Singapore Cases:
No. 235/928
Yoshino Case
Accused: W.O. YOSHINO Iku
a member of the Imperial Japanese Army
(case involved orders from the Kempeitai)
Place and Date of Trial: Singapore, 4th & 6th July 46
Finding and Sentence: Accused - Guilty with exception - 15 years imprisonment
Exception: that the name "Paul" has not been proved
There is no printed finding and sentence that exists.
Charge: Committing a War Crime in that he at or in the vicinity of Telipong,
British
Borneo, in or about the month of June 1945 was in violation of the laws
and
usages of war concerned in the killing of Paul Lee On, a civilian resident
of the
British Borneo aforesaid.
Facts relating to the charge: It appears that on or about the 12th June
1945 the deceased, who was suspected of anti-Japanese activities, was
arrested by a Sergeant MUKAI of the TELIPONG Kempeitai. He was interrogated
by the same N.C.O. who alleges that shortly afterwards he received an
order from Captain HARADA the head of the Kempeitai to execute this man.
No trial of any kind had been held. Mukai stating that owing to the fact
that his staff of 2 Kempeitai Privates were ill and that he himself was
tired. He telephoned the accused, who belonged to the WATANABE Unit stationed
in the TELIPONG Area to come and assist him to carry out the execution.
On the arrival of the accused LEE ON was taken by Mukai and the accused
to a place about 700 metres from the Kempeitai where a grave had been
prepared. He was there blindfolded and his hands tied behind his back.
The accused then took out his sword and without any objection or query
almost cut off Lee On's head with one stroke. The body was then buried
in the grave.
Accused handling of the charge: The actual killing was fully admitted
by the accused. The accused pleaded that he regarded the order as a Kempeitai
demand, which he could not disobey.
Main issues of the case raised by prosecution and defence:
1) Actions according to superior's orders
This was the main point argued by the defence. The defence did not deny
that the accused was concerned with the execution of Paul Lee On, but
asserted that the responsibility for this execution was someone other
than the accused. The execution of Paul Lee On was carried out only mechanically
by the accused under the request of Kempei Sgt. MUKAI.
It was shown according to the Japanese Manuel of Regulations for Operation,
Articles No. 285 and No. 286, that in the Japanese Army the Kempeis are
bestowed with an enormous power in the fulfillment of duties. Thereupon,
any one in the Army is bound to comply with the request of a Kempei, provided
that it does not interfere with his own duty. A military order is a supreme
order issued in the name of His Majesty the Emperor. Any Japanese soldier
is naturally governed by a thought that he must follow the order irrespective
of the existence of penal code regulations for those who disobey and violate
it. The accused was not in a position to check Mukai, and simply acted
on his request, in a legally correct manner according to the Japanese.
The defence backed up his argument further by referring to Art. 88 of
the Military Orders No. 9 which stated that an order should be obeyed
by the receiver in a reverent manner and should be carried out immediately,
and that he was not to discuss whether it is proper or not, or to question
its origin or reason.
The defence argued also that when the accused acted on the order, he firmly
believed that Paul Lee On was to be executed as a result of a trial by
the military court, and the execution was a means to carry out the result
of a normal trial. In reference to the method of execution as beheading,
this was not illegal under the Military Laws of the Japanese Southern
Expeditionary Forces. Therefore, the order was considered by the accused
to be perfectly legal and legitimate.
The prosecution argued that the accused did not object or take the trouble
to ascertain from Mukai what the reason for the proposed execution was.
He did not carry out any form of inquiry regarding the guilt of the accused.
In his evidence the accused stated that he did not know why Sgt. Mukai
had asked him to carry out the execution.
As for the argument of actions according to superior's orders, the prosecution
argued that such orders given could not affect the guilt of an accused
because he acted, even compulsorily, on the orders of a superior officer
although it may in itself be an issue in deciding on the degree of punishment.
The prosecution also argued that the order was passed on to the accused
by a soldier who was the military inferior of the accused and not his
superior, and also that the accused made no attempt to consult a senior
officer regarding the validity of this request.
Lastly, Mukai merely "asked" the accused to help him carry out
the execution; he did not give an order. According to the transcript of
evidence, if the accused had refused to comply with Mukai's request, Mukai
did not state any consequences against the accused. Mukai only said that
he would then have had to carry out the execution by himself. All this
was proof that the accused was not acting according to superior's orders
and could have questioned or refused the order if he had so chosen to.
2) Involvement of the accused
The defence did not argue this point directly, but they did not deny the
accused's involvement in the execution.
The prosecution argued many points regarding the involvement of the accused.
They argued that the killing of Paul Lee On was unlawful and that the
accused had no legal authority or right to take the life of Paul Lee On
as he did. During the execution, he struck the blow with his sword, which
ended Paul Lee On's life. This act was the sole act of the accused and
no other person. This is even more severe because he carried out the execution
without any form of duress exercised over him and without attempting to
ascertain whether, even under is own law, he was entitled to perform such
an act. Without a trial, it is the submission of the Prosecution that
there was not a single legal right for the killing that took place. Under
the Hague Convention, no man in the custody of an enemy power as a prisoner
of war may be executed unless a pervious trial had been held. There was
no trial held for Paul Lee On prior to his execution.
The issue's influence on the findings:
In the D.J.A.G.'s review of the case, he brought up some of the points
raised by the prosecution regarding the issue of action according to superior's
orders:
a) He said that the accused appeared to have made no objection to carrying
out the execution and did not ask why he was giving orders of the execution
or where the authority for the order was coming from. He added that it
was unconceivable to him that anyone would consent to be a principal partner
in such a transaction without concerning himself with at least the authority
that this transaction came from.
b) He brought up the point about Mukai not really giving an order but
merely asked the accused to carry out the execution and would have been
content to carry it out himself if the accused refused to do so.
c) Finally, he said that 'Superior Orders' did not provide a defence unless
the order in question could be interpreted as a reasonably lawful one
- a proviso that does not cover the facts in this case.
Based on the above points, the D.J.A.G. confirmed the findings and sentence.
Due to the lack of printed findings and sentence by the court, we can
only deduce that these were similar points that the judges used when deciding
on the sentence for the accused. They probably also considered the accused's
involvement in the execution as brought up by the prosecution. The sentence
could have been more severe if he was the one who had initiated the execution
and had not been following the request of another.
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