The Legal Basis for the Hong Kong Trials

In September 1944, the Judge Advocate General Henry MacGeagh sent a proposal to the British War Cabinet, recommending the use of provisional military courts to try suspected war criminals. The scheme was long in discussion between the British Lord Chancellor Simon and the Judge Advocate General since July 1943.Footnote ¹² But it was not until Germany’s surrender in May 1945 that Whitehall decided on the final form that the trials of war criminals would take. In June 1945, by way of the Royal Warrant, Special Army Order 81/1945 was passed by the War Office and implemented with the Regulations for the Trials of War Criminals, which gave power to the British authorities in Asia to convene military courts to try accused war criminals and mapped out the general procedure for the courts.Footnote ¹³ Originally employed to try traditional offenses against military law, the Royal Warrant procedure refashioned military justice into a convenient mode of trying war crimes cases in any British colonial dependency without the need to bring accused war criminals to Britain to be tried. Moreover, the courts followed the same rules of procedure for field general courts-martial as set down in the British Army Act 1926 to the extent applicable and consistent with the Army Order 81/1945.

In addition to the logistical challenges of setting up military courts, it was also practically impossible for the accused to be subject to the same procedures as ordinary criminal proceedings. Postwar demands for expedient justice demanded a degree of flexibility around the procedural requirements of due process. The British authorities thus had to redesign the military trials around the goals of expediency and practicality. While there was plenty of evidence of war crimes collected in Hong Kong, much of it was hearsay and not ordinarily admissible as evidence under English common law proceedings. The British Army Order 81/1945 simplified proceedings by relaxing such a principle to allow any kind of hearsay to be used so long as the evidence could usefully prove or disprove the charge. In an effort to expedite the trial process, the Allied Land Forces of South East Asia (ALFSEA), which was subordinate to the South East Asia Command (SEAC) in Singapore, issued guidance on how to investigate and prosecute war crimes with an instruction to accept evidence even if its authenticity could not be proven.Footnote ¹⁴ As court transcripts show, prosecutions for war crimes were made desirable and effective through hearsay evidence and other less formal means such as written sworn statements.

While the Allied retribution extended beyond the traditional scope of war crimes to encompass “crimes against humanity” and “crimes against peace,” the Hong Kong cases ran along narrower grounds of war crimes with reliance on traditional criminal law doctrines for imposing criminal responsibility based on complicity or joint enterprise, which relaxed the necessity for individual fault in areas of criminal responsibility for war crimes.Footnote ¹⁵ Regulation 8(ii) of the Army Order 81/1945 arguably introduced a form of joint enterprise liability which allowed the imputation of criminal guilt in cases of concerted action. The shift of criminal responsibility from the individual perpetrator to the collective points to a more unprincipled practice of overcriminalization in the context of war crimes prosecution. It was also within this similar legal context that cases against Japanese officers were framed in terms of their complicity in the crimes of others and participation in acts that were part of widespread and concerted violence.

With Hong Kong under the British control and peace restored in 1946, the General Commanding Officer of Land Forces (GOC) Major General Francis Festing formed four war crimes courts in the regions of Hong Kong Island, Kowloon, and the New Territories. In the end, 123 persons were indicted in 46 separate cases. 108 persons including 43 from the Kempeitai were convicted, with death sentences given to 24 defendants and prison sentences to 79 defendants (of which 2 were given life sentences, 28 received sentences of 10–20 years, and 49 defendants were given sentences of 10 years or less).Footnote ¹⁶ The cases fell into the following categories: cases involving killings of hors de combat during the invasion of Hong Kong; cases involving abuses in the prisoner of war camps, and cases against members of the Kempeitai. There are four Kempeitai commanders at Hong Kong during the war: Colonel Noma Kennosuke, Colonel Kanazawa Asao, Major Hirao Yoshio, and Captain Ushiyama Yukio. These command responsibility trials were conducted with a palpable sense of legal integrity with common safeguards in respect of the presumption of innocence and the standard of proof though none of them were able to escape trial and executions.

