMSHUIPO POLICE STATION resulting in the death of the said Sgt Lloyd.”
Second Charge: Committing a War Crime
“in that he at Hong Kong between 7th December 1944 and the 5th February 1945, when a member of the Kempeitai at Eastern Gendarmerie Headquarters, in violation of the laws and usages of war, did ill-treat Denis Victor and Tseng Yu Hao, civilians in custody at the said headquarters”.
“in that he at Hong Kong on or about the 27th April 1942, when a member of the Kempeitai, in violation of the laws and usages of war, was concerned in the maltreatment of Sgt. Lloyd, a British Prisoner of War in custody at SHAMSHUIPO POLICE STATION resulting in the death of the said Sgt Lloyd.”
Second Charge: Committing a War Crime
“in that he at Hong Kong between 7th December 1944 and the 5th February 1945, when a member of the Kempeitai at Eastern Gendarmerie Headquarters, in violation of the laws and usages of war, did ill-treat Denis Victor and Tseng Yu Hao, civilians in custody at the said headquarters”.
Legal Case Item Type Metadata
Case No.
WO235/921
Accused
Sgt. Kawamoto Kaname
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge: Committing a War Crime
“in that he at Hong Kong on or about the 27th April 1942, when a member of the Kempeitai, in violation of the laws and usages of war, was concerned in the maltreatment of Sgt. Lloyd, a British Prisoner of War in custody at SHAMSHUIPO POLICE STATION resulting in the death of the said Sgt Lloyd.”
Second Charge: Committing a War Crime
“in that he at Hong Kong between 7th December 1944 and the 5th February 1945, when a member of the Kempeitai at Eastern Gendarmerie Headquarters, in violation of the laws and usages of war, did ill-treat Denis Victor and Tseng Yu Hao, civilians in custody at the said headquarters”.
“in that he at Hong Kong on or about the 27th April 1942, when a member of the Kempeitai, in violation of the laws and usages of war, was concerned in the maltreatment of Sgt. Lloyd, a British Prisoner of War in custody at SHAMSHUIPO POLICE STATION resulting in the death of the said Sgt Lloyd.”
Second Charge: Committing a War Crime
“in that he at Hong Kong between 7th December 1944 and the 5th February 1945, when a member of the Kempeitai at Eastern Gendarmerie Headquarters, in violation of the laws and usages of war, did ill-treat Denis Victor and Tseng Yu Hao, civilians in custody at the said headquarters”.
Background
The Accused was attached to the Eastern District Gendarmerie as a Gendarmerie Sergeant.
The case concerned the torture to death of Sgt. Lloyd, a member of the HKVDC, suspected of having assisted some Prisoners of War (‘POWs’) to escape. There is mention of Noma [Colonel Noma] having been present at the torture, which was said to have been committed by the Accused. Sgt. Lloyd died during the torture. A Japanese doctor certified the cause of death as being heart failure.
The case concerned the torture to death of Sgt. Lloyd, a member of the HKVDC, suspected of having assisted some Prisoners of War (‘POWs’) to escape. There is mention of Noma [Colonel Noma] having been present at the torture, which was said to have been committed by the Accused. Sgt. Lloyd died during the torture. A Japanese doctor certified the cause of death as being heart failure.
Allegations
On the First Charge
It was argued that in April 1942, a Sgt Lloyd of the HKVDC was arrested on suspicion of involvement in the escape of some Indian POWs. He was interrogated by the Accused in the Shamshuipo Station. In order to obtain a forced confession, the Accused inflicted on him, inter alia, beatings and “water torture” (here by pouring water continuously into the victim’s mouth for about half an hour) which caused his death on the spot. This was witnessed by several persons who testified as to the events. The death of Lloyd was later certified. The Prosecution argued that such death was wholly attributable to the Accused.
On the Second Charge
It was argued that the Accused tortured two named civilians, Denis Victor and Tseng Yu Hao at the end of 1944 and at the beginning of 1945 with a view to extracting confessions. Methods used included beatings, setting Alsatian dogs on the victims, water torture and threatening of beheading.
It was argued that in April 1942, a Sgt Lloyd of the HKVDC was arrested on suspicion of involvement in the escape of some Indian POWs. He was interrogated by the Accused in the Shamshuipo Station. In order to obtain a forced confession, the Accused inflicted on him, inter alia, beatings and “water torture” (here by pouring water continuously into the victim’s mouth for about half an hour) which caused his death on the spot. This was witnessed by several persons who testified as to the events. The death of Lloyd was later certified. The Prosecution argued that such death was wholly attributable to the Accused.
On the Second Charge
It was argued that the Accused tortured two named civilians, Denis Victor and Tseng Yu Hao at the end of 1944 and at the beginning of 1945 with a view to extracting confessions. Methods used included beatings, setting Alsatian dogs on the victims, water torture and threatening of beheading.
Defence
The Defence did not substantially dispute the evidence as presented by the Prosecution but only asked the court to decide which side to accept.
The Accused, when in the box, denied any ill-treatment and any knowledge of ill-treatment being inflicted on the identified victims. The Prosecution witnesses were just making assertions without proof. Lloyd, at the end of a proper interrogation, stood up and just dropped down. The Accused called a medical officer to treat him. He was only informed of Lloyd’s death several days later.
The Accused, when in the box, denied any ill-treatment and any knowledge of ill-treatment being inflicted on the identified victims. The Prosecution witnesses were just making assertions without proof. Lloyd, at the end of a proper interrogation, stood up and just dropped down. The Accused called a medical officer to treat him. He was only informed of Lloyd’s death several days later.
Prosecutor
Major D.G. McGregor, Solicitor (Black Watch)
Defence Counsel
Lt. J.R. Haggan, R.E.
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Unknown (Probably not provided, given the Defence Counsel was British)
Prosecution Witnesses
Denis Victor (Owner, a dancing hall)
Dr. Tseng Yu-hao (Merchant, Import and Export business)
A.J.W. Evans (Manager, British Cigarette Company)
Noma Isany (Member, Government Office Staff)
Pang Kin-cheong (Clerk, Government?s Foreign Affairs Office)
Mrs A.I. Horton (Interpreter, Government?s Foreign Affairs Office)
Chiang Ping-Shoo (Policeman, Shamshuipo Police Station)
Kwok Teh-shang (Policeman, Shamshuipo Police Station)
Chiang Chu-Keh (Policeman, Shamshuipo Police Station)
Sjt/Major Oba Takao (Sergeant/Major, Police Affairs, Eastern District Gendarmerie.)
Defence Witnesses
Kawamoto Kaname (Accused)
Trial Dates
1946-07-09
1946-07-10
Judgement Date
1946-07-10
Judgement Confirmation Date
1946-11-18
Judgement Promulgation Date
1946-11-18
Judgement
Held – that the Accused was guilty
Petition
The Accused did not petition. The Judge Advocate [unidentified Colonel, Offg. DJAG, Allied Land Forces, SEA, 8 November 1946] pointed out that there was a delay in the confirmation process because the authorities were awaiting a petition, but it never came although the Defence was informed of this right.
According to the Judge Advocate, “In my opinion there is ample evidence of the death of Sgt.Lloyd, his identity has been adequately established and there is no doubt whatever that Kawamoto was the prime and only mover in the whole transaction.” As for the other allegations of torture, “Kawamoto was in every case the chief torturer.”
“In my opinion, the evidence fully supports the conviction on both charges, the proceedings are in order and I advise confirmation. I can see no circumstances which I should point out to you as mitigating the sentence”. The Judge Advocate recommended confirmation of the death sentence.
According to the Judge Advocate, “In my opinion there is ample evidence of the death of Sgt.Lloyd, his identity has been adequately established and there is no doubt whatever that Kawamoto was the prime and only mover in the whole transaction.” As for the other allegations of torture, “Kawamoto was in every case the chief torturer.”
“In my opinion, the evidence fully supports the conviction on both charges, the proceedings are in order and I advise confirmation. I can see no circumstances which I should point out to you as mitigating the sentence”. The Judge Advocate recommended confirmation of the death sentence.
Sentence Imposed
Death by hanging. Carried out 22 November 1946 at Stanley Prison.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Prisoner of War; Attempted escape; "concerned in"; Committed; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; War Crimes; Violations of laws and customs of war; Mitigating circumstances
Dublin Core
Title
WO235/915
Description
Committing a War Crime
‘in that he at Hong Kong between 26th March, 1944 and the 31st July, 1945, when a member of the Interrogating Staff of the Gendarmerie, was in violation of the laws and usages of war, concerned in the ill treatment of civilians arrested by the Japanese Gendarmerie, resulting in the death of ARCHIE WONG and in physical suffering to others of the said civilians”
‘in that he at Hong Kong between 26th March, 1944 and the 31st July, 1945, when a member of the Interrogating Staff of the Gendarmerie, was in violation of the laws and usages of war, concerned in the ill treatment of civilians arrested by the Japanese Gendarmerie, resulting in the death of ARCHIE WONG and in physical suffering to others of the said civilians”
Legal Case Item Type Metadata
Case No.
WO235/915
Accused
Sgt. Miyasue Suekichi
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
‘in that he at Hong Kong between 26th March, 1944 and the 31st July, 1945, when a member of the Interrogating Staff of the Gendarmerie, was in violation of the laws and usages of war, concerned in the ill treatment of civilians arrested by the Japanese Gendarmerie, resulting in the death of ARCHIE WONG and in physical suffering to others of the said civilians”
‘in that he at Hong Kong between 26th March, 1944 and the 31st July, 1945, when a member of the Interrogating Staff of the Gendarmerie, was in violation of the laws and usages of war, concerned in the ill treatment of civilians arrested by the Japanese Gendarmerie, resulting in the death of ARCHIE WONG and in physical suffering to others of the said civilians”
Background
The Accused was a Sergeant attached to an infantry regiment and was later transferred to the Western Gendarmerie.
In March 1944, May 1945 and June 1945, certain civilians, including Archie Wong, were arrested and interrogated in the Happy Valley Gendarmerie and Western Gendarmerie. There, they were ill-treated, and Archie Wong died as a result of that maltreatment.
In March 1944, May 1945 and June 1945, certain civilians, including Archie Wong, were arrested and interrogated in the Happy Valley Gendarmerie and Western Gendarmerie. There, they were ill-treated, and Archie Wong died as a result of that maltreatment.
Allegations
The Prosecution argued that the Accused was responsible for ill-treatment inflicted on certain named civilians, including Archie Wong. It was alleged that in March 1944, a civilian (Ladd) was arrested by the Accused. He was taken to the Happy Valley Gendarmerie where the Accused ill-treated him by beating, kicking, and water torture.
The Prosecution also alleged that during May and June 1945, a number of other civilians were arrested (Wong, Tsui, Yeung, Omar and Cureen) and taken to the Western Gendarmerie. There, they were beaten, and tortured by the Accused. Wong was highlighted as being interrogated and tortured to death. He was beaten and reduced to a situation in which he was unable to take food or look after himself. As a result, he later died in the cell.
The Prosecution also alleged that during May and June 1945, a number of other civilians were arrested (Wong, Tsui, Yeung, Omar and Cureen) and taken to the Western Gendarmerie. There, they were beaten, and tortured by the Accused. Wong was highlighted as being interrogated and tortured to death. He was beaten and reduced to a situation in which he was unable to take food or look after himself. As a result, he later died in the cell.
Defence
The Defence admitted that there was an interrogation, however, it denied any ill-treatment or torture.
The Accused argued that the Gendarmerie made investigations and those arrested were suspected of criminal activities. He interrogated the civilians under the order of his superior, Sakamoto. He admitted that he interrogated Ladd, Yeung Ka Sing and Tsui but denied any beating or ill-treatment.
The Accused also admitted arresting Omar, Curreen and Wong. But, apart from admitting that he lightly struck Omar, he denied interrogation or beating of Curreen or Wong. He admitted that Wong seemed to be weak, but denied he had ever struck him. He further argued that once he handed the civilian suspects to the Public Procurator’s Office, he had no control over them.
The Accused argued that the Gendarmerie made investigations and those arrested were suspected of criminal activities. He interrogated the civilians under the order of his superior, Sakamoto. He admitted that he interrogated Ladd, Yeung Ka Sing and Tsui but denied any beating or ill-treatment.
The Accused also admitted arresting Omar, Curreen and Wong. But, apart from admitting that he lightly struck Omar, he denied interrogation or beating of Curreen or Wong. He admitted that Wong seemed to be weak, but denied he had ever struck him. He further argued that once he handed the civilian suspects to the Public Procurator’s Office, he had no control over them.
Prosecutor
Major D.G. McGregor, Solicitor (Black Watch)
Defence Counsel
Mr. Fujita Tetsuo (Japanese Barrister)
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Major W.M. Gray, The Cameronians (Scottish Rifles)
Prosecution Witnesses
Major K. Hussain (War Crimes Investigation Unit)
George Samuel Ladd (Accountant)
Yeung Kar-sing (Employee, Queen?s Dancing Hall)
Osman Mohamed Omar (Chief Clerk and Private Secretary to Mr. Li Yau-cheun)
Madame Law Shu-kwan (Mother of Archie Wong)
Abdool Curreem (J.S.A. Curreem) (Draftsman, Messer Deacons, Solicitors)
Mrs. O.M. Omar (Spouse of P.W. No. 4)
Defence Witnesses
Miyasue Suekichi (Sergeant, Western Gendarmerie)
Sakamoto Fukujiro (Second Lieutenant, C.O. Western Gendarmerie Station of the Hong Kong Island District Gendarmerie)
Capt. Ogura Kuraichi (Captain, C.O. Hong Kong Island District Gendarmerie)
Sgt-Major Ozeki Sigehisa (Sergeant-Major, Western Gendarmerie.)
Trial Dates
1946-08-13
1946-08-14
1946-08-15
1946-08-16
1946-08-19
Judgement Date
1946-08-19
Judgement Confirmation Date
1946-11-08
Judgement Promulgation Date
1946-11-08
Judgement
Held: The Accused was guilty.
Petition
The Accused petitioned. He repeated his defence and the denial of ill-treatment, and questioned the probity of the Prosecution’s witnesses. Specifically, he argued that:
1. The verdict was against the weight of the evidence;
2. The sentence was unduly severe in the light of the evidence.
The Judge Advocate [unidentified Colonel, DJAG, Allied Land Forces, SEA, 25 October 1946] advised that the petition be dismissed and the findings and sentence confirmed. “This is a straightforward case in which the accused was well-identified by the Prosecution witnesses, the victims of his ill-treatment. The evidence is well-corroborated as to ill-treatment, as was the decline in health of WONG. The witness OMAR testified to the condition of WONG before he died, when he was unable to take his food and to finding him dead in his cell one morning after his transfer to Central Police Station.”
1. The verdict was against the weight of the evidence;
2. The sentence was unduly severe in the light of the evidence.
The Judge Advocate [unidentified Colonel, DJAG, Allied Land Forces, SEA, 25 October 1946] advised that the petition be dismissed and the findings and sentence confirmed. “This is a straightforward case in which the accused was well-identified by the Prosecution witnesses, the victims of his ill-treatment. The evidence is well-corroborated as to ill-treatment, as was the decline in health of WONG. The witness OMAR testified to the condition of WONG before he died, when he was unable to take his food and to finding him dead in his cell one morning after his transfer to Central Police Station.”
Sentence Imposed
Death by hanging. Carried out on 12 November 1946 at Stanley Prison.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; Interrogation; "concerned in"; Committed; Ordered; Superior Orders; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war
Dublin Core
Title
WO235/914
Description
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 TUM) 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 TUM) YEE KWAN and another unknown Chinese, both civilians at that time in his custody.”
Legal Case Item Type Metadata
Case No.
WO235/914
Accused
S.M. Ito Junichi
Court
Military Court for the Trial of War Criminals No.5
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 TUM) 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 TUM) 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.
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 admitted shooting and killing the two Chinese. He entered a ‘guilty’ plea.
However, he raised two lines of defence or justification for his conduct – a claim of legitimate or lawful taking of life, and Superior Orders.
The Defence outlined the circumstances that led to the shooting. The two men were among a group of seven who were taken into custody. The two were held as suspected communist guerillas. Then came the Emperor’s surrender on 14 August 1945 and a conference with Major Yoshio Hirao on 17 August 1945, at which the Major ordered that “suitable steps” should be taken in respect of suspects in custody.
The Accused regarded the two detainees as a “serious menace” to public peace and order. The Accused noted that after the Emperor’s surrender, law and order in Hong Kong deteriorated. He insisted that the decision to execute them was based on his sense of public duty to the community, but not brutality or animosity towards them. Until the British returned, the Japanese were responsible for law and order.
The Accused claimed that he received orders, at the meeting with Major Hirao on 17 August 1945, to deal with the detainees with “suitable steps”. According to his understanding, in 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. Sgt. Otsu told him they were not to be released but to be dealt with severely. In his Petition, the Accused stated “I thought that what he said about dealing severely with the Chinese was an order from Maj. Hirao”. In the closing statement, the Defence asserted that the Accused ordered Sgt. Otsu to kill the two Chinese, but Sgt. Otsu “requested that he be relieved of this duty and Ito took on himself to shoot the two Chinese.”
As for Major Hirao’s claim that he actually issued an order to release the detained Chinese, the Accused insisted that he did not remember any such order from Maj. Hirao. In the closing statement, the defence asked the court to “decide which are the true facts”.
