[1948] EACA 64

### APPELLATE CRIMINAL.

#### Before MODERA, Ag. J.

## REX, Respondent (Original Prosecutor) ν

# JAPETHA s/o AYIETA, Appellant (Original Accused)

# Criminal Appeal No. 551 of 1947

Criminal Law—Practising Medicine without a licence—The Medical Practitioners and Dentists Ordinance (Cap. 119, Laws of Kenya), section 18-"Treating patients for gain"-What need be proved to establish commission of offence -Sentence.

The appellant, who was employed by the Medical Department, was charged under section 18 of the Medical Practitioners and Dentists Ordinance with practising medicine by "giving intra-muscular injections for coin, such injections not being given in the course of his duties in the Medical Department of the Kenya Government".

The term "Medical Practitioner" as defined in the Ordinance means "any person professing to practise medicine or surgery or holding himself out as ready and willing to treat patients for gain".

The Magistrate, in his judgment, made no reference to the appellant having treated patients for gain, but found that he gave injections to three people without the authorization of the Medical Department, and convicted him.

On appeal

Held (11-6-48).—That proof that the appellant treated patients for gain was not essential to establish that he had committed the offence charged. "Gain" is not mentioned in section 18 of the Ordinance and there is no question of having recourse to the definition of the words "Medical Practitioner" set out in section 2 of the Ordinance which is solely an interpretation clause.

Appeal dismissed. Sentence to pay a fine of £75 or six months' imprisonment in default reduced to £25 or one month's imprisonment in default.

### Kohli for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The onus of proof, which the Crown was and is called upon to discharge in this case, is twofold: $-$

- (a) That the accused was practising medicine. - (b) That as a servant in the Medical Department of the Government it was not in the course of the duties of the accused to render assistance to the extent of giving injections.

It is rightly accepted by both the Crown and the defence that the onus of proving possession of a licence to practise would be on the accused but it has not been suggested by the accused that he held any licence.

Whether the accused did practise medicine and whether he had authority to give injections are both questions of fact. The learned Magistrate has dealt with these questions in a short judgment and, as I conceived the argument of learned Counsel for the appellant, objection is taken not only to the reasoning in the judgment but also to the brevity of the judgment and the fact—if indeed it is a fact that the judgment was only written one month after the hearing of the case and that at that length of time the learned Magistrate would be unable to assimilate the evidence to which he had listened and which he had recorded.

I am unable to accept the arguments put forward in regard to the brevity of and delay in writing the judgment. Albeit I have some sympathy with the accused who was in custody until the judgment had been pronounced.

As to the reasoning of the learned Magistrate, he saw and heard the witnesses both for the prosecution and defence and I am unable to agree with the suggestion that the Crown witnesses should have been disbelieved because they were serving in the Medical Department.

I have been unable to find any special definition of the words "practising medicine" and that being so the words must be construed in their natural and ordinary meaning; to give injections undoubtedly constitutes a part of practising medicine. I have found no reason for distributing the decision of the learned Magistrate on his finding of facts.

One other matter which has been raised by Mr. Kohli and to which I would refer is that the Magistrate did not address his mind to the fact that proof of "treating patients for gain" is essential to the establishment of the commission of the offence charged. I am unable to accept this contention: "gain" is not mentioned in section 18 of the Ordinance and there is no question in this case of having recourse to the definition of the words "medical practitioner" set out in section 2 of the Ordinance which is solely an interpretation clause.

The appeal against the conviction will be dismissed.

As to the sentence it is conceded by the Crown that a reduction in the fine imposed is warranted.

It seems to me somewhat extraordinary that in a case of this nature bail was neither applied for nor granted prior to hearing, but the fact remains that the accused was kept in custody for a month awaiting trial and for another month awaiting judgment.

The maximum punishment for this offence under section 18 is a fine of £150 for each offence or 12 months' imprisonment in default. No evidence appears to have been afforded to, or required by, the learned Magistrate as to the accused's antecedents or service to his department. I have been informed that the salary of the accused was Sh. 120 a month. Admittedly the accused has been found guilty of a serious offence and he undoubtedly took fees for his services, but in all the circumstances of the case I think justice will be adequately met by the infliction of a fine of $£25$ or in default one month's imprisonment and the sentence will be varied accordingly.

ORDER.—Appeal against conviction dismissed. The sentence is varied by substitution of a fine of £25 or one month's imprisonment in default for the sentence of £75 or in default of payment six months' imprisonment.