The Decision on Review of the Tariff in the Case of R v Ke (Frank) Yuan

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

This is an application by Ke (Frank) Yuan, who was born on 29 October 1955, under paragraph 3, Schedule 22, Criminal Justice Act 2003 for a review of the term notified by the Secretary of State following his conviction for murder as the minimum term to be served before his release on license.

The applicant pleaded guilty to murder on arraignment at the Preston Crown Court on 26 May 2000, and the mandatory sentence of life imprisonment was imposed by His Honour Judge Openshaw QC DL.

I take the facts of the offences from the judge's Report to the Home Secretary dated 31 May 2000.

The defendant worked as a chef for the deceased (a woman of 52) at her Chinese Restaurant, the Round House in Barrow-in-Furness. Relations between the two became strained; in June 1999, he was dismissed. The defendant resented his dismissal. He commenced proceedings for unfair dismissal but – as a result of a misunderstanding on his part – he missed the hearing, at which he was found to have been unfairly dismissed but to have contributed to his dismissal to the extent of 100%; as a result he was awarded only the statutory minimum two weeks wages. He resented this result, which he thought to be unjust: he further resented the deceased's failure or refusal to pay even this modest sum.

Further frustrations weighed heavily upon him; his attempts to start up his own restaurant business foundered because of delays in signing the lease; as a result he slid into debt. At the same time he was experiencing domestic problems. He became depressed and attributed all his many misfortunes to his dismissal by the defendant. He resolved to take his own revenge.

On the 17 February 2000, he armed himself with a hatchet, a meat cleaver and a large kitchen knife; he drove to the Round House and waited for the deceased to arrive at work. As she did so, he approached; he stuck her a blow to the face with the hatchet and after she had fallen to the ground, he rained heavy blows with the hatchet to her face, jaw and neck. He then twice jumped heavily upon her body – just to make sure as he later told the police – that she was dead.

All this took place in full view of many passers-by, including children. So shocking was the sight that one eye-witness had a heart attack. The defendant walked away to his car and drove off; a number of eye-witnesses were amazed by his apparent calmness. He left the scene and went to his unopened trade premises, where he intended to take his own life by fire (he intended to destroy the premises at the same time). However, his wife and teenage daughter were there at the time and he felt unable to risk them. He was arrested in his car outside, still covered with his victim's blood. He immediately admitted responsibility – although there was no realistic alternative. Meanwhile the victim had been rushed to hospital; although attempts to revive her were made, she had no hope of surviving such a determined and ferocious attack. The pathologist found evidence of at least 16 separate blows, which inflicted dreadful injuries.

In representations made on behalf of the applicant, some other aspects of the facts are mentioned by reference to the trial papers. The trial papers were not included with the application, but in any event the facts as stated in the representations do not materially differ from the judge's summary (and are not disputed by the CPS). I have also seen the case summary prepared for the hearing.

The judge did not make a minimum recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965.

His view on tariff, that is, the period of years to be served in custody necessary to meet the requirements of retribution and general deterrence, was 16 years.

He stated that the aggravating and mitigating factors were as follows. Aggravating features: Pre-meditated murder; a revenge attack made all the more dreadful by the number of blows struck, the weapon used and the nature and extent of the resulting injuries; all in broad daylight in a crowded street in the full view of many passers by, including children.

Mitigating features: his plea and remorse, which seemed to the judge to be genuine. He was – and remained – a high suicide risk. He had no previous convictions. He had a good work record. His counsel also urged as mitigation: his sense of grievance at his dismissal, his resentment at the unfavourable tribunal decision, his own settled intention to take his own life having killed his victim, the spiralling financial pressures resulting from the delays in starting up his own business and his anxiety about his daughter being bullied at school; all of which caused him to become acutely stressed.

The comments of the then Lord Chief Justice, Lord Woolf CJ, are dated 6 June 2000. He said, "For the reasons given by the trial judge I agree the figure of 16 years."

On 18 December 2000, the applicant was notified that the Secretary of State had decided to set the tariff (that is, the period he had to serve in custody to satisfy the requirements of retribution and deterrence) at 16 years.

The statutory framework

The statutory scheme and the approach to be adopted by the court in an application such as the present is set out by the Court of Appeal in R v Caines [2007] 1 WLR 1109. As explained in the judgment of Sir Igor Judge P (sitting with Holland J and Goldring J), the transitional provisions of Schedule 22, Criminal Justice Act 2003 interrelate with the provisions of Schedule 21 which now govern the determination of the minimum term in relation to mandatory life sentences.

Thus, the first feature which the court must address is the seriousness of the offence analysed in the context of the general principles in Schedule 21 (see [32]).

The remaining statutory guidance directs the judge hearing the application to have regard to the recommendations of the trial judge and the Lord Chief Justice before the original tariff was fixed by the Secretary of State. As is said in Caines at [33], the "recommendations themselves were, of course, uninfluenced by schedule 21, and reflected judicial views current when they were made … However the transitional provisions in schedule 22 apply irrespective of the guidance in force when the original minimum period was fixed. All cases to which the transitional arrangements apply are now to be dealt with identically whatever the arrangements when the tariff period was fixed". For that reason, standards contemporary at the time of conviction are not a relevant consideration ([58]-[59])

For the purposes of Schedule 22, the views of the Secretary of State as reflected in the minimum period notified on 6 November 2002 are relevant to ensure that the eventual order made on this application does not produce a longer minimum period than before. (An increase is precluded by the terms of Schedule 22, paragraph 3(1)(a).) The Court held that such views should not otherwise influence the outcome of the review ([36]).

Finally, at [38] the Court said:

"… The transitional provisions create an unusual responsibility for a judge. He has to decide the application by assessing the seriousness of the offence in the context of the statutory guidance in schedule 21, whilst simultaneously looking back to judicial recommendations made when a variety of different sentencing regimes existed, without addressing precisely what they were. Certainly he is not confined to and would be misdirecting himself if he simply replaced the original minimum term fixed by the Secretary of State with the original judicial recommendation. In any event the trial judge and Lord Chief Justice may have recommended different tariff periods. He is not conducting an appeal from the judicial recommendations, or the decision of the Secretary of State, nor passing sentence as such. Nevertheless although he did not preside over the original trial, his decision will impact directly on the date when the prisoner may be released on licence. Plainly the process is properly identified as a review, but it is not a judicial review in the formal sense. Schedule 22 (14) (1) describes the process as a decision and creates a process for appeal to the Court of Appeal Criminal Division, or indeed Reference by the Attorney General. In view of its characteristics, and the nature of the process, the decision should be treated as a sentencing decision."

As regards progress made by the applicant in prison, the approach to be taken is as set out by the Court of Appeal in In re Gill [2012] 1 W.L.R. 1441...