Chong Siew Fai J:

This is an appeal by the prosecution against the sentence of whipping imposed on the appellant being made concurrent with the whipping sentence passed in another case also involving the appellant.

So far as is relevant to the instant appeal, the facts are briefly as follows. In Sibu Sessions Court Criminal Case No. 16/82 the appellant was convicted on his own plea of guilty of the offence of robbery by using a deadly weapon, a dagger, and was sentenced, inter alia, to 5 strokes of the rattan. In another Criminal Case No. 17/82 arising from which the present appeal is brought, the appellant was again convicted of another offence of the same nature on his own plea of guilty and was sentenced, inter alia, to 5 strokes of the rattan. This is what the learned trial President said in his judgment:

The offender is sentenced to five (5) years' imprisonment and with 5 strokes of the rattan. The sentence is to take effect from today. The substantive sentence (imprisonment) can be concurrent and there is no reason why additional sentence (whipping) cannot be concurrent (See e.g. s. 282(d) and s. 292(i) CPC). Such sentence is legal and that is all that matters. A good and practical canon of construction is that where, as here, there is an ambiguity or doubt, such ambiguity or doubt should, as here, be resolved in favour of the accused, until Parliament expressly says otherwise.

It may be noted that the above judgment contains no express and identifiable order that the sentence of whipping is to be concurrent with that imposed in Criminal Case No. 16/2 though this was apparently accepted by the prosecution to be the position. However, that the learned trial President intended the sentences of whipping in those two cases to be concurrent is obvious from his remark in Criminal Case No. 18/82 in which the appellant is also the accused. In Case No. 18/82, the appellant was convicted of the offence of voluntarily causing hurt while committing robbery and was sentenced to 5 years' imprisonment. With an obvious reference to Case No. 17/82, the learned trial President said in his judgment:

The DPP said the rattan can't be concurrent. It is concurrent. (See Case 17/82).

The complaint of the learned Deputy Public Prosecutor is that a sentence of whipping cannot be made concurrent and that it was wrong to so order. I have not been able to find any cases decided by Court in our country on this issue. However, in Emperor v. Veerappa [1937] AIR Rangoon 310 the accused was convicted of two offences in two separate cases. For each offence he was sentenced to 20 lashes, but the two sentences of whipping were ordered to run concurrently. The judgment at page 311 reads:

... and the position is not better if they (double sentences of whipping) are ordered to run concurrently because sentences of whipping cannot run concurrently.

As pointed out by Twomey J in 6 LBR 22 (Emperor v. Eng Gyaung 12 Cr. LJ 465) the word "concurrent" properly applies only to sentences of imprisonment. If it were applied to sentences of whipping the literal meaning would be that the prisoner was to be flogged by two operators simultaneously.

See also Emperor v. Yenkataswamy [1937] AIR Rangoon 286 where the same Judge again expressed the same view. I am inclined to agree with the construction on the concurrent sentences of whipping in those cases.

More recent Indian or English authorities on the issue appear to be lacking. This, however, may not be surprising since the sentence or whipping was abolished in England in 1948 and in India in 1955.

The learned trial President said in his judgment that the substantive sentence (imprisonment) could be concurrent and there was no reason why the additional sentence (whipping) could not be concurrent. He referred to s. 282(d) and s. 292(i) of the Criminal Procedure Code. Section 292(i) allows a second sentence of imprisonment imposed in a subsequent trial of an offence to run either immediately or at the expiration of