Prosecutor v. Colonel Noma Kennosuke

The case of Colonel Noma ran the whole gamut of day-to-day civilian life in Hong Kong. After the re-establishment of civil administration in January 1942, food rationing was introduced from early on when the supply of food proved inadequate to sustain the population in Hong Kong. In January 1942, Governor Rensuke Isogai issued a deportation order targeting anyone without a residence permit or a rice ration card. This order was enforced by the Japanese military police, who later became actively involved in executing the scheme. For many, despite holding a rice ratio card, they were arrested and deported by mistake. The usual fate of those deported was transportation to various impoverished outskirts of Hong Kong including Lo Chow Island, which was uninhabited and desolate. In the worst cases, boats with large numbers of Chinese people were sunk in the open sea. People who survived the perilous journey by sea were left abandoned, with many sick and dying of starvation and exposure. In a span of less than five years, Hong Kong’s population quickly decreased from 1.6 million to about 0.6 million.

Colonel Noma had been in command until January 1945, after which he was replaced by Colonel Kanazawa Asao. According to the indictment, Noma was accused of being “concerned in” the violations of the laws and customs of war committed against civilian residents which resulted in “numbers of them died or were unlawfully killed by members of the Japanese Forces, and many others underwent physical suffering.”Footnote ¹⁷ Much of the prosecution’s case focused on three categories of violations: (1) general ill treatment of civilians and mismanagement of places of detention resulting in sufferings and deaths; (2) illegal executions; and (3) mass deportation of civilians from about 1942. The trial of Colonel Noma was a complex and highly publicized legal proceeding, followed by intense media concern and public interest.Footnote ¹⁸ At trial, the prosecution asked the court to impose a death sentence on Noma. The opening statement of the prosecutor Major, D.G. McGregor, charged that Noma “produced misery and suffering to a degree unparalleled in the history of the colony” due to many crimes of the Japanese rule.Footnote ¹⁹ In this case, the actions of individuals in the whole episode were not unconnected and isolated. Although the crimes did not occur at the same time or arise from a single act or event, the “degree, regularity, and consistency” of the course of events showed that they were not separate delinquencies, but part of a deliberate policy supported by the leadership. Thus, there should be no legal obstacle to prosecution under the charge of command responsibility. The evidence against Noma was overwhelming and came from many sources. A total of 60 witnesses appeared before the court to substantiate the prosecutor’s case. Of those 60, 32 described abuses of various sorts. This was by far the largest category of misconduct that was reported. For example, on or about 30 December 1941, J.A. Stericker saw seven Chinese coolies tied to the trees in the heart of Hong Kong Island. Some of them had apparently died the next day.Footnote ²⁰ Jerome Edward Law, a British merchant, was pressed into service as an interpreter at the Kowloon Gendarmerie station in 1944. He gave a detailed description of the cruelty practiced by the military police. Besides witnessing “wholesome arrests,” he often saw them torturing the prisoners. Notable examples cited were “beatings with poles with electric wires…hanging the accused by the hands tied behind the back…tying the accused to a frame, immobilizing him and pouring water over his face.”Footnote ²¹ Some sadistic guards would also set fierce Alsatian dogs on prisoners until they were badly mauled.

Although the prosecution sought to establish that Noma was aware of and consented to the general misbehavior of his men, the statements of Rudy Choy, who had been imprisoned at the Kempeitai headquarters situated in the Supreme Court building, contradicted the prosecution’s claim that Noma was aware of Kempeitai abuse. Choy was an agent of the British Army Aid Group who was held at the Supreme Court for a month. At the time, Noma’s office was located on the first floor of the building. Chow testified that he could often hear “people screaming” and “usually loud” cries all around from his cell on the ground floor. Chow’s testimony was supported by another prisoner who stated that yelling occurred “lot of times, morning and night.”Footnote ²² The prosecution’s strategy was to prove that Noma could also hear the screams from his office. The court visited the site during which a member of the court shot gunfire from the spot of the interrogation room but subsequently ruled that no sound was heard. There was some evidence to suggest that the accused was aware of the misbehavior and was present on some occasions. Edward David Skyes, who was held at the Central Police Station, claimed that Noma was present at his interrogation, wherein he was tortured in front of Noma.Footnote ²³

Major McGregor also called witnesses to testify about the murders committed at the hands of the military police. In September 1944, one witness had observed the illegal executions of prisoners who escaped from the Kempeitai headquarters in his capacity as the interpreter for the Japanese. Sergeant Inouye Kanao was a Japanese Canadian who joined the Japanese Imperial Army in 1942. Many survivors described him as a cruel man who beat and abused prisoners incessantly. Following the war, he was tried and executed in a separate Canadian trial for high treason. His evidence nonetheless explained in important detail as to who authorized the executions that he had seen, pointing out that “if any execution was to take place, in HQ or in the army, or the gendarmerie, the chief of that department gives out the orders and also he had written orders saying that he wanted these persons executed.”Footnote ²⁴ After being recaptured, all of them were summarily shot allegedly under Noma’s order.

