TNAG-1101-FCO40-1351-Legislation-on-homosexuality-in-Hong-Kong-including--Report--1981 — Page 111

166.

119

A further comment is called for in Pelly's case. Li in his Report said that the Investigating Officer should have attended the post-mortem. Li in evidence said that this was a useful procedure because the Investigating Officer would be able to suggest to the Pathologist conducting the post-mortem as to what were the investigative interests involved in the case. I accept that this would be useful. Pelly, when this was put to him, replied that he knew that Trotman was going to the post-mortem, but later it turned out that Trotman, because of other official duties in Kowloon City Division, was unable to attend. He also knew that Hancock, a friend of MacLennan's, would be attending and he thought that Hancock was perfectly competent to attend. His answers in this regard do not answer Li's point since Trotman and Hancock were not the Investigating Officers. It would have been a counsel of perfection for Pelly himself to attend although, in the circumstances, I find it difficult to see how he could have assisted the pathologists. Dr. Wong had himself attended the scene and was briefed on site by Trotman and Kong.

167.

I have considered Pelly's lengthy and detailed report which he submitted to the Coroner. In the short time that he was given to complete his task, he interviewed some 80 witnesses and compiled a report of commendable standard. It is not only lucid in its presentation but covers every aspect which ought to have been considered. It is however a matter for regret that the pen with which MacLennan had written the suicide note and which appeared in one of the photographs (A3) was never found. In the event, it was unnecessary to have the pen, because Mr. Davis was able to give a positive opinion that the suicide note was written by MacLennan.

168.

Co-ordination at the scene

One further comment made by Mr. Li in his Report (para. 7) merits consideration. This was:

"There was some confusion as to who was actually responsible for the control and the giving of directions at the scene. Mr. Trotman, being the most senior police officer present, claimed that he was responsible. He detailed Kong Cheuk-hoi to be the enquiry officer but he was later replaced by Mr. Pelly. It follows that the fingerprint officer and the photographer received instructions from more than one officer. Hence, all action at the scene was not well-co-ordinated.”

169. Inspite of the changes of Investigating Officers, all of them stayed behind at the scene. This would necessarily have caused some confusion in the minds of those who took instructions. Kong, for example, gave instructions to the photographer after he relinquished his duty to Pelly. Although there was no confusion in the minds of Pelly, Kong and Trotman as to who was at any one time the Investigating Officer, I have no doubt that it would have presented some confusion to other officers attending the scene. To be fair, however, Cimino the Ballistics Officer, noted that Kong was the officer in charge while Trotman was attending to the welfare of MacLennan.

170. I do not lay fault at the door of Trotman for he was quite entitled, as was stipulated in Police General Orders, to have the sub-divisional inspector as the Investigating Officer. The appointment of Pelly was a matter which was beyond Trotman's control. Although the scene certainly gave the impression that there was insufficient co-ordination, no blame could be attached to any person.

O. FINAL COMMENTS

171. Throughout my consideration of the evidence, I have been particularly conscious that I have had the benefit of hindsight and have been able to scrutinize every single action by the officers concerned with the investigation. I did not have to face the same realities which were faced by those officers at the scene. I cannot therefore use the standards of perfection in the cold light of logic in my judgment of them. Save in the minor incidences that I have mentioned in the foregoing paragraphs, I criticize no one. I also find that the investigations were properly motivated.

172.

The investigations at the scene did raise three problems:

(a) Arrest procedures

(b)

Arrest procedures should be clarified. This has been done as regards ICAC and CAPO investigations. What remains to be done, if not already done, is clarification as regards arrest in other circumstances.

The standards of the investigations required in suicide cases and cases of sudden death unlikely to lead to criminal proceedings

In the instant case, I do not say that officers in charge of the inquiry were wrong in the use of their discretion because no standards had been laid down for investigation, and officers were left to their own discretion. However, it is undeniable that certain tests, particularly the test of hands for gunpowder residue, would have been extremely useful in the circumstances. Police General Orders are silent as to the standards that ought to be applied in such cases. It is therefore with relief that I note that following the presentation of Mr. Li's Report, Mr. Moor, on 28 April 1980, in his capacity as Acting Commissioner, issued instructions that Police General Orders would be amended to include “inter alia, any sudden and unnatural death which, having regard to special considerations arising from the identity or circumstances under which the deceased met his death required an indepth investigation should be carried out notwithstanding that it was a case which may not lead to criminal proceedings.

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