However, he raised two lines of defence or justification for his conduct – a claim of legitimate or lawful taking of life, and Superior Orders.
The Defence outlined the circumstances that led to the shooting. The two men were among a group of seven who were taken into custody. The two were held as suspected communist guerillas. Then came the Emperor’s surrender on 14 August 1945 and a conference with Major Yoshio Hirao on 17 August 1945, at which the Major ordered that “suitable steps” should be taken in respect of suspects in custody.
The Accused regarded the two detainees as a “serious menace” to public peace and order. The Accused noted that after the Emperor’s surrender, law and order in Hong Kong deteriorated. He insisted that the decision to execute them was based on his sense of public duty to the community, but not brutality or animosity towards them. Until the British returned, the Japanese were responsible for law and order.
The Accused claimed that he received orders, at the meeting with Major Hirao on 17 August 1945, to deal with the detainees with “suitable steps”. According to his understanding, in 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. Sgt. Otsu told him they were not to be released but to be dealt with severely. In his Petition, the Accused stated “I thought that what he said about dealing severely with the Chinese was an order from Maj. Hirao”. In the closing statement, the Defence asserted that the Accused ordered Sgt. Otsu to kill the two Chinese, but Sgt. Otsu “requested that he be relieved of this duty and Ito took on himself to shoot the two Chinese.”
As for Major Hirao’s claim that he actually issued an order to release the detained Chinese, the Accused insisted that he did not remember any such order from Maj. Hirao. In the closing statement, the defence asked the court to “decide which are the true facts”.
Prosecutor
Major D.G. McGregor, Worcestershire Regt. Solicitor of the Supreme Court in New South Wales, Sydney
Defence Counsel
Fujita Tetsuo, a Judge in the Local Court, Hiroshima, Japan
Judges
President: Lt-Col. R.C. Laming, Judge Advocate, General Department in India, Barrister at law
Members: Major J.T. Loranger, Judge Advocate General Department, Canadian Army; Capt. L.G. Stephens, Royal Warwickshire Regt
Members: Major J.T. Loranger, Judge Advocate General Department, Canadian Army; Capt. L.G. Stephens, Royal Warwickshire Regt
Advisory Officer
Capt. P. Kostiloff, 1st Gurkha Rifles
Prosecution Witnesses
Abdul Razak Hamidon (Unknown)
Hirao Yoshio (Major)
Shukaharo Ichiro (Lance Corporal)
Ng Yee Kuan (Unemployed)
Defence Witnesses
Ito Junichi (Major)
Trial Dates
1946-09-20
Judgement Date
1946-09-20
Judgement Confirmation Date
1946-11-05
Judgement Promulgation Date
1946-11-05
Judgement
Guilty [not confirmed]
Petition
The Accused petitioned against the sentence. He had no objection to the finding of the court and admitted his guilt. He reiterated the circumstances, concluding that “At the time of the shooting, I did not know I was committing a grave crime. I thought only that I was doing something for the betterment of the community”.
What happened here was that the Accused pleaded guilty and the court proceeded with the Rule 35(B) procedure. The Judge Advocate General [Unidentified Colonel, offg. DJAG, Allied Land Forces, SEA, 20 October 1946] observed serious procedural irregularities with the guilty plea procedure in this case, and recommended retrial.
According to the Judge Advocate, “the court proceeded to take sufficient evidence to enable them to determine the sentence and the confirming officer to know all the circumstances connected with the offence”. The Judge Advocate observed that this procedure “merely provided that the court and confirming officer will have before them sufficient evidence to know the facts to which the accused has pleaded guilty and does not amount to a trial of the averment in the charge sheet. It is difficult to appreciate why the court considered this course was necessary in as much as all statements by witnesses must have been available. Furthermore, it must have been apparent from the cross-examination of the second Prosecution Witness (page 5) that the defence were suggesting that the accused has received orders to execute prisoners and should have reversed the plea at that point.”
“Although there was no “case for the prosecution” it is so recorded on page 9, and the accused was even allowed to give evidence on oath and be cross-examined by the prosecutor despite the fact that on a plea of guilty he could do no more than make a statement in mitigation.”
“Finally, at the conclusion of the trial which though it bears some resemblance to the procedure on a plea of “Not Guilty” was really in fact a mere recording of sufficient evidence to acquaint the court of the circumstances to which the accused pleaded “Guilty” the court decided to alter the plea of one of “Not Guilty”. Having done so, the court should have re-heard the whole of the evidence from the beginning in accordance with RP 37(D). Since they have not done so, there was no trial of the facts, and the court closed to consider the finding without hearing the evidence for the prosecution and defence and cross-examination thereon as required on a plea of “Not Guilty”.”
The Judge Advocate advised the Commander, Land Forces, Hong Kong, that “In my opinion the irregularities committed in the course of this trial are so grave as to vitiate the entire proceedings and I have no alternative to advise that you withhold confirmation……. You will probably consider that the interests of justice demand that the accused be re-tried before an entirely fresh court, and after promulgation of non-confirmation [illegible]. A plea of “Guilty” should not be accepted.”
What happened here was that the Accused pleaded guilty and the court proceeded with the Rule 35(B) procedure. The Judge Advocate General [Unidentified Colonel, offg. DJAG, Allied Land Forces, SEA, 20 October 1946] observed serious procedural irregularities with the guilty plea procedure in this case, and recommended retrial.
According to the Judge Advocate, “the court proceeded to take sufficient evidence to enable them to determine the sentence and the confirming officer to know all the circumstances connected with the offence”. The Judge Advocate observed that this procedure “merely provided that the court and confirming officer will have before them sufficient evidence to know the facts to which the accused has pleaded guilty and does not amount to a trial of the averment in the charge sheet. It is difficult to appreciate why the court considered this course was necessary in as much as all statements by witnesses must have been available. Furthermore, it must have been apparent from the cross-examination of the second Prosecution Witness (page 5) that the defence were suggesting that the accused has received orders to execute prisoners and should have reversed the plea at that point.”
“Although there was no “case for the prosecution” it is so recorded on page 9, and the accused was even allowed to give evidence on oath and be cross-examined by the prosecutor despite the fact that on a plea of guilty he could do no more than make a statement in mitigation.”
“Finally, at the conclusion of the trial which though it bears some resemblance to the procedure on a plea of “Not Guilty” was really in fact a mere recording of sufficient evidence to acquaint the court of the circumstances to which the accused pleaded “Guilty” the court decided to alter the plea of one of “Not Guilty”. Having done so, the court should have re-heard the whole of the evidence from the beginning in accordance with RP 37(D). Since they have not done so, there was no trial of the facts, and the court closed to consider the finding without hearing the evidence for the prosecution and defence and cross-examination thereon as required on a plea of “Not Guilty”.”
The Judge Advocate advised the Commander, Land Forces, Hong Kong, that “In my opinion the irregularities committed in the course of this trial are so grave as to vitiate the entire proceedings and I have no alternative to advise that you withhold confirmation……. You will probably consider that the interests of justice demand that the accused be re-tried before an entirely fresh court, and after promulgation of non-confirmation [illegible]. A plea of “Guilty” should not be accepted.”
Sentence Imposed
Death by shooting [not confirmed]
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Guerilla activities; OR Guerilla activity; Anti-Japanese Activity; Communist Activities; Place of Detention; “concerned in”; Arbitrary or summary punishment; Unlawful killing; Lawful or legitimate killing; Order; Superior Orders; Miscommunication; Emperor’s capitulation; War Crimes; Violations of laws and customs of war; Judgement not confirmed
Remarks
Refer to the case of Major Yoshio Hirao, Case No. WO/235/1098 Refer to the case of S/M Ito Junichi, Case No. WO/235/1048, the retrial of this accused.
Dublin Core
Title
WO235/905
Description
Committing a War Crime
“in that they at or near KINKASEKI Formosa between the months of November 1942 and August 1945 when members of the staff of No. 1 Prisoner of War Camp FORMOSA were in violation of the laws and usages of war concerned in the inhumane treatment of British and allied Prisoners of War in their custody thereby causing physical suffering to the said Prisoners of War and contributing to the deaths of many of them”.
“in that they at or near KINKASEKI Formosa between the months of November 1942 and August 1945 when members of the staff of No. 1 Prisoner of War Camp FORMOSA were in violation of the laws and usages of war concerned in the inhumane treatment of British and allied Prisoners of War in their custody thereby causing physical suffering to the said Prisoners of War and contributing to the deaths of many of them”.
Legal Case Item Type Metadata
Case No.
WO235/905
Accused
Sgt. Tashiro Toranosuke (D1)
Cpl. Ueno Mitsuo (D2)
Cpl. Kuribayashi Shigeru (D3)
Court
Military Court for the Trial of War Criminals No. 5
Charge
Committing a War Crime
“in that they at or near KINKASEKI Formosa between the months of November 1942 and August 1945 when members of the staff of No. 1 Prisoner of War Camp FORMOSA were in violation of the laws and usages of war concerned in the inhumane treatment of British and allied Prisoners of War in their custody thereby causing physical suffering to the said Prisoners of War and contributing to the deaths of many of them”.
“in that they at or near KINKASEKI Formosa between the months of November 1942 and August 1945 when members of the staff of No. 1 Prisoner of War Camp FORMOSA were in violation of the laws and usages of war concerned in the inhumane treatment of British and allied Prisoners of War in their custody thereby causing physical suffering to the said Prisoners of War and contributing to the deaths of many of them”.
Background
The three Accused comprised the Japanese medical squad at No. 1 Prisoners of War (‘POW’) Camp, Kinkaseki, Formosa. They were not Doctors. D1 was the N.C.O. in charge of the squad.
There was no Japanese Doctor in the Camp. The POWs had to rely for assistance on the POW Doctor Capt. Seed and later Maj. Wheeler, assisted by a dental surgeon and three British medical orderlies.
The Kinkaseki Camp provided POWs as labour for the nearby copper mine operated by a Japanese mining company. The Accused were said to have been concerned in the ill-treatment of the POWs, causing them physical suffering and contributing to the deaths of many of them.
There was no Japanese Doctor in the Camp. The POWs had to rely for assistance on the POW Doctor Capt. Seed and later Maj. Wheeler, assisted by a dental surgeon and three British medical orderlies.
The Kinkaseki Camp provided POWs as labour for the nearby copper mine operated by a Japanese mining company. The Accused were said to have been concerned in the ill-treatment of the POWs, causing them physical suffering and contributing to the deaths of many of them.
Allegations
The Prosecution argued that the work in the mine was extremely arduous and the working conditions were unhealthy. The Prosecution sought to establish that the Accused were directly responsible for dispatching POWs who were unfit and sick to work in the mine. The other Japanese officers in the Camp did not interfere with their decision to send unfit POWs to work, despite protest by the POW doctor. The Prosecution argued that the Accused were indifferent and negligent as far as the sick POWs were concerned. Events in question included a lack of supply of medical supplies, food stuff and also the sending of the sick to the mine to work. The Prosecution also sought to prove that the Accused (primarily led by the first Accused) abused the POWs by, including but not limiting to, beating and other ill-treatment, regardless of the victims’ health condition.
Defence
The Defence chiefly argued that responsibility lay elsewhere – the Japanese Medical Orderly and the POW Doctors.
In any case, no sick persons were actually sent to the mine to work.
The Accused argued that it was neither their duty, nor were they as medical orderlies qualified, to decide if men were fit to work in the mine. The Defence seemed to argue that the Accused ran the camp according to the orders and instructions of the POW headquarters in Taikoku. Therefore, the Accused could not be held responsible for what happened. Specifically, they argued that the Japanese medical officers from the headquarters and from Army hospitals at Kilung periodically visited the Camp and gave instructions to the Accused regarding their medical duties. Therefore, it was those who gave the instructions to the Accused who should be held liable.
The “sick parade” was also conducted in the presence of the Japanese Medical Orderly. The Accused had reason to believe in his decisions and expertise. They also argued that the decision to send POWs to work relied on the medical records in the camp, so they could not have sent the sick and the wounded to the mine at their free will.
Nevertheless, the Defence admitted that on one occasion, they sent some “not quite fit men” to work. But, that was under the order or Lt. Wakiyama and they were only sent to do light work.
Responsibility for such decisions also lay with the POW Doctors and their assistants. The Accused merely ensured that things ran smoothly and took no part in deciding admission and discharge from the hospital.
On the allegation of being negligent of the sick, the Accused blamed the general shortage of drugs at the relevant time rather than a refusal to take care of the POWs properly. Any withholding of the drugs in the Japanese office was for the purpose of record only.
As for the deaths within the camp, the Defence relied on a number of explanations including shortage of medical supplies, and also bad climate (the wet/rainy season); change of labour conditions, and exhaustion and sickness during the transportation to Formosa.
Lastly, the Defence also denied any involvement in the beating and abuse of the POWs on grounds of insufficient or exaggerated evidence
In any case, no sick persons were actually sent to the mine to work.
The Accused argued that it was neither their duty, nor were they as medical orderlies qualified, to decide if men were fit to work in the mine. The Defence seemed to argue that the Accused ran the camp according to the orders and instructions of the POW headquarters in Taikoku. Therefore, the Accused could not be held responsible for what happened. Specifically, they argued that the Japanese medical officers from the headquarters and from Army hospitals at Kilung periodically visited the Camp and gave instructions to the Accused regarding their medical duties. Therefore, it was those who gave the instructions to the Accused who should be held liable.
The “sick parade” was also conducted in the presence of the Japanese Medical Orderly. The Accused had reason to believe in his decisions and expertise. They also argued that the decision to send POWs to work relied on the medical records in the camp, so they could not have sent the sick and the wounded to the mine at their free will.
Nevertheless, the Defence admitted that on one occasion, they sent some “not quite fit men” to work. But, that was under the order or Lt. Wakiyama and they were only sent to do light work.
Responsibility for such decisions also lay with the POW Doctors and their assistants. The Accused merely ensured that things ran smoothly and took no part in deciding admission and discharge from the hospital.
On the allegation of being negligent of the sick, the Accused blamed the general shortage of drugs at the relevant time rather than a refusal to take care of the POWs properly. Any withholding of the drugs in the Japanese office was for the purpose of record only.
As for the deaths within the camp, the Defence relied on a number of explanations including shortage of medical supplies, and also bad climate (the wet/rainy season); change of labour conditions, and exhaustion and sickness during the transportation to Formosa.
Lastly, the Defence also denied any involvement in the beating and abuse of the POWs on grounds of insufficient or exaggerated evidence
Prosecutor
Major P.A.L. Vine, Royal Marines
Defence Counsel
Fujita Tetsuo, a Judge in the Local Court, Hiroshima, Japan.
Judges
President: Lt. Col. R.C. Laming, Judge Advocate General Department in India, Barrister-at-Law.
Members: Major J.T. Loranger, Judge Advocate General Department, Canadian Army; Capt. K.R. Busfield, R.A.C.
Members: Major J.T. Loranger, Judge Advocate General Department, Canadian Army; Capt. K.R. Busfield, R.A.C.
Advisory Officer
Capt. P. Kostiloff, 1st Gurkha Rifles
Prosecution Witnesses
Major J.T.N. Cross (Major, Royal Artillery)
Ho Kan Tan (Interpreter, War Crimes Formosa Liaison Section)
W/O Edwards (Warrant Officer, Royal Corps of Signals)
Sasaki (Unknown)
Defence Witnesses
Sgt Tashiro (Accused. Medical Sergeant, Japanese Army)
Cpl. Ueno Mitsuo (Accused. Medical Corporal, Japanese Army)
Kuribayashi Shigeru (Accused. Medical Corporal, Japanese Army)
Ashia Tsumoru (Lieutenant, Formosa Prisoners of War Camp, Japanese Army)
Lt. Tara Iwo (Lieutenant, Formosa Prisoners of War Camp, Japanese Army)
Takeuchi Suauchi (Foreman, Kinkaseki Mining Company)
Nagai Takegoru (Employee, Formosa Japan Mining Company)
Lt. Brett (Lieutenant, Canadian Intelligence Corps.)
Trial Dates
1946-10-02
1946-10-03
1946-10-04
1946-10-05
1946-10-07
1946-10-08
1946-10-09
1946-10-10
1946-10-14
Judgement Date
1946-10-14
Judgement Confirmation Date
1946-10-31
Judgement Promulgation Date
1946-11-05
Judgement
Held:
1. That the first accused was guilty except for the words “contributing to the deaths of many of them”;
2. That the second accused was guilty except for the words “contributing to the deaths of many of them”;
3. That the third accused was guilty except for the words “contributing to the deaths of many of them”.
1. That the first accused was guilty except for the words “contributing to the deaths of many of them”;
2. That the second accused was guilty except for the words “contributing to the deaths of many of them”;
3. That the third accused was guilty except for the words “contributing to the deaths of many of them”.
Petition
No Petition is on the record.
The Judge Advocate (Lt. Col. D.A. Wright, A.J.A.G, Land Forces, 28 October 1946) recommended confirmation of findings and sentences. He drew attention to the evidence against D1 and the degree to which he contributed to the deaths of 3 named POWs - "the Court were presumably of the opinion that it would be unsafe to deduce from this in the absence of some supporting medical testimony, and decided that the Prosecution had failed to produce satisfactory evidence of a sufficient number of specific instances of neglect or brutal illtreatment such as could reasonably be held to have contributed to the deaths of "MANY" P.O.W.s as averrred in the charge; a special finding was accordingly passed excepting this averment."
