DRIEBERG J.—The King v. Mutalip.
1931Present: Drleberg J.THE KING v. MUTALIP et al.
7—D. G. (Grim.) Puttalamt 475.
Appeal—Accused convicted of several offences—Sentences to run concurrently—
Right of appeal—^Criminal Procedure Code, s. 385.
Where an accused has been convicted at one trial of several offencesand sentenced to various terms of imprisonment, to run concuiYentlv. hisright of appeal depends upon the actual term of iroprsonment he hasto undergo and not on the aggregate term to which he is sentenced.
PPEAL from a conviction by the District Judge of Puttalam.
Hayley, K.C. (with him Soertsz), for appellant.
Pulle, G.G.y for the Crown.
August 17, 1931. Drieberg J.—
The appellants were convicted under the first seven counts' of the-indictment with being members of an unlawful assembly and rioting; theother charges were of committing, hurt to various persons in prosecutionof their common object. The appellants were sentenced to terms ofrigorous imprisonment varying from one week to three months, thesentences to run concurrently, and none of the appellants had to undergo-a longer term of imprisonment than three months though the aggregateof the sentences in each case exceeds three months.
Mr. Hayley contended that under section 335 of the Criminal Procedure-Code the' appellants had the right of appeal. The question is not freefrom doubt, but I am inclined to follow the ruling of de Sampayo A.0.3.in King v. Samaranayake 1 that the test is the term of imprisonment,which the appellant has to undergo.
No application was made for leave to appeal on the facts and it was*suggested that the appellants may have thought that they had a rightto appeal and so omitted to apply. I therefore directed an inquiry to-be made from the learned District Judge and he replied that he wouldnot have allowed leave if an application had been made to him.
The one point of law which was certified in the petition of appeal wasthat this prosecution was barred by a previous conviction on a chargeof committing an affray under section 157 of the Penal Code. Thejudgment on this point is right and I need make no further referenceto it-.
1 (1923) 1 C. T. L. R. 265.
£88DRIEBERG J.—The King v. Mutahp.
Mr. Hayiey contended that on the facts as found the common objectof the appellants was nothing more than to exclude the “ two-trustee "party to which the injured men belonged, that it could not be said thatthey assembled with the common object of causing hurt; but the.difference is merely apparent and not real, for it has been found that itwas their intention to exclude the others by violence if they insisted ontheir right to enter and that they had prepared the means to do so.
I was asked to reduce the sentences to fines and I have given thematter careful consideration. There is much to be said for the viewthat a fine would tend more to the calming down of the angry feelingswhich this incident aroused than sentences of imprisonment whichmight keep alive a bitterness which would prevent any real reconciliationbetween the parties. But there is the danger that leniency may not beproperly understood or appreciated and a reduction of sentences tofines may serve no good purpose. The learned District Judge was in abetter position than I am to form an opinion on this point and I have nodoubt that he felt that these sentences were necessary.
THE KING v. MUTALIP et al