R v Pengqi Sun

This judgment is subject to an Order made pursuant to section 4(2) of the Contempt of Court Act 1981, postponing publication of any report of these proceedings until the conclusion of the retrial or trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings.

The applicant renews an application for leave to appeal against conviction following its refusal by the single judge. On 6 October 2023, following a trial in the Crown Court at Warwick before His Honour Judge Lockhart KC and a jury, the applicant, Pengqi Sun, who is aged 24, was convicted of Murder (Count 1), section 18 Wounding with Intent (Count 3) and two offences of Having an Article with a Blade or Point, contrary to section 139(1) of the Criminal Justice Act 1988 (Counts 4 and 5). On 9 October 2023, the applicant was sentenced to Imprisonment for Life, with a minimum term of 24 years (less 184 days served on remand). Concurrent terms of imprisonment were imposed for the remaining offences.

Following conviction, the applicant submitted proposed grounds of appeal which were considered by the single judge who concluded that they were not arguable. On behalf of the applicant, Mr Price KC, who appeared for the applicant at trial, has raised perfected grounds of appeal effectively expanding those which were advanced before the single judge. The central thrust of this renewed application is the contention that the trial judge gave incorrect and confusing directions upon the issue of self-defence, which have caused the convictions to be arguably unfair, such that leave to appeal against conviction should be granted.

The applicant was a student at Coventry University, as were the deceased Shou Zou and Pengfei Wang. They are citizens from China who were studying a degree programme at the University. On 5 April 2023 drinks were arranged for Mr Wang, who was about to return to China. He knew both the applicant and the deceased. During the evening Mr Wang spent time with his friends and also with the applicant's group. Mr Wang's increasing drunkenness that evening appeared to cause tension between the two groups; there were disagreements between them. During this time the deceased and the applicant talked to each other which, rather than calming the disagreements, made them worse. CCTV evidence showed the applicant pull the deceased to the ground and to kick him. After that assault the applicant left the deceased in an area close to a bus stop in Upper Well Street. He walked back to his flat at 2.24 am. The timing of events, revealed by the CCTV evidence, was highly significant in the trial.

Five minutes later the applicant arrived at his flat where he changed his clothes and collected two weapons. The first was part of a pair of scissors and the other was a knife. We shall, for convenience, refer to these weapons as "knives" in this judgment. At 2.33 am the applicant left his flat with his hood up over his head and carrying the weapons. At this time the deceased and Mr Wei, together with others, were sitting down in the bus shelter. At 2.38 am the applicant approached the group and stabbed the deceased in the neck, severing an artery which bled profusely and caused his death. He also stabbed Mr Wei, one of the group, who had tried to block the knife with his hand.

The prosecution's case at trial was that the applicant had intended to attack the deceased in revenge for what had occurred earlier in the evening. He armed himself with the two knives intending at least to cause really serious harm to the deceased and Mr Wei. The prosecution argued that the applicant did not act in lawful self-defence or defence of another, having left the scene to return to his flat where he armed himself before returning, 14 minutes later, to attack the deceased and Mr Wei.

The applicant's case at trial was that he had acted in lawful self-defence, having been threatened earlier by the deceased, who had mentioned that he (the deceased) would arrange for a firearms attack upon the applicant and his friends. At the time that the applicant had returned to the bus stop, he honestly and reasonably believed that he and his friends were to be attacked. Further, he stabbed the deceased and Mr Wei only at the point that he, the applicant, was attacked by them.

After the conclusion of the evidence and before closing speeches to the jury, the judge provided draft directions for discussion. Counsel for the applicant and for the prosecution made submissions in relation to the drafts, which led to the written directions and the route to verdicts being provided to the jury. Paragraph 11 of those gave an explanation of the meaning of unlawful force for the purposes of both the offences of Murder and section 18 Wounding. In comprehensive directions the judge explained the essential elements for lawful self-defence, together with the burden and standard of proof. They included the following:

This direction, in clearly conventional and correct terms, is not criticised by the applicant and was clear for the jury.

