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Minimum terms

High Court setting of minimum terms for mandatory life sentences under the Criminal Justice Act 2003



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Case No:  MTS / 632 / 2004
Neutral Citation Number:  [2006] EWHC 3260  (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL


Thursday 21 December  2006

 

 

Before:

MR JUSTICE PENRY-DAVEY

Between:

Regina

And

                                                           Philip Hung San CHANG         Defendant

 
The Honourable Mr. Justice Penry-Davey :
1. This is an application by Philip Hung San Chang for the setting of a minimum term pursuant to schedule 22 paragraph 3 of the Criminal Justice Act 2003.
2. On 29 July 2003 in the Crown Court at Birmingham following a trial that had commenced on 30 April 2003 the applicant was convicted of conspiracy to cause unlawful grievous bodily harm and murder and sentenced to 12 years and life imprisonment concurrent. The trial judge made no recommendation under section 65 (2) of the Murder (Abolition of Death Penalty) Act 1965 but he recommended the appropriate tariff as 15 years.
3. The offences arose out of a quarrel between the applicant and Michael Li, who sent a message to the applicant that he was to come to Birmingham to meet him failing which Li would visit the applicant’s restaurant in Northampton and cause trouble. The two men met in the China Palace Casino in Birmingham at about 12.30am on 26 June 2002. There were quite a lot of people in the casino, and both men were accompanied by supporters of whom at least some were armed with knives. Li was a regular visitor to the casino and had recruited perhaps as many as ten supporters seven of whom were on trial with the applicant also charged with conspiracy, and two of them with attempted murder. Five of them were convicted and received sentences varying from 7 to 12 years imprisonment. In pursuance of the conspiracy with which he and those of his supporters who were caught were charged, the applicant recruited a Vietnamese, Tuan Van Nyguen and through him seven other Vietnamese a few hours before the meeting at the casino to travel from London to Birmingham as his supporters. When the two men met in the casino, the applicant offered an apology which was refused but despite offering the apology he spoke to Li both in the casino and prior to that on the telephone aggressively and in terms calculated to provoke him. When the apology was rejected, violence immediately broke out and knives were used on both sides. The fighting lasted only about a minute and in the course of it Li suffered multiple stab wounds and was killed, the applicant was stabbed in his neck and stomach and was left with a knife in his stomach. Others involved in the fight suffered knife injuries varying from moderate to severe. After the fight in the casino there was further violence outside, when the two supporters of Li who were convicted of attempted murder  pursued one of the applicant’s supporters and made a vicious and sustained attack upon him with machetes. His skull was fractured and the underlying membrane ruptured. He was lucky to survive. The applicant did not have a weapon and was one of the first victims of the fighting. Li was obviously murdered by one of the applicant’s supporters but which one it was could not be proved. The applicant alone was charged as a secondary party to the murder on the basis that it was a consequence of a conspiracy in which he was the prime mover. All those convicted were of previous good character save for two who had minor convictions. The applicant had over a period of years done a great deal of good work for the Chinese community in which he had been generous both with his time and money. A total of 17 men were charged in the 2 conspiracies 10 of whom were tried in the first trial and 7 in the second trial. In recommending a tariff of 15 years, the judge identified the mitigating factors as the applicant’s previous good character, the good works for which he was responsible, and the fact there might not have been any violence had his apology been accepted, though he identified the mitigating value of the final aspect as very limited. He took the view there were aggravating features in the facts of the offence, and said
“The 15 years is intended to reflect the fact that the murder was not the result of a spontaneous outbreak of violence but a consequence of the working out of the conspiracy to commit grievous bodily harm. The conspiracy aggravates the murder.”
4. Representations are made on the applicant’s behalf. It is submitted that the starting point for the appropriate tariff should be 14 years with the period being further reduced having regard to various factors: first, that the original threat emanated from the victim; the applicant attempted to apologise, without success; part of the reason for his recruiting support was for his own protection; the applicant himself neither had nor used any weapon, and he was seriously injured himself; by June 2003 he was 58 years old, and likely to be an old man by the time of his release. His positive good character in the good work that he had done for the Chinese community over many years was also relied upon.

5. These offences were committed on 26 June 2002 and the case is therefore subject to the transitional arrangements in the Consolidated Practice Direction. Because the murder was committed after 31 May 2002 and before 18 December 2003, this case is subject to the Practice Statement of 31 May 2002. In considering this matter, I have also had regard to the considerable assistance given by the Court of Appeal in R v Sullivan Gibbs and Elener (2004) EWCA Crim 1762. I consider first the appropriate term under section 269 (2) of the Criminal Justice Act 2003 which requires me to take into account the seriousness of the offence having regard to the general principles set out in Schedule 21 to the Act, any relevant guidelines, and the recommendation as to minimum term made by the trial judge. In my judgement the appropriate starting point is 15 years, subject to any aggravating or mitigating factors. I identify as an aggravating factor in this case the planning of the operation of which the applicant was the ringleader and thus the element of premeditation; the mitigating factors are the applicant’s previous positive good character, and the proffered apology. Having regard to all those matters, I would specify the minimum term under section 269 (2) as 15 years. That however is not the end of the process under the Act. I may not make an order specifying a part of the sentence which in my opinion is greater than that which, under the practice followed by the Secretary of State before December 2002, he would have been likely to have set as the minimum period. In fact, it is clear from Sullivan that the Secretary of State made no determination in any case where the offender was sentenced after the practice direction of 31 May 2002. However, Sullivan also makes clear that in the great majority of cases the Secretary of State fixed the minimum period in accordance with the recommendation of the trial judge. In this case, for the reasons he set out, the trial judge, who was sentencing the applicant at the time when the practice statement of 31 May 2002 had effect, recommended 15 years.  In my judgement under the practice followed by the Secretary of State before December 2002, he would have set the term at 15 years and, I therefore conclude that the term that I propose to fix of 15 years is not greater than that which the Secretary of State would probably have notified under the pre-December practice. The final aspect which section 240 of the Act requires me to take into account is the period which the applicant spent in custody on remand before he was sentenced. That I calculate at 1 year and 27 days which falls to be deducted from the total period. Accordingly, I order that section 28  (5) – (8) of the Crime (Sentences) Act 1997 (the release provisions) shall apply to the applicant after he has served 13 years 338 days.

 


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