77.
81
On 3 January, Senior Crown Counsel, Mr. J. M. Duffy, who was asked by Mr. Macdougall to deal with the Logan and MacLennan cases as Reid was on leave about that time, gave written advice on the Prosecution File that it was in order to proceed with the prosecution of MacLennan on counts of gross indecency, using only those witnesses not involved in the blackmail of Logan. There were eight such charges in all which involved five male prostitutes. Duffy also advised that the matter should be dealt with in the Magistrates' Court.
78.
Duffy was well aware, prior to advising on prosecution, of the discrepancies which existed between the statements of the witnesses and the facts relating to MacLennan's leave and his whereabouts. He had discussed these discrepancies with Brooks and MacKillop. He also had available a schedule of all of the deceased's leave dates, his places of residence and his duties during the relevant period. He had taken into account such discrepancies, with other relevant factors such as the general character and background of the witnesses, before advising on prosecution.
79.
Before giving his written advice, Duffy discussed with the Attorney General and informed him that there was sufficient evidence to proceed, and the Attorney General told him to do so.
I.
DECISION TO ARREST MACLENNAN
80.
On 30 November 1979, Brooks instructed Senior Inspector Loughrin to apply for a Search Warrant from the South Kowloon Magistrates' Court to search MacLennan's flat. The Warrant was issued on the same day. This Warrant was not executed until 15 January 1981 and Brooks' explanation for this delay (which I accept) is as follows:-
81.
31
"Because events of the Logan case and the loss of witnesses through the blackmail, etc., intervened in the meantime, and the discussions about the possible best time to effect the arrest of MacLennan then took place and to my view, the effective time was going to be the arrest date, which was potentially going to be 15 January."
On 3 January 1980, Senior Crown Counsel Duffy advised that it was in order to proceed with the prosecution of MacLennan on counts of gross indecency, using only those witnesses not involved in the blackmail of Logan. Clancy then instructed Ross and Brooks to prepare for the arrest of MacLennan.
82.
I accept Brooks' further explanation that the SIU did not carry out the arrest immediately because the Unit was at that time heavily committed to a number of investigations into certain procurers and there was no rush to arrest MacLennan.
83.
On 11 January 1980, Brooks discussed with Quinn the method and timing to be adopted in the arrest of MacLennan. It was decided that MacLennan's Formation Commander, Senior Superintendent Trotman, should be asked to arrange for MacLennan to be in his office at Ho Man Tin at a specific time on 15 January 1980 so that the arresting party from the SIU, headed by Quinn, would arrest MacLennan in the presence of Trotman. On the same day, Brooks discussed this with Ross, who approved the suggested method of arrest. I accept Brooks' evidence that:—32
84.
"I had a discussion with Mr. Ross and I suggested that I knew MacLennan was working in CID Ho Man Tin, and that the hours officers worked there often meant that they worked late. I also knew, as I've mentioned before, that he himself, his social habits, were that he worked late, so I suggested that we left a period which would allow his immediate commander in Ho Man Tin to set his duties as such, that when he was confronted by us there could be no question, in the future, of him or his defence being able to turn round and say that the lad was tired and exhausted because he'd come off duty. So, it was partially because my answer was partially because of the commitments in the Unit at the time, and partially that we decided to play it at such a leisurely pace that there could be no backlash from that angle."
In the presence of Brooks, Ross telephoned Trotman and told him that John MacLennan was to be arrested on charges of
gross indecency and that this action was taken on the advice of the Attorney General. Ross also told him that he thought the arrest should take place on 15 January, and asked him if he could have MacLennan available in his office at ten o'clock on that morning. Trotman asked if the time could be put back to 10.30 a.m. so that he would be free of his morning commitments. Ross agreed. Then Trotman asked Ross if the District Commander, Kowloon (Mr. Li Kwan-ha) had been informed of the impending arrest. Ross said he had not. Trotman said he would tell him and that was agreed to. 33 Ross also informed Clancy about the impending arrest.
It should be noted that Ross did not instruct Trotman not to tell MacLennan of his impending arrest since he (Ross) thought it unnecessary to do so.
85.
86.
In the evening of 14 January 1980, Brooks received a telephone call from Llewellyn who telephoned from Trotman's office saying that he was the Solicitor representing MacLennan and he wanted to be present the next day at the
31 See Transcript page 8375.
32 See Transcript page 7888.
33
Mr. Li Kwan-ha was the District Police Commander, Kowloon until 15 January 1980. A few days before he left the Kowloon District,
Trotman informed him of the impending arrest of MacLennan. Mr. Li in turn briefed Mr. Johnston (who was to take over from him) of this on 15 January 1980.