THE QUEEN v. CHAN KWONG AND ANOTHER

IN THE COURT OF APPEAL

1986, No 557
(Criminal)

Headnote

Attempt - tests - two different - the test followed in Hong Kong.

IN THE COURT OF APPEAL

1986, No. 557
(Criminal)

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J U D G M E N T

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Yang, V.-P.:

1. The first and second applicants (D2 and D3 respectively) were convicted by Judge Cameron in Kowloon District Court of attempting to cheat gambling, contrary to Sec. 16(1)(a) of the Gambling Ordinance, Cap. 148 and Sec. 81 of the Interpretation and General Clauses Ordinance, Cap. 1. The charge alleges that D1 and the two applicants on the 21st day of May, 1986 at No. 563 Nathan Road, 9th Floor, Kowloon, Hong-Kong, together with Cheung Ching-sum, attempted by fraud in connection with gambling, namely a game of 'Fu Kwai Mahjong', to win from Yu Yick-kwan, for themselves, money.

2. The two applicants now apply for leave to appeal against their convictions.

3. It is necessary to reproduce the trial judge's finding of facts at length.

4. The initial approach to the prospective victim, Yu Yick-kwan, on 5th May 1986 concerned the possible purchase of printing machines from him. Yu was told by D1 Chung, who made the initial approach, that the decision to purchase would have to be made by D1's boss. On 7th May D1 took Yu to meet his boss D2 Chan at the office of Yick Fung Trading Company (Yick Fung), 563 Nathan Road. Yu was then asked to return the next day with detailed quotations.

5. On 8th May Yu returned to Yick Fung. There he met a Mr. Leung (who had been mentioned in conversation the previous day). It was said that Leung would provide the money for the printing machines. Leung asked Yu to lower his price.

6. On 9th May Yu returned to Yick Fung and was told Leung had gone to the bank to draw money. In Leung's absence D2 told Yu that Leung had lost a lot of money the previous evening in gambling and as he (D2) was in partnership with Leung in gambling he had to bear a share of the loss. D2 showed Yu the money which he said he had withdrawn from the bank in order to pay his share of the loss. D2 then talked about the game which Leung had played. D1 suggested he had a friend who was a gambling expert. D2 asked D1 to invite his friend to come. D1 left and about fifteen minutes later returned with D3, Heung.

7. D3 told them that the game Leung had played was a swindling plot. D3 demonstrated the cheating method to D1 and Yu, and D3 taught Yu how to do it. D2 was not present during this demonstration. Then D2 was called in. Several games were played with D2 who lost them all. The method of cheating was explained to D2, who then said he would report Leung's loss the previous evening to the Police. D3 told D2 he had no evidence and it was difficult to do anything about it. D2 then said Leung was going to gamble with the same people again that evening and he would lose. D2 suggested they should play a few games with Leung to win his money and then tell him why he had lost. Leung would then be advised not to gamble that evening with the same people. Leung later arrived and D3 was introduced as the accountant of Yu's factory (which he was not). Leung watched them gambling.  Another game was started with Yu (as the banker), D1, D3 and Leung.  Leung had a briefcase with him. He said he had U.S.$1 million. He opened the briefcase and showed what seemed to be bundles of U.S. dollars notes, taking a bundle of notes from his briefcase to play.  Leung also mentioned having lost U.S.$215,000 the previous evening.  After playing a few games, the others said they did not have sufficient cash with them to gamble.  Leung then said he would wait until they had sufficient money. D3 told Leung not to gamble that evening as he would lose.  Leung was not pleased to hear this and left.  D3, annoyed at Leung's attitude, suggested that he D1, D2 and Yu should work together and win Leung's money by using the cheating method he had demonstrated. They discussed the sharing out of the winnings they hoped to get and they swore not to disclose the plan to others, burning joss sticks to reinforce their vows. They then discussed the raising of capital to gamble.