The Judge Advocate observed that the Court did differentiate between the different degrees of involvement of the various Accused. This was borne out by the sentencing.
The absence of live testimony from ex-POWs was commented on by the Judge Advocate. “To my mind, it is most unfortunate that no evidence was forthcoming from any of the P.O.W. doctors or the medical orderlies, who must have been in continual contact with the accused; their testimony, if available, would undoubtedly have strengthened the Prosecution case, with reference, in particular, to the alleged withholding of drugs by the accused and the reduction of rations for sick P.O.W.s by Sgt. Tashiro, the evidence on which was far from satisfactory: such evidence might possibly have resulted in the award of deservedly severe sentences.”
The Judge Advocate (Lt. Col. D.A. Wright, A.J.A.G, Land Forces, 28 October 1946) recommended confirmation of findings and sentences. He drew attention to the evidence against D1 and the degree to which he contributed to the deaths of 3 named POWs - "the Court were presumably of the opinion that it would be unsafe to deduce from this in the absence of some supporting medical testimony, and decided that the Prosecution had failed to produce satisfactory evidence of a sufficient number of specific instances of neglect or brutal illtreatment such as could reasonably be held to have contributed to the deaths of "MANY" P.O.W.s as averrred in the charge; a special finding was accordingly passed excepting this averment."
The Judge Advocate observed that the Court did differentiate between the different degrees of involvement of the various Accused. This was borne out by the sentencing.
The absence of live testimony from ex-POWs was commented on by the Judge Advocate. “To my mind, it is most unfortunate that no evidence was forthcoming from any of the P.O.W. doctors or the medical orderlies, who must have been in continual contact with the accused; their testimony, if available, would undoubtedly have strengthened the Prosecution case, with reference, in particular, to the alleged withholding of drugs by the accused and the reduction of rations for sick P.O.W.s by Sgt. Tashiro, the evidence on which was far from satisfactory: such evidence might possibly have resulted in the award of deservedly severe sentences.”
Sentence Imposed
D1: 8 years imprisonment;
D2: 2 years imprisonment;
D3: 2 years imprisonment.
D2: 2 years imprisonment;
D3: 2 years imprisonment.
Keywords
Formosa; Prisoners of War; Sick or wounded; Prisoner of War Camp; "concerned in"; Committed; Medical or related personnel; Poor conditions of detention; Neglect; Failure to provide adequate medical care; Failure to provide adequate food and/or care; Forced labour; Cruel Inhuman or Degrading Treatment; Unlawful killings; Orders; Superior Orders; Scope of responsibilities; POW medical personnel; Neglect; War Crimes; Violations of the laws and customs of war; Necessity; Death from natural causes; Scope of responsibilities
Remarks
3 Co-Accused - 1 defence lawyer.
Dublin Core
Title
WO235/895
Description
Committing a War Crime
“in that they at Hong Kong between 20th July 1945 and 18th August 1945 being in the service of the occupying power of Japanese Gendarmerie, Headquarters, in violation of the laws and usages of war, were together concerned in the maltreatment of the following civilians, under arrest and at the said Headquarters: IP TING CHANG, IP HA KAN, IP HAK KIM, LAU HAI HIT, SO SUI WING, CHAN CHE WING and CHAN KANG CHEN”
“in that they at Hong Kong between 20th July 1945 and 18th August 1945 being in the service of the occupying power of Japanese Gendarmerie, Headquarters, in violation of the laws and usages of war, were together concerned in the maltreatment of the following civilians, under arrest and at the said Headquarters: IP TING CHANG, IP HA KAN, IP HAK KIM, LAU HAI HIT, SO SUI WING, CHAN CHE WING and CHAN KANG CHEN”
Legal Case Item Type Metadata
Case No.
WO235/895
Accused
Sgt. Hanada Zenji (D1)
L./Cpl. Sano Toshiharu (D2)
W/O Kurosawa Hideo (D3)
Sgt Sakamoto Isoji (D4)
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that they at Hong Kong between 20th July 1945 and 18th August 1945 being in the service of the occupying power of Japanese Gendarmerie, Headquarters, in violation of the laws and usages of war, were together concerned in the maltreatment of the following civilians, under arrest and at the said Headquarters: IP TING CHANG, IP HA KAN, IP HAK KIM, LAU HAI HIT, SO SUI WING, CHAN CHE WING and CHAN KANG CHEN”
“in that they at Hong Kong between 20th July 1945 and 18th August 1945 being in the service of the occupying power of Japanese Gendarmerie, Headquarters, in violation of the laws and usages of war, were together concerned in the maltreatment of the following civilians, under arrest and at the said Headquarters: IP TING CHANG, IP HA KAN, IP HAK KIM, LAU HAI HIT, SO SUI WING, CHAN CHE WING and CHAN KANG CHEN”
Background
The first Accused (D1) was a Gendarme Lance-Corporal attached to the Hong Kong Island District Gendarmerie since 20 February 1945.
The second Accused (D2) was a Gendarme Sergeant attached to the Hong Kong Island district Gendarme since March 1945.
The third Accused (D3) was a Warrant Officer in the Hong Kong Island District Gendarmie who was also in charge of a special intelligence team to collect information.
The fourth Accused (D4) was a Gendarme Sergeant working in the special intelligence team who was an administrator, dealing with paperwork.
The victims were suspected of espionage, were arrested, brought to and detained in the Supreme Court building under the Special Intelligence Department.
The second Accused (D2) was a Gendarme Sergeant attached to the Hong Kong Island district Gendarme since March 1945.
The third Accused (D3) was a Warrant Officer in the Hong Kong Island District Gendarmie who was also in charge of a special intelligence team to collect information.
The fourth Accused (D4) was a Gendarme Sergeant working in the special intelligence team who was an administrator, dealing with paperwork.
The victims were suspected of espionage, were arrested, brought to and detained in the Supreme Court building under the Special Intelligence Department.
Allegations
The Prosecution sought to establish that the Accused maltreated the named civilian victims.
The case for the Prosecution consisted solely of the evidence of the seven Chinese civilians mentioned in the charge. They were arrested on suspicion of espionage and were detained in the Supreme Court Building, and were interrogated by the Accused.
With respect to D1, it was alleged that he committed, inter alia, the “aero plane torture” “water torture"; beating victims with whips, canes and poles until they became unconscious. It was also alleged that he was present when certain victims’ arms and faces were burnt.
With respect to D2, it was alleged that he witnessed the beating of victims and also ordered and instigated the infliction of “airplane torture” and “water torture” on certain victims.
With respect to D3, it was alleged that he witnessed the beating of victims and also ordered and instigated the infliction of “airplane torture” on certain victims. He was also alleged to have burnt certain victims with lighted matches and cigarettes.
D4 was alleged to have beaten one of the victims named.
The case for the Prosecution consisted solely of the evidence of the seven Chinese civilians mentioned in the charge. They were arrested on suspicion of espionage and were detained in the Supreme Court Building, and were interrogated by the Accused.
With respect to D1, it was alleged that he committed, inter alia, the “aero plane torture” “water torture"; beating victims with whips, canes and poles until they became unconscious. It was also alleged that he was present when certain victims’ arms and faces were burnt.
With respect to D2, it was alleged that he witnessed the beating of victims and also ordered and instigated the infliction of “airplane torture” and “water torture” on certain victims.
With respect to D3, it was alleged that he witnessed the beating of victims and also ordered and instigated the infliction of “airplane torture” on certain victims. He was also alleged to have burnt certain victims with lighted matches and cigarettes.
D4 was alleged to have beaten one of the victims named.
Defence
At the start, the Defence launched an unsuccessful challenge on the vagueness of the charge.
The Defence claimed that the whole trial was a “frame-up”.
The Defence denied all allegations of torture and maltreatment on the grounds of insufficient evidence.
Other than D4 who admitted that he slapped the named victim, all other Accused denied any sort of ill-treatment or torture.
The Defence claimed that the whole trial was a “frame-up”.
The Defence denied all allegations of torture and maltreatment on the grounds of insufficient evidence.
Other than D4 who admitted that he slapped the named victim, all other Accused denied any sort of ill-treatment or torture.
Prosecutor
Major G. B. Puddicombe (Advocate) (The Victoria Rifles of Canada)
Defence Counsel
Capt. J.F. Reilly, Staff Captain (Legal), HQ, ALFSEA
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Prosecution Witnesses
Ip Tin-shang (Chief interpreter, Kowloon Magistracy)
K.C. Chan (Manager, Century Company)
Chan Che-wing (Manager of a jewellery shop)
So Shui-wing (Industrial Chemist)
Ip Hak-kan (Health Inspector)
Ip Hak-kin (Shop assistant)
Lau Hai-lit (Manager, Kwong Cheung firm.)
Defence Witnesses
Sakamoto Isoji (Gendarme Sergeant, Hong Kong Island District Gendarmerie)
W/O Kurasawa Hideo (Gendarmerie Warrant Officer, Hong Kong Island District Gendarmerie)
Hanada Zenji (Gendarme Sergeant, Hong Kong Island District Gendarmerie)
L/Cpl Sano Toshiharu (Gendarme Lance-corporal, Hong Kong Island District Gendarmerie)
Captain Ogura Kuraichi (Gendarme Captain, Hong Kong Island District Gendarmerie)
S/M Miyashita Mitsumori (Gendarme Sergeant-Major, Hong Kong Island District Gendarmerie)
W/O Nozaka Katsuzo (Gendarmerie Warrant Officer, Hong Kong Island District Gendarmerie)
Cpl. T. Anderson, 42 Cdo. (Corporal, Escort for Japanese and Chinese Prisoners.)
Trial Dates
1946-05-30
1946-05-31
1946-06-01
1946-06-03
1946-06-04
1946-06-05
1946-06-06
1946-06-07
1946-06-11
Judgement Date
1946-06-11
Judgement Confirmation Date
1946-07-03
Judgement Promulgation Date
1946-07-09
Judgement
Held:
1. That D1, D2 and D3 were guilty;
2. That D4 was not guilty.
1. That D1, D2 and D3 were guilty;
2. That D4 was not guilty.
Petition
No Petition is on record.
The Judge Advocate [Lt. Col. L. Raynor, AJAG, HQ Land Forces, 1 July 1946] described the trial as “long and well conducted”. He recommended confirmation of the findings and the sentence.
“The case against Kurosawa was not a particularly strong one, and the Court either believed his evidence or gave him the benefit of the doubt regarding his guilt. The court’s findings of not guilty in respect of Sakamoto does not require confirmation”.
“There was ample evidence in my opinion to warrant the Court’s findings of guilty in respect of the other three accused. It is clear that the Court believed the Prosecution Witnesses and disbelieved the evidence given by Sano, Kurosawa and Hanada. The facts as proved in the evidence clearly amounted in law to a War Crime. In my view, the accused were rightly convicted. Having regard to the evidence and all the circumstances of the case you may not think the sentences unduly severe.”
The Judge Advocate noted certain inappropriate remarks made by the defence counsel as immoderate and “verged on contempt of the Court”, in particular his last few sentences in his closing address. He also, however, pointed out that the said counsel had acted with utmost vigour in defending his clients, and this was not meant to be insulting. He observed that “I feel sure he was carried away in his efforts to assist the accused.”
The Judge Advocate [Lt. Col. L. Raynor, AJAG, HQ Land Forces, 1 July 1946] described the trial as “long and well conducted”. He recommended confirmation of the findings and the sentence.
“The case against Kurosawa was not a particularly strong one, and the Court either believed his evidence or gave him the benefit of the doubt regarding his guilt. The court’s findings of not guilty in respect of Sakamoto does not require confirmation”.
“There was ample evidence in my opinion to warrant the Court’s findings of guilty in respect of the other three accused. It is clear that the Court believed the Prosecution Witnesses and disbelieved the evidence given by Sano, Kurosawa and Hanada. The facts as proved in the evidence clearly amounted in law to a War Crime. In my view, the accused were rightly convicted. Having regard to the evidence and all the circumstances of the case you may not think the sentences unduly severe.”
The Judge Advocate noted certain inappropriate remarks made by the defence counsel as immoderate and “verged on contempt of the Court”, in particular his last few sentences in his closing address. He also, however, pointed out that the said counsel had acted with utmost vigour in defending his clients, and this was not meant to be insulting. He observed that “I feel sure he was carried away in his efforts to assist the accused.”
Sentence Imposed
D1: 8 years imprisonment;
D2: 6 years imprisonment;
D3: 3 years imprisonment.
D2: 6 years imprisonment;
D3: 3 years imprisonment.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Espionage; Place of Detention; "together concerned in"; Committed; Ordered; Instigated; Witnessed; Torture; Cruel Inhuman or Degrading Treatment; Interrogation
War Crimes; Violations of laws and customs of war
War Crimes; Violations of laws and customs of war
Remarks
I Defence Counsel represented 4 Co-Accused.
Dublin Core
Title
WO235/894
Description
Committing a War Crime
‘in that he at Hong Kong between 7th December 1944 and 18th August 1945 being in the service of the occupying power in violation of the laws and usages of war concerned in the ill treatment of civilian residents of Hong Kong while in custody of the Japanese Gendarmerie causing them physical suffering and particularly to Mr. AXEL OLSSON, CHENG TSUUNG HAN, NA YIN CHE, CHE HOK YING, CHAN LUK CHAU, CHIU HOK CHEUK, KWOK KWOK YIN and LING CE KEING, YUEN FO TO, some of the said residents.”
‘in that he at Hong Kong between 7th December 1944 and 18th August 1945 being in the service of the occupying power in violation of the laws and usages of war concerned in the ill treatment of civilian residents of Hong Kong while in custody of the Japanese Gendarmerie causing them physical suffering and particularly to Mr. AXEL OLSSON, CHENG TSUUNG HAN, NA YIN CHE, CHE HOK YING, CHAN LUK CHAU, CHIU HOK CHEUK, KWOK KWOK YIN and LING CE KEING, YUEN FO TO, some of the said residents.”
Legal Case Item Type Metadata
Case No.
WO235/894
Accused
Sgt. Major Matsunobu Shigeru
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
‘in that he at Hong Kong between 7th December 1944 and 18th August 1945 being in the service of the occupying power in violation of the laws and usages of war concerned in the ill treatment of civilian residents of Hong Kong while in custody of the Japanese Gendarmerie causing them physical suffering and particularly to Mr. AXEL OLSSON, CHENG TSUUNG HAN, NA YIN CHE, CHE HOK YING, CHAN LUK CHAU, CHIU HOK CHEUK, KWOK KWOK YIN and LING CE KEING, YUEN FO TO, some of the said residents.”
‘in that he at Hong Kong between 7th December 1944 and 18th August 1945 being in the service of the occupying power in violation of the laws and usages of war concerned in the ill treatment of civilian residents of Hong Kong while in custody of the Japanese Gendarmerie causing them physical suffering and particularly to Mr. AXEL OLSSON, CHENG TSUUNG HAN, NA YIN CHE, CHE HOK YING, CHAN LUK CHAU, CHIU HOK CHEUK, KWOK KWOK YIN and LING CE KEING, YUEN FO TO, some of the said residents.”
Background
The Accused was a non-commissioned officer of the Japanese Gendarmerie. On 15 May 1944, he was transferred from Korea to the Special Intelligence Department of the Eastern District Gendarmerie in Hong Kong. From 1 March 1945, he was posted to Stanley Gendarme Station as Commanding Officer.
The case concerns ill-treatment of civilians. According to the Judge Advocate [Lt. Col. D.A.Wright, AJAG, Land Forces, 19 August 1946], nine civilians were specifically mentioned but "it was clear from the phrasing in the particulars of the charge that it was not restricted to these nine named persons, and the Prosecution, as they were entitled to do, led evidence relating to the alleged ill-treatment of two other residents, Suen Chuen-wo and Hui Yee-dai".
The case concerns ill-treatment of civilians. According to the Judge Advocate [Lt. Col. D.A.Wright, AJAG, Land Forces, 19 August 1946], nine civilians were specifically mentioned but "it was clear from the phrasing in the particulars of the charge that it was not restricted to these nine named persons, and the Prosecution, as they were entitled to do, led evidence relating to the alleged ill-treatment of two other residents, Suen Chuen-wo and Hui Yee-dai".
Allegations
The Prosecution sought to establish that the Accused was responsible for the infliction of ill-treatment on certain civilians, which included beating, suspension by thumbs or wrists, and water torture. All these happened in Stanley, Wong Nei Chung, at the Supreme Court, Central Police Station and No. 7 Police Station Gendarmerie.
The Prosecution relied primarily on live victim testimony.
In order to prove the seriousness of the treatment actually inflicted, including beating and water torture, the Prosecution relied on expert evidence of a doctor. He argued that torture contributed to the death of the victims in question notwithstanding a then prevailing disease (tuberculosis).
The Prosecution relied primarily on live victim testimony.
In order to prove the seriousness of the treatment actually inflicted, including beating and water torture, the Prosecution relied on expert evidence of a doctor. He argued that torture contributed to the death of the victims in question notwithstanding a then prevailing disease (tuberculosis).
Defence
The Defence was in essence a complete denial that the Accused ill-treated or tortured any of the aforementioned civilians, although he admitted that he had interrogated them.
Additionally, the Defence argued that due to the publicity of the trial, the public were inclined to think all gendarmes ill-treated and tortured the local inhabitants. However, only a handful of them mistreated members of the public.
