No: 200506563/6534 A2 
Neutral Citation Number: [2006] EWCA Crim 1501
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 21st February 2006
 
B E F O R E:

LORD JUSTICE HOOPER 

MRS JUSTICE RAFFERTY DBE 

MR JUSTICE OWEN 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 119 and 120 OF 2005    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR H DAVIES appeared on behalf of the SOLICITOR GENERAL
MR CGL JAMES appeared on behalf of the OFFENDERS
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J U D G M E N T
1.	LORD JUSTICE HOOPER:  This is an application for leave to make a reference under Section 36 of the Criminal Justice Act 1988, made by Her Majesty's Solicitor General.  We grant leave.  The offenders are Shusing Jim and Steven Jim, father and son.  The father is 52 years of age and the son is 26 years of age.  There were charged on an indictment containing two counts.  Count 1 alleged wounding with intent, contrary to Section 18 of the Offences Against the Person Act 1861.  Count 2 alleged in the alternative an offence contrary to Section 20 of the same Act.  
2.	On 17th October 2005 the offenders appeared at Swansea Crown Court and pleaded guilty to the first count of wounding with intent.  Earlier pleas to unlawful wounding (Count 2) were not acceptable to the prosecution and the matter had been listed for trial on that date, 17th October.  Although the offenders only pleaded guilty on the day of the trial, the Recorder, having heard of the difficulties there had been in taking proper instructions from the offenders, decided that the full discount for a plea should be given; in other words the Recorder approached their sentence as if they had pleaded guilty at the plea and case management hearing.  Mr Davies, on behalf of the Solicitor General, does not challenge that decision.  
3.	On 21st November 2005, the offenders were sentenced to 50 weeks' imprisonment, suspended for two years, and ordered to pay the sum of £1,293 towards the costs of the prosecution.  The sentencing judge was Mr Recorder Huw Davies.
4.	We take the facts from the Reference: 
"7. The offenders are father and son, respectively aged 52 (Shusing Jim, or 'Victor') and 26 (Steven Jim) years of age at date of sentence.  In September 2004 Shusing Jim entered into a business partnership with the victim (Mr Fuk Wan Hau, date of birth 17 December 1957, 48 at the date of the offence) and a man named Cheung. The partnership related to a restaurant in Haverfordwest. Refurbishment of the restaurant was complete by 30 May 2005. It appears that the parties did not know each other well before that date.
"8. The victim was to be head chef, with Shusing Jim and his wife assisting in the kitchen. Mr and Mrs Jim had a background in takeaway food, whereas the victim had run a restaurant. A restaurant manager (Mark Parr) was employed, and it was intended that he would train Steven Jim to perform the same role.
"9. According to Mr Parr arguments between the victim and the Jims had occurred in relation to how the restaurant should be run, including the quality of food prepared by Mrs Jim.
"10. These arguments appeared to escalate to the point of the offence. The official opening was 3 June 2005. As a buffet style restaurant it was clearly of importance that food was ready on time, and it appears that the victim arrived at work only at 1720 for a 1730 opening. Mr Parr describes the Jims arguing in Chinese with the victim, and that 'Steve was the main aggressor and I physically had to take Steve out of the kitchen. I had to actually pick him up and take him out of the kitchen, if I hadn't done that I'm sure they would have come to blows last night'.
"11. Mr Parr describes Steven Jim as 'a very antagonistic person' who later that evening had confronted the victim in front of customers and had invited the victim outside for a fight. This was prevented by Mr Parr.
"12. The offence was committed the following evening, namely Saturday 04 June 2005. At lunchtime Steven Jim, who according to Mr Parr, 'never missed an opportunity to have a go at (the victim)', and had shouted over to him in the restaurant not to be late.
"13. The restaurant was due to open at 1730 and the victim arrived at 1710. Mr Parr states that the victim had not even had time to put on his chef's clothes before Steven Jim was arguing with him. He says that Shusing Jim was joining in. Mrs Jim and Mr Parr removed Steven Jim from the kitchen, and Steven Jim said at that point that the victim had mentioned Triads.
"14. Mr Parr attempted to keep Steven Jim in the restaurant area, and advised the victim and Shusing Jim to get on with work. Shusing Jim was observed 'pacing up and down' behind the victim and saying, in broken English, 'every night he nasty, he threaten my family with gangsters'.
