Neutral Citation no. (1999) 1910

Ref:

CARC2778

 

 

 

Judgment: approved by the Court for handing down

Delivered:

26/03/99

(subject to editorial corrections)

 

 

 

 

 

 

 

 

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

 

_____

 

 

THE QUEEN

 

v

 

KWONG FATT LOKE

 

_____

 

CARSWELL LCJ

 

Introduction

The applicant was convicted on 11 March 1998 at Belfast Crown Court, after a trial before McCollum LJ and a jury, on the first count of an indictment, whereby he was charged with attempting to murder Sia Keung Cheung on 3 February 1997. The jury did not return a verdict on the second count, that of wounding Mr Cheung with intent. On 19 June 1998 the judge sentenced the applicant to twelve years' imprisonment and recommended that he be deported. The applicant sought leave to appeal against conviction and sentence, but leave was refused by the single judge. He now renews his application to the court.

The Factual Background

On 3 February 1997 about 2.45 am the injured party Sia Keung Cheung was watching television in the living room of his house at 19 Pacific Avenue, Belfast. His wife and children were in bed asleep. He told the court that he heard a knock at the window, and when he looked out he saw the applicant, who was known to him as Malay Ken, and whom he regarded as a friend. No other persons were visible outside. The applicant gestured to him to unlock the front door. Mr Cheung thought that the applicant had come to visit him, as although it was a late hour the members of the Chinese community engaged in the restaurant business were accustomed to socialise after their premises closed in the early hours of the morning.

Cheung went to the front door and opened it some nine to twelve inches. He said in evidence that when he did so he saw three men outside, each of whom had a weapon in his hand. He described the weapons as resembling butcher's knives, approximately two feet in length. He recognised these men as the applicant and men known to him as Aghau and Akeung. He tried to push the door back to close it, but they kicked and pushed the door open against his resistance. Cheung was knocked over and fell to the ground. The men attacked him with the knives and he sustained injuries. Although he had been injured Cheung got to his feet and ran to the living room door. He was not sure whether he was struck again during his flight. His assailants pursued him, but Cheung was able to close the door against them and to hold it closed by jamming the handle with a piece of wood which was in the room. His attackers attempted to force their way into the room, but after about thirty seconds Mrs Cheung shouted at them from upstairs and they ran out of the house.

Cheung was taken to the Mater Infirmorum Hospital, where he was seen first by a casualty officer and then a consultant surgeon, who repaired the wounds and carried out an exploratory laparotomy. The whole surgical procedure took just under three hours. Cheung was then transferred to the intensive care unit, where he remained for five days. He required six units of blood by way of blood transfusion and spent the first day on a ventilator. He was discharged from hospital on 9 February.

Cheung said in his evidence in chief that his wife had received a telephone call earlier that evening from Akeung. In cross-examination he said that he was confused and that the telephone call was not received on that day, but on an earlier day. He then stated that there had been two telephone calls from Akeung. The first was on an earlier day, and on that occasion Cheung had spoken to Akeung; the latter had asked him to come out to talk to him, but Cheung had refused. The second was taken by his wife on the evening of the night on which the attack occurred, but this time Cheung refused to speak to Akeung.

Mrs Christine Cheung said that she had seen the three attackers and recognised them. She did not see a weapon in the applicant's hand. She accepted in cross-examination that in a statement made by her on the night of the attack and signed two days later she had told the police that she had only recognised Akeung, but did not see the other two, because they ran out of the house very quickly. In a further statement made on 6 February she named all three attackers, Akeung, Aghau and the applicant. She said in that statement that she had not mentioned them earlier because she knew what they were like and she was afraid for herself and her children. She proffered a different reason in cross-examination for her failure to name the applicant in her first statement. She said that she was in total disbelief that he was there, she could not believe it because he was a friend. She could not believe her own eyes and did not put him in the statement. She also said that she was in fear at the time and that she was in a state of confusion.