The remaining issue left was Noma’s culpability over the practice of deportation. An extract translated to English from a Japanese publication, dealing with the colony’s population was produced in the court, shows that over 900,000 persons were evacuated from Hong Kong in the first two years of the Japanese Occupation. A sworn testimony from a prominent Parsee-Chinese businessman and legislator Robert Hormus Kotewall, also the chairman of the Chinese Representative Council during the occupation, explained that the Japanese government needed the cooperation of the Chinese council to evacuate vagrants, beggars, and rogues back to mainland China. The purpose of the Chinese Representative Council was to protect the interests of the Chinese community by acting as an intermediary between the Japanese government and the Chinese population.Footnote ²⁵ At a regular meeting with Governor Isogai in August 1943, Kotewall and three Chinese leaders made representations about indiscriminate arrests by the Kempeitai. Surviving minutes of the meeting of the Chinese Council in 1943 disclosed that Chinese leaders were generally in support of the Japanese government’s plan to deport undocumented people. At a meeting between members of the Chinese Representative Council on 19 August 1943, Robert Kotewall, a prominent Parsee-Chinese businessman, was recorded to have said: “We were in accord with the fundamental principles of the Government’s proposal” but he expressed concerns over “mistakes in executions.”Footnote ²⁶ In cross-examination Kotewall refuted the defense’s suggestion that the Chief of Civil Affairs Department was responsible for the execution of the scheme, responding that it was the gendarmes that oversaw the rounding of people in the streets for detention and subsequent deportation.Footnote ²⁷ The defense contended that Governor Rensuke Isogai’s office sought the cooperation of the military police to evacuate the undesirables back to mainland China. In cross-examination Kotewall refuted the defense’s suggestion that Noma had little involvement in the deportation scheme, responding that the Kempeitai was in charge of rounding the people on the streets for detention and subsequent deportation. Evidence on the particularities of the Japanese rule indicated that there was never a proper centralization of authority with the civil administration, the armed forces, and the Kempeitai stood as competing authorities at one and the same time, raising doubts as to Noma’s level of actual control over how his subordinates carried out the scheme.

The defense trial strategy was for Noma to boldly deny any knowledge of or personal responsibility for the crimes of his subordinates. The defense counsel Yoshizumi Tatsuichi called 14 witnesses to testify about Noma’s lack of knowledge of Kempeitai war criminality. Although the testimonies of the prosecution witnesses sought to prove that he knew or had reason to know that his subordinates would commit the crimes, one of the defense witnesses R.S. Smith, an assistant crown solicitor who continued to work at the Supreme Court under the Japanese, gave evidence to the contrary, testifying that both commanders of Kowloon District Gendarmerie Major Hirao Yoshio and Major Shiozawa Kunio failed to report any misdeeds during routine meetings with Noma who had asked them many times whether there was “nothing going on at Kowloon” and it must be “stopped” if there was.Footnote ²⁸

Perhaps the most significant admission came from Noma who also testified before the court. When Noma took the stand, he admitted to having ordered the execution of five guerillas at the command of the Chief-of-Staff. But he denied knowing anything about the prosecution’s allegations. According to Major McGregor, his professed claim of ignorance and shock at learning of widespread misconduct during the trial defied ordinary common sense if for no other reason than because of his own statements that he “was worried” about breaches of behavior and claimed to have visited the stations “to look for instruments of torture but couldn’t find any.”Footnote ²⁹ McGregor submitted that a prudent person in the accused’s rank and position would surely have discovered incidents of misconduct by his subordinates. In any event, even if Noma had instructed his men to rectify their behavior, it was clear that he failed to make use of his “unassailable position” within the military hierarchy to stop the most grievous crimes from happening.Footnote ³⁰ Determining the exact level of Noma’s responsibility was impossible, so prosecution found it “not necessary fully to expound just how far this responsibility goes.” Presenting the case as a crisis of faith between the Hong Kong population and the law, McGregor asked the court to impose “righteous vengeance” on the accused and to scrutinize the accused’s action “far more carefully than [it] would an junior officer or N.C.O.”Footnote ³¹