"15. The victim, and Shusing Jim in interview, describe a discussion between them at about this point directed at dissolving the partnership. The terms suggested by Shusing Jim were regarded by the victim as inadequate and that he was being treated 'like an idiot'. He says he then returned to the task of preparing food.
"16. Mr Parr describes Steven Jim and his mother returning to the kitchen area and the start of the assault. He says that he tried without success to drag Steven Jim out of the kitchen before the violence started. He was shaken off and Steven Jim jumped onto a worktop running down the middle of the kitchen. As he attempted to remove Stephen Jim, he noticed that Shusing Jim had hold of the victim around the neck from behind.
"17. Mr Parr saw Steven Jim punch the victim in the face, and seeing blood from scalp to jaw line. He noticed that the victim, under attack, had a large stainless steel ladle in his right hand. Shusing Jim was also observed to have something in his right hand. Mrs Jim was attempting to break it up.
"18. Mr Parr pulled Steven Jim from the worktop and attempted to pull him away. When Steven Jim landed he picked up an industrial metal container used for cooking, raised it over his head, and hit the victim over the top of the head. The victim was effectively being followed around the kitchen on this basis. Mr Parr petitioned them 'for God's sake you're going to kill him'.
"19. By this point the victim was falling to his knees and ended up on his back. It appears that Mrs Jim was lying across his midriff attempting to stop the assault. Mr Parr describes the victim bleeding heavily from cuts to his face and head, and left the kitchen briefly to call the police. When he returned he saw that the victim was on his back, not moving, under attack by both offenders.
"20. Steven Jim was seen kneeling over the victim, holding a Britvic bottle by the neck and 'smashing' it into the victim's face with a full swing of the arm. Shushing Jim was punching his waist and chest area. Mr Parr states that 'at this point (the victim) was not moving and offering no resistance whatsoever. I thought he might already be dead'. He shouted, 'for God's sake think about the consequences, you'll kill him.' He says that Steven Jim had 'totally lost control' and could not be stopped by either himself or Mrs Jim. Mr Parr called the police again, stating that the offenders were killing the victim.
"21. As he made this call he could see the attack continuing. Steven Jim was standing apparently kicking something on the floor. When he re-entered the kitchen he saw Mrs Jim lying across the victim trying to protect him, and Steven Jim continuously hitting him. Shusing Jim picked up another steel container, and continuously used the sharp corner to hit the victim's exposed legs. Mr Parr was shouting stop to no avail. Steven Jim was still hitting the victim's upper body.
"22. Mr Parr says that the victim was 'motionless and I thought he was dead. I am not sure why (the offenders) stopped: I think they just got exhausted'. When the police sergeant attended he told him that the thought the victim was dead. He says the incident lasted about 20 minutes, and that he felt 'traumatized' and 'physically sick' by what he had seen. He saw Steven Jim with a black belt with a brass buckle wrapped around his hand at different points in the fight.
"23. The victim describes that he lost consciousness during the attack, and has only a partial recall of detail. He says that during the assault the offenders were making repeated threats to kill him.
"24. The attending police officers saw the victim on the floor, with cuts on both sides of his head, an extremely swollen face, and puncture marks to his shins. Steven Jim said to the officers, 'He attacked my father, he threatened to get gangsters'. Shusing Jim said on arrest, 'He was attacking me'. Amongst items recovered were a black bloodstained belt and some unbroken Britvic bottles."
5.	In paragraph 20, there is reference to a Britvic bottle.  That bottle remained unbroken.
6.	We continue with the Reference:  
"25. The victim was taken to Withybush General Hospital and treated in the Accident and Emergency Department. The following injuries were noted, and some of these were subsequently photographed. The lacerations were sutured.
i. Three lacerations on the scalp over right occipital area measuring 6-7cm each;
ii. A laceration over the left zygoma area, 'V' shaped and about 6cm long, accompanied by swelling in the region;
iii. A laceration about 2cm in length on the forehead just above the inner side of the left eyebrow;
iv. A curved laceration about 1cm in length on the left upper lip;
v. The second left incisor was broken and one of the molars on the left upper side was lose;
vi. About five lacerations to the front of the left leg;
vii. Three lacerations on the lateral aspect of the left ankle;
viii. Three lacerations on the front of the right leg;
ix. Bruising on the right side of the chest;
x. Left conjunctival haemorrhage;
xi. An undisplaced transverse fracture through the low third of the left tibia (shin bone), requiring a complete plaster; and
xii. Complaints of headaches and pain in the chest and leg.
