Jackson Gamaliel v. R Crim. App. 208-A-69, 15/1/70, Platt J.

Jackson Gamaliel v. R Crim. App. 208-A-69, 15/1/70, Platt J.

This is a request for a revisional order canceling an award of corporal punishment. The appellant was convicted of rape and sentenced to three years’ imprisonment together with 18 strokes of corporal punishment. Confirmation of the sentence was withheld pending appeal. As a result of the appeal, the appellant’s conviction was affirmed, but his sentence was reduced to one of two years’ imprisonment and 12 strokes of corporal punishment. The point which now arises is that the Prison authorities, having received notification of the appeal judgment six months after the date on which sentence was passed by the trial court, wish the court to set aside the order for corporal punishment by virtue of section 13 of the Corporal Punishment Ordinance, Cap. 17. That section provides that: “A sentence of corporal punishment shall …. In no case be carried out after expiration of six months from the passing of the sentence.”

            Held; in computing the period of six months prescribed by section 13, the question is when the period should commence, and that depends on the meaning of the phrase “the passing of the sentence”. In the firs instance, it means the date on which the sentence is passed by the trial court …. Section 321 of the Criminal Procedure Code provides that after an appeal has been entered, the court convicting and sentencing the appellant, May, for reasons recorded by it, allow the appellant bail or suspend the execution of his sentence pending the hearing of the appeal. These provisions will be found in section 321(1) (a) which refers to imprisonment. Section 321 (1) (b) refers to “other cases”, which would thus include corporal punishment, and provides that the court may suspend the execution of the sentence pending the appeal. Then section 321(2) provides that if the appeal is ultimately dismissed and the original sentence (being a sentence of imprisonment) is confirmed, or some other sentence of imprisonment substituted therefore, the time during which the appellant has been released on bail, or during which the sentence has been suspended, a shall be excluded in computing the term of imprisonment to which he is finally sentenced …. Section 321 does not make provision for the execution of the period in the case of corporal punishment. As I see it, section 321 does not affect he provisions of section 13 of the Corporal Punishment Ordinance. The latter section appear to be phrased in an imperative form, saying hat “in no case” shall corporal punishment be carried out after t expiration of six months. It is clear that the purpose of the section is to avoid unnecessary delays. It seems to me, therefore, that whatever is to be doe by way of confirmation alone or confirmation as a result of revision or an appeal, must be done within the period of six months. If that is so, then the determination of the date on which the sentence is passed is of fundamental importance.” (2) “As we have seen, the date on which the trial court passed the sentence is in the first instance the date from which the period of six months begins to run. If there is no appeal, and revision is not necessary, then so long as the order of confirmation is given within six months, the sentence may be carried out; but I should not that it is not the date of the order of confirmation which is effective as far as the Prison authorities are concerned. The section says that the Prison authorities shall not carry out the sentence after the period of six months. So that while the order may have been given within time, if it is not communicated to the Prison authorities with sufficient time for them to carry out the execution of corporal punishment within the period, the Prison authorities must not carry the order into effect. The same result applied to orders on revision or appeal.” (3) “But ….. Further difficulties may arise. Suppose for instance, that confirmation is withheld pending an adjustment of the trial court’s order, either by way of revision or appeal, and the sentence of corporal punishment awarded is reduced or enhanced, the question which then arises is whether the date of the passing of the sentence is that on

Which sentenced was originally passed by the trial court or that one which the revisional or appellate order was made. The question may be further embroiled by an order on revision or appeal, not merely adjusting the trial court’s order by an increase or decrease, but enhancing for the first time, by adding a new award or corpora punishment to the sentence passed by the trial court. In the latter case the date of the passing of the sentence could well be though to be the date on which the revisional or appellate order was made; but I  leave this matter open for further consideration. In the instant case, I am only concerned with the situation where the trial court’s award of corporal punishment was adjusted by decreasing it from 18 strokes to 12 strokes. It seems to me that on principle such an adjustment does not result in a new sentence being imposed upon the prisoner, and that the date on which the sentence as passed is the date of the trial court’s order. All that the High Court has done is to amend the trial court’s order …..In coming to this conclusion, I must admit that I have not been able to trace any specific authority on the point. But I think it must be said that a strict interpretation must be placed on the appellate powers of the High Court, and on the provisions of section 13, as these are to be found in penal statutes. Hence, in case of any doubt, the provisions must be interpreted in favour of the prisoner. Therefore, I would agree with the Prison authorities in the instant case, that if they did not get notification of the result of the appeal, which merely amended the trial court’s order, within six months of the 9^th May 1969, they were not in position to lawfully carry out the order of this court, by virtue of section 13. Perhaps I should add that nothing in this order refers to scheduled offences.” (4) “But even so, there is no further action required by this court. The appeal having been determined in time, the result cannot be altered now. The warrant issued by this court must stand, but if the Prison authorities are unable to carry it out, their action (or inaction) is covered by section 13. Of the Ordinance …. I therefore decline to make any order as requested, but confirm that on the facts put forward by the Prison authorities corporal punishment cannot be carried out.”