The Defence also claimed that the victims’ families might have a grudge against the Accused, and therefore exaggerated their testimony.
On the point of water torture, the Defence challenged certain witnesses’ testimony, arguing that the severity of the water torture was exaggerated. At the same time, the Defence continued to argue that what actually happened to individual witnesses never happened.
Additionally, the Defence argued that due to the publicity of the trial, the public were inclined to think all gendarmes ill-treated and tortured the local inhabitants. However, only a handful of them mistreated members of the public.
The Defence also claimed that the victims’ families might have a grudge against the Accused, and therefore exaggerated their testimony.
On the point of water torture, the Defence challenged certain witnesses’ testimony, arguing that the severity of the water torture was exaggerated. At the same time, the Defence continued to argue that what actually happened to individual witnesses never happened.
Prosecutor
Major G. B. Puddicombe (Advocate) (The Victoria Rifles of Canada)
Defence Counsel
Mr. Fujita Tetsuo (Japanese Barrister)
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Lieut. J.R. Haggan, R.E.
Prosecution Witnesses
A.M. Scott (Civil Servant, Waterwork Office)
Axel Olsson (Warehouse Foreman)
Denis Victor (Manager of a dancing hall)
Chiu Mok-cheuk (Clothes Merchant)
Ling Ce-Kiang (Employee, Cable and Wireless)
Chan Luk-chau (Employee, Cable and Wireless)
Yuen Man-ching (Clerk, Nethersole Hospital)
Dr. T.P. Wu (Medical Practitioner)
Hui She Siu-kee (Unemployed, Wife of Hui Yee-dai)
Suen Chun-ho (Employee, a barber?s shop)
Kwok Kwok-yin (Import and Export Merchant)
Na Ying-Cheun (Employee, a barber?s shop)
Che Hok-ying (Employee, a barber?s shop)
Major K. Hussain (War Crimes Investigation Unit)
Defence Witnesses
Sergeant Matsunabu Shigeru (Accused)
Capt. Ogura Kuraichi (Gendarme Captain, Commanding Office of Hong Kong Island)
W/O Jurasawa Hideo (Warrant Office, Hong Kong District Gendarmerie)
Trial Dates
1946-07-25
1946-07-26
1946-07-27
1946-07-30
1946-08-01
Judgement Date
1946-08-01
Judgement Confirmation Date
1946-08-23
Judgement Promulgation Date
1946-08-26
Judgement
Held that the Accused was guilty.
Petition
No Petition was recorded.
According to the Judge Advocate, "After a well-conducted and careful trial the Court found the accused guilty of the charges as laid and sentenced him to 8 years imprisonment. The sentence is, in my opinion, a very lenient one, considering the brutal and systematic ill-treatment meted out by the accused to these civilians as disclosed by the evidence".
Elsewhere in the review, the Judge Advocate noted indirect evidence and hearsay evidence. He noted a number of procedural issues (of a minor
nature).
Nevertheless, the Judge Advocate advised confirmation of findings and sentence.
According to the Judge Advocate, "After a well-conducted and careful trial the Court found the accused guilty of the charges as laid and sentenced him to 8 years imprisonment. The sentence is, in my opinion, a very lenient one, considering the brutal and systematic ill-treatment meted out by the accused to these civilians as disclosed by the evidence".
Elsewhere in the review, the Judge Advocate noted indirect evidence and hearsay evidence. He noted a number of procedural issues (of a minor
nature).
Nevertheless, the Judge Advocate advised confirmation of findings and sentence.
Sentence Imposed
8 Years Imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; "concerned in"; Committed; Torture; Cruel Inhuman or Degrading Treatment; Unlawful killing; War Crimes; Violations of laws and customs of war
Dublin Core
Title
WO235/893
Description
Committing a War Crime
“in that he at Kowloon between the 8th June 1944 and the 19th July 1945 when in the service of the occupying power as W.O. in charge of the Special Branch of the Japanese Gendarmerie Kowloon Headquarters and as such responsible for the well being of persons in arrest at the said place in violation of the laws and usages of war was concerned in the ill-treatment and torture of Tai Fook, Wan Mun Soo, Sui Wai Wan, Chu Man Yu, Tsui Sai Cheung, J.A. Siren and Wan Tin Soon all persons under arrest at the gendarmerie aforesaid”
“in that he at Kowloon between the 8th June 1944 and the 19th July 1945 when in the service of the occupying power as W.O. in charge of the Special Branch of the Japanese Gendarmerie Kowloon Headquarters and as such responsible for the well being of persons in arrest at the said place in violation of the laws and usages of war was concerned in the ill-treatment and torture of Tai Fook, Wan Mun Soo, Sui Wai Wan, Chu Man Yu, Tsui Sai Cheung, J.A. Siren and Wan Tin Soon all persons under arrest at the gendarmerie aforesaid”
Legal Case Item Type Metadata
Case No.
WO235/893
Accused
W/O Omura Kyoshi
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that he at Kowloon between the 8th June 1944 and the 19th July 1945 when in the service of the occupying power as W.O. in charge of the Special Branch of the Japanese Gendarmerie Kowloon Headquarters and as such responsible for the well being of persons in arrest at the said place in violation of the laws and usages of war was concerned in the ill-treatment and torture of Tai Fook, Wan Mun Soo, Sui Wai Wan, Chu Man Yu, Tsui Sai Cheung, J.A. Siren and Wan Tin Soon all persons under arrest at the gendarmerie aforesaid”
“in that he at Kowloon between the 8th June 1944 and the 19th July 1945 when in the service of the occupying power as W.O. in charge of the Special Branch of the Japanese Gendarmerie Kowloon Headquarters and as such responsible for the well being of persons in arrest at the said place in violation of the laws and usages of war was concerned in the ill-treatment and torture of Tai Fook, Wan Mun Soo, Sui Wai Wan, Chu Man Yu, Tsui Sai Cheung, J.A. Siren and Wan Tin Soon all persons under arrest at the gendarmerie aforesaid”
Background
The Accused was attached to the Kowloon Gendarmerie. In April 1944, the Accused was placed in charge of the Special Intelligence Department of the Kowloon District Gendarmerie. He remained in the post until the end of July 1944 when W.O. Miura took over. The Accused continued to work as Miura’s subordinate until 27 February 1945 when he resumed his former appointment.
Allegations
The Prosecution sought to establish that (1) the Accused actually held the position as alleged; (2) while he was in that position, he either tortured people or tolerated their torture by his subordinates.
The Accused mistreated certain detainees under his jurisdiction during his appointment in the Special Branch. It was contended that the Accused: (1) threatened torture if the victims could not give certain information; (2) actually ill-treated the victims or permitted ill-treatment such as beating, see-sawing on the victim, “water torture”, “aviation treatment” (i.e. suspending a victim from a rope which was attached to his hands, which were tied behind his back), and placing lighted papers in the victims’ waistband.
The Prosecution stated that “It is sought to make Omura liable for what he did personally, or, and in his absence it is claimed that on the facts, whatever his subordinates did must said to have been countenanced by him. He, therefore, must accept full responsibility”.
On the point of responsibility for his subordinates, the Prosecution argued that by inference, the Accused authorized the said torture by conduct (such as by being at the scene without stopping the interrogation). Alternatively, it was argued that the Accused had given general authority to his subordinates to torture. (The prosecutor relied on English law on this point, citing Halsbury Laws of England Vol. 9 at 234).
The Accused mistreated certain detainees under his jurisdiction during his appointment in the Special Branch. It was contended that the Accused: (1) threatened torture if the victims could not give certain information; (2) actually ill-treated the victims or permitted ill-treatment such as beating, see-sawing on the victim, “water torture”, “aviation treatment” (i.e. suspending a victim from a rope which was attached to his hands, which were tied behind his back), and placing lighted papers in the victims’ waistband.
The Prosecution stated that “It is sought to make Omura liable for what he did personally, or, and in his absence it is claimed that on the facts, whatever his subordinates did must said to have been countenanced by him. He, therefore, must accept full responsibility”.
On the point of responsibility for his subordinates, the Prosecution argued that by inference, the Accused authorized the said torture by conduct (such as by being at the scene without stopping the interrogation). Alternatively, it was argued that the Accused had given general authority to his subordinates to torture. (The prosecutor relied on English law on this point, citing Halsbury Laws of England Vol. 9 at 234).
Defence
The Defence founded its case on alibi and identification evidence.
First of all, the Defence challenged the identification evidence. It argued that the Accused was either not properly identified by some of the witnesses, or identified as not having tortured the witness at all.
The Defence emphasized the truthfulness of the testimony given by the Accused in the witness box.
The Defence argued that the Prosecution's emphasis on the fact that the Accused employed Chinese detectives added nothing significant (or special) to the case – use of Chinese detectives was common practice.
It was also noted that there has been consistent confusion between the identity of the Accused and another officer, Miura, who, according to the Defence, was the one who was to blame for the torture. As such, the Accused should not be held responsible for Miura's actions.
First of all, the Defence challenged the identification evidence. It argued that the Accused was either not properly identified by some of the witnesses, or identified as not having tortured the witness at all.
The Defence emphasized the truthfulness of the testimony given by the Accused in the witness box.
The Defence argued that the Prosecution's emphasis on the fact that the Accused employed Chinese detectives added nothing significant (or special) to the case – use of Chinese detectives was common practice.
It was also noted that there has been consistent confusion between the identity of the Accused and another officer, Miura, who, according to the Defence, was the one who was to blame for the torture. As such, the Accused should not be held responsible for Miura's actions.
Prosecutor
Major D.J. McGregor (Black Watch)
Defence Counsel
Lt. J.R. Haggan, R.E.
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Prosecution Witnesses
Siu Wai-man (Industries Section, Hong Kong Government)
Jules A. Siren (French Stenographer)
Wan Tin-Soong (Civilian)
Chu Man-tu (Merchant, Goldsmith Shop)
Tsui Sai-cheung (Student)
Wan Ho-keung (Teacher)
Major Hirao Yoshio (Major, Japanese Army; C.O. Kowloon District Gendarmerie)
Defence Witnesses
Omura Kyoshi (Accused)
Trial Dates
1946-07-02
1946-07-03
1946-07-04
Judgement Date
1946-07-04
Judgement Confirmation Date
1946-08-01
Judgement Promulgation Date
1946-08-12
Judgement
Held that the Accused was guilty but with the exception of the words “Wan Mun Soo, Sui Wai Wan; Wan Tin Soon”.
Petition
There is no record of a petition being filed.
The Judge Advocate [Lt.Col. D.A. Wright, AJAG, HQ Land Forces, 12 July 1946] advised that the trial had been "careful" and the Accused was "rightly convicted" even though there were weaknesses in the case. The Court made a special finding which excepted 3 named persons from the charge: Wan Mun Soo, Sui Wai Wun and Wan Tin Soon.
The Judge Advocate observed a number of procedural issues arising from prosecutorial conduct of the case:
1.He could not agree that the Prosecution was entitled to put to PW3 a previous statement.
2. The Prosecution should give a detailed explanation about its failure to call certain witnesses.
3. It was not satisfactory for the Prosecution to put in a statement in evidence when the author was in the court and could have given oral testimony.
4. The death certificate of a victim should have been properly certified and declared as a true translation.
5. The charge sheet that was delivered to the Accused before trial was not the same as the one on which he was arraigned.
Under para. 8(1)(b) of the ALFSEA Instructions, a document purporting to have been signed or issued officially by any member of any Allied Force is admissible as evidence without proof of his signature or otherwise. This did not overrule the preference for oral testimony when the person was actually in court - the Judge Advocate recommended that the person should testify and be subject to cross-examination by the Defence.
The Judge Advocate [Lt.Col. D.A. Wright, AJAG, HQ Land Forces, 12 July 1946] advised that the trial had been "careful" and the Accused was "rightly convicted" even though there were weaknesses in the case. The Court made a special finding which excepted 3 named persons from the charge: Wan Mun Soo, Sui Wai Wun and Wan Tin Soon.
The Judge Advocate observed a number of procedural issues arising from prosecutorial conduct of the case:
1.He could not agree that the Prosecution was entitled to put to PW3 a previous statement.
2. The Prosecution should give a detailed explanation about its failure to call certain witnesses.
3. It was not satisfactory for the Prosecution to put in a statement in evidence when the author was in the court and could have given oral testimony.
4. The death certificate of a victim should have been properly certified and declared as a true translation.
5. The charge sheet that was delivered to the Accused before trial was not the same as the one on which he was arraigned.
Under para. 8(1)(b) of the ALFSEA Instructions, a document purporting to have been signed or issued officially by any member of any Allied Force is admissible as evidence without proof of his signature or otherwise. This did not overrule the preference for oral testimony when the person was actually in court - the Judge Advocate recommended that the person should testify and be subject to cross-examination by the Defence.
Sentence Imposed
7 Years Imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Place of Detention; "concerned in"; Authorised; Acquiesced; Committed; Torture; Cruel Inhuman or Degrading Treatment; War Crimes; Violations of laws and customs of war; Alibi; Mistaken Identity; Halsbury's Laws of England; Command Responsibility; ALFEA Instructions for the Trial of War Criminals
Dublin Core
Title
WO235/892
Description
First Charge: Committing a War Crime
“in that he on the high seas between the 27th September 1942 and the 2nd October 1942 when in the service of the Japanese Army as an interpreter with a draft of British Prisoners of War on board the S.S. “Lisbon Maru”, and responsible for the well-being of the said Prisoner of Wars, was, in violation of the laws and usages of war, concerned in their ill-treatment including the battening down of the Prisoners of War in the hold of the said ship after it has been torpedoed and was in a sinking condition, whereby many of them lost their lives and the remainder underwent physical and mental sufferings”
Second Charge: Committing a War Crime
“in that he at Shanghai on or about 4th October 1942 when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war, concerned in the neglect and the ill-treatment of British Prisoners of War in his custody causing physical sufferings to many of them and in particular RSM R.H. Challis.”
Third Charge: Committing a War Crime
“in that he on the high seas between 26th September 1943 and 6th January 1944 when in the service of the Japanese Army as an interpreter aboard the S.S. “Toyama Maru” (Alias “Tozan Maru”), was, in violation of the laws and usages of war, concerned in the ill-treatment of a Prisoner of War named Rifleman P. Doucett of the Canadian Army, contributing to the death of the said Rifleman Doucett”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong on or about the 20th August 1942, when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war concerned in the ill-treatment of Prisoners of War causing physical suffering to Sgt. J.O. Payne, L.Cpl. G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis all of the Winnipeg Grenadiers Canadian Army.”
Fifth Charge: Committing a War Crime
“in that he at Hong Kong during the month of November 1943 when in the service of the Japanese Army as an interpreter at Bowen Road Hospital, was, in violation of the laws and usages of war, concerned in the ill-treatment of Prisoners of War in the said hospital causing physical suffering to them and in particular to Cpl. J.T.F. Murry, Rifleman J.W. Archibald, Cpl. Pike and Cpl. Taylor.”
Sixth Charge: Committing a War Crime
“in that he at Hong Kong in the month of February 1945, when in the service of the Japanese Army as an interpreter at Happy Valley Race Course Camp was, in violation of the laws and usages of war, concerned in the ill treatment of Prisoners of War causing physical suffering and in particular to Pte. Nolan.”
Seventh Charge: Committing a War Crime
“in that he at Hong Kong between April 1942 and August 1945 when in the service of the Japanese Army as an interpreter on the Prisoner of War Camps Staff, was, in violation of the laws and usages of war, concerned in the stealing of the Red Cross parcels and personal effects the property of Prisoners of War of the Camps Group at Hong Kong aforesaid.”
“in that he on the high seas between the 27th September 1942 and the 2nd October 1942 when in the service of the Japanese Army as an interpreter with a draft of British Prisoners of War on board the S.S. “Lisbon Maru”, and responsible for the well-being of the said Prisoner of Wars, was, in violation of the laws and usages of war, concerned in their ill-treatment including the battening down of the Prisoners of War in the hold of the said ship after it has been torpedoed and was in a sinking condition, whereby many of them lost their lives and the remainder underwent physical and mental sufferings”
Second Charge: Committing a War Crime
“in that he at Shanghai on or about 4th October 1942 when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war, concerned in the neglect and the ill-treatment of British Prisoners of War in his custody causing physical sufferings to many of them and in particular RSM R.H. Challis.”
Third Charge: Committing a War Crime
“in that he on the high seas between 26th September 1943 and 6th January 1944 when in the service of the Japanese Army as an interpreter aboard the S.S. “Toyama Maru” (Alias “Tozan Maru”), was, in violation of the laws and usages of war, concerned in the ill-treatment of a Prisoner of War named Rifleman P. Doucett of the Canadian Army, contributing to the death of the said Rifleman Doucett”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong on or about the 20th August 1942, when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war concerned in the ill-treatment of Prisoners of War causing physical suffering to Sgt. J.O. Payne, L.Cpl. G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis all of the Winnipeg Grenadiers Canadian Army.”
Fifth Charge: Committing a War Crime
“in that he at Hong Kong during the month of November 1943 when in the service of the Japanese Army as an interpreter at Bowen Road Hospital, was, in violation of the laws and usages of war, concerned in the ill-treatment of Prisoners of War in the said hospital causing physical suffering to them and in particular to Cpl. J.T.F. Murry, Rifleman J.W. Archibald, Cpl. Pike and Cpl. Taylor.”