Cheung said that he had told his wife the names of his attackers when she asked him who they were while he lay injured on the floor in his house, because he thought he might die. Mrs Cheung said, however, that what she asked him was why they had done this, not who they were.

The wounds sustained by Cheung were described in detail by the consultant surgeon Mr Thomas Diamond FRCS, whose evidence may be summarised as follows:

Wound 1

A wide gaping wound to the back of the neck just on the hair line, which went through the muscle fibres and exposed the bone of the cervical spine. It had been caused by a sharp instrument, applied at right angles to the neck. He thought that it was probably caused by a chopping action, but it would be hard to distinguish between a chop and a slash by the shape of the wound. Moreover, because the victim might pull away from a chopping blow it might have the effect of a slash on his body. The weapon had almost certainly contacted the spine, but had not fractured the spinal bone if it had done so and had lacerated the spinal cord, that would almost certainly have resulted in death or serious neurological injury. The injury was such that a significant degree of force would have been required to cause it.

Wound 2

A laceration caused by a sharp instrument under the right side of the chin, consisting of an open wound some 5 cm in length. It had lacerated the skin and some muscle, but although it had exposed the jaw bone it had not fractured it. It was treated by suturing the deep muscles and applying clips to the skin. This was not a life-threatening injury.

Wound 3

A deep laceration to the right shoulder, which extended through the skin, the subcutaneous tissue and penetrated about one inch into the muscle, but did not expose any bony structures. It had been caused by a sharp instrument. It was repaired by suturing, which involved a significant amount of repair of the muscle tissue and the superficial layers.

Wound 4

A lacerated wound to the bottom of the back, which penetrated the skin and subcutaneous tissue, and the muscle to a slight degree. It was caused by a sharp instrument. It was repaired by suturing.

 

Wound 5

A serious lacerated wound in a vertical line on the right side of the back. When Cheung arrived at hospital this was seen to be a "sucking chest wound", from which blood was bubbling out, caused by a combination of bleeding from the wound and air escaping from his right lung or chest cavity. The resulting pneumothorax constituted a potentially life-threatening situation, a surgical emergency which required prompt attention. The surgeon took immediate stabilising measures, then carried out a laparotomy to ascertain if any internal organs had been damaged, but found no intra-abdominal injury.

Mr Diamond expressed the opinion that the wound would have required a very significant degree of force and that it had been inflicted with a very sharp instrument, for four ribs were cleanly cut through without being fractured.

Although Cheung had given the police the name Malay Ken as one of his attackers, the applicant was not apprehended until some months later. On 12 June 1997 Cheung was in Lurgan when he saw the applicant open the door of a restaurant. He reported it to the police and the applicant was arrested at the restaurant.

The applicant was interviewed by the police with the aid of an interpreter. He said that he received a telephone call and went to Lavery's bar, where he met some men. He went in a car, which he thought was a Volvo, with two other men to the house occupied by Cheung, who was a very good friend of his. He was unwilling to give their names or to describe them in detail, though he admitted that he knew them to see. He said that he just went to have a chat with Cheung, then admitted that he thought that they were going up to have a talk with him, to teach him a lesson. He just thought they were going to tell him off. Something had happened in the past, something to do with a television, and they wanted to talk to him about it. He had no idea they were carrying weapons. The other two pushed their way in when the door opened and pulled out long butcher's knives. The applicant maintained that he did not enter the house himself and denied that he had a knife. He heard Mrs Cheung shouting upstairs, but did not see her. He did not go to the police afterwards because he was scared to do so, as he was an illegal immigrant.

The Grounds of Appeal

The grounds on which applicant sought leave to appeal were, as amended with leave, the following:

"The conviction of the appellant was unsafe and unsatisfactory, for the following reasons:-

 

1. The Jury ought not to have been satisfied beyond a reasonable doubt that the appellant took any part whatsoever in an attack upon the injured party.

 

2. Alternatively the Jury ought not to have been satisfied beyond a reasonable doubt that the appellant was guilty of attempted murder, count 1 but rather was guilty of the lesser charge of inflicting grievous bodily harm with intent.