The scales were heavily tipped against Noma. The defense counsel Yoshizumi Tatsuichiro opened the defense by apologizing to the court for his unfamiliarity with the British legal system in his “first experience of appearing in a British Court.”Footnote ³² In a final effort to unseat the prosecution’s charges against Noma, he made a long and exhaustive argument about why the prosecution witnesses could not be believed. He went over the testimonial evidence witness by witness, seeking to weaken the prosecution’s case by pursuing inconsistencies in the sequence of events, however small and insignificant. In particular, he questioned Edward David Skyes’s testimony as to seeing Noma visiting his cell and doing nothing to intervene when he was tortured at the scene. Skyes gave contradictory testimony to the event and the fact that there was no other witness who could verify Noma’s presence at the scene on that day. After Yoshizumi questioned the credibility of prosecution witnesses, he devoted his argument’s second part to supporting Noma’s compete denial story. Yoshizumi asked, “Did he ever have any knowledge at all of any illegal acts committed by his subordinates?….the answer is no.”Footnote ³³ The Japanese lawyer recounted the sound test carried out at the Supreme Court and the evidence of R.S. Smith, “Is he yet to be blamed for not knowing about their misdemeanors, particularly in view of the fact that there were not more than seven gendarme officers to look after the entire force of the Gendarmerie personnel exceeding 2,500 men?.” “What more could he have done against them?,” if his subordinates deliberately concealed unfavorable information, he concluded.Footnote ³⁴

On 24 February 1947, the British military court consisting of Lt. Colonel C.F. Bell, Major M.I. Ormsby, and Captain R.B.R. Gorely found Noma guilty of all charges and sentenced him to death. Though no written judgment accompanied the verdict to explain how the court came to the conclusion that he deserved the death sentence, military procedure allowed the accused to file a petition for a review of the case. The petition phase was the final stage of the legal process in which the Judge Advocate from South East Asia Land Forces reviewed the case and submitted an opinion to the Commander of Land Forces Hong Kong who would issue the final decision of whether to confirm, modify, or reject the verdict of the court. It gave the accused another chance to present his case or submit new evidence. In April 1947, an unnamed Judge Advocate, in an unusually brief one-page written report, refused Noma’s petition, finding that the mens rea requirement of command requirement was satisfied. Interestingly, on the issue of evidence, the Judge Advocate detected “many discrepancies” in evidence but believed that “there was ample evidence” to support the court’s decision. The most convincing reading of the Judge Advocate’s summing up suggests that it determined Noma’s claim of ignorance incredible. Although Noma may not have ordered the crimes, which had been the requisite element in all, if not most, cases of command responsibility, the court found that he knew of them and held him to a “should have known” standard; the standard represented an important application of an expanded idea of command responsibility.

How Noma was to wholly blame for the crimes of his subordinates? In this case, the prosecution was only able to provide controversial hearsay evidence to prove that the accused possessed the reasonable degree of suspicion and experience necessary to be aware of his men’s criminal behavior. The fact that Noma was not directly involved in the wrongdoing was irrelevant. The basis of Noma’s criminal responsibility was not that he had personally committed those crimes. Rather, they were the direct consequences of his conscious omission rather than honest ignorance. The guilty verdict in the Noma trial shows that the British legal authorities attributed criminal responsibility to the Japanese colonel because of his position as the commanding officer and that he either knew of the wrongdoing and took no steps to discipline his subordinates effectively or he “could not care less.” Noma’s knowledge of the crimes was inferred from his continuous presence in Hong Kong from 1941 until 1945 as well as the circumstances of his inaction, and his non-intervention was deemed as tacit encouragement of and consent to the acts of his subordinates, especially when considered his position of command, which altogether allowed the British to secure his conviction efficiently.

