179
109.
It will be seen from the statement actually published in the South China Morning Post and the Hongkong Standard on 3 July 1980 that the original draft referred to above had been redrafted by Mr. Charles Ching, Q.C. In the statement actually published was the following passage:-
62
"Our client has never denied this instruction. Our client never complied with such an instruction and insofar as the impression has been created that he made those allegations and subsequently withdrew them, that impression is false.”
This passage does not differ in substance from the original draft objected to by the Attorney General.
110. I find that the Attorney General was wrong in law in his view that the draft statement was capable of being a contempt of court as well as a libel upon him personally.
111. In the circumstances, and bearing in mind the high office he holds, I cannot help but feel that in the then prevailing climate he was unwise in personally telephoning a junior solicitor on a controversial matter such as this. Although the Attorney General had not fully researched into the law, the tone of what he said clearly indicated that he was taking a specific stand on the law with Burns. Any reasonable person would assume that the Attorney General knew the law, and legal opinions, however tentative, which fell from his lips were taken seriously. In the circumstances, although Burns did not think that the Attorney General's views had merit, he (Burns) and his colleagues in the firm were sufficiently concerned as to consult Leading Counsel. In his evidence, Burns said he thought that the Attorney General was using the weight of his office to pursue a personal matter. I accept that this was a natural reaction, but I am unable to find that Attorney General in fact intended to use the weight of his office in the manner suggested. However, it ought to have been foreseen by the Attorney General that such an impression was more than probable. In this instance the Attorney General committed an error of judgment. I have no reason to criticize his motivation.
G.
CREDIBILITY OF MRS. ELSIE ELLIOTT
112.
In view of the very active and prominent role Mrs. Elliott has played, it is right that I should comment on her credibility. My comments and assessments are based on her public announcements, letters, statements and evidence given before the Commission.
113. In my view, she is undoubtedly sincere. She is genuinely confident that her beliefs are correct. That she has a great sense of justice and compassion is not in question. This is not the proper place, nor am I required, to make any observations whatsoever as to her general character and conduct, except insofar as they are necessary in explaining my assessment of her credibility in the MacLennan Affair. Bearing in the forefront of my mind what I have stated above I nevertheless have to refer to a few of her statements and to illustrate that not everything that she says is correct or supported by facts. In the ensuing paragraphs I set out such illustrations.
114.
Mrs. Elliott very readily and frankly admitted in her evidence that she had no personal knowledge of the circumstances surrounding MacLennan's death. She said she had no facts to give, either as to murder or suicide.63 It is also clear that she had no personal or independent knowledge of the investigations and the pending charges against MacLennan. Yet, without any factual basis, she repeatedly made the most serious accusations either directly or by way of innuendo, for example:
(a) She said at her interview during Mrs. Aileen Bridgewater's Phone-In Programme on 24 January 1980:-----
"You see as soon as I heard he was dead. Immediately I thought, oh no, not suicide, he wouldn't do that, it must be
murder."64
(b) She wrote a letter on 1 April 1980 to Mr. Duffy Crown Counsel, copied to His Excellency the Governor and
the Attorney General:-
"In Hong Kong anything goes as long as the police say so. I believe there have been other murders passed off as suicide, Fine, when a possible murderer can decide the cause of death and cremate the body so that no one will ever know."65
(c) She wrote to the Governor on 18 March 1980:—
"Whatever the cause of death, there was no justification for hounding a man on eight charges of the kind with consenting adults, male prostitutes with undoubtedly triad connections. How easy it is to get eight men to come forward by invitation to frame..."66
62
See South China Morning Post and Hong Kong Standard 3 July 1980, reproduced in full at Appendices 50 and 51.
63 See Transcript pages 11172 and 11182-11184.
64 See Commission File D, page 50.
65
See Transcript page 11271. Mrs. Elliott has made similar innuendoes that MacLennan was murdered, in the letter to the Scottish Police dated
24 January 1980, in the Aileen Bridgewater Phone-In Programme on 15 March 1980 and in the various comments to the press; see the report in the Star dated 23 May 1980 and the report in the Sun the next day.
66 See Commission File A, page 86AE.
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