Sixth Charge: Committing a War Crime
“in that he at Hong Kong in the month of February 1945, when in the service of the Japanese Army as an interpreter at Happy Valley Race Course Camp was, in violation of the laws and usages of war, concerned in the ill treatment of Prisoners of War causing physical suffering and in particular to Pte. Nolan.”
Seventh Charge: Committing a War Crime
“in that he at Hong Kong between April 1942 and August 1945 when in the service of the Japanese Army as an interpreter on the Prisoner of War Camps Staff, was, in violation of the laws and usages of war, concerned in the stealing of the Red Cross parcels and personal effects the property of Prisoners of War of the Camps Group at Hong Kong aforesaid.”
Legal Case Item Type Metadata
Case No.
WO235/892
Accused
Niimori Genichiro
Court
Military Court for the Trial of War Criminals No. 7
Charge
First Charge: Committing a War Crime
“in that he on the high seas between the 27th September 1942 and the 2nd October 1942 when in the service of the Japanese Army as an interpreter with a draft of British Prisoners of War on board the S.S. “Lisbon Maru”, and responsible for the well-being of the said Prisoner of Wars, was, in violation of the laws and usages of war, concerned in their ill-treatment including the battening down of the Prisoners of War in the hold of the said ship after it has been torpedoed and was in a sinking condition, whereby many of them lost their lives and the remainder underwent physical and mental sufferings”
Second Charge: Committing a War Crime
“in that he at Shanghai on or about 4th October 1942 when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war, concerned in the neglect and the ill-treatment of British Prisoners of War in his custody causing physical sufferings to many of them and in particular RSM R.H. Challis.”
Third Charge: Committing a War Crime
“in that he on the high seas between 26th September 1943 and 6th January 1944 when in the service of the Japanese Army as an interpreter aboard the S.S. “Toyama Maru” (Alias “Tozan Maru”), was, in violation of the laws and usages of war, concerned in the ill-treatment of a Prisoner of War named Rifleman P. Doucett of the Canadian Army, contributing to the death of the said Rifleman Doucett”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong on or about the 20th August 1942, when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war concerned in the ill-treatment of Prisoners of War causing physical suffering to Sgt. J.O. Payne, L.Cpl. G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis all of the Winnipeg Grenadiers Canadian Army.”
Fifth Charge: Committing a War Crime
“in that he at Hong Kong during the month of November 1943 when in the service of the Japanese Army as an interpreter at Bowen Road Hospital, was, in violation of the laws and usages of war, concerned in the ill-treatment of Prisoners of War in the said hospital causing physical suffering to them and in particular to Cpl. J.T.F. Murry, Rifleman J.W. Archibald, Cpl. Pike and Cpl. Taylor.”
Sixth Charge: Committing a War Crime
“in that he at Hong Kong in the month of February 1945, when in the service of the Japanese Army as an interpreter at Happy Valley Race Course Camp was, in violation of the laws and usages of war, concerned in the ill treatment of Prisoners of War causing physical suffering and in particular to Pte. Nolan.”
Seventh Charge: Committing a War Crime
“in that he at Hong Kong between April 1942 and August 1945 when in the service of the Japanese Army as an interpreter on the Prisoner of War Camps Staff, was, in violation of the laws and usages of war, concerned in the stealing of the Red Cross parcels and personal effects the property of Prisoners of War of the Camps Group at Hong Kong aforesaid.”
“in that he on the high seas between the 27th September 1942 and the 2nd October 1942 when in the service of the Japanese Army as an interpreter with a draft of British Prisoners of War on board the S.S. “Lisbon Maru”, and responsible for the well-being of the said Prisoner of Wars, was, in violation of the laws and usages of war, concerned in their ill-treatment including the battening down of the Prisoners of War in the hold of the said ship after it has been torpedoed and was in a sinking condition, whereby many of them lost their lives and the remainder underwent physical and mental sufferings”
Second Charge: Committing a War Crime
“in that he at Shanghai on or about 4th October 1942 when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war, concerned in the neglect and the ill-treatment of British Prisoners of War in his custody causing physical sufferings to many of them and in particular RSM R.H. Challis.”
Third Charge: Committing a War Crime
“in that he on the high seas between 26th September 1943 and 6th January 1944 when in the service of the Japanese Army as an interpreter aboard the S.S. “Toyama Maru” (Alias “Tozan Maru”), was, in violation of the laws and usages of war, concerned in the ill-treatment of a Prisoner of War named Rifleman P. Doucett of the Canadian Army, contributing to the death of the said Rifleman Doucett”
Fourth Charge: Committing a War Crime
“in that he at Hong Kong on or about the 20th August 1942, when in the service of the Japanese Army as an interpreter, was, in violation of the laws and usages of war concerned in the ill-treatment of Prisoners of War causing physical suffering to Sgt. J.O. Payne, L.Cpl. G. Berzenski, Pte. J.H. Adams and Pte. P.J. Ellis all of the Winnipeg Grenadiers Canadian Army.”
Fifth Charge: Committing a War Crime
“in that he at Hong Kong during the month of November 1943 when in the service of the Japanese Army as an interpreter at Bowen Road Hospital, was, in violation of the laws and usages of war, concerned in the ill-treatment of Prisoners of War in the said hospital causing physical suffering to them and in particular to Cpl. J.T.F. Murry, Rifleman J.W. Archibald, Cpl. Pike and Cpl. Taylor.”
Sixth Charge: Committing a War Crime
“in that he at Hong Kong in the month of February 1945, when in the service of the Japanese Army as an interpreter at Happy Valley Race Course Camp was, in violation of the laws and usages of war, concerned in the ill treatment of Prisoners of War causing physical suffering and in particular to Pte. Nolan.”
Seventh Charge: Committing a War Crime
“in that he at Hong Kong between April 1942 and August 1945 when in the service of the Japanese Army as an interpreter on the Prisoner of War Camps Staff, was, in violation of the laws and usages of war, concerned in the stealing of the Red Cross parcels and personal effects the property of Prisoners of War of the Camps Group at Hong Kong aforesaid.”
Background
The Accused was a civilian attached to the Imperial Japanese Army att 44 Cdo(lt.). He was the Chief Interpreter to the Prisoner of War (‘POW’) Camp Staff in Hong Kong, and was the personal interpreter to Col. Tokunaga O.I.C., POW Camps. He was in demand because of his good command of English (he had apparently spent several years in the USA). His duties consisted of translating orders from the officer in charge of the POWs, and he travelled on transport ships (specifically the S.S. Lisbon Maru and S.S. Toyama Maru).
Allegations
On the First Charge
The Prosecution emphasized the notion of being “concerned in”. The Accused “took part or had a part” in the ill-treatment on the Lisbon Maru, which included battening down of the POWs, issuing orders to the POWs below, threatening them with shootings and also covering of the hatches.
On the question of responsibility of the Accused for the well being of the POWs, the Prosecution alleged that even if the Accused was not formally responsible for the well being of the POWs, he was still “concerned” in the said ill-treatment. In any case, the Prosecution argued that the Accused had “minor responsibility” over the POWs once he was on board the Lisbon Maru. He made certain statements purporting to have authority, or indicating that he had authority, over the POWs outside his ordinary interpreting tasks. On one occasion, he also asked NCO Fujima for extra food for the POWs.
On the question of his actual involvement, the Prosecution argued that on top of the identification evidence against the Accused, there was evidence that the Accused took part in the whole scheme of battening of the holds, chasing the POWs down, threatening them, actually shooting them and covering the hatches to the holds. He was alleged to have actually committed these acts.
The Prosecution sought to establish, through witnesses, that the Accused actually ordered the sentries to fire on the POWs. Certain guards of the POWs escort had allegedly told one witness, out of court, that the Accused ordered them to shoot at the defenseless POWs (i.e. hearsay evidence).
The Prosecution sought also to hold the Accused liable for a variety of other cruel acts, including pouring buckets of urine into the hold where the POWs were held.
On the Second Charge
The Prosecution relied on the very uniform testimonies given by several witnesses, which all pointed to the fact that the Accused abused the POWs by lining them up followed by beating and kicking them. This was done while he was actually in charge, based on the observation that he gave orders to the guards, lined up the POWs and then abused them.
On the Third Charge
This charge concerns the “Toyama Maru”. It was alleged that the victim Doucett was beaten and kicked. On the question of severity, it was argued that beating was severe enough to contribute to the death of the victim together with various diseases which he had contracted before his death.
The Prosecution also argued that even if the ill-treatment was done pursuant to the order, such action still fell under the notion of “taking part in” and therefore the Accused was liable.
On the Fourth Charge
The Prosecution, specifically relying on the testimony of an eyewitness that corroborated a victim’s affidavit, sought to hold the Accused responsible for actually beating the victims.
On the Fifth Charge
The Prosecution here relied heavily on the notion of being “concerned in” which they defined as “to take part or to have part in”. By using this notion, the Prosecution included in its submission acts including actual mistreatment, and also presence at the scene of mistreatment. The Prosecution also denied any collusion of evidence.
On the Sixth Charge
The Accused admitted that he had struck the victim under this charge. The Prosecution focused on the question of severity. It sought to argue that, on evidence, the Accused had seriously beaten the victim and not given just a few slaps. It argued that there was evidence to the effect that the victim was beaten 100 times/blows over a period of approximately 30 minutes to 1 hour (because he tried to escape).
On the Seventh Charge
On the issue of theft of parcels and Red Cross amenities, the Prosecution relied chiefly on witness affidavits and testimony. It alleged that although there had been one investigation leading to the conclusion that some Chinese stole the parcels, it could not have affected the conclusion that the Accused stole the parcels on other occasions and this was, therefore, irrelevant.
The Prosecution emphasized the notion of being “concerned in”. The Accused “took part or had a part” in the ill-treatment on the Lisbon Maru, which included battening down of the POWs, issuing orders to the POWs below, threatening them with shootings and also covering of the hatches.
On the question of responsibility of the Accused for the well being of the POWs, the Prosecution alleged that even if the Accused was not formally responsible for the well being of the POWs, he was still “concerned” in the said ill-treatment. In any case, the Prosecution argued that the Accused had “minor responsibility” over the POWs once he was on board the Lisbon Maru. He made certain statements purporting to have authority, or indicating that he had authority, over the POWs outside his ordinary interpreting tasks. On one occasion, he also asked NCO Fujima for extra food for the POWs.
On the question of his actual involvement, the Prosecution argued that on top of the identification evidence against the Accused, there was evidence that the Accused took part in the whole scheme of battening of the holds, chasing the POWs down, threatening them, actually shooting them and covering the hatches to the holds. He was alleged to have actually committed these acts.
The Prosecution sought to establish, through witnesses, that the Accused actually ordered the sentries to fire on the POWs. Certain guards of the POWs escort had allegedly told one witness, out of court, that the Accused ordered them to shoot at the defenseless POWs (i.e. hearsay evidence).
The Prosecution sought also to hold the Accused liable for a variety of other cruel acts, including pouring buckets of urine into the hold where the POWs were held.
On the Second Charge
The Prosecution relied on the very uniform testimonies given by several witnesses, which all pointed to the fact that the Accused abused the POWs by lining them up followed by beating and kicking them. This was done while he was actually in charge, based on the observation that he gave orders to the guards, lined up the POWs and then abused them.
On the Third Charge
This charge concerns the “Toyama Maru”. It was alleged that the victim Doucett was beaten and kicked. On the question of severity, it was argued that beating was severe enough to contribute to the death of the victim together with various diseases which he had contracted before his death.
The Prosecution also argued that even if the ill-treatment was done pursuant to the order, such action still fell under the notion of “taking part in” and therefore the Accused was liable.
On the Fourth Charge
The Prosecution, specifically relying on the testimony of an eyewitness that corroborated a victim’s affidavit, sought to hold the Accused responsible for actually beating the victims.
On the Fifth Charge
The Prosecution here relied heavily on the notion of being “concerned in” which they defined as “to take part or to have part in”. By using this notion, the Prosecution included in its submission acts including actual mistreatment, and also presence at the scene of mistreatment. The Prosecution also denied any collusion of evidence.
On the Sixth Charge
The Accused admitted that he had struck the victim under this charge. The Prosecution focused on the question of severity. It sought to argue that, on evidence, the Accused had seriously beaten the victim and not given just a few slaps. It argued that there was evidence to the effect that the victim was beaten 100 times/blows over a period of approximately 30 minutes to 1 hour (because he tried to escape).
On the Seventh Charge
On the issue of theft of parcels and Red Cross amenities, the Prosecution relied chiefly on witness affidavits and testimony. It alleged that although there had been one investigation leading to the conclusion that some Chinese stole the parcels, it could not have affected the conclusion that the Accused stole the parcels on other occasions and this was, therefore, irrelevant.
Defence
The Defense was founded on the “iron” rule in the Japanese army that a civilian officer can never give orders to a military personnel. The Defence argued primarily that: (1) the Accused was only an interpreter; (2) the Accused passed on orders from his superior; and (3) the Accused was apt to adopt a self-important attitude towards the POWs which made him over-estimate his power. The Defence also contended that only a few POWs had personal grudges against the Accused and only they filed testified.
On the First Charge
The Defence admitted that the conditions inside the Lisbon Maru were unsatisfactory. But, he argued that it was Tokyo Headquarters which decided the transport methods and the Accused had no say in this regard. In particular, he argued that Lt. Wada was the one who had authority over the transportation scheme and, in any case, the POWs there had enough opportunities to raise any issue concerning detention cond itions to Lt. Wada without the intervention of the Accused. After the Lisbon Maru was torpedoed, the order to close the hatches to prevent any uprising was given by Lt. Wada, and not by the Accused.
On the allegation that the Accused neglected the requests by the POWs, the Defence argued that this was not his responsibility. Nevertheless, he sometimes acted out of goodwill. There were other persons responsible for those matters. On individual events (such as humiliating acts and refusing permission to POWs to fetch meals and water), the Defence argued either that there was reliable evidence or that these were all attributable to Lt. Wada instead.
On the Second Charge
The Defence took issue with three allegations: (1) Starvation of POWs; (2) Beating of POWs; and (3) taking off the clothes of POWs.
On the first allegation, the Defence argued that he was only an interpreter and could not have, arbitrarily, and in disregard of Lt. Wada’s order to withhold foodstuff from the POWs, done otherwise.
On the second allegation, he argued that, on top of insufficient evidence, the reality was that he was also rescued from the sea after the sinking of the Lisbon Maru and so he could not have such strength to commit violence against the POWs.
On the last allegation, the Defence argued that the Accused followed Lt. Wada’s Order.
On the Third Charge
The Defence noted that the victims, who were to blame for violating Japanese Army Regulations, refused to confess. So, measures were taken to find out the exact violators. He argued that the degree of violence administered was exaggerated by deponents. The Defence argued that there were only slapping and mild punishment. In any event, it was all under the order of Sgt. M.J. Furusho, a guard member of the transportation unit. It was Japanese Army custom that a lower rank military office could give command to a nominal civilian superior. Lastly, the named victim’s death was attributed to acute colitis (disease) rather than human violence.
On the Fourth Charge
The Defence primarily challenged the credibility of witnesses and evidence.
On the Fifth Charge
The Defence primarily challenged the credibility of Prosecution witnesses (who were not cross-examined).
On the Sixth Charge
The Defence argued that although the victim was treated somewhat cruelly, the credibility of witnesses who testified on this charge, was doubtful. Furthermore, the Accused actually intended to punish the victim as lightly as possible without calling in the Kempeitai, who might actually have inflicted even more severe punishment.
On the Seventh Charge
On the accusation that the Accused planned and carried out a scheme of overworking the POWs in poor conditions, the Defence argued that he was only an interpreter, and had nothing to do with such planning. He had actually suggested giving up some unbearable working methods imposed by the Governor-General. On the question of health of the POWs, the Defence relied on the Japanese Army Doctor’s testimony and suggested that POWs were actually healthy at the relevant times.
Lastly, the Defence argued that the POWs did their work voluntarily and it was unnecessary for the Accused to inflict any violence on them at all.
On the First Charge
The Defence admitted that the conditions inside the Lisbon Maru were unsatisfactory. But, he argued that it was Tokyo Headquarters which decided the transport methods and the Accused had no say in this regard. In particular, he argued that Lt. Wada was the one who had authority over the transportation scheme and, in any case, the POWs there had enough opportunities to raise any issue concerning detention cond itions to Lt. Wada without the intervention of the Accused. After the Lisbon Maru was torpedoed, the order to close the hatches to prevent any uprising was given by Lt. Wada, and not by the Accused.
On the allegation that the Accused neglected the requests by the POWs, the Defence argued that this was not his responsibility. Nevertheless, he sometimes acted out of goodwill. There were other persons responsible for those matters. On individual events (such as humiliating acts and refusing permission to POWs to fetch meals and water), the Defence argued either that there was reliable evidence or that these were all attributable to Lt. Wada instead.
On the Second Charge
The Defence took issue with three allegations: (1) Starvation of POWs; (2) Beating of POWs; and (3) taking off the clothes of POWs.
On the first allegation, the Defence argued that he was only an interpreter and could not have, arbitrarily, and in disregard of Lt. Wada’s order to withhold foodstuff from the POWs, done otherwise.
