B.
23
UNSEL'S FINAL SUBMISSIONS
Final submissions were heard from the following Counsel in the order shown below:-
69.
Mr. Leggatt, Q.C.
Mr. Seagroatt
Mr. Ingham
Mr. Niamatullah
Mr. Bokhary
Mr. Eddis
Mr. Lucas, Q.C.
Mr. Barlow
Mr. Sanguinetti
Mr. Morritt, Q.C.
Mr. Hodge
Mr. Beveridge, Q.C.
It will be noted that Mr. Beveridge quite properly refrained from suggesting any finding of facts which were in dispute. The role of Counsel for the Commission was neutral and non-partisan.
70.
71. I have given careful and equal consideration to all the submissions and then used my own independent judgment in preparing this Report.
L. MY APPROACH TO THE EVIDENCE
72.
Before I proceed to consider the evidence and to report on my findings, it may be useful if I set out the approach that I adopted. I was conscious that I was not involved in a criminal trial where there was a defendant whose guilt I could determine if I found the case of the prosecution proved beyond reasonable doubt. Equally, I was not adjudicating in a civil case where, usually, I would be called upon to determine, on a balance of probabilities, the evidence supporting the rights between parties. My task was simply a search for the truth with such lawful devices that I could muster.
73.
First of all, I reminded myself that, on the one hand, the late Inspector MacLennan was unable to answer the charges against him nor to instruct his lawyers (though he was also not subjected to cross-examination), but on the other hand, the Police Force, in general, and those who investigated the offences which he was alleged to have committed, and the circumstances of his death, in particular, had been assailed not only with allegations of impropriety, but with rumours and speculations of a conspiracy to murder Inspector MacLennan. The evidence which would be adduced before me would inevitably be a miscellany of first-hand and hearsay evidence, followed occasionally by opinions and even, rumours. That being inevitable in the nature of the Inquiry that I was to conduct, I had to cast aside the technical rules of evidence applicable in criminal and civil trials. This, of course, was forseen by Section 4(i)(a) of the Commission of Inquiry Ordinance, Cap. 86, in which it is stipulated that a Commission of Inquiry, "may receive and consider any material whether by way of oral evidence, written statements, documents or otherwise, notwithstanding that such material would not be admissible as evidence in civil or criminal proceedings.'
74.
In my approach to the evidence, I have disregarded bare allegations unsupported by facts. Supporting evidence which is insufficient or discredited is also disregarded. Misconduct or defects falling within my Terms of Reference or are relevant to my Terms of Reference are considered, otherwise not. I have also been careful to distinguish between opinions, theories, speculations and inferences on the one hand and hard facts on the other. It is also necessary to bear in mind the difference between a conclusion (e.g. “It is a frame-up") and the primary facts which support such conclusion.
75. It is often very difficult to give exact reasons for believing or disbelieving a witness. Very often it is simply a matter of impression.
76.
I was also conscious that I should be as conclusive as I possibly can in presenting my findings. With this in mind, I have followed the same approach as I had adopted in the Leung Wing-sang Inquiry 1976, namely: “using the criterion of a reasonably intelligent person with common sense and knowledge of local conditions, the essential factors may still be extracted from the evidence.” I realized that this was only a rough tool and a minimum standard of proof. In an Inquiry of this nature, evidence would emerge in an amorphous mass in a continually changing pattern, until the last witness is heard. Therefore, some parts of the evidence would reveal themselves with more clarity than others.
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