"26. In October 2005 the victim reports experiencing headaches and requiring painkillers to sleep. He says that his teeth ache, that he cannot walk properly or take exercise, feels pain and tingling in his joints, cannot stand for very long (and accordingly work normally), and his affected eye becomes red, which adversely affects his eyesight. He is worried about his career."
7.	Turning to the interviews, the Reference states: 
"27. Each offender was interviewed on 5 June 2005.
"28. In summary, Shusing Jim described an argument relating to the proposed dissolution of the partnership; the victim holding a ladle; he (Shushing Jim) hitting the victim with the ladle and 'I became mad. I hit and kicked him. My wife endlessly tried to stop us hitting him. However I had already lost control and not able to take it in. This is because I can even measure the continuous trouble he has been giving us. He did not turn up for work. My wife saw me getting depressed about him. He made me restless with pumping heart beat. At night, I cried in my sleep. This has made me mad'.
"29. He says the victim threatened to kill the whole family. Once the fight had started, he (Shushing Jim) had 'gone mad, pick up any object that I can see to hit him'. He accepts using the steel container to hit the victim's head and legs, and an industrial tin opener to the victim's legs. He estimates it took ten minutes.
"30. In summary, Steven Jim (who speaks English) claimed that he had acted to assist his mother, did not beat the victim up 'severely', and believes he struck the victim to the side of the head once with a Britvic bottle. He says that there had been threats from the victim involving Triads. He claims not to have seen what his father did."
8.	There were bases of plea offered and accepted.  Shusing Jim pleaded guilty on the basis that there had been a heated argument between the victim and the defendant and that, during the course of the argument, the victim had made a number of threats to the defendant and his wife.  It was alleged that the victim had had connections to a gang in Birmingham who would be able to "take care" of the defendant and his family.  In the basis of plea Shusing Jim also stated that, much to his regret, he had lost his temper and struck the complainant.  That basis of plea appears to have been accepted by the prosecution.  Subsequently, the victim of the attack made a complaint to the office of the Attorney General about those allegations, saying that it was not true that he had made any such threats.  He was also concerned because, apparently, that had been reported in local newspapers.  
9.	There is little that this court can do about this, the prosecution having accepted the basis of plea.  However, we make it quite clear that the existence of those threats has not been proved and that it would be unfair, from the point of view of the victim to suggest that what was said in the basis of plea was accurate.   
10.	Steven Jim pleaded guilty on the basis that he was initially defending his mother. He accepted, however, that he lost his temper and hit the victim with a bottle twice and with a belt and also punched him. He denied assaulting him with a can opener or any sort of steel container or other weapon.  
11.	Sentencing adjourned for the preparation of pre-sentence reports.  Each offender was of previous good character and there were a number of testimonials suggesting that this violence was out of character.  
12.	We turn to the mitigation.  During the course of mitigations, the Recorder asked Mr James, who appeared then for Mr Shusing Jim and who today appears for both offenders:  
"Are you in any position to tell me why it was that things got as far out of hand as they did?"  
Mr James replied: 
"Your Honour, effectively, as a result of threats that were made in the course of those bitter arguments which had taken place, as a result of the business agreement, the business partnership, it was clear that the parties were not getting on very well together at any stage and, as a result of the perceived differences between the two as to who, effectively, was in charge, it seems as though Mr Jim and his wife had concerns about the complainant as to his lateness, as opposed to his commitment, as opposed to his involvement in the business venture itself and Mr How did not appreciate any comment whatsoever being made as to his position and to his level within the business..." 
13.	Mr Cree, on behalf of the son, went further.  He, in mitigation, said that the family felt that they had been set up.  Shortly after embarking upon the enterprise, it became clear that the whole idea was a complete disaster. Mr Cree continued: 
"They were threatened with triads; they were told they would have to sell their share in the business to Paul and to Tim and it really was that combination of factors that led to this explosion of violence on the night in question."  
14.	We note that the court appears to have overlooked the provisions regarding derogatory assertions to be found in the Criminal Procedure and Investigations Act 1996, sections 58 to 61.  It is incumbent on courts, when mitigation of that kind is made, to remember the interests of the person against whom the derogatory remarks are being made.  
15.	During the course of sentencing, the Recorder said: 
"What I have read makes it difficult to believe that had you not been very badly treated and provoked beyond endurance..."
That causes us concern.  