 

3. The Learned Trial Judge accidentally mis-directed the Jury on a matter of law in relation to count 1.

 

4. The sentence of 12 years imprisonment coupled with a recommendation for deportation was manifestly excessive in the circumstances for the reasons stated in the attached skeleton argument."

The Judge's Directions on Intent

The learned trial judge commenced by telling the jury correctly that no lesser intent than an actual intention to kill Cheung would suffice to establish an attempt to kill on the part of the principals. He outlined the evidence in respect of the applicant and went on to define the intention which had to be proved against him:

"Then you have the Defence case. His explanation of his presence. Where does that leave you? Even if .... it is not a complete answer for him to say `I didn't have a knife.', or `I didn't go in the house.' If you were satisfied that when he went to the house and caused Mr Cheung to come to the door, if you were satisfied that at that time he had in his contemplation in his mind the proposition that the visit to Mr Cheung's house was liable to result in an attack on Mr Cheung and if it was in his contemplation that the other two were going to attack Mr Cheung and assuming he does nothing apart from getting Mr Cheung to answer the door, but if [he] knew they were around or knew enough from the conversation in the pub or if you are satisfied that he knew from that that [was] what was in contemplation and intended was an attack on Mr Cheung then he is equally guilty with the attackers to the extent that he was aware of their intention, so, if it was within his contemplation they were going to try to kill him.

 

You set out, of course to do it. You do not always succeed, and if you do not succeed then it is an attempt, but if it was present to his mind that they were going there to kill Mr Cheung, and the Crown calls in aid that he had to identify himself to bring him to the door, if he had in his mind that they were going to kill him then he would be guilty with them of attempted murder."

 

On the other hand, if he contemplated that they were going there to teach him a lesson or give him a severe beating or cut him with knives in a way which fell short of killing him, then he would be guilty of the second count."

Mr Cinnamond QC (who did not appear for the applicant in the court below) submitted that in the case of a person charged with aiding and abetting an attempt to murder it is necessary for the Crown to establish that he shared the actual intention that they would kill the victim, and that it was insufficient to prove that he merely foresaw or contemplated that they might do so. The judge's directions to the jury on this issue were accordingly defective.

Counsel founded this submission on the terms of Article 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, which provides:

"If, with intent to commit an offence to which this Article applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence."

He contended that this provision governs the intention of both principals and accessories, and that therefore the Crown was required to prove in the present case that the applicant had "the intent to commit" the offence, viz an actual intention to kill the victim. This argument is in our opinion misconceived. The intent to which Article 3(1) refers is that of the principal charged with the attempt. The Crown had to prove that the principals in the present case had an actual intention to kill Cheung, as the judge correctly told the jury. The applicant was charged with aiding and abetting their attempt to kill Cheung, but it is not stipulated by Article 3(1), nor in our view would it be correct in principle, to require that the same intention be established against him as against the principals. An accesssory is liable to be tried, indicted and punished as a principal offender, but he nevertheless remains an accessory, and the common law principles governing the extent of the liability of accessories will determine the nature of the intent to be proved against him. What will suffice in the case of the applicant is the intent to be established against an accessory to any offence, that he foresaw or contemplated that the principal might commit the offence, ie that they might attack Cheung with intent to kill him.

Our conclusion is reinforced by the decision of the English Court of Appeal in R v O'Brien [1995] 2 Cr App R 649. It was there submitted that it had to be proved that an aider and abettor of attempted murder knew that the principal would and not merely might shoot to kill the victim, in other words, that he shared the principal's intention that the victim was to be killed. The Court of Appeal rejected this contention:

"We do not follow the logic of this argument. The jury clearly found that O'Brien, knowing that Magee had the rifle, assisted him by stopping the car at scene 2 and thereafter reversing it. If, following the judge's direction, they concluded that O'Brien knew that Magee might shoot to kill and if he had actually killed P.C. Whitehouse or W.P.C. Larkin, on the authorities to which we have referred O'Brien would have been guilty of murder. There is in our judgment no logical reason why the same knowledge should not make him guilty of an attempt to commit that offence."