8. Later that day Yu told the others all that he could raise was H.K.$10,000. The others said they had raised considerably more. Yu was not available to gamble that evening and another appointment was to be made.  Leung was to be told this. In the meantime Yu was to try to raise more money. So far the classic preparation for "Tin Sin Kuk".

9. Yu, suspecting that it was a plot to cheat him and not Leung reported the matter to the Police, who monitored the situation till 21st May when D1, D2 and D3 were arrested.

10. Between 9th May and 21st May 1986 pressure was put on Yu to raise more money so that the game with Leung could proceed. From the 8th of May there appears to have been no further serious discussion of the purchase of printing machines from Yu.

11. On 21st May Yu informed D1 that he had raised more money. He arranged to meet him at the Garden Restaurant where D1 asked him if he had "fixed it" which the trial judge took to mean whether he had raised money.  D1 made some telephone calls but there was no evidence as to whom he spoke to.  He and Yu then left for Yick Fung and D1 was arrested on the way.  At about the same time another party of Police attended at Yick Fung and there arrested D2, D3 and a person, Cheung Ching-sum, whom Yu identified as Leung.  Gambling paraphernalia was found there.  A briefcase was also found with what seemed to be U .S. dollar notes.  In fact only the outside note of each bundle was genuine - the rest were blank sheets of paper. No tables had been set up.

12. On the evidence the trial judge found that there was no real intention to purchase printing machines from Yu. This approach was made to entice Yu into believing that he was dealing with people who had a lot of money at their disposal. He was taught a method of cheating at gambling and asked to join D1, D2 and D3 in employing this method to win money from Leung. Having regard to the evidence and the gambling paraphernalia that were seized from Yick Fung, the judge found that the intended victim was not Leung but Yu. He found that if D1, D2 and D3 had really intended to cheat Leung of his money they would not need to involve Yu at all.  The three of them could have done it without Yu's assistance. The three accused were accordingly found guilty of the attempt charged.

13. When is an act sufficiently proximate to the crime intended to constitute an attempt?

14. The latest development in England in the law of attempt was the enactment of the Criminal Attempts Act 1981. Sec. 1(1) provides: "If with an intent to commit an offence ….. 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".  Hong Kong, however, has not adopted this statutory test, but continues to follow the common law.

15. Under the common law the courts have laid down what appeared to be two different tests. The older one is to be found in R. v. Eagleton⁽¹⁾ followed in R. v.  Robinson⁽²⁾.  This test was followed in Hong Kong in R.v. Miller⁽³⁾.  A later, more relaxed, test was that set out by the Divisional Court in Davey v. Lee⁽⁴⁾ followed in Commer v. Bloomfield⁽⁵⁾.

16. In delivering the judgment of a court of nine judges, Parke B. said in Eagleton⁽¹⁾ (supra) -

"The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; and if, in this case, after the credit with the relieving officer for the fraudulent overcharge, any further step on the part of the defendant had been necessary to obtain payment, as the making out a further account or producing the vouchers to the Board, we should have thought that the obtaining credit in account with the relieving officer would not have been sufficiently proximate to the obtaining the money. But, on the statement in this case, no other act on the part of the defendant would have been required.  It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt.”

17. Lord Diplock interpreted this test as requiring that the "offender must have crossed the Rubicon and burnt his boats": D.P.P. v. Stonehouse⁽⁶⁾.  It is sometimes known as the "last act" test.

18. Contrast, however Davey v. Lee ⁽⁴⁾ (supra). There Parker C.J. said (at pp. 305-306):

"What amounts to an attempt has been described variously in the authorities, and for my part I prefer to adopt the definition given in Stephen's Digest of Criminal Law (5th ed.) Art. 50: 'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. ' As a general statement, that seems to me to be right, though it does not help to define the point of time at which the series of acts begins. That, as Stephen said, depended upon the facts of each case. A helpful definition is given in paragraph 4104 in the current (36th) edition of Archbold's Criminal Pleading, etc., where it is stated:  'It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime."