Prosecutor v. Major Hirao Yoshio

Hirao Yoshio was the commanding officer of the Kowloon District Gendarmerie in command of more than 800 subordinates.Footnote ³⁵ He was in charge of eight Kempeitai sub-stations at Kowloon City, Sham Shui Po, Sai Kumg, Tsuen Wan, Tai Po, Yuan Long, Sheung Shui, and Sha Tau Kok Hirao’s case, and other like cases, shed some light on the way the British military courts established command responsibility when the notion was applied in the context of ill-treatment of civilians. The court, consisting of Lieutenant Colonel N.G. Wait, Major A. Clayworth, and Captain R.B.R. Gorely, did not sympathize with Hirao, who claimed to have acted under the orders of Noma. The legal debate in Hirao’s case revolved around his knowledge of the crimes committed by his subordinates in the stations in Kowloon and the New Territories. The question of the plea of superior orders is also relevant here, given that Noma was Hirao’s immediate superior.

Hirao was particularly accused of allowing his subordinates to commit the summary execution by beheading of ten Chinese civilians. In oral and written testimony, the prosecution argued the victims were executed without trial despite no evidence that they were armed guerillas. The most damning evidence against the accused came from the testimony of Joseph Venpin, a British national who was employed by the Kowloon Kempeitai as an interpreter during the Japanese occupation. His first-hand eyewitness account of the execution provided crucial circumstantial evidence that the accused approved of the action of his subordinates. On December 8, 1944, at the accused’s own headquarter, Venpin claimed to have seen a group of Kempeitai soilders load 10 Chinese prisoners onto a truck with ropes tied around their arms and taken to a secluded spot to be murdered. It was on this day of 1941 that the Japanese declared war on the Allies. Soon after, two Kempeitai officers with their blood-stained uniforms returned to the headquarters. The first thing they did on arrival was to hand a samurai sword to the officer of the day Sergeant Nagahara Masakichi, in the presence of Venpin who testified that they reported to Nagahara of the killings. In the office, Venpin saw an order approved by the accused and Colonel Noma relating to the execution.Footnote ³⁶

The prosecution argued—with little dispute from Hirao—that tortures were practiced. What was contested was the credibility of the witnesses whose evidence of the murders was extremely important to the outcome of the trial. There were two main points to Hirao’s defense. The first argument was that evidence provided by some of the witnesses was inadmissible because it violated the procedural rule that such evidence must be reliable. Hirao’s Japanese defense counsel objected to the prosecution witness on the grounds that it was based on hearsay. The defense counsel also objected to the use of affidavit testimony from three witnesses who did not attend the court. In addition, former prisoners who testified against Hirao had “grossly exaggerated the circumstance” in which prisoners at sub-stations were treated.Footnote ³⁷ A sustained effort was made to undermine Venpin’s credibility as an accomplice and impugn his testimony regarding Hirao’s knowledge of the execution. However, these challenges were obviously unsuccessful given the lower admissibility standards for evidence in the British military courts. Regulation 8 of the Special Army Order 81/1945 provides that “the Court may take into consideration any oral statement or any document appearing on the face of it to be authentic, provided the statement or document appears to the Court to be of assistance in proving or disproving the charge.”Footnote ³⁸ Without cross-examination of all witnesses on contentious issues, the defense had no opportunity to evaluate discrepancies about details and inconsistencies in the various accounts of the accusers’ alleged sufferings. The fact that the court treated affidavits as having the same value as in-court testimonies raises questions over this aspect of the trial, which, as the defense had pointed out, constituted a potential violation of “beyond reasonable doubt” standard and unwritten principle “in dubio pro reo” which requires the court to fully ascertain the truth in favor of the accused.Footnote ³⁹

