Thomson CJ:

The judgment of the Court of Appeal was delivered by:

The two appellants in this case were prosecuted in the Magistrate's Court at Ipoh for putting a person in fear of injury in order to the committing of extortion in contravention of s. 385 of the Penal Code. That offence is punishable with two years' imprisonment or with fine or with whipping or with any two of such punishments. By reason of s. 85 of the Courts Ordinance the offence is triable in the Magistrate's Court and by reason of s. 87(1) the maximum sentence of imprisonment which can be imposed by a Magistrate's Court is twelve months and the maximum whipping that can be imposed is one of six strokes.

In the event both the appellants were convicted in the Magistrate's Court and each of them was sentenced to one year's imprisonment. Neither of them had any previous convictions for any offence.

Briefly, the case for the prosecution was that on the night of 17 January 1958, a hand-grenade exploded outside the house of the complainant and two days later two persons spoke to him on the telephone from a public call box at Falim some two miles away. They said that the grenade incident had taken place and demanded $5,000. There was a great deal of evidence which does not call for discussion here which went to show that it was the two appellants who spoke from the Falim call box. The defence was one of alibi.

As has been said, the appellants were convicted and they then appealed against their convictions and sentences.

Their appeals against sentence were withdrawn and eventually the appeals against conviction came on for hearing before Good J

For some reason we have not been supplied with a note of the proceedings at the hearing of the appeal. In the event, however, the appeal was dismissed and the Judge in exercise of his jurisdiction in revision then enhanced the sentences imposed by the Magistrate's Court.

He thought that the sentences were clearly inadequate. On the other hand he thought that in view of the fact that the prosecution had elected to proceed in the Magistrate's Court and had taken no steps to have the case transferred to the Sessions Court or committed for trial in the High Court it would be wrong to impose any greater sentences than the Magistrate's Court was authorised by law to impose. In the circumstances he increased the sentences in each case from one of 1 year's imprisonment to one of 1 year's imprisonment and six strokes with a cane.

Subsequently the Judge took the view that the determination of the appeal involved two points which it was desirable in the public interest should be determined by the Court of Appeal. These points were as follows:

(i) Whether on the proper construction of s. 316 of the Criminal Procedure Code, where a convicted person has appealed against his conviction only and the Public Prosecutor has not appealed against the inadequacy of the sentence the Court, on the bearing of the appeal, has jurisdiction to enhance the sentence.

(ii) Whether it was proper to impose a sentence of whipping in the present case where the appellants' offence was not proved to have been accompanied by any actual violence on their part.

He accordingly granted a certificate under s. 34 of the Courts Ordinance to enable the appeal to be reheard by this Court.

As we pointed out in the case of PP v. Choy Kok Kuan & Ors [1959] MlJ 80 CA the effect of s. 34 of the Courts Ordinance is that when a certificate is granted under that section this Court cannot confine itself to the point stated in the certificate but must re-hear the original appeal from the Subordinate Court as a whole. Strictly speaking, therefore, we must in the present case before proceeding further dispose of the appeal against conviction. Before us, however, Counsel for the appellants made no attempt to attack the convictions, and so far as they are concerned we would content ourselves with observing that they were fully supported by the evidence and that we s