On the second allegation, he argued that, on top of insufficient evidence, the reality was that he was also rescued from the sea after the sinking of the Lisbon Maru and so he could not have such strength to commit violence against the POWs.
On the last allegation, the Defence argued that the Accused followed Lt. Wada’s Order.
On the Third Charge
The Defence noted that the victims, who were to blame for violating Japanese Army Regulations, refused to confess. So, measures were taken to find out the exact violators. He argued that the degree of violence administered was exaggerated by deponents. The Defence argued that there were only slapping and mild punishment. In any event, it was all under the order of Sgt. M.J. Furusho, a guard member of the transportation unit. It was Japanese Army custom that a lower rank military office could give command to a nominal civilian superior. Lastly, the named victim’s death was attributed to acute colitis (disease) rather than human violence.
On the Fourth Charge
The Defence primarily challenged the credibility of witnesses and evidence.
On the Fifth Charge
The Defence primarily challenged the credibility of Prosecution witnesses (who were not cross-examined).
On the Sixth Charge
The Defence argued that although the victim was treated somewhat cruelly, the credibility of witnesses who testified on this charge, was doubtful. Furthermore, the Accused actually intended to punish the victim as lightly as possible without calling in the Kempeitai, who might actually have inflicted even more severe punishment.
On the Seventh Charge
On the accusation that the Accused planned and carried out a scheme of overworking the POWs in poor conditions, the Defence argued that he was only an interpreter, and had nothing to do with such planning. He had actually suggested giving up some unbearable working methods imposed by the Governor-General. On the question of health of the POWs, the Defence relied on the Japanese Army Doctor’s testimony and suggested that POWs were actually healthy at the relevant times.
Lastly, the Defence argued that the POWs did their work voluntarily and it was unnecessary for the Accused to inflict any violence on them at all.
Prosecutor
Major G.B. Puddicombe, Advocate (The Victoria Rifles of Canada)
Defence Counsel
Mr. Takahashi Mikio (Japanese Barrister, Senior Defending Counsel); Mr. Nibun Yurito (Japanese Barrister)
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Major W.M. Gray (The Cameronians, Scottish Rifles)
Prosecution Witnesses
Capt. P.Y. Collison (War Crimes Investigation Unit, Hong Kong)
Frank Kekewich Garton (Tel-Communications Department, GPO)
Walter Lomax (Draftsman)
Mr. F.B. Miles (Manager, American Club)
Inspector Joseph Hill (Police Inspector)
Lt. H.M. Howell (Lieutenant, R.A.S.C.)
Mr J. MacDougall (Sergeant, Dockyard Police)
Tse Dichuan (Clerk)
Henry Felton Hopkins (Mercantile Assistant)
E.A.R. Newton Manager, (Nestle?s Milk Co., Hong Kong)
G.H. Oliver (Hong Kong Manager, Insurance Co, of North America)
Paccon Yeh (Interpreter, War Crimes Investigation Unit)
Mak Kee-Shing (Employee, To On Company)
Matsuda Kenichi (Internee, Stanley Fort)
Lt. F.M. Laloe (Lieutenant, Royal Navy Volunteer Reserve)
Dr. James William Anderson (Medical Practitioner)
Seino Yukio (Sergeant, Medical Corps, Japanese Army)
G.P. Ferguson (Schoolmaster, Education Department Office)
Sgt. F.W.J. Lewis (Sergeant, HQ Land Forces)
Eugene Mak (Employee, Kai Tai Aerodrome)
Defence Witnesses
Niimori Genichiro (Accused)
Major Ando Tadashi (Army Major, Japanese Army)
Capt. Saito Shunichi (Army Medical Captain, Japanese Army)
Kyoda Shigeru (Ship Captain, Nippon Yusen Kaisha. (N.B. Captain of the Lisbon Maru))
Araki Kaname (Second Mate, Hakodate Maru and Rokko Maru. (N.B. was on board of Lisbon Maru))
Sgt/Major Yoshizono Otockichi (Army Sergeant/Major, Japanese Army)
Major Hirao Yoshio (Gendarme Major, Japanese Army; O.C. Kowloon District Gendarmerie.)
Trial Dates
1946-08-28
1946-08-29
1946-08-31
1946-09-02
1946-09-03
1946-09-04
1946-09-06
1946-09-13
1946-09-14
1946-09-16
1946-09-17
1946-09-20
1946-09-21
1946-09-23
1946-09-24
1946-09-25
1946-09-26
1946-10-01
Judgement Date
1946-10-01
Judgement Confirmation Date
1946-10-17
Judgement Promulgation Date
1946-10-18
Judgement
Held:
1. The Accused was guilty of the 2nd, 5th, 6th and 7th Charges;
2. The Accused was guilty of the 1st but excepting therefrom the words “and responsible for the well-being of the said Prisoners of War”;
3. The Accused was guilty of the 3rd Charge but excepting therefrom the words “contributing to the death of the said Rifleman Doucette”;
4. The Accused was not guilty of the 4th Charge.
1. The Accused was guilty of the 2nd, 5th, 6th and 7th Charges;
2. The Accused was guilty of the 1st but excepting therefrom the words “and responsible for the well-being of the said Prisoners of War”;
3. The Accused was guilty of the 3rd Charge but excepting therefrom the words “contributing to the death of the said Rifleman Doucette”;
4. The Accused was not guilty of the 4th Charge.
Petition
No Petition is on the record.
There is no reviewing officer’s report from a Judge Advocate on the file.
There is no reviewing officer’s report from a Judge Advocate on the file.
Sentence Imposed
15 Years Imprisonment
Keywords
Hong Kong; Shanghai; High Seas; Lisbon Maru; Toyama Maru/Tozan Maru; "Death Ship"; Interpreter; Imperial Japanese Army; Imperial Japanese Navy; Prisoner of War; Prisoner of War Camp; Sick or Wounded; Shipwrecked; Torture; Cruel Inhuman or Degrading Treatment; Neglect; Failure to provide adequate food and/or care; Stealing; Red Cross parcels; International Committee of the Red Cross; Poor conditions of detention; Attempted Escape; Discipline of Prisoners of War; Arbitrary or summary punishment; "concerned in"; Committed; Ordered; Superior Orders; Civilian Command Responsibility; Military Command Responsibility; Hierarchy; Scope of responsibilities; War Crime; Violations of laws and customs of war; Death from natural causes
Remarks
2 Japanese lawyers assigned to this Accused, which is unusual. There was the usual Advisory Officer attached to the Defence.
See the account by Mr. Peter Vine and the extract from Mr. Tony Banham’s book The Sinking of the Lisbon Maru, both at the Hong Kong’s War Crimes Trials section of the website.
See the account by Mr. Peter Vine and the extract from Mr. Tony Banham’s book The Sinking of the Lisbon Maru, both at the Hong Kong’s War Crimes Trials section of the website.
Dublin Core
Title
WO235/1105
Description
First Charge (All): Committing a War Crime
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused, Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.Ws, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and in physical suffering to others of the said Prisoners of War.”
Second Charge (D1, D2, D3, D4, D5, D7): Committing a War Crime
“in that they at YOBUKU, Formosa, during June 1945, July 1945 and Auguest 1945, the accused Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in many deaths to some and physical suffering to others of the said Prisoners of War.”
Third Charge (D1, D2, D6) Committing a War Crime
“in that they at MATSUYAMA, Formosa, during July 1945 and August 1945, the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the laws and Usages of War, concerned in the ill-treatment of Allied Prisnoers of War, resulting in physical suffering to them.”
FourthCharge (D1, D2, D3, D4, D8) Committing a War Crime
“in that they at DAICHOKU, near TAIHOKU, FORMOSA, between November 1944 and March 1945, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.W.s, were in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
Fifth Charge (D1) Committing a War Crime
“in that he at FORMOSA between March 1945 and September 1945 the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, was in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War at No. 1 Branch Camp – Kinkaseki (later transferred to Kokutsu) resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused, Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.Ws, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and in physical suffering to others of the said Prisoners of War.”
Second Charge (D1, D2, D3, D4, D5, D7): Committing a War Crime
“in that they at YOBUKU, Formosa, during June 1945, July 1945 and Auguest 1945, the accused Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in many deaths to some and physical suffering to others of the said Prisoners of War.”
Third Charge (D1, D2, D6) Committing a War Crime
“in that they at MATSUYAMA, Formosa, during July 1945 and August 1945, the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the laws and Usages of War, concerned in the ill-treatment of Allied Prisnoers of War, resulting in physical suffering to them.”
FourthCharge (D1, D2, D3, D4, D8) Committing a War Crime
“in that they at DAICHOKU, near TAIHOKU, FORMOSA, between November 1944 and March 1945, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.W.s, were in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
Fifth Charge (D1) Committing a War Crime
“in that he at FORMOSA between March 1945 and September 1945 the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, was in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War at No. 1 Branch Camp – Kinkaseki (later transferred to Kokutsu) resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
Legal Case Item Type Metadata
Case No.
WO235/1105
Accused
Major Uete Taichi (D1)
Lt. Kuruta Iwao (D2)
Lt. Kawaida Susuma (D3)
Sgt. Kiya Tsuneo (D4)
Sgt. Mizuguchi Mineru (D5)
Sgt. Hakosaki Toshiaki (D6)
Pte. Hanagaki Yoshio (D7)
Civ. Oo Ki (D8)
Court
Military Court for the Trial of War Criminals No. 5
Charge
First Charge (All): Committing a War Crime
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused, Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.Ws, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and in physical suffering to others of the said Prisoners of War.”
Second Charge (D1, D2, D3, D4, D5, D7): Committing a War Crime
“in that they at YOBUKU, Formosa, during June 1945, July 1945 and Auguest 1945, the accused Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in many deaths to some and physical suffering to others of the said Prisoners of War.”
Third Charge (D1, D2, D6) Committing a War Crime
“in that they at MATSUYAMA, Formosa, during July 1945 and August 1945, the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the laws and Usages of War, concerned in the ill-treatment of Allied Prisnoers of War, resulting in physical suffering to them.”
FourthCharge (D1, D2, D3, D4, D8) Committing a War Crime
“in that they at DAICHOKU, near TAIHOKU, FORMOSA, between November 1944 and March 1945, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.W.s, were in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
Fifth Charge (D1) Committing a War Crime
“in that he at FORMOSA between March 1945 and September 1945 the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, was in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War at No. 1 Branch Camp – Kinkaseki (later transferred to Kokutsu) resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
“in that they at DAICHOKU near TAIHOKU, Formosa, between November 1942 and September 1945, the accused, Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.Ws, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and in physical suffering to others of the said Prisoners of War.”
Second Charge (D1, D2, D3, D4, D5, D7): Committing a War Crime
“in that they at YOBUKU, Formosa, during June 1945, July 1945 and Auguest 1945, the accused Major UETE Taichi as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in many deaths to some and physical suffering to others of the said Prisoners of War.”
Third Charge (D1, D2, D6) Committing a War Crime
“in that they at MATSUYAMA, Formosa, during July 1945 and August 1945, the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, and the remainder of the accused as members of his staff, were, in Violation of the laws and Usages of War, concerned in the ill-treatment of Allied Prisnoers of War, resulting in physical suffering to them.”
FourthCharge (D1, D2, D3, D4, D8) Committing a War Crime
“in that they at DAICHOKU, near TAIHOKU, FORMOSA, between November 1944 and March 1945, as members of No. 6 Branch Group being responsible for the well being of all Allied P.O.W.s, were in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War, resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
Fifth Charge (D1) Committing a War Crime
“in that he at FORMOSA between March 1945 and September 1945 the accused Major UETE TAICHI as Commandant of P.O.W. Camps, Formosa, was in Violation of the Laws and Usages of War, concerned in the ill-treatment of Allied Prisoners of War at No. 1 Branch Camp – Kinkaseki (later transferred to Kokutsu) resulting in deaths to some and physical suffering to others of the said Prisoners of War.”
Background
Many captured Allied servicemen were detained in Prisoner-of-War (‘POW’) camps in Formosa.
D1 was the Commander of all POW Camps there during the material period. Many of them died from starvation, beri-beri and other diseases "due to lack of sufficient medical care".
D1 was the Commander of all POW Camps there during the material period. Many of them died from starvation, beri-beri and other diseases "due to lack of sufficient medical care".
Allegations
The Prosecution claimed that detainees in POW camps were made to “work and live under impossible conditions”, without adequate food or medical care. They were made to work in mines and factories without suitable precautions to protect them from air raids. Others were forced to contribute towards Japan's war effort by working in a factory. They were also subjected to continual and incessant beatings by the Japanese. Many allegedly died because of the maltreatment. Red Cross parcels and supplies were withheld from them.
Many of the POWs died from starvation, beri-beri and other diseases "due to lack of sufficient medical care".
Many of the POWs died from starvation, beri-beri and other diseases "due to lack of sufficient medical care".
Defence
The Defence denied the allegations, except for D2 who admitted hitting a POW on the face on one occasion with his open hand. The Accused all claimed that the POWs were given ice-cream, tomatoes and cakes on several occasions. Concerts, sing-songs and athletic meetings were often organized. They claimed that the “welfare of the men was attended to as much as possible”. They did their best. They also claimed that they did not receive any reports from POWs about lack of food or sickness.
In responding to the question why there were so many deaths in the camp, the Defence replied that it was mostly due to disease and the mental and physical strain of undergoing air-raids. The shortage of food was admitted but this was because is was difficult for Japan to ship supplies during the prolonged war.
In responding to the question why there were so many deaths in the camp, the Defence replied that it was mostly due to disease and the mental and physical strain of undergoing air-raids. The shortage of food was admitted but this was because is was difficult for Japan to ship supplies during the prolonged war.
Prosecutor
Major M.I. Ormsby (West Yorks)
Defence Counsel
Mr. Kawanami Shigekichi (Member of the Bar Association of Osaka)
Judges
President: Lieut Col R.C. Laming, Barrister (Dept of the JAG, India)
Members: Major R.S. Butterfield (Indian Grenadiers); Capt. J. Benyon (Royal Engineer)
Members: Major R.S. Butterfield (Indian Grenadiers); Capt. J. Benyon (Royal Engineer)
Advisory Officer
L.t D.C.J. Banfield (The Buffs)
Prosecution Witnesses
Major J.T.N. Cross (Regiment)
Rev. Pughe (Reverend)
Capt. E.W. Sowerby (Captain)
H. Middleton (Lance Corporal)
Defence Witnesses
Major Uete Taichi (Army Major)
Lt. Kuruta Iwao (Lieutenant)
Kawaida Susuma (Lieutenant)
Sgt. Kiya Tsuneo (Army Sergeant)
Mizuguchi Mineru (Army Sergeant)
Hakosaki Toshiaki (Army Sergeant)
Pte. Hanagaki Yoshio (Army Private first class)
PTE OO KI (Army Private first class)
Lt. Ishii Minoru (Army Lieutenant)
Wakasugi Jiro (Lieutenant)
Sgt. Fujie Hiroji (Army Medical Sergeant)
Sgt Chiba Arashi (Sergeant)
Sgt. Maj. Yamamoto Katsuto (Former Army Sergeant Major)
Col. Nakano Junichi (Army Colonel)
Sgt. Hakozaki Toshiaki (Sergeant)
Col. Sazawa Hideo (Army Colonel)
L.t Hioki Shiro (Army Lieutenant)
Lt. G.L. Falkoff (Advisory Officer)
Trial Dates
1947-11-13
1947-11-14
1947-11-15
1947-11-17
1947-11-18
1947-11-19
1947-11-21
1947-11-22
1947-11-24
1947-11-25
1947-12-05
1947-12-06
1947-12-08
1947-12-09
1947-12-11
1947-12-12
1947-12-13
1947-12-15
1947-12-16
1947-12-18
1947-12-19
1947-12-20
1947-12-22
1947-12-23
1947-12-24
1947-12-29
1948-01-02
1948-01-03
1948-01-05
1948-01-07
1948-01-08
1948-01-09
1948-01-10
1948-01-15
1948-01-16
Judgement Date
1948-01-16
Judgement
First charge
D1: Guilty, except that “the Court finds that this accused was Commandant of POW Camp Formosa from April 1945 till September 1945 and not from November 1942 till September 1945.”
D2: Guilty, except that “the Court finds that this accused was a member of No. 6 Branch Group from August 24 1943 till September 1945 and not from November 1942 till September 1945.”
D3: Guilty except that “the Court finds that this accused was a member of No 6 Branch Camp from October 1944 till September 1945 and not from November 1942 till September 1945 and except for the words “in deaths to some” and the words “others of”.”
D4: Guilty except that “the Court finds that this accused was a member of No. 6 Branch Group from August 24 1943 till September 1945 and not from November 1942 till September 1945 and except for the words “in deaths to some and” and the words “others of”.”
D5, D6, D7: Not Guilty.
D8: Guilty except that “the Court finds that this accused was a member of the No. 6 Branch Group from January 1944 till September 1945 and not from November 1942 till September 1945 and except for the words “in deaths to some and” and to words “to others of”.”
Second Charge
D1, D2, D3, D4: Guilty.
D5, D7: Guilty except for the words “in many deaths to some and” and the words “others of”.
3rd Charge
D1, D2, D6: Not Guilty.
4th Charge
D1, D2, D3, D4, D8: Not Guilty.
5th Charge
D1: Guilty.
D1: Guilty, except that “the Court finds that this accused was Commandant of POW Camp Formosa from April 1945 till September 1945 and not from November 1942 till September 1945.”