The judge went on in his directions to expand upon the issue, in the context of the evidence during the trial. This was to assist the jury on how they might approach the evidence within the framework of the self-defence direction. One of the significant issues during the trial was the question as to why the applicant did not call the police when he said that he had been threatened. When the applicant was cross-examined, he was asked why he had not called the police on his mobile phone as he left the scene to return to his flat, and when he walked back to the bus stop. The relevance of this evidence was in the context of whether the applicant had genuinely and honestly believed that he was under imminent attack, and also whether his violence was reasonable in the circumstances that existed at the time.

Upon this issue the judge's written directions included the following at paragraph 11(xiii):

It is this passage which the applicant seeks to argue was a misdirection and elevated to a level of importance the self-defence direction which was confusing, being the question of whether the applicant could or should have made contact with the police.

The applicant submits that the expanded direction on self-defence at paragraph 11(xiii) of the written directions was confusing and would have given the jury the impression that the defence of self-defence, advanced by the applicant, was not available because he did not call upon the assistance of the police. Counsel for the applicant drew attention to this passage in the course of the discussions about the legal directions during the trial. It was argued that the direction over-complicated matters for the jury. It is conceded by the applicant that not all of this passage was confusing but it became so when the judge made reference to the law enforcement authorities and the rights of the citizen. It is submitted on behalf of the applicant that this is re-statement of a passage from the speech of Lord Hoffman in R v Jones & Ors [2006] UKHL 16 at paragraph 81, in which it was said:

In that speech Lord Hoffman was considering the extent of self defence or defence of another in the circumstances of violent offending to prevent the State from engaging in unlawful war.

It is this passage in particular that the applicant contends created confusion within the direction for self-defence and made the applicant’s conviction unsafe.

Within the Respondent's Notice it is contended that the comprehensive direction on self-defence made clear to the jury the issues that were engaged within the context of the evidence within the trial. The respondent submits that the written directions, when read together with the Route to Verdicts, provided clear and comprehensible directions to the jury and were not confusing. Further, the issue of self-defence having been raised by the applicant meant that the prosecution were bound to cross-examine the applicant upon his conduct and any reasonable alternatives to any imminent violence, on the assumption that such violence was believed to be imminent by the applicant. Accordingly, the judge was required to give the jury some direction in relation to the attendance of the police.

In directing a jury upon the issue of self-defence it is incumbent upon the judge to provide clear written directions upon its meaning in the context of the issues within the trial. Those issues were clearly stated within paragraph 11(iii) of the written directions and were included within the Route to Verdicts. The elements of self-defence are, firstly, whether the defendant believed that it was necessary for him to use force to defend himself from an imminent attack upon him or another and, secondly, was or might the amount of force used, have been reasonable in the circumstances. Further explanation of those principles is usually required to assist the jury to measure the conduct of a defendant against those principal questions.

The judge was also required to remind the jury during his summing up of the significant evidence relating to the issue of self-defence. That included the movements of the applicant as revealed within the CCTV evidence: in particular, that he left the scene at 2.24 am, and that 14 minutes later, at 2:38 am, he returned in a change of clothing and with two knives with which he stabbed both victims. It was an issue for the jury whether the applicant was under imminent threat of attack, honestly believed or otherwise, and whether the force he used was reasonable.

We are satisfied that the judge gave comprehensive directions, together with his concise and clear Route to Verdicts, and were both comprehensible and clear. Whilst the expansion of the explanation within paragraph 11(xiii) might not, on reflection by the judge, have been necessary, it did not cause confusion or form any misdirection. It might also have been appropriate, when including the short passage from R v Jones, to use the judge's own words and to have been more clearly contextualised. However, the fact that he did not, does not undermine the clarity of the directions or the Route to Verdicts. We are not persuaded, therefore, that the judge's directions on self-defence were either confusing, or that they arguably undermined the safety of the applicant’s convictions.

Further, we do not find that the judge's directions on the defence for possession of the knives – the offences charged in counts 4 and 5 under section 139 of the Criminal Justice Act 1988 – created confusion for the jury. It was for the applicant to raise evidence that he had a good reason to possess the knives. The directions given to the jury were correct and raised different issues than for self defence. By the time the jury will have reached counts 4 and 5 in the Route to Verdicts, they must have completed their deliberations on count 1 Murder.

In conclusion, we are not persuaded that the applicant's proposed ground of appeal has arguable merit and, whilst we are grateful for the submissions of Mr Price KC, we must refuse this renewed application for leave to appeal against conviction.