19. And Diplock L.J. (as he then was) said (at p.306):

"I agree. There are some branches of the criminal law in which it is permitted for justices and juries to use their common sense. 1 am glad to find that 1 am not constrained by the authorities to say that the law of attempt is excluded from those branches.  I accept the definition which my Lord has taken from the current (36th) edition of Archbold's Criminal Pleadings etc., as a correct definition of the test to be applied, and the facts of this case fall amply within that definition."

20. With great respect, Lord Diplock in Stonehouse⁽⁶⁾ appeared to have departed from what he had said in Davey v. Lee⁽⁴⁾.  That there were two different tests was noted in the unreported case of R. v. Gullefer⁽⁷⁾.  There Lord Lane explained:

"Sections 1(1) and 4(3) of the 1981 Act seemed to be a blend of various decisions, some of which were not easy to reconcile with others. 

As appeared from R. v. Ilyas (( 1984, ) 78 Cr.App.R. 17), there seemed to have been two lines of authority. The first was exemplified by R. v. Eagleton (( 1854) 5 Dears C.C. 515, 538) where Baron Parke, delivering the judgment of a court of nine judges, said:

'Acts remotely leading towards the commission of an offence are not to be considered as an attempt to commit it, but acts immediately connected with it are ……  On the statement in this case, no other act on the part of the defendant would have been required.  It was the last act, depending on himself….. [which] ought to be considered as an attempt'.

In D.P.P. v. Stonehouse [1978] A.C. 55, 68); Lord Diplock having quoted part of the passage from Eagleton, added: 'In other words the offender must have crossed the Rubicon and burnt his boats'.

The other line of authority was based on a passage in Stephen's Digest of the Criminal Law 5th edition (1894) article 50, that an attempt to commit a crime was an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted.

However, as Lord Parker pointed out in Davey v. Lee  [1968]1 Q.B. 366, 370). Stephen's definition fell short of defining the exact point of time at which the series of acts could be said to begin.

The words of the 1981 Act sought to steer a mid-way course. They did not provide, as they might have done, that the Eagleton test was to be followed or that, as Lord Diplock suggested, the defendant must have reached a point from which it was impossible for him to retreat before the actus reus of an attempt was proved.

On the other hand, the words, gave, perhaps, as clear a guidance as was possible in the circumstances on the point of time at which Stephen' s 'series of acts' began.

It began when the merely preparatory acts came to an end and the defendant embarked on the crime proper. When that was would depend, of course, on the facts in any particular case."

21. R. v. Ilyas (supra), though decided in 1983, was concerned with the test under the common law, and not under 1981 Act. There Tudor Evans, J. also noted that there were two different tests, but came to the view that by either test, the defendant could not be found guilty of attempt (at p.21).

22. Coming now to the celebrated Stonehouse case⁽⁶⁾ (supra), there Viscount Dilhorne saw both Eagleton⁽¹⁾ and Davey v. Lee⁽⁴⁾ as employing the same test (at p.71 F-G), whilst Lord Salmon relied entirely on Eagleton⁽¹⁾ and said it was necessary only to refer to that authority (at p.76F). On the other hand Lord Edmund-Davies had this to say (at p.85 G-H):

"The much cited Reg. v. Eagleton has itself been criticised as going further than is called for, in stressing the necessity for the act charged to be 'immediately connected' with the full offence; see, for example, Archbold, Criminal Pleading, Evidence & Practice, 39th ed. (1976), para. 4105, p. 1697. "

He then sets out and approves the definition in Stephen's Digest referred to by Parker C.J. In Davey v. Lee (4).

