98
e was
tone, "What does he want?”. Trotman then handed the receiver to Llewellyn who then explained to Brooks th at Ho Man Tin Police Station, that he was representing MacLennan, and that he understood that MacLennan was to be interviewed by the SIU the following morning. Llewellyn also explained that he could not make 10.30 a.m. as he had another engagement and asked if the interview could be delayed until such time as he could attend. Brooks refused and asked how Llewellyn had come to know that MacLennan was to be interviewed. Llewellyn explained that he was informed by Trotman (who was then next to Llewellyn). Llewellyn recalled that Brooks made it quite plain that he was angry that MacLennan had known that the SIU was coming the following day. Llewellyn handed the telephoned receiver back to Trotman and from the half of the conversation that Llewellyn could hear, Brooks was raising with Trotman the fact that Trotman had told MacLennan of the SIU's visit the following day.
16
26. After the call, Llewellyn rejoined MacLennan, explaining that he had attempted unsuccessfully to have the interview delayed. In MacLennan's presence, Llewellyn telephoned another Solicitor in his firm, a Mr. Paul Stevens, and made it clear to Stevens that absolutely nothing should interfere with his attending Ho Man Tin Police Station at 10.30 a.m. the following morning. Llewellyn thought this show of concern would assist to put MacLennan at ease. Up to this point, Llewellyn had observed that MacLennan was clearly worried about the events that were going to happen the next day.
27.
MacLennan and Llewellyn were then left alone in an office. At the Inquest, Llewellyn, who gave evidence, had claimed professional privilege for the conversation that followed. My Legal Advisers and I had given careful consideration to this matter since August 1980 and finally came to the following conclusion: Professional privilege conferred on client and lawyer communications exists to protect the interests of a client, the privilege would therefore only follow such interests that survive the client's death. As the matter was one which dealt with either MacLennan's guilt or his character, such legal interests pertaining to these two matters would only be of significance to MacLennan during his life time and, therefore, the privilege would not survive his death. However, if it did survive, the interests would devolve to his estate, and the personal representative of his estate would then have the power to waive the privilege.17 Therefore, as a matter of precaution, my Legal Advisers, through the kind assistance of Mr. Seagroatt, Counsel for the MacLennan family, obtained a waiver of the privilege from Mrs. Katherine MacLennan, the mother of John MacLennan and sole executrix of his estate. On the basis of this waiver, which my Counsel showed to Mr. Llewellyn, the arguments which I have just summarized, and having given time to Mr. Llewellyn to consider the matter, I ruled that in this case, privilege could not properly be claimed.
28.
During the private conversation Llewellyn had with MacLennan, he inquired of MacLennan whether MacLennan believed that it was the Yuen Long matter rearing its head again or whether it was something else. Llewellyn raised the Yuen Long matter because he had acted for MacLennan in 1978 when MacLennan sought reinstatement to the Police Force. MacLennan indicated that it was the Yuen Long matter and he was angry that "they" (meaning the Police) would not let the matter drop. Llewellyn asked whether it was to be a general interview or whether it would be an interview based upon an allegation, i.e. whether he was a suspect. MacLennan replied that he clearly thought it was the latter. Llewellyn then asked whether there was any particular individual who might have made a complaint. It is significant that in reply MacLennan said the name "Peter" might arise. Llewellyn had no other details other than the name "Peter". It was not Llewellyn's practice to obtain details until his client had actually been interviewed by the Police and the nature of the charges specified.
29.
During this private conversation MacLennan also mentioned that he had served in Special Branch and that his work had given him access to certain files. MacLennan also said that he had seen the names of persons in authority, meaning people in the upper echelons of business and Government. Llewellyn, however, stressed that MacLennan did not at any stage either in 1978 when he first sought help from Llewellyn or during this private conversation, suggest to Llewellyn that it was because he (MacLennan) had seen those names that the investigation had been continued or that his contract had been terminated.
Llewellyn left at about 7.30 p.m. Throughout, Llewellyn had the clear impression that MacLennan was worried but not unduly so.
30.
15
See Trotman's evidence at Transcript page 9620.
16
17
See Llewellyn's evidence at Transcript page 9854.
Principle Authorities on which these arguments were based are:---
Russell v. Jackson 3 Hare 387.
Bullivant v. A.G. For Victoria (1901) A.C. 196.
Doe & Marriot Clerk v. The Marquis of Hertford (1850) 19 L.J.Q.B. 526.
Re Darrell Enterprises (1972) 3 All E.R. 631 at page 632, page 640 C/E.
R. v. Craig (1974) 1 N.Z.L.R. 597.
Taylor on Evidence 1931 para. 927.
Wills on Evidence 1938 page 290.
Wigmore on Evidence
para. 2329.
Sarkar on Evidence 1977 page 1187.
Annual Survey on Commonwealth Law 1976.
Cross on Evidence 1980 page 286–287.
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