J
27.
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There was at the time no special policy laid down as to the prosecution of homosexuals. The pole, prosecute homosexual cases as they came forward, as any other cases. There was no question of broadening the application of prosecutions or to pay particular attention to civil servants at this stage.
28. The Attorney General believed it was the duty of his Chambers to prosecute homosexual crimes and instructed his DPP to that effect.
29.
On 12 July 1979, the Attorney General minuted the Governor with details of what was in the summary prepared by Mr. Aitken and Mr. Alderdice, and the Governor, the Chief Secretary and the Attorney General had a conversation about it. The Attorney General was very concerned because there was then a widespread belief, rightly or wrongly, that there had been a "cover-up" of the investigation and prosecution of homosexual crimes in Hong Kong. Such opinion was widely held by the news media and amongst "other people" and the Attorney General thought “there might be in some cases some force in that.” He accordingly brought his opinion to the attention of the Governor and the Chief Secretary.
30. On 12 July 1979, the Commissioner of Police, Mr. Henry, was requested to see the Governor because the Governor had received a copy of Duffy's draft petition. At the meeting Henry first learned of the contents of the draft petition and the names therein including that of Molo Tsui. The Governor was aware that the SIU had been investigating Molo Tsui and was eager that the investigation should be pursued to the stage of prosecution if at all possible. Henry agreed. The Governor also told Henry the Molo Tsui investigation file was with the Legal Department and Henry agreed to instruct the DCI to contact the Attorney General in order to ascertain which member of the Legal Department was dealing with the case. The Governor said he had already discussed the matter of Molo Tsui with the Attorney General. Henry agreed to accelerate any further investigations that were required in relation to this case. A few days later the DCI told Henry that as a result of consultation with the Legal Department the SIU was required to re-interview the witnesses against Molo Tsui. Later Henry was told that the decision had been made to prosecute Molo Tsui.
E.
THE RE-FORMATION®
31.
As a result of the Attorney General's instructions, the DPP saw Chief Superintendent Ross on 14 July 1979 and told him that, as a matter of priority, investigations had to be conducted into the activities of Molo Tsui, that all the witnesses from whom statements had been taken,had to be seen again and an assessment made of their evidence; also other witnesses or other persons in respect of whom files existed were to be investigated, with a view to seeing whether there was any connexion between them and Molo Tsui. The Attorney General told the DPP to read the file on Molo Tsui, assess the evidence and decide whether or not any further investigations were necessary, and then reach a decision whether or not, on the evidence, either available or subsequently obtained, a prosecution was the proper course. The DPP asked Ross how soon this could be done because he had been told by the Attorney General that the Governor wanted this done as a matter of despatch. Ross told him that he thought it would take 10 to 14 days, but he could offer no firm promise because he said some of the witnesses were difficult to locate."
32.
Based on what the Governor had indicate to the Attorney General who passed that indication onto the DPP, the DPP was able to tell Ross that if there were any difficulties with regard to manpower, he should refer the matter to him, so that he could speak to the Attorney General because the Attorney General had asked the DPP to assure Chief Superintendent Ross that there would be no difficulties with manpower. The DPP felt there would be no difficulties because the instruction had come from the Governor. The DPP however did not tell Ross that the instruction had come from the Governor.
33.
At the meeting Ross asked the DPP if the arrests were connected with the Duffy petition. The DPP was embarrassed by the question and gave an "oblique reply" without positively denying the allegation, which may account for Ross' conclusion that the events were so connected.
34.
According to Ross' evidence, henceforth there would be "open season" on homosexuals. He said in evidence that the Attorney General wished to be informed of any civil servants who came to the notice of SIU. Mr. Justice Macdougall (who was at that time the DPP) denies both pieces of Ross' evidence. As I am of the opinion that both Mr. Justice Macdougall and Chief Superintendent Ross are patently honest and men of ability and integrity, I resolve the conflict of evidence on the basis that there must have been an error in recollection or a misunderstanding. On balance I prefer the evidence of Mr. Justice Macdougall.
7 See Transcript page 11536.
8
9
This section is based largely on the evidence of Ross, supplemented by the evidence of Brooks and Quinn, the DPP, Mr. Moor and others. See Transcript page 10960.
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