D2: Guilty, except that “the Court finds that this accused was a member of No. 6 Branch Group from August 24 1943 till September 1945 and not from November 1942 till September 1945.”
D3: Guilty except that “the Court finds that this accused was a member of No 6 Branch Camp from October 1944 till September 1945 and not from November 1942 till September 1945 and except for the words “in deaths to some” and the words “others of”.”
D4: Guilty except that “the Court finds that this accused was a member of No. 6 Branch Group from August 24 1943 till September 1945 and not from November 1942 till September 1945 and except for the words “in deaths to some and” and the words “others of”.”
D5, D6, D7: Not Guilty.
D8: Guilty except that “the Court finds that this accused was a member of the No. 6 Branch Group from January 1944 till September 1945 and not from November 1942 till September 1945 and except for the words “in deaths to some and” and to words “to others of”.”
Second Charge
D1, D2, D3, D4: Guilty.
D5, D7: Guilty except for the words “in many deaths to some and” and the words “others of”.
3rd Charge
D1, D2, D6: Not Guilty.
4th Charge
D1, D2, D3, D4, D8: Not Guilty.
5th Charge
D1: Guilty.
Petition
The Advocate General [Unidentified Colonel, DJAG, Far East Land Forces, 3 March 1948] advised dismissal of the petitions from three of the Accused (Major Uete, Lt.Kuruta and Lt.Kawada). These repeated the defence lines that were run at trial.
"There was ample evidence to justify all the findings of the court. It was established beyond doubt, that there were 45 deaths during accused No.1's tenure of office which lasted only four months. He could have done a lot to minimise the death toll but nothing in fact was done. This applied equally to Lt.Kurua and Lt.Kawaida who made no effort to help or alleviate the condition of the P.O.Ws. The evidence against Sgt.Kiya is conclusive....".
"There was ample evidence to justify all the findings of the court. It was established beyond doubt, that there were 45 deaths during accused No.1's tenure of office which lasted only four months. He could have done a lot to minimise the death toll but nothing in fact was done. This applied equally to Lt.Kurua and Lt.Kawaida who made no effort to help or alleviate the condition of the P.O.Ws. The evidence against Sgt.Kiya is conclusive....".
Sentence Imposed
D1: Death by hanging, carried out at Stanley Prison, Hong Kong, on 6 April 1948;
D2: Death by hanging, carried out at Stanley Prison, Hong Kong, on 6 April 1948;
D3: Death by hanging, carried out at Stanley Prison, Hong Kong, on 7th April 1948;
D4: Imprisonment of 13 years;
D5: Imprisonment of 1 year;
D7: Imprisonment of 3 years;
D8: Imprisonment of 18 months.
D2: Death by hanging, carried out at Stanley Prison, Hong Kong, on 6 April 1948;
D3: Death by hanging, carried out at Stanley Prison, Hong Kong, on 7th April 1948;
D4: Imprisonment of 13 years;
D5: Imprisonment of 1 year;
D7: Imprisonment of 3 years;
D8: Imprisonment of 18 months.
Keywords
Formosa; Imperial Japanese Army; Prisoners-of-War; Prisoner-of-War Camp; Poor conditions of detention; "concerned in"; Committed; Forced labour; Unlawful killing; Poor conditions of work; Torture; Cruel Inhuman or Degrading Treatment; Beating; Failure to provide adequate food and/or care; Sickness or Disease; Failure to provide adequate medical care; Red Cross parcels; War Crimes; Violations of laws and customs of war; Military Command Responsibility; Superior Orders; Necessity; Death from natural causes
Remarks
1 lawyer representing 8 Co-Accused.
Major Uete's tenure of office coincided with the last 4 months of the war.
Major Uete's tenure of office coincided with the last 4 months of the war.
Dublin Core
Title
WO235/1011
Description
D1 and D2: Committing a War Crime
“in that they at TAIPO Gendarmerie, Hong Kong, in or about the month of March 1942 were, in violation of the laws and usages of War concerned in the killing of CHEUNG CHO, TSANG FOK and three civilian residents of TAIPO”.
D1: Committing a War Crime
“in that he at TAIPO Gendarmerie, Hong Kong, between the 29 May 1942 and the 30 June 1942, in violation of the laws and usages of War was concerned in the maltreatment of LEE SHING and LEE TIEN SUN, civilian residents of TAIPO resulting in the death of LEE TIEN SUNG”.
“in that they at TAIPO Gendarmerie, Hong Kong, in or about the month of March 1942 were, in violation of the laws and usages of War concerned in the killing of CHEUNG CHO, TSANG FOK and three civilian residents of TAIPO”.
D1: Committing a War Crime
“in that he at TAIPO Gendarmerie, Hong Kong, between the 29 May 1942 and the 30 June 1942, in violation of the laws and usages of War was concerned in the maltreatment of LEE SHING and LEE TIEN SUN, civilian residents of TAIPO resulting in the death of LEE TIEN SUNG”.
Legal Case Item Type Metadata
Case No.
WO235/1011
Accused
S/M. Ogasawara Maruji (D1)
Sgt. Kawai Hisao (D2)
Court
Military Court for the Trial of War Criminals No. 5
Charge
D1 and D2: Committing a War Crime
“in that they at TAIPO Gendarmerie, Hong Kong, in or about the month of March 1942 were, in violation of the laws and usages of War concerned in the killing of CHEUNG CHO, TSANG FOK and three civilian residents of TAIPO”.
D1: Committing a War Crime
“in that he at TAIPO Gendarmerie, Hong Kong, between the 29 May 1942 and the 30 June 1942, in violation of the laws and usages of War was concerned in the maltreatment of LEE SHING and LEE TIEN SUN, civilian residents of TAIPO resulting in the death of LEE TIEN SUNG”.
“in that they at TAIPO Gendarmerie, Hong Kong, in or about the month of March 1942 were, in violation of the laws and usages of War concerned in the killing of CHEUNG CHO, TSANG FOK and three civilian residents of TAIPO”.
D1: Committing a War Crime
“in that he at TAIPO Gendarmerie, Hong Kong, between the 29 May 1942 and the 30 June 1942, in violation of the laws and usages of War was concerned in the maltreatment of LEE SHING and LEE TIEN SUN, civilian residents of TAIPO resulting in the death of LEE TIEN SUNG”.
Background
Both Accused (D1 & D2) were members of the Tai Po Gendarmarie
Allegations
As to the first charge, the Prosecution alleged that: (1) D1 was observed beating a man at the Tai Po Gendarmerie; and (2) both Accused were involved in stabbing and shooting five men to death after escorting them to San Wai Tsai Hill.
As to the second charge, the Prosecution alleged arrest and ill-treatment by D1.
The Prosecution relied on statements from witnesses and was allowed to submit as evidence the record taken of an identification parade.
As to the second charge, the Prosecution alleged arrest and ill-treatment by D1.
The Prosecution relied on statements from witnesses and was allowed to submit as evidence the record taken of an identification parade.
Defence
D1 admitted taking five civilian prisoners to the hill and shooting them without trial. However, he pleaded Superior Orders, stating that he was ordered by his superior to execute the prisoners. He insisted that he expected a fair trial of the prisoners at first, but when the order changed, he could only act upon the order and kill them.
D2 argued that he did not take any part in the execution as alleged. It was submitted that D2 was not present at the scene. The Defence also drew the Court’s attention to the fact that Col. Noma was the one who issued the order for the execution of the five Chinese. The Japanese Army does not allow a subordinate to judge or analyse any order given to him by a superior only to carry out the order.
The Defence also attacked the statements of witnesses by describing them as “very shaky and varying”.
D2 argued that he did not take any part in the execution as alleged. It was submitted that D2 was not present at the scene. The Defence also drew the Court’s attention to the fact that Col. Noma was the one who issued the order for the execution of the five Chinese. The Japanese Army does not allow a subordinate to judge or analyse any order given to him by a superior only to carry out the order.
The Defence also attacked the statements of witnesses by describing them as “very shaky and varying”.
Prosecutor
Major D.G. McGregor (Worc. R.); Major M.I. Ormsby (West Yorks) (Asst. Prosecutor)
Defence Counsel
Mr. Sakai Yusuke (Judge Advocate, Naval Military Court, Japan)
Judges
President: Lt. Col R.C. Laming, Barrister (Dept of the JAG, India)
Members: Major J.T. Loranger; Capt. K.R. Busfield (RAC)
Members: Major J.T. Loranger; Capt. K.R. Busfield (RAC)
Advisory Officer
Capt Kostiloff (1st Ghurka Rifles)
Prosecution Witnesses
Alfonso Rigod (Japanese language interpreter)
Major M.I. Ormsby (Prosecutor No. 7 War Crimes Court)
Major D.G. McGregor (Prosecutor No. 7 War Crimes Court)
Sgt Steeple (Sgt)
Col Kogi Kazuo (Prosecutor to Military Court-Martial Courts)
Cheung Chung (Unknown)
Cheung Choi (Unknown)
Yau Ngau (Farmer)
Capt. F.V. Collison (Investigating Officer)
Captain Yatagai Sukuo (Japanese Army)
Lee Fok (Watchman)
Lee Shing (Fisherman)
Lam Kwong Nam (Chinese Herbalist)
F. Kikabhoy (Interpreter to No. 5 War Crimes Court)
Defence Witnesses
S/M Ogasawara Haruji (Accused)
Sgt. Kawai Hasao (Accused)
Col. Noma Kennosuku (Japanese Army)
Lt. Gen. Higuchi Keihichiro (Japanese Army)
Yamamoto (Court Interpreter to the Hong Kong War Crimes Court)
Trial Dates
1947-03-20
1947-03-21
1947-03-22
1947-03-24
1947-03-25
1947-03-26
1947-03-27
1947-03-31
Judgement Date
1947-04-01
Judgement Confirmation Date
1947-04-03
Judgement Promulgation Date
1947-06-19
Judgement
First charge:
D1: Guilty;
D2: Not guilty
Second charge:
D1: Guilty except for the words “resulting in the death of LEE TIEN SUNG”.
D1: Guilty;
D2: Not guilty
Second charge:
D1: Guilty except for the words “resulting in the death of LEE TIEN SUNG”.
Petition
D1 petitioned. D1 admitted that a person was ill-treated by him at the Eastern Kempetai but submitted that the sentence was too severe.
The Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947] advised confirmation of the findings and the sentences, and dismissal of the petition.
The Judge Advocate [unidentified Brigadier, DJAG, South East Asia Land Forces, 22 May 1947] advised confirmation of the findings and the sentences, and dismissal of the petition.
Sentence Imposed
D1: 10 years imprisonment
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Place of Detention; "concerned in"; Committed; Unlawful arrest and/or detention; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Ordering; Superior Orders; Duress; Mitigating circumstances; War Crimes; Violations of laws and customs of war
Remarks
One lawyer represented both Co-Accused.
Dublin Core
Title
WO235/887
Description
Committing a War Crime
“in that they at TAI PO, New Territories, Hong Kong, between the 28th Dec 1944 and 8th Jan 1945, when members of the Kempeitai Staff of Tai Po Gendarmerie, were, in violation of the laws and usages of war, together concerned as parties to the maltreatment of civilian residents of the New Territories in custody at the said Gendarmerie, causing the death of CHENG PO, LAM TIN KAU, and LAM SHUI KI and physical suffering to others and in particular to CHENG KWAI, LAM PAK LING, LAM KIU CHEUNG, LAM KIU WAI, LAM CHUNG SIK, LAM WAH, LAM YING YUEN, CHUN WAN WAI, CHUENG FUK KIN and CHUNG CHIK HUNG all civilians residents as aforesaid.”
“in that they at TAI PO, New Territories, Hong Kong, between the 28th Dec 1944 and 8th Jan 1945, when members of the Kempeitai Staff of Tai Po Gendarmerie, were, in violation of the laws and usages of war, together concerned as parties to the maltreatment of civilian residents of the New Territories in custody at the said Gendarmerie, causing the death of CHENG PO, LAM TIN KAU, and LAM SHUI KI and physical suffering to others and in particular to CHENG KWAI, LAM PAK LING, LAM KIU CHEUNG, LAM KIU WAI, LAM CHUNG SIK, LAM WAH, LAM YING YUEN, CHUN WAN WAI, CHUENG FUK KIN and CHUNG CHIK HUNG all civilians residents as aforesaid.”
Legal Case Item Type Metadata
Case No.
WO235/887
Accused
Sgt. Maj. Yamada Kiichiro (D1)
Sgt. Awa Isao (D2)
Court
Military Court for the Trial of War Criminals No. 7
Charge
Committing a War Crime
“in that they at TAI PO, New Territories, Hong Kong, between the 28th Dec 1944 and 8th Jan 1945, when members of the Kempeitai Staff of Tai Po Gendarmerie, were, in violation of the laws and usages of war, together concerned as parties to the maltreatment of civilian residents of the New Territories in custody at the said Gendarmerie, causing the death of CHENG PO, LAM TIN KAU, and LAM SHUI KI and physical suffering to others and in particular to CHENG KWAI, LAM PAK LING, LAM KIU CHEUNG, LAM KIU WAI, LAM CHUNG SIK, LAM WAH, LAM YING YUEN, CHUN WAN WAI, CHUENG FUK KIN and CHUNG CHIK HUNG all civilians residents as aforesaid.”
“in that they at TAI PO, New Territories, Hong Kong, between the 28th Dec 1944 and 8th Jan 1945, when members of the Kempeitai Staff of Tai Po Gendarmerie, were, in violation of the laws and usages of war, together concerned as parties to the maltreatment of civilian residents of the New Territories in custody at the said Gendarmerie, causing the death of CHENG PO, LAM TIN KAU, and LAM SHUI KI and physical suffering to others and in particular to CHENG KWAI, LAM PAK LING, LAM KIU CHEUNG, LAM KIU WAI, LAM CHUNG SIK, LAM WAH, LAM YING YUEN, CHUN WAN WAI, CHUENG FUK KIN and CHUNG CHIK HUNG all civilians residents as aforesaid.”
Background
The Accused Yamada (D1) was Officer in Charge, and the Accused Awa (D2) was a member of, the Kempeitai substation at Tai Po on 28 December 1944.
At that time, Communist and guerilla activities in the District were causing considerable alarm to the Japanese. A boy was arrested bearing despatches and the names of some of the Chinese implicated. The Officer-in-Charge of Kowloon Kempeitai (Major Hirao Yoshio Case No. WO/235/1098) ordered immediate arrest, and sent two Special Branch members to Tai Po to interrogate the suspects.
About thirty Chinese were arrested and out of these, the persons named in the charge were detained. They were subject to torture, during which Cheng Po and Lam Tin Kau died. On 8 January 1945, the majority were released and the remainder sent to Stanley Prison. Lam Shui Ki died some months later after his release. During the course of this imprisonment, no medical attention was given to the prisoners.
At that time, Communist and guerilla activities in the District were causing considerable alarm to the Japanese. A boy was arrested bearing despatches and the names of some of the Chinese implicated. The Officer-in-Charge of Kowloon Kempeitai (Major Hirao Yoshio Case No. WO/235/1098) ordered immediate arrest, and sent two Special Branch members to Tai Po to interrogate the suspects.
About thirty Chinese were arrested and out of these, the persons named in the charge were detained. They were subject to torture, during which Cheng Po and Lam Tin Kau died. On 8 January 1945, the majority were released and the remainder sent to Stanley Prison. Lam Shui Ki died some months later after his release. During the course of this imprisonment, no medical attention was given to the prisoners.
Allegations
The Prosecution sought to establish that (1) maltreatment of the civilians, particularly those named, took place at Tai Po Gendarmerie; (2) the maltreatment caused the deaths of the persons and physical suffering to others; (3) the events occurred between 28 December 1944 and 8 January 1945; (4) that the Accused were together concerned as parties to such ill-treatment causing suffering and death.
The Prosecution relied on various witness testimonies about the death of the persons mentioned in the charge.
The Prosecution relied on identification of the two Accused from identification parades. The Accused were well known in Tai Po, making it difficult for the witnesses to be mistaken as to who they were.
The Prosecution emphasized the availability of medical resources and the non-use of them by the two Accused.
The Prosecution also attacked the credibility of the testimony of the two Accused.
The Prosecution relied on various witness testimonies about the death of the persons mentioned in the charge.
The Prosecution relied on identification of the two Accused from identification parades. The Accused were well known in Tai Po, making it difficult for the witnesses to be mistaken as to who they were.
The Prosecution emphasized the availability of medical resources and the non-use of them by the two Accused.
The Prosecution also attacked the credibility of the testimony of the two Accused.
Defence
The Defence argued that certain witnesses failed to identify D2 in the parade but they only identified D2 in the dock. Therefore, their identification evidence should be discredited.
The Defence, on behalf of D1, argued primarily along the lines that firstly the maltreatment should be attributed to the Kowloon O.C (Major Hirao). He was the one who ordered the arrest of the aforementioned persons. Then, D1 did not have any knowledge of detainees being maltreated. Finally, the Prosecution’s evidence was unreliable.
D1 argued Superior Orders, that he had arrested the Chinese on the orders of his superior officer in Kowloon. He denied that he had carried out any investigations or interrogations, as two special branch investigators had been sent for that purpose from Kowloon. He argued that he had been on friendly terms with many of the arrested persons and had scolded them in his office for putting him and themselves in such a predicament.