 

Mr Cinnamond pointed out that there was no reference in the court's judgment in O'Brien to section 1(1) of the Criminal Attempts and Conspiracy Act 1981, the equivalent provision in the English legislation to Article 3(1) of the 1983 Order, and suggested that this weakened the authority of the decision, which may have been given per incuriam. In our view section 1(1) of the 1981 Act and Article 3(1) of the 1983 Order do not govern the intention of the aider and abettor, only that of the principal offender, and therefore the omission of any reference to it is not a defect in the judgment. Moreover, we consider that the policy considerations against requiring proof of the same intention in an accessory as in a principal in the crime of murder, which were set out by Lord Steyn in R v Powell [1999] AC 1 at page 14, apply with equal force to the crime of attempted murder. We accordingly are of opinion that the judge's direction to the jury at pages 39-40 of his summing-up in terms of contemplation was correct.

Following a requisition by counsel for the applicant the judge recalled the jury and gave them a further direction on the issue of intention:

"I think I was guilty of some looseness of expression in one part of my address to you, ladies and gentlemen, and that was about the basis on which, if you have passed the point about whether the accused had a knife or whether he went into the house, I was dealing with the question of if he merely went along with these men and I think I certainly left it open, and if I did it wasn't right of me to do so, I left it open that you might find him guilty if you came to the conclusion that he went along with these men, as it were, to help them get into the house, realising or believing or having in his contemplation that they were going to teach Mr Cheung a lesson, or give him a beating, well of course neither of those things would amount to the crime that we're talking about here. Really what he would have to have in his contemplation to be convicted of one or other of these offences was the knowledge, if you like, or at the very least having it in his contemplation that they were going to attack Mr Cheung with sharp knives, I think that's the way you would have to look at it, that he would have to have had an idea that what was going to happen was an attack of the kind that actually took place. So don't concern yourselves -- if it was merely a question of being taught a lesson in some vague way of bullying or of a few blows with a fist or something of that sort, that would not amount to either of the crimes with which he's charged, and if that was the full extent of his contemplation then he would be entitled to be acquitted. It's only if it was within his contemplation that they were going to attack the victim with sharp knives that he should be convicted of participation in either Count 1 or Count 2."

 

Mr Cinnamond submitted that this further direction, and in particular the last sentence, was capable of misleading the jury, who might have taken from what he said that if it was within the contemplation of the applicant that the principals might attack the victim with sharp knives they could properly find him guilty of aiding and abetting attempted murder. We do not consider that this submission is well founded. The context in which he made the remarks when he brought the jury back was that the intention of the principals, as foreseen by the applicant, might fall short of an intention to commit grievous bodily harm, and he was indicating to them that that was a minimum requirement phrased in terms of an attack with sharp knives -- before they could consider the charge in count 2 proved, and a fortiori that in count 1. It is necessary to look at the charge as a whole, and the judge had made it entirely clear in earlier passages that it must be established that the applicant contemplated that the principals had an actual intention to kill Cheung before the applicant could be held guilty as an accessory to the offence of attempted murder.

The jury would accordingly have been entitled to find the applicant guilty of attempted murder if they were satisfied beyond reasonable doubt either (a) that he took a direct part in the attack, wielding a knife himself, as Mr Cheung averred in his evidence, or (b) that he did not directly join in the attack, but contemplated that the other two might attempt to kill Cheung.