23. The authorities are thus divided as to the proper test to be used. Smith and Hogan, in their Criminal Law (5th ed.), said (at p.260) under the heading "Actus Reus in Attempt":

"At what point had he gone far enough to be guilty of an attempt? The answer given by the common law was that it was a matter of fact: was the act sufficiently proximate to murder to be properly described as an attempt to commit it? More detailed formulations of the principle proved unsuccessful, being capricious in their operation or simply unhelpful. This is not surprising when it is recalled that the principle has to apply to all crimes and that crimes are very diverse in their nature. The only well-settled rule was that D had done the last act which, as he knew, was necessary to achieve the consequence alleged to be attempted, he was guilty. The converse, however, did not apply. An act might be sufficiently proximate although it was not necessarily the last act to be done."

24. And Glanville,Williams, in referring to Eagleton(1), said in his Criminal Law: The General Part (2nd ed., at p.622):

“Such nebulous formulations lead one to look at specific decisions in the hope of further enlightenment. The authorities will be found to be in some confusion."

25. The "last act" test has been much doubted by commentators. Glanville Williams in the work cited above observed (at p.623) that to be guilty of attempt, the accused must have progressed a sufficient distance along the intended path 0 'It follows that if he has done the last act that he intended to do in order to effect the crime, his act is necessarily proximate. On this basis it was suggested that Eagleton⁽¹⁾ may still be quoted as authority on that point. If this is the correct interpretation then there is no such test as  a "last act" test: the last act merely illustrates that the accused has ''progressed a sufficient distance."

26. Professor Willaims goes on to say (ibid, at pp. 624-625):

"It seems that the act of the accused is necessarily proximate if, though it is not the last act that he intended to do, it is the last that it would have been legally necessary for him to do if the result desired by him had been afterwards brought about without further conduct on his part. Let us illustrate.

D, a married woman, with intent to murder her husband P, mixes poison in his whisky decanter. Her intention is to pour out a glass of the poisoned whisky and to hand it to him. Does her act in mixing the poison with the whisky, before she has proferred it to her husband, constitute an attempt?

At first sight it may seem that it does not. The act of mixing the poison with the whisky looks like mere preparation. Since her intention is to pour out the whisky for her husband, proximity will not commence until she has so poured it out, and perhaps not until she has proferred the glass to him. Until then the case is (it may be said) governed by the authority of the jeweller case, Robinson (supra), and is distinguishable from the cyanide case, White (infra).

But a contrary argument can be built up if we add further facts to the hypothetical situation. Let it be supposed that in the problem the husband comes home and pours himself out a glass of whisky. He drinks it and dies. On these facts D would clearly be guilty of murder. There is authority for saying that if the result intended by the accused comes to pass, it does not matter that it does so in a manner or by an agency that was not intended. A person cannot escape a charge of murder merely by saying that his victim, contrary to expectation, poured out the poison with his own hand.

To revert at this point to the original facts of the problem: it is now seen that the accused has done everything that is legally necessary to enable her to be convicted of the crime of murder if the result intended by her should afterwards come to pass in consequence of what she has done. If this is so, it must be held that her act is sufficiently proximate."

27. Furthermore, an act is proximate if it is the first of a series of similar acts intended to result cumulatively in the crime. Thus one who intends to kill another by slow poisoning is guilty of attempted murder as soon as he administers or attempts to administer the first dose which by itself may not be fatal: R. v. White⁽⁸⁾ The administering of the first dose is certainly not the last act.

28. The difficulty in determining proximity arises in the ordinary case where the accused has not reached the last of an intended train of acts.

29. As Professor Williams points out, with the last act test, the law of attempt is left practically without operation, for either the conduct of the accused amounts to mere preparation or the offence is consummated; the period of "attempt" which comes between is so brief that it is hardly practicable for the police to wait for it before making the arrest. A particularly unfortunate effect of the present law is that it often puts the police into a most awkward position. If they apprehend the suspect too soon, he may be acquitted; if they delay, they may be criticized for allowing a crime to be committed that they could have prevented: vide pp. 621-632 of his work.