Hirao’s second argument was that his subordinates should be held responsible for the ill-treatment and death of prisoners. 16 prosecution witnesses gave evidence covering 209 pages of trial transcript, all of it relating to their experiences of being detained in the cells under his jurisdiction. Based on their testimonies, the number of deaths that occurred in the accused’s cells is estimated to be around 30, most of which were due to gruesome beatings during interrogation. He denied his knowledge of these deaths, stating that “superior officers are not responsible for the acts themselves” under the Japanese criminal law.Footnote ⁴⁰ The defense counsel argued that there should be a “clear distinction between the criminal responsibility of his subordinates who administered torture and the responsibility of the accused himself in supervising his subordinates.”Footnote ⁴¹ Some evidence suggested Hirao knew of some tortures occurring but was unaware of the extent of such crimes. As a second in command who was next in rank to Colonel Noma, his area of duty was large and onerous. The Kowloon area, though a remote part of the colony, was itself larger than Hong Kong Island. It was not in dispute by the parties that interrogation works were being done by his subordinates without his direct supervision. Therefore, he could not know the full happenings of ill-treatment across sub-stations in the Kowloon area nor could he possibly be in each place at once in order to see that his orders were obeyed. In his own testimony, Hirao explained that he possessed very limited means of command and control over his subordinates. In one example, he claimed to be unaware of an incident at the Yau Ma Tei police station in which some prisoners died after being interrogated, implying that the sub-commander of the station Warrant Office Omura might have hidden this information from him. However, other evidence implied that he knew of the beatings in his own headquarters. On the first floor of the quarters where one prosecution witness Joseph Law was stationed next to Hirao’s office, screams of people being beaten could allegedly be heard from the ground-floor cells.Footnote ⁴² The fact that beatings and injuries were part of the normal daily routine at the HQ corroborated the hearsay testimony of another witness who had also heard the cries while working next door to the accused.Footnote ⁴³

On 14 November 1947, the court found Hirao guilty and sentenced him to death. He filed a petition in which he raised the defense of superior orders, claiming that he “had no alternative” but was compelled to carry out his duties “in obedience to the instructions of Colonel Noma” and that Noma “never invested his subordinates with any power which could be exerted independently of his own.”Footnote ⁴⁴ In other words, despite being the commandant of Kowloon district gendarmerie, Hirao’s role was merely to convey Noma’s instructions to his subordinates. Upon review of the case on 19 January 1948, the DJAG office in Singapore recommended the court’s finding be confirmed but took a rare step to recommend his sentence be commuted “to something less severe than the death penalty.”Footnote ⁴⁵ The Judge Advocate summarized the prosecution’s main case and found that there was circumstantial evidence, at least, to support the inference that Hirao must have heard the screams of victims when he inspected his HQ compound. Ample evidence demonstrated a common pattern of torturing suspects in custody, wherein he was sufficiently complicit in encouraging it. Moreover, the lack of direct evidence linking Hirao to the murder of Chinese civilians was overcome by the testimony of Joseph Venpin. Hirao most likely knew of what his subordinates were doing on that day, but did nothing to prevent them from committing the unlawful killings.

After summing up the prosecution’s case, the Judge Advocate rejected Hirao’s claim of obedience to Noma’s orders, finding that he tried to “disclaim[s] criminal responsibility for the offenses 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.”Footnote ⁴⁶ However, in an extraordinary act of clemency, the Judge Advocate recommended the sentence to be commuted on the ground that the only evidence of Hirao’s knowledge of murders was from Joseph Venpin, and “much reliance should not be placed on it” since the witness was an accomplice of “a pretty despicable character.”Footnote ⁴⁷ Though the post-trial review of Hirao’s case recommended leniency, its non-binding recommendation was ruled out by the Hong Kong command, which subsequently issued a death warrant ordering the execution of Hirao on 23 February 1948. The British executed Hirao by hanging at Stanley Prison the next day. The decision of the British authorities in Hong Kong to carry out the death sentence on Hirao, despite the Judge Advocate’s opinion that his sentence should be mitigated due to a lack of stronger evidence of mens rea and the evidence of Joseph Venpin should not be given much credibility, suggests different opinions over how the criminal responsibility of a commander should be interpreted. As far as the British officials in Hong Kong were concerned, British rule in the colony would sustain its popularity if Hirao were punished. Eager to make an example demonstrating their condemnation of war crimes, the British were in a good position to apply the law less cautiously, and it thus came as no surprise that Hirao was held fully responsible for crimes within areas of his command.

