R. v. Melkior Crim. Rev. 36-D-71; 30/4/71; Biron J.

R. v. Melkior Crim. Rev. 36-D-71; 30/4/71; Biron J.

           The accused was convicted of unlawful wounding and he was sentenced to imprisonment for two and a half years, and awarded 12 strokes of corporal punishment. The proceedings were forwarded to the High Court for confirmation.

                        Held: (1) “Although the sentence was richly deserved as the assault was a very serious one and could even have proved fatal but for prompt medical attention, I am afraid that he sentence cannot be confirmed, as the award of corporal punishment is ultra vires. Apart from sexual assaults, the only assaults which attract corporal punishment are set out in the Schedule to the Corporal Punishment Ordinance (Cap. 17 – Supp. 58) are assaults contrary to section 228 of the Penal code and as set out in Item 2 of Part 1 of the Schedule, which reads; [His Lordship then set out the provision and continued] Unlawful wounding ……… does not attract corporal punishment.” (2) “It is anomalous that although the much lesser offence of common assault, if of an aggravated nature, can attract corporal punishment, the musserious offence of unlawful wounding however aggravated does not. The court however can only apply the law as it finds it.” (3) Award of corporal punishment set aside; Sentence of imprisonment confirmed.