Msine Ludivico s/o Niganya v. R., Crim. App. 199-M-67; 7/6/67; Cross, J.

Msine Ludivico s/o Niganya v. R., Crim. App. 199-M-67;  7/6/67; Cross, J.

Accused was convicted of practicing medicine without being registered and without a licence (Medical Practitioners and Dentists Ordinance, Cap. 409, s. 36(1)(b) and with doing grievous harm (P.C. s.225). He was sentenced to concurrent sentences of twelve months on the first charge and eighteen months on the second charge. The first charge alleged that accused “did practice medicine for gain by injecting five persons. ……” After all but two of the prosecution witnesses had testified, the second charge of doing grievous harm during the injections to two named persons was added. The magistrate did not advice accused of his right to recall the witnesses who had testified before this charge was introduced.

            Held: (1) The first charge was not invalid because of duplicity. The offence is of practicing medicine and section 2 of the Medical Practitioners and Dentists Ordinance defines the term “practice medicine” as giving treatment or advice “on one or more occasions for gain.” Therefore the several injections constituted one offence. Citing Apothecaries Company v. Jones (1893) 1.Q.B. 889; Attorney General v. Ayre (1951) K.L.R. vol. XX1V, Part 11, p. 126. (2) The second charge, which alleged grievous harm to two people was invalid for duplicity. (3) The second charge was completely different from the first with respect to the evidence required. Therefore, the failure of the magistrate to advise accused of the right to recall witnesses who had testified before the charge was introduced or to call such witnesses himself was prejudicial. (4) Although the sentence was lenient, the trial court determined the sentence by proper methods and it should not be disturbed merely because the appellate court might itself have imposed a more severe sentence.