16.	We asked Mr Davies what course he wished to adopt.  He rightly indicated that there were two choices: one was to adjourn the matter to enable the victim to come and give evidence about the matter or, secondly, to continue with the hearing, making it clear that these were only assertions which the Recorder was accepting without having heard any evidence to support them.  Mr Davies invited us to follow the second course and we do.  Of course, the Recorder was in some difficulty because of the acceptance of the basis of plea.  We therefore have to proceed on the assumption that there was a degree of provocation to which the learned Recorder referred.   
17.	On behalf of the Solicitor General it is submitted that the following features aggravate the offence:  (1) the sustained use of violence by two adult males against one adult male; (2) the duration of violence in the context of repeated petitions to stop; (3) the repeated use of weapons, including: a Britvic bottle; sharp edged metal items; a belt; an industrial tin opener; and the repeated use of kicks and punches to the body and face; and (4) the continued use of a bottle and metal implements against the victim once he was unconscious.  
18.	There are a number of mitigating features which have been accepted on behalf of the Solicitor General and others which have been drawn to our attention by Mr James and we accept them.  The violence arose from an argument and there was, on the evidence, no history of violence between the three beforehand.  Both offenders have previous good characters and, as we have said, excellent references.  They pleaded guilty and were entitled, he explained, to full credit.  The fight, or the attack, developed in the course of an argument and was not, to that extent, premeditated.  Mr James points particularly to the basis of plea, to the remorse, regret and deep shame which the offenders have demonstrated.  
19.	Mr James, whilst accepting the very serious nature of the injuries, points to what is apparently a lack of long-term complications.  We shall assume that to be right.  In the case of Shusing Jim, the father, Mr James makes a number of additional points about his health and about the difficulties of communication that he will have inside a prison because of language problems.  He also points to the positive pre-sentence reports.  
20.	Mr Davies has drawn our attention to the well-known passage in the judgment of the court given by Lord Bingham LCJ in Attorney General's Reference Nos 59, 60 and 63 of 1998 (Goodwin and others) [1999] 2 Cr.App.R(S) 128.  In that passage (page 131) Lord Bingham pointed out that there was a legitimate public expectation that offenders will be severely punished for deliberate violence of this kind in order to bring home to the offender the gravity of the offence and to warn others of the risk of behaving in the same way.  As Lord Bingham pointed out, if such punishment does not follow, public confidence in the administration of the criminal law is weakened and the temptation arose to give offenders extra-judicially the punishment which the formal process of law has not given.  If punishment of the offender does little to heal the victim's wounds, there can be little doubt that inadequate punishment adds insult to injury.  That last sentence seems in this case to apply with particular force.  
21.	We were referred Attorney General's Reference No 99 of 2002 (Deeley) [2003] 2 Cr.App.R (S) 43 at page 290.  In that case, the offender had pleaded guilty, albeit late, to causing grievous bodily harm with intent.  The offender had gone to a public house with a lady, whom he was later to marry.  After returning to the house, he came into the living room and saw a friend and the lady embracing and kissing.  He lost his temper and attacked his friend, punching him repeatedly to the face and head, knocking him to the floor where he kicked him about the head. The victim suffered bruising, bleeding and a double fracture to the jaw.  Having cited the case of Attorney General's Reference No 47 of 1994 (Smith) [1995] 16 Cr App R(S) 865, in which Lord Taylor suggested that in a contested case the least sentence for a Section 18 offence would be one of four years' imprisonment, the court, presided over by Mantell LJ, held that the starting point in that case, even after a late plea, was one of four years' imprisonment.  The court went on to substitute for the sentence passed a sentence of 30 months' imprisonment.
22.	Because we have to make the assumption that there was provocation, we take the view that the least sentence that could have been passed following a trial was one of four years' imprisonment.  We have no doubt that the sentence which the Recorder passed was unduly lenient.  Additionally, it seems to us that he choose a period of imprisonment which enabled him to make the sentence suspended, an approach which was clearly wrong (see the Sentencing Guidelines Council Guideline, "New Sentences: Criminal Justice Act 2003": suspended sentences, section 2, part 2, pages 20 to 26).
23.	There was, in this case, a plea of guilty and that would have reduced the sentence to something in the region of 32 months.  Allowing for double jeopardy, we take the view that the sentences which should be substituted for those passed by the Recorder are sentences of 26 months' imprisonment for each offender.  The offenders are to surrender into custody next Monday at 12 noon.