The Applicant's Participation in the Attack

We consider that the jury had ample evidence from which it could conclude that one or other of these conditions was satisfied. Mr Cheung himself stated that he recognised all three of his attackers and that each had a knife. If this is correct, the extent of the applicant's participation is not in doubt. Mr Cinnamond QC submitted on behalf of the applicant that Mrs Cheung's evidence was at variance with it, in that she said that she did not see a weapon in the applicant's hand. We do not regard that as necessarily inconsistent with her husband's assertion: she did not say positively that he did not have a weapon, only that she did not see one. More detrimental to the Crown case was the fact that she said in her first statement that she recognised only Akeung and not the other two attackers, and gave reasons for this in her second statement and in her evidence at trial which appeared to differ. The point was, however, effectively brought out on behalf of the applicant and the judge dealt with it with it fairly in his summing-up. Mr Cinnamond accepted that the jury had material on which they could properly find that the applicant was a party to the attack on one or other basis, but submitted that the quality of the evidence of Mr and Mrs Cheung was such that it was unreliable and an unsafe foundation on which to sustain a conviction.

If the issue had been one of identifying the applicant and he was making the case that he was not present at all, then the weaknesses and inconsistencies in the Cheungs' evidence could have been much more directly material. The applicant did not, however, dispute that he did visit Cheung's house on the night in question and tricked Cheung into opening the door for the other two to get into the house. We think that a jury would have found it extremely hard to accept that a subterfuge of this kind was necessary for them merely to berate Cheung for some misdemeanour. The case which he made was that he was not involved in the attack and did not suspect that it would take place. He failed to give evidence, and the jury were entitled to take that into account; they could not have been faulted if they drew an adverse inference that he could not stand over his story in the witness box. We consider that the jury was entitled to find that he was part of the attack, either as a direct participant or as an aider and abettor who contemplated that the others would attack Cheung. We do not accept that there is a lurking doubt, as Mr Cinnamond contended, about the correctness of the jury's conclusion on this issue.

The Assailants' Intention to Kill

It was, however, argued on behalf of the applicant that it was not established to the requisite standard that Cheung's assailants, whatever part the applicant played in the attack, intended to kill their victim rather than merely inflict grievous bodily harm in a punishment attack. Mr Cinnamond pointed to the fact that no stab wounds were inflicted on Cheung, that no admission had been made by any person and no words had been spoken which might indicate an intention to kill. Moreover, only five wounds had been inflicted and one might have expected rather more if the attackers intended to kill their victim. He therefore submitted that one must regard it as having been reasonably possible that the assailants intended to do no more than slash or chop him by way of punishment. We do not accept this argument. In our judgment the blows went far beyond mere slashing, and Wounds 1 and 5 were potentially fatal. Moreover, when Cheung escaped into the living room, the attackers attempted to get through the door after him, although they had already inflicted severe damage on him. We therefore consider that the jury were quite entitled to conclude that this attack was murderous in intent.

We accordingly conclude that the applicant has not made out any of the grounds on which he relied, and dismiss the application for leave to appeal against conviction.

Sentence

It was submitted that the sentence of 12 years was manifestly excessive, since the judge had not given sufficient credit for the applicant's clear record and good character and the fact that he was not motivated by animosity against Cheung and was not the leader or instigator of the attack. It was also suggested that the recommendation that the applicant should be deported operated as an additional penalty and that the custodial sentence should be reduced to reflect this.

The judge held a special sitting to consider the matter of sentence, at which he received evidence of character and heard submissions on sentence in general and the question of deportation in particular. It is established that a recommendation for deportation should not affect the length of the sentence. As Lord Parker CJ said in R v Edgehill (1962) 47 Cr App R 41 at 44:

"Courts should deal with the offence on its merits and sentence the prisoner to the penalty or sentence which he deserves, and, having done that, should deal with the recommendation for deportation quite separately."

The judge took into account the factors put before him to which we have referred, and laid some stress in sentencing on the breach of trust on the part of the applicant when he used his friendship with Cheung to deceive him into opening the door to his attackers. We do not consider that the sentence of 12 years was manifestly excessive, and we dismiss the appeal against sentence.


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

 


_____

 

 

THE QUEEN

 

v

 

KWONG FATT LOKE

 

_____

 

JUDGMENT

 

OF

 

CARSWELL LCJ

 

_____