59
50
respect", he was quite clearly referring to Yuen Long, or at the most, New Territories. That objection, therefor ourd be overcome by transferring MacLennan to the urban area. But Henry never considered that possibility. Instead he was of view that, whatever be the truth or otherwise of the allegation, MacLennan was placed in such a predicament that wherever he was moved, the local population would come to know about the suspicions, hence he could not usefully be placed anywhere else in Hong Kong. I am unable to accept this reason.
(b) MacLennan's general character, demeanour and behaviour: Unsuitability for the Force
84.
That was not a reason Mr. Henry noted in the Yuen Long investigation file. He explained that it was not the right file for it. If there was any need to know his reasons, the staff would refer the matter back to him on MacLennan's personal file and there he would note down his reasons.
85. Henry said he took a different line from the rest of the senior officers because they merely considered the strength or weakness of David Lau's allegation, they did not consider the question of MacLennan's "character, demeanour and behaviour". I do not accept this. The other officers did consider and refer to MacLennan's general behaviour. McNutt had consulted Smallshaw, who had been one of MacLennan's more immediate superiors, and was therefore in a much better position than Illingworth to assess MacLennan's character. Smallshaw was surprised that MacLennan could have any homosexual tendencies. And yet, Henry pitched this view against that of Illingworth's, when the latter, even on the face of the minute, was arrived at on the basis of a single meeting, when the view was expressed in less than dispassionate language towards the man and when, as Henry accepted in evidence, it did not in any way illustrate the basis for the assessment.
86.
Henry must have read MacLennan's personal file; he said he saw nothing there to indicate he should reach a different conclusion. But in the file were a number of complimentary remarks. Henry however said they were the description of the average inspectorate police officer in the Royal Hong Kong Police Force. Be that as it may, I certainly cannot see anything in that file to indicate that MacLennan was not suited to the Police Force. It showed quite the reverse. Again I am unable to accept Mr. Henry's second reason.
(c) The good of the Force
87.
88.
Mr. Henry said in evidence:-
"All I can say Mr. Beveridge is that the expressions of opinion as to fairness or unfairness, certainly the ones I have seen, are based on the contents of the allegation of an act of gross indecency. None of those officers have taken the overall point of view which I, as Commissioner of Police, and which I, as a long serving senior police officer, had to take into consideration, the good of the Force. The overall aspect of what should be done from the interest of Force point of view and I came to the conclusion, not based on: did he or did he not commit an act of gross indecency, but should he or should he not continue to be in this Force and with all the repercussions that there could be, within his retention, I came to the conclusion that for the good of the Force and indeed for the good of the young man himself, he should not continue in service and therefore the contractual agreement that he had entered into, should be applied.'
56
In effect, Henry described it as a "policy decision". I accept that policy considerations are important and that they are best left to the head or acting head of the Force. But policy reasons must nonetheless be weighed against any injustice that might be done to the individual. Henry failed to take sufficient account of such individual justice because he did not think his decision unjust. As I read his evidence, he gave two reasons for so thinking.
89. First, he said he was only exercising a contractual right. The termination was, therefore, not a punishment.57 Inasmuch as a contractual termination was not the result of a disciplinary inquiry, he was right. But the difference is no more than a technical one in the circumstances. MacLennan could certainly be forgiven for considering his termination a punishment. MacLennan's contract was terminated ostensibly on grounds of lack of character. Yet the only basis was a single allegation against which MacLennan was not given the opportunity to answer in court, in a disciplinary inquiry or indeed anywhere. The inevitable result was in reality punishment without trial or disciplinary inquiry. That was tantamount to a denial of natural justice to MacLennan. It was also a very severe punishment in that MacLennan was trained for and cherished a police career. Yet with the termination, his career in the Hong Kong Police had to come to an end and he would have difficulty in joining another Police Force as he would have left under a cloud of suspicion with little or no reference.
90.
Secondly, Mr. Henry said he expected his decision would be properly processed by his staff officers and by the Secretary for the Civil Service. He did not, of course, expect them to reverse his decision, but he expected them to comply with such regulations, policies or principles of fairness as might have been applicable. That might well be so, but it would not cure the injustice inherent in the very act of the termination of contract.
55
Officers such as Quinn, Rich, Quine, McNutt, Over, Blackburn, General Purdon, and Rowlands from the Civil Service did not feel that termination could be justified. 56 Transcript pages 11517-11518.
57
Transcript pages 11517-11518.
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