52
Zcial
Indeed the evidence from his best friend Inspector Burns was that MacLennan never spoke about his work at th Branch prior to that incident. There is therefore no reason why MacLennan should be singled out for a “frame-up”.
102.
In connection with the "frame-up" theory, I must make reference to the rumour as to Mr. Henry's homosexuality. It is regretted that Counsel for the Police, doubtless acting under instructions, made public has name in the context of homosexual allegation. This unfortunately but naturally led to much public speculation as should have been foreseen by his Counsel. I have always taken the view that the question of Henry's homosexuality in itself is a matter outside my Terms of Reference. However, the question of whether any such rumours that might have existed could have any bearing on Henry's decision to terminate MacLennan's contract is clearly a matter falling within sub-paragraph (e) of my Terms of Reference. I have carefully considered all the material available to me. There is nothing which will justify my coming to a conclusion that any such rumours could have affected Henry's decision, and I made a ruling in open session accordingly. (see Appendix 12) In October 1978, when Henry made that decision to terminate, he was not aware of any rumours about himself and, what is even more important, he was not aware of MacLennan's having seen his name in a file or having knowledge of any such rumours 58 It is true that MacLennan did mention having seen Henry's name while in Special Branch, but such mention was made on 24 November to Mansell and Lidster, when the decision to terminate had not only been made but had already been implemented.
103.
It is clear from all those who had contact with MacLennan during this period 59 that although MacLennan at all times denied the Yuen Long complaint, he never mentioned a Police "frame-up". His main concern was that no reason was given for his termination. According to Father McGovern's evidence (which I accept), to the best of his recollection, it was Judge Daniell who first used the word "frame-up" and he had no factual basis for this theory. I accept Judge Daniell's great sense of justice, honesty and integrity. Father McGovern equally shares all these qualities. Judge Daniall said in evidence that he could not recall using the word "frame-up", but Father McGovern said that this word was used. On the balance of probabilities I find that Judge Daniell did use the word in a moment of anxiety (he was much exercised by MacLennan's plight at the time) and later forgot about it. The choice of word was unfortunate and ill-advised particularly coming as it did from a judicial officer. It was a momentary lapse, which contributes towards the storm that followed. Indeed Mrs. Elliott was able to make use of a number of other expressions and impressions from the Judge. For example, she was given to understand that both Judge Daniell and Mr. Rattigan had "grilled” MacLennan for four hours and were convinced that he was innocent. In fact, that was not the case. The Judge was unfortunately not sufficiently careful in some of the expressions he used. Based on these erroneous impressions which the Judge had allowed her to assume, Mrs. Elliott wrote to the Governor the letter of 28 November 1978. The wording of the letter (see para. 56) lends support to the suggestion that the "frame-up" theory was propounded not by MacLennan but by the two magistrates. That effectively means only Judge Daniell, because there is no dispute that Mr. Rattigan hardly took part in any of this. Judge Daniell merely included Mr. Rattigan in all his expressions.
104.
What was even more unfortunate than the lack of care in his expressions was that, having made them, the Judge failed to correct the false impressions they created even after such false impressions had been made public. He had granted Mrs. Elliott permission to use his name in her letter to the Governor. He ought to have appreciated that the use of his name lent credence and wight to the allegations in the letter. Yet he never took any steps to correct Elliott nor inform the public of the false impressions after the letter was published in the newspapers in January 1980.
105. I am fully satisfied that Mr. Daniell was the first person to advance the "frame-up" theory. Believing in MacLennan's innocence, he strove to find a reason for the termination and seized on the idea (and it was even then nothing more than an idea) that there was probably a "frame-up". But with hindsight, his assessment of MacLennan has proved erroneous because I am completely satisfied that (1) MacLennan was told orally by Mansell the reason for the termination of his contract, (2) he did make homosexual advances to David Lau, (3) there was no "frame-up" or victimization and (4) at the very time when he was pleading his innocence, he took a male prostitute Bobby back to his quarters and had homosexual relations with him (see below).
G.
106.
58
59
A BRIEF EVALUATION
The Yuen Long incident is significant in several ways:—
(a) It provides evidence of MacLennan's homosexual tendencies; the evidence came not from a male prostitute but
an independent person.
(b) It uncovers MacLennan's character. Simultaneous with his loud protestation of his own innocence, he brought
the male prostitute Bobby to his quarters.
(c) It serves as a contrast to MacLennan's actions in 1980. In this earlier incident, when MacLennan knew full well that the only key witness had left Hong Kong, he went about protesting how unjust it was not to be given reasons for his termination (when he certainly was) and challenging the Police to bring criminal or disciplinary
Transcript page 11486.
Burns, Atkinson, Llewellyn, Daniell, Rattigan, Mansell, Lidster, Blackburn, Purdon, Elliott.
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