D1 also argued that he was posted to Waichow on 8 Jan 1945. A few days prior to this, he had been told by one of the special branch investigators that a man had died of beri-beri in his cell. Although he was O.C. in Tai Po, he was on equal rank with the special branch investigators who had longer service. Therefore, he could not issue orders to them. He could not order medical treatment, as he had to infer that the Kowloon O.C. (Major Hirao) would do so if necessary. Neither could he call for a doctor nor respond to the death, when the special branch investigators were there.
He alleged that he inspected the cells daily. Despite having some requests for more food, he did not see anyone ill. He also argued that since he had to attend a Japanese feast at the relevant times, he could only serve on 29 Dec, 4 Jan and 6 Jan and so could not be held responsible for tortures that occurred during the other days.
On behalf of D2, the Defence claimed that D2's duties were of a clerk not an investigator. It was ''impossible that he should have at any time interrogated anyone''. The Defence argued that persons who identified him were lying and prejudiced, and that their evidence was tainted, since there was wide discussion of this case around the Tai Po villages.
The Defence, on behalf of D1, argued primarily along the lines that firstly the maltreatment should be attributed to the Kowloon O.C (Major Hirao). He was the one who ordered the arrest of the aforementioned persons. Then, D1 did not have any knowledge of detainees being maltreated. Finally, the Prosecution’s evidence was unreliable.
D1 argued Superior Orders, that he had arrested the Chinese on the orders of his superior officer in Kowloon. He denied that he had carried out any investigations or interrogations, as two special branch investigators had been sent for that purpose from Kowloon. He argued that he had been on friendly terms with many of the arrested persons and had scolded them in his office for putting him and themselves in such a predicament.
D1 also argued that he was posted to Waichow on 8 Jan 1945. A few days prior to this, he had been told by one of the special branch investigators that a man had died of beri-beri in his cell. Although he was O.C. in Tai Po, he was on equal rank with the special branch investigators who had longer service. Therefore, he could not issue orders to them. He could not order medical treatment, as he had to infer that the Kowloon O.C. (Major Hirao) would do so if necessary. Neither could he call for a doctor nor respond to the death, when the special branch investigators were there.
He alleged that he inspected the cells daily. Despite having some requests for more food, he did not see anyone ill. He also argued that since he had to attend a Japanese feast at the relevant times, he could only serve on 29 Dec, 4 Jan and 6 Jan and so could not be held responsible for tortures that occurred during the other days.
On behalf of D2, the Defence claimed that D2's duties were of a clerk not an investigator. It was ''impossible that he should have at any time interrogated anyone''. The Defence argued that persons who identified him were lying and prejudiced, and that their evidence was tainted, since there was wide discussion of this case around the Tai Po villages.
Prosecutor
Major D.G. McGregor (Black Watch)
Defence Counsel
Lt. J.R. Haggan, R.E.
Judges
President: Lt. Col. J.C. Stewart (Dept. of JAG, India, Solicitor)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Members: Major M.I. Ormsby (West Yorks Regiment); Capt B.N. Kaul (The Frontier Force Regt.)
Advisory Officer
Unknown
Prosecution Witnesses
Major Hirao Yoshio (O.C. of the Kowloon Gendarmerie)
Cheng Kwai (Construction Worker)
Lam Kiu Wai (Farmer)
Lam Pak-ling (Unknown)
Lam Kiu-chung (Unknown)
Lam Chung-sik (Construction Worker)
Lam Sang (Construction Worker)
Lam Wah (Farmer)
Lam Ying-yuen (Farmer)
Chun Wan-wai (Farmer)
Cheung Fuk-yin (Farmer)
Chung Chik-hung (Farmer)
Defence Witnesses
Yamada Kiichiro (Accused)
Awa Isao (Accused)
Trial Dates
1946-07-17
1946-07-18
1946-07-19
1946-07-20
1946-07-22
Judgement Date
1946-07-22
Judgement Confirmation Date
1946-09-23
Judgement Promulgation Date
1946-09-25
Judgement
Held:
1. D1 was guilty of committing a war crime;
2. D2 was not guilty.
1. D1 was guilty of committing a war crime;
2. D2 was not guilty.
Petition
D1 petitioned:
1. The finding was against the weight of evidence;
2. His defence was prejudiced by the absence of the two special branch investigators during the trial.
The Judge Advocate recommended dismissal of the Petition and confirmation of the findings and death penalty on 2 September 1946 [unidentified Brigadier, DJAG, Allied Land Forces, SEA].
He assessed the case to have been “carefully conducted throughout and ably defended.” Even so, the Judge Advocate pointed out that the defending officer appeared not to be legally qualified. He simply invited reference to para. 46 of the ALFSEA War Crimes Instructions No. 1 and ultimately recommended confirmation of the death penalty.
1. The finding was against the weight of evidence;
2. His defence was prejudiced by the absence of the two special branch investigators during the trial.
The Judge Advocate recommended dismissal of the Petition and confirmation of the findings and death penalty on 2 September 1946 [unidentified Brigadier, DJAG, Allied Land Forces, SEA].
He assessed the case to have been “carefully conducted throughout and ably defended.” Even so, the Judge Advocate pointed out that the defending officer appeared not to be legally qualified. He simply invited reference to para. 46 of the ALFSEA War Crimes Instructions No. 1 and ultimately recommended confirmation of the death penalty.
Sentence Imposed
Death Penalty, 1 Oct 1946 carried out at Stanley Prison, Hong Kong.
Keywords
Hong Kong; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Guerilla activities; "together concerned as parties"; Committed; Unlawful arrest and/or detention; Place of Detention;
Arbitrary or summary punishment; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war; Torture; Cruel Inhuman or Degrading Treatment; Superior Orders; Mistaken Identity; Malicious Witnesses; Death from natural causes; Hierarchy; Scope of responsibilities
Arbitrary or summary punishment; Torture; Cruel Inhuman or Degrading Treatment; Unlawful Killing; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war; Torture; Cruel Inhuman or Degrading Treatment; Superior Orders; Mistaken Identity; Malicious Witnesses; Death from natural causes; Hierarchy; Scope of responsibilities
Remarks
Same lawyer for two Co-Accused.
Dublin Core
Title
WO235/846
Description
Committing a War Crime
“in that he, at WAICHOW, between the 25th May 1945 and the 5th August 1945, being in the service of the occupying power in the Japanese Gendarmerie, in violation of the laws and usages of war, was concerned in the maltreatment of a Chinese civilian named LI KAM-MOON, who was at that time under arrest resulting in the death of the said Chinese civilian.”
“in that he, at WAICHOW, between the 25th May 1945 and the 5th August 1945, being in the service of the occupying power in the Japanese Gendarmerie, in violation of the laws and usages of war, was concerned in the maltreatment of a Chinese civilian named LI KAM-MOON, who was at that time under arrest resulting in the death of the said Chinese civilian.”
Legal Case Item Type Metadata
Case No.
WO235/846
Accused
Sgt Matsuda Kenichi
Court
Military Court for the Trial of War Criminals [illegible]
Charge
Committing a War Crime
“in that he, at WAICHOW, between the 25th May 1945 and the 5th August 1945, being in the service of the occupying power in the Japanese Gendarmerie, in violation of the laws and usages of war, was concerned in the maltreatment of a Chinese civilian named LI KAM-MOON, who was at that time under arrest resulting in the death of the said Chinese civilian.”
“in that he, at WAICHOW, between the 25th May 1945 and the 5th August 1945, being in the service of the occupying power in the Japanese Gendarmerie, in violation of the laws and usages of war, was concerned in the maltreatment of a Chinese civilian named LI KAM-MOON, who was at that time under arrest resulting in the death of the said Chinese civilian.”
Background
At the material time, the Accused was a member of the Special Intelligence Department of the South China Japanese Gendarmerie.
This case concerns allegations against the Accused for acts done in Waichow, China, at the relevant time under Japanese occupation, to one Li Kam Moon.
Li Kam Moon was a 20 year old baker and confectioner from Kowloon, who worked at the Café Wiseman in Des Voeux Road, Central, Hong Kong. He had a good friend, Wong Kai, who worked as a British underground agent with the B.A.A.G (British Army Aid Group). Li Kam Moon knew of his friend’s activities.
This case concerns allegations against the Accused for acts done in Waichow, China, at the relevant time under Japanese occupation, to one Li Kam Moon.
Li Kam Moon was a 20 year old baker and confectioner from Kowloon, who worked at the Café Wiseman in Des Voeux Road, Central, Hong Kong. He had a good friend, Wong Kai, who worked as a British underground agent with the B.A.A.G (British Army Aid Group). Li Kam Moon knew of his friend’s activities.
Allegations
The Prosecution began its Opening Statement with a quote: “Greater love hath no man than this, that a man lay down his life for his friends”. It went on: “The sombre pages of history are illumined with tales of heroes who died rather than betray their friends. The annals of each nation record proudly the lives of their heroic men and women who preferred death to the betrayal of their comrades in arms….. When the history of this Colony’s part in the struggle against Japanese aggression comes to be written the name of LI KAM MOON will be inscribed upon its pages.”
According to the Prosecution, the quote aptly and fittingly described what had happened to Li Kam Moon He had “refused to divulge the whereabouts of his life-time long, boyhood days friend (at this time a member of the B.A.A.G) and, whose whereabouts were being diligently sought after by the Japanese gendarmerie, especially in the person of Sgt. Matsuda Kenichi, who stands before you today indicted with the cruel maltreatment of LI KAM MOON, whereby the said LI KAM MOON met his death in the WAI ON Hospital.”
On 5 April 1944, Li Kam Moon, a civilian inhabitant of Kowloon, was arrested in Kowloon. The victim was sent to the Gendarmerie where he was interrogated by the Accused for information regarding a Chinese guerilla organisation. After being detained for 12 days, he was released and reunited with his family.
Li Kam Moon and his family then migrated to Waichow, which was then under Chinese control. Shortly after, it fell under Japanese control.
On 14 May 1944, Li Kam Moon was again arrested, this time in Waichow. His sister went to the Gendarmerie to enquire about his custody. She was not given any information but she heard her brother scream and groan in the room from which the Accused eventually emerged. They were not allowed to meet.
A week later, the Accused went to Li Kam Moon’s family and asked them to bring certain toilet requirements to the Gendarmerie hospital where he was hospitalized (Wai On Hospital in Waichow). Li Kam Moon’s sister found the victim in a wounded and bruised condition lying on a dirty bed without medical attention. She nursed her brother for 10 days, during which time she heard the Accused interrogate him, and also sounds of beating from the room where he was lying. After some time, the Accused forbade the sister from visiting Li Kam Moon.
Li Kam Moon subsequently died. His battered and bruised body was handed over to his family.
According to the Prosecution, the quote aptly and fittingly described what had happened to Li Kam Moon He had “refused to divulge the whereabouts of his life-time long, boyhood days friend (at this time a member of the B.A.A.G) and, whose whereabouts were being diligently sought after by the Japanese gendarmerie, especially in the person of Sgt. Matsuda Kenichi, who stands before you today indicted with the cruel maltreatment of LI KAM MOON, whereby the said LI KAM MOON met his death in the WAI ON Hospital.”
On 5 April 1944, Li Kam Moon, a civilian inhabitant of Kowloon, was arrested in Kowloon. The victim was sent to the Gendarmerie where he was interrogated by the Accused for information regarding a Chinese guerilla organisation. After being detained for 12 days, he was released and reunited with his family.
Li Kam Moon and his family then migrated to Waichow, which was then under Chinese control. Shortly after, it fell under Japanese control.
On 14 May 1944, Li Kam Moon was again arrested, this time in Waichow. His sister went to the Gendarmerie to enquire about his custody. She was not given any information but she heard her brother scream and groan in the room from which the Accused eventually emerged. They were not allowed to meet.
A week later, the Accused went to Li Kam Moon’s family and asked them to bring certain toilet requirements to the Gendarmerie hospital where he was hospitalized (Wai On Hospital in Waichow). Li Kam Moon’s sister found the victim in a wounded and bruised condition lying on a dirty bed without medical attention. She nursed her brother for 10 days, during which time she heard the Accused interrogate him, and also sounds of beating from the room where he was lying. After some time, the Accused forbade the sister from visiting Li Kam Moon.
Li Kam Moon subsequently died. His battered and bruised body was handed over to his family.
Defence
The Accused admitted the arrest, detention and interrogation of Li Kam Moon. He also insisted the victim confessed subversive activities against the Japanese.
The Accused denied ever mistreating Li Kam Moon. He alleged that Li Kam Moon twice attempted suicide by banging his head against a stone pillar and by stabbing himself with an old Chinese sword. This was the reason why he was hospitalised. Li Kam Moon died as a result of peritonitis and not from torture.
The Accused denied ever mistreating Li Kam Moon. He alleged that Li Kam Moon twice attempted suicide by banging his head against a stone pillar and by stabbing himself with an old Chinese sword. This was the reason why he was hospitalised. Li Kam Moon died as a result of peritonitis and not from torture.
Prosecutor
Capt. J.F. Reilly, Staff Captain (Legal) H.Q. Alfsea
Defence Counsel
Lieut. J.R. Haggan, RE.
Judges
President: Lt-Col J.C. Stewart (Dept of JAG India)
Members: Major M.I. Ormsby, West Yorks Regiment, Capt. B.N. Kaul, Frontier Force Regiment
Members: Major M.I. Ormsby, West Yorks Regiment, Capt. B.N. Kaul, Frontier Force Regiment
Prosecution Witnesses
Li Sau-Chun (Unknown)
Li Keechun (Unknown)
Yau Man (Police Constable)
Yip On (Police Probationary Sub-inspector)
Major K. Hussain (Major)
Defence Witnesses
Sgt Matsuda Kenichi (Accused) (Sergeant)
Trial Dates
1946-05-10
1946-05-11
1946-05-13
1946-05-14
Judgement Date
1946-05-14
Judgement Confirmation Date
1946-07-03
Judgement Promulgation Date
1946-07-09
Judgement
Guilty with exceptions – special finding – see appendix A. The Prosecution failed to prove that Li Kam-Moon died as a result of the ill-treatment which he received. He was convicted of “being concerned in” the maltreatment of Li Kam Moon and sentenced to 8 years imprisonment.
Petition
The Accused petitioned on the following grounds:
1. The verdict was against the weight of evidence;
2. The sentence was too severe in light of the evidence.
He stated that he was responsible only for the arrest and interrogation of the victim but not the conditions under which he was confined. He also insisted the victim received care and medical attention when he was admitted to hospital.
In reviewing the case, the Judge Advocate [unnamed Brigadier, DJAG, Allied Land Forces, SEA, 20 June 1946] commented as follows.
“It was not established by the prosecution that the accused was directly responsible for the death of Li Kam Moon and there were no eye-witnesses of his ill-treatment, which was deposed to by his sister who heard his screams during interrogation and the sounds of hitting when he was in hospital. She also described his condition after interrogation. The witnesses who were applied for by the defence to support the accused’s story of attempted suicide were not called, but if they had been called and had supported that story, it is clear that their testimony would not have affected the finding of the court”.
“The petition raises no fact or argument which could not have been considered by the court and I advise that it be dismissed and the proceedings confirmed.”
1. The verdict was against the weight of evidence;
2. The sentence was too severe in light of the evidence.
He stated that he was responsible only for the arrest and interrogation of the victim but not the conditions under which he was confined. He also insisted the victim received care and medical attention when he was admitted to hospital.
In reviewing the case, the Judge Advocate [unnamed Brigadier, DJAG, Allied Land Forces, SEA, 20 June 1946] commented as follows.
“It was not established by the prosecution that the accused was directly responsible for the death of Li Kam Moon and there were no eye-witnesses of his ill-treatment, which was deposed to by his sister who heard his screams during interrogation and the sounds of hitting when he was in hospital. She also described his condition after interrogation. The witnesses who were applied for by the defence to support the accused’s story of attempted suicide were not called, but if they had been called and had supported that story, it is clear that their testimony would not have affected the finding of the court”.
“The petition raises no fact or argument which could not have been considered by the court and I advise that it be dismissed and the proceedings confirmed.”
Keywords
Hong Kong; Waichow; Kempeitai; Gendarme/Gendarmes/Gendarmerie; Civilians; Unlawful arrest or detention; Place of detention; “concerned in”; Torture; Cruel Inhuman or Degrading Treatment; Unlawful killing; Neglect; Failure to provide adequate medical care; War Crimes; Violations of laws and customs of war; Suicide; Failure to provide adequate food and/or care; Guerilla activities; OR Guerilla activity; Anti-Japanese Activity; Communist Activities; Death from natural causes
Dublin Core
Title
Experience as a War Crimes Prosecutor in Hong Kong
Creator
Peter Vine
Publisher
Royal Asiatic Society of Great Britain and Ireland. Hong Kong Branch
Bibliographic Citation
(1995) 35 Journal of The Hong Kong Branch of the Royal Asiatic Society, pp.205-209.
Dublin Core
Title
The Sinking of the Lisbon Maru: Britain's Forgotten Wartime Tragedy
Creator
Tony Banham
Publisher
Hong Kong University Press
Bibliographic Citation
(Hong Kong University Press, Hong Kong, 2006) (Appendix I - Judgement: The Trial of Kyoda Shigeru, pp.231-245).
Dublin Core
Title
Statement of Mr. Chan Sui-Jeung, given to the HKWCT Collection, 4 August 2010.
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