CO537-2192 — Page 106

9.

%.

If I am right this is sufficient to dispose of the case but as Executive Council may not agree with my view, I proceed to examine the acts of collaboration taking place in Hong Kong.

10. On his own confession Shum admits that his paper publish- ed: (a) Japanese propaganda without alteration; (b) diluted Japan- ese propaganda, i.e. propaganda, the main lines of which had to follow Japanese inspiration and which was subjected to Japanese censorship. Apart therefore from the question of duress or the somewhat analogous defence of playing the enemy at his own game, it is clear that he did an act calculated to assist the enemy, namely, the publication of their propaganda.

11.

If one accepts Shum's testimony, and there appears no reason to reject it, he resumed publication on the orders of the Japanese authorities. In accepting those orders, I don't think that he was acting under duress in the legal sense, i.e. I don't think it was a question or "I would much rather stop publication but I'm afraid that if I do, I and/or my family, will suffer serious personal injury". He never states this on his statement. What he does say I think, amounts to this: "If I refuse to pub- lish, I shall do neither myself nor the Allies any good.

I shan't do myself any good because the paper will be seized and run by a puppet; I shan't do the Allies any good for the same reason, i.e. that the paper will become a mere Japanese mouth- piece whereas if I agree to resume publication, although I know the Japanese will be in control, yet I may be able to slip things in here and there as occasion offers and if I succeed in this, I will be doing the Allies some good." No doubt the fact that if he weathered the storm he would save his paper was a very influential factor in his decision but with this reservation, I think the above accurately sums up the position subject to one qualification. The qualification is there was vigilance by the Japanese and as stated on page 3 of the statement, threats and on one occasion arrest. This, I think is an important qualifi- cation in Shum's favour as showing that the Japanese did not trust him and as corroborating not only his story but the fact that he was proceeding to carry out his intention and that that intention did involve personal danger to himself.

12.

Moreover the articles cited as exemplifying occasions upon which Shum did carry out his intent seem to me to justify a believe that that was his intent. with the exception of "optimism and confidence in final Victory (Extract (r)), they contain nothing that is even on the face of it, pro-Japanese and even that article appears ironical. I have not however compared the original text to see whether the whole of the article has been cited.

13.

It should nevertheless be borne in mind that Shum received no instructions from any British authority to resume publication and that the Japanese, whether stupidly or otherwise, considéred throughout that it was worth their while to keep the Wah Kiu Yat Po going so that on the whole they considered the collaboration worthwhile.

14.

To sum up: While I would not advise prosecution here of Shum, if he were prosecuted under Defence Regulation 27 as there was no duress in law, I think the judge would be bound to direct the jury in such a manner that they would conviet. The jury would in my view put in a very strong recommendation to mercy and I doubt if more than a nominal sentence would be passed.

15.

Now in substance, though the actual language is different, the type of offence contemplated by section 3 of the Ordinance is the offence contemplated by Defence Regulation 27 and subject therefore to the preceding observations as to whether or not the act was done in China, I am of opinion that Shum did an act calculated to assist the Japanese and that he had suffi- cient justification for so doing.