| Summary/Abstract |
This article attempts to discover and rationalize the inconsistent application of the mens rea requirement of superior responsibility in the war crimes trials in Hong Kong from 1946-1948. A mixed methodology is adopted, involving statistical analysis of sentencing outcomes in the 46 trials involving 123 accused persons, black-letter analysis, and case study. It will be suggested that the standard of knowledge pleaded by the prosecution in each “case-type” had a bearing in the sentencing process: (i) “Yamashita knowledge” in “invasion cases” attracted lenient sentences; (ii) “constructive knowledge” in “POW camp cases” entailed a higher degree of culpability; and (iii) “actual knowledge” in “Kempeitai cases” led to the severest penalties. This provides the evidence that although mens rea was not an essential element of superior responsibility, it was nevertheless an important sentencing factor.
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