30. And another commentator observes^(9):

“The point about crossing the Rubicon is that there is no going back, no possibility of an effective change of mind. The application of that test would have a seriously limiting effect on the scope of attempted crime. The intending arsonist who has struck the match beside the haystack would not be guilty; nor would the intending assassin who has put his finger round the trigger, preparatory to pulling it. Either may still change his mind. Neither has done the last act but both, it is submitted, are guilty of attempts. The act done is more than merely preparatory to the commission of the offence. It is an act immediately connected with the commission of the offence. The actor is 'on the job'. It would be absurd if the policeman had to wait until the offender had actually applied the match or pulled the trigger before he could arrest him on a charge of attempted crime. “

31. The important decision of Haughton v. Smith ⁽¹⁰⁾ was not cited in the Stonehouse case ⁽⁶⁾, though Lord Dilhorne and Lord Salmon were in both cases. There Lord Hailsham discussed (at p.1113) the: "ear1iest attempt at definition in comparatively modern times" in Eagleton⁽¹⁾ as well as "the more modern definition" in Davey v. Lee^(4).  He said (at p.1114):

"From the two definitions cited above, I derive the following propositions relevant to the present appeal.

(1) There is a distinction between the intention to commit a crime and an attempt to commit it. Thus, in this case, the respondent intended to commit a crime under s22 of the Theft Act 1968. But this dishonest intention does not amount to an attempt. This distinction has not always been observed in the discussion of cases on the law affecting attempts.

(2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted. In the present case the series of acts would never have constituted and in fact did not constitute an actual commission of the offence, because at the time of the handling the goods were no longer stolen goods.

(3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in R. v. Eagleton as being 'proximate' to the completion of the offence and in Davey v. Lee as being 'immediately and not merely remotely connected' with the completed offence."

32. Having examined the authorities, it seems to us that, as Glanville Williams suggested, there is not a "last act" test as such, and Eagleton⁽¹⁾ may be regarded as illustration of the principle enunciated in Davey v. Lee⁽⁴⁾ vide Lord Hailsham's proposition ⁽³⁾ in Haughton v. Smith⁽¹⁰⁾.

33. Whether there be one test or two - and we are inclined to the view that there is but one test, namely that laid down in Davey v. Lee⁽⁴⁾ - the applicants in the present case had not by their conduct come within the definition of an attempt on the date of the charge, the 21st May. One may test the facts of this case by considering an example given by Smith and Hogan (supra at p.260), X, intending to commit murder, buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoitres a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. X takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder; but he might have desisted or been interrupted at anyone of the stages described. At what point is he immediately and not merely remotely connected with murder to be guilty of an attempt?

34. In the instant case some of the previous acts, i.e. teaching Yu how to cheat or showing him the bogus bundles of banknotes, might well have been sufficient, but on the 21st of May D1 did nothing at Yick Fung which was an act done as part of the scheme. When he got there he was under arrest. There was no evidence of the other defendants doing any such act there on that day. They were there and it may well be that they would have gone about cheating Mr. Yu when he arrived but the police action prevented that happening.

35. The applicants had simply set the scene in preparation for the arrival of the intended victim. There was no evidence as to the type of gambling the conspirators intended or on ,the method whereby Yu Yick-kwan, the nominal co-conspirator, was to become the victim. D2 and D3 had not reached the same stage of proximity as X in the example given by Smith and Hogan (supra) had by taking up his position. It cannot be said that the applicants' conduct up to the point of their arrest can reasonably be regarded to have any purpose other than the commission of the specific crime.

36. The question, based on the Davey v. Lee dicta was: had the defendants on the 21st of May, with the intention of cheating Yu at gambling, done any act which was one of a series of acts which would, if completed, have achieved that purpose.

37. In our view there was no evidence of either of the applicants doing anything on that day and at that place which would be enough to constitute an attempt. They had not gone so far as to do everything legally necessary to enable them to be convicted of the crime of cheating if the result contemplated by them should afterwards come to pass in consequence of what they had done up to that moment.

38. In our judgment the convictions cannot stand. Accordingly we allow the application, treat the application as the hearing of the appeal and allow the appeal. We quash the convictions and set aside the sentence.