Prosecutor v. Colonel Kanazawa Asao

More than six months after the conclusion of the Noma trial, on 26 September 1947, the same panel of three British officers who presided over the Hirao trial heard the case against Colonel Kanazawa Asao, the Commissioner of Police who succeeded Noma as the chief commander of the Kempeitai in Hong Kong. In contrast to the trials of Noma and Hirao, where both of the accused were charged with a single count of war crimes, the British charged Kanazawa with two separate but related crimes. The first charge mirrored that of Noma and Hirao: while serving as a commander, he was “concerned in the illtreatment of prisoners in the custody of the Kempeitai, causing the death of some and physical sufferings to others.”Footnote ⁴⁸ The second charge accused him of being “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.”Footnote ⁴⁹ Kanazawa replaced Noma, who was recalled to Japan at a later stage of the war in February 1945 when a Japanese defeat seemed likely. Kanazawa only had a brief term in office for barely six months. It is necessary to ask whether Kanazawa was as legally culpable as someone like Noma, who had created terror at the very beginning of the Japanese Occupation? Should the short length of his command be considered as a mitigating factor in the court’s assessment of his responsibility?

As in the Noma and Hirao cases, the prosecution under Major R.C. Lai charged Kanazawa to have ordered, tolerated, or failed to take necessary measures to prevent the ill-treatment and murder of prisoners, and thus promoted such crimes. Kanazawa was further accused by the prosecution of having played a major role in the arresting and deporting civilians, which resulted in “indescribable suffering” and deaths. Kanazawa’s command responsibility was for crimes committed between early February 1945 and August 1945 for the first charge and between early June and August 1945 for the second charge. The prosecution described him as a willing successor and participant without whom the crimes could never have happened. Kanazawa pleaded not guilty, stating that he knew nothing of any ill-treatment as his subordinates hid the truth from him, but admitted that he played a part in the deportation scheme.

The evidence of the prosecution witnesses was extremely crucial to the outcome of the trial, as Major Lai stated, “the corner stone, the very crux of the matter is knowledge in the accused, largely dependent upon inferences which you are entitled to draw in the light of evidence available.”Footnote ⁵⁰ According to Lai, the court must determine from the evidence whether Kanazawa could be said to have constructive knowledge. However, as the court began to hear evidence against Kanazawa, it was clear that there was no proof that Kanazawa had direct knowledge of the crimes of his subordinates or that he had direct information about their criminal conduct. What the prosecution did was to put together circumstantial evidence and indirect suppositions to show that Kanazawa acted in pursuance of a continuing conspiracy to perpetrate ill-treatment which the Kempeitai had already committed on numerous occasions since the occupation. During the trial, the court heard evidence from a total of 32 material witnesses, 26 of whom testified about the torture they suffered or witnessed. With respect to the first charge relating to Kanazawa’s involvement in the ill-treatment of prisoners, nearly all of the evidence was on general rather than specific incidents that linked the accused to the death of several prisoners who had been interrogated. In at least six instances of suspected torture leading to death, the witness testimonies raised doubts as to whether torture was indeed the cause of death. Evidence from one of the main prosecution witnesses, a medical doctor, for example, failed to support the prosecution case convincingly. The prosecution hoped to rely on the witness’s evidence to show that the ill-treatment brought about the victim’s death. Under examination by Major Lai, the witness revealed that the victim most likely died of cancer rather than of ill-treatment after being detained at the Central Police Station for 103 days.

• Q. Now, can you, as a professional man, enlighten the Court of this man’s condition? You said you suspected cancer. How is cancer caused and whether there is any relationship between cancer and the ill-treatment about which you heard this man had undergone at the prison?

• A. At present, there is no definite cause, which means nobody can definitely say what the actual cause of cancer is.

• Q. I am very much obliged to you, but with regard to this man?

• A. With regard to this man, you asked me whether there is any relation between ill-treatment and the growth of cancer. I don’t think so. I don’t think the beatings or ill-treatment may produce cancer.

• Q. Quite, quite, but had this ill-treatment any influence on the growth of it and the subsequent growth of cancer. Could it aggravate or could it not?

In my opinion, I think ill-treatment and starvation may weaken his general condition and that may cause him to die quicker or may cause the cancer to grow quicker. In other words, it may hasten his death.Footnote ⁵¹

Another medical doctor, who treated a patient imprisoned and tortured at the Central Police Station, testified that the patient suffered from lung tuberculosis and lung abscess before he died. According to T.P. Wu, he had been suffering from “a recent flare up” of a chronic lung disease after release from the prison. The prosecution attempted to establish that inhumane prison conditions and torture caused the sickness. But the best possible explanation given by the doctor is that “his condition was brought about or aggravated by his treatment in the prison.”Footnote ⁵² The Court President, Lt. Col. N.G. Wait, questioned Wu:

• Q. Would the span of a man’s life be lengthened or shortened according to good food and all possible medical facilities, or bad food and possibly ill-treatment?

