171
(c)
63.
ision whether to re-open the Inquest
In law, the Attorney General is the only person vested with the duty as well as the power to require a re-opening of the Inquest. This is defined in Section 20 of the Coroner's Ordinance:-
“Notwithstanding that an inquiry has been concluded, the Attorney General may, if it appears to him that further investigation is necessary, require the Coroner to re-open such inquiry and make further investigation, and thereupon the Coroner shall re-open the inquiry and proceed to make further investigation in the same manner as if the proceedings at such inquiry had not been concluded."
It is clear that:-
64.
(1) this power is only exercisable after an Inquest and where further investigation is necessary;
(2) if the inquiry is to be re-opened, it will in the ordinary course of events, be before the same Coroner and with
the same jorors; and
(3) the Attorney General has a discretion whether to exercise the power or not.
Meanwhile the Attorney General thought it best to reserve his position before the Coroner's record was received. He then left Hong Kong for a meeting of the Attorneys General and Law Administers of the Commonwealth. During his absence, the Governor left a minute for the attention of the Attorney General immediately upon his return, agreeing with the Attorney General's view.30
65.
The Attorney General returned on or about 10 May 1980. By then, the Coroner's record had already arrived. The Attorney General read through that record as well as all the other statements of witnesses excluded by the Coroner as irrelevant and not made public at the Inquest. He went to examine MacLennan's flat, including the bedroom windows and door.
66.
After all this, the Attorney General affirmed his tentative view that he had no power to re-open the Inquest. He gave two reasons at the Inquiry:—3
67.
31
"Well, first of all, under the Ordinance, it has to be the same Coroner and the same jury. The Coroner had already made a legal ruling excluding if I can loosely call it—the Pelly evidence. I had come to the conclusion that judicial review was not possible of that decision, so that in fact the Pelly evidence could not be brought in front of the re-opened inquest-whether I wanted to do so or not. Secondly, I only have the power to order an inquest to be re-opened if in my judgment, and no-one else's, I consider it necessary (is I think the word in the Ordinance) for further investigations to be made. Now I had read not only the record, but also all the statements, and obviously when it says '. . . for further investigation to be made' it is referring to further investigations which might affect, or influence, the evidence at the inquest, and hence potentially the verdict. I had, obviously, in mind the open verdict of the jury, and I also had in mind that in my view the evidence of suicide was overwhelming; so that from that point of view, as well, there was nothing to be enquired into that would change, as I saw it, their verdict, because it would be quite wrong to go in front of a jury and seek to get them to change a verdict when there had been no alteration in the evidence. Indeed, I don't think that they had power to do so.”
The Attorney General's view that he had no power to re-open the MacLennan Inquest was undoubtedly correct. The only further investigations that could be necessary were the set-up and frame-up allegations, and the suspicions of MacLennan's homosexuality. Although the Attorney General had preferred all that evidence to come out at the Inquest, he was subsequently convinced that the Coroner's ruling to exclude that part of the evidence was probably correct in law and could not be overruled upon a judicial review. Thus, under Section 20 of the Coroner's Ordinance, no further investigations were necessary in that within the limited scope of the Coroner's power, no further investigations were possible.
(d) Events Leading up to the Attorney General's Press Conference
68. While the Attorney General was considering his powers to re-open the Inquest, he was subject to a constant barrage of questions from the press both in his Chambers and at home "at all hours of the day and night" as to whether or not a decision had been reached. He was also conscious of the many news articles and pressure groups calling for a public inquiry into the death. The public feeling was one of intense mistrust and dissatisfaction. Such wide public suspicion no doubt served to re-affirm the earlier decision that a press conference rather than a press statement was desirable. The Attorney General said in evidence:-
32
"I made up my mind not to re-open, not to order the Coroner to re-open the Inquest, and I discussed with the Governor and the Chief Secretary whether or not I should hold a press conference to explain my reasons for not re-opening it. It seemed to me that there was so much public interest rightly in this that it would have been quite wrong of me to, as it were, minute on a file, Not Re-Opening, and just secretly send that away. It had to be announced that I was not re-opening and if it was going to be announced then the reasons ought to be announced. If the reasons were going to be announced then it seemed to me only right that the press, as the fourth estate as it were, should have the right to question me as to what had motivated my decision."
The Governor's minute to Attorney General of 22 April 1980 is reproduced at Appendix 45.
30
31
See Transcript pages 11606A-11606B.
32 See Transcript page 11601.
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