• A. Good food and good treatment, of course, will prolong a man’s life and bad treatment, bad food will shorten a man’s life.Footnote ⁵³

These two doctors presented the indirect relationship between ill-treatment and the deaths, contrary to the first charge of the indictment that directly accused Kanazawa of “causing the death of some and physical sufferings to others”. The defense arguments remained much the same as the Noma and Hirao trials—to challenge the reliability of the witnesses’ evidence, to highlight any procedural inconsistencies, and to characterize the accused as an innocent commander. As much of the prosecution’s case repeated the same kinds of facts about ill treatment as in the Noma trial, especially bearing in mind that the Noma trial had already established much of the knowledge base on Kempeitai crimes in Hong Kong, the defense counsel found it reluctant to question the veracity of prosecution witnesses. Kanazawa’s defense counsel, Kawanami Shigekichi, challenged the hearsay rule and stated in his closing address that “a large number of the evidence given was vague, confusing, and included a considerable amount of hearsay.”Footnote ⁵⁴ It was a futile effort, as the defense counsel would have realized, but it was an argument that again highlights the problematic use of hearsay evidence in rendering the prosecution of war crimes effortless and inevitable success.

After a deliberation of no more than 30 minutes, the court found Kanazawa guilty of both charges and sentenced him to death. Considering the whole circumstances, it seems likely that the court applied the “should have known” standard, and determined, based on that standard, that Kanazawa should have knowledge, principally on the ground that information was available through reports received from his subordinates or other means, and that abstinence from pursuing information was clear proof of personal acquiescence in the offending conduct. The death penalty suggests that judges found the cause of prisoner deaths was due to ill-treatment for which Kanazawa ought to be fully held culpable. Left unclear in the decision was how did the court find constructive knowledge in Kanazawa. Kanazawa’s brief time in office, with a command area covering the whole of Hong Kong, hardly permitted substantial change to the highly oppressive culture of the Kempeitai organization. However, this factor was clearly not important to the judges. Left unclear in the decision was how the court found constructive knowledge in Kanazawa. Reviewing the evidence, the Judge Advocate’s summary report on this trial raised some concerns as to whether Kanazawa was guilty beyond a reasonable doubt. While there were, in his view, deplorable conditions and abuses during Kanazawa’s term of office, the case against the accused “was comparatively weak” as “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.”Footnote ⁵⁵ Discussing the evidence of the deportation orders, the Judge Advocate recommended that the finding of guilt on the second charge should not be confirmed as Kanazawa “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.”Footnote ⁵⁶ However, the Judge Advocate seemed to agree with the prosecution’s argument that there was still enough evidence for the court to infer Kanazawa’s ignorance of what was going on under his command. The Judge Advocate’s rather mild conclusion was that the finding on the first charge should be confirmed but the death sentence should also be commuted “to some less severe punishment” in view of the fact that the Noma case “was very much more damning” than that against Kanazawa not only because Noma had a longer command of three years but also, he was found to have ordered the execution of innocent civilians.Footnote ⁵⁷ The crux of this summation was that in some circumstances a commander’s responsibility could be mitigated, and thus the principle of command responsibility should be applied differently in the cases of Noma and Kanazawa.

In his plea for mercy dated 12 February 1948, Kanazawa maintained his ignorance of the ill-treatment and said he was “singled out” for the punishment. As the Japanese Colonel put it, he was only appointed as the chief commander in February 1945, and since he was not informed of the crimes from the district commanders, he doubted whether he could be held responsible “from the legal point of view”. “The persons actually responsible for the ill-treatment were district commanders, and the heads of politic[sic] and special depts.”Footnote ⁵⁸ He argued that the death sentence was unfair and “too severe” as it did not make sense to hold equally responsible alongside Noma. Neither the Judge Advocate’s recommendation to commute the sentence nor his petition was accepted by the Commander of Land Forces, Hong Kong. With all appeals exhausted, Kanazawa was executed on 24 February 1947.