Rex v Uberle (Cr. App. No. 49/1938) [1938] EACA 58 (1 January 1938)

# COURT OF APPEAL FOR EASTERN AFRICA

### Before WHITLEY, C. J., GAMBLE, J., and JOHNSTON, Ag. J. (all of Uganda)

#### REX, Respondent (Original Prosecutor)

## H. K. A. UBERLE, Appellant (Original Accused) Cr. App. No. 49/1938

#### (Appeal from decision of Wilson, J. (Tanganyika))

Master and Native Servants Ordinance, Cap. 51, Laws of Tanganyika, section 25 (5)-Failure to provide medical attendance for servant during serious illness—Duplicity of charge—Servant—Essential facts constituting offence—Criminal Law.

Appellant was charged on one count before the Second Class Subordinate Court of Morogoro with "failing to provide a servant with proper medicines and medical attendance during serious illness contra section 25 (5) of the Master and Native Servants Ordinance (Cap. 51) Tanganyika." The servant in question was not a servant who was employed at such a distance from his home as to render it impossible for him to return to his home at the conclusion of his daily The evidence did not disclose beyond reasonable doubt that work. the appellant knowing his servant was suffering from serious illness did not provide medical attendance.

The High Court of Tanganyika dismissed the appellant's appeal from a conviction of the offence and the appellant appealed.

*Held* $(5-5-38)$ .—(1) That the charge was not bad for duplicity.

(2) That subsection 5 of section 25 of the Master and Native Servants Ordinance (Cap. 51), Tanganyika, does not apply only to servants employed at such a distance from their houses as to render it impossible for them to return to their homes at the conclusion of their daily work.

(3) That to establish an offence under the subsection it is incumbent on the prosecution to prove (a) that the servant was during the relevant on the prosociation to prove allows that the section has been allowed as the employer<br>ought to have realized was serious; (b) that medical attendance was pro-<br>curable and (c) that the employer knowing that his servant was from such serious illness did not provide medical attendance.

Appeal allowed.

$\mathcal{L}$

The facts appear from the judgment.

*Clark* for the appellant.

Hone, K. C., Attorney General (Uganda) for the Crown.

JUDGMENT (delivered by Whitley, C. J.).—The appellant was convicted by the Magistrate of the Second Class Subordinate Court of Morogoro under section 25 (5) of the Master and Native Servants Ordinance (Cap. 51) for failing to provide a servant with medical attendance during a serious illness. He appealed to the High Court of Tanganyika where the Crown did not support the conviction but the learned Judge, finding himself unable to agree with the reasons given by Crown Counsel, dismissed the appeal. Points of law being involved the appellant now appeals to this Court.

The section under which the charge was laid reads as follows:—

"Every employer shall provide his servants with proper medicines during illness and also if procurable with medical attendance during serious illness . . .'

The Magistrate's findings of fact were that the native Malingum was in the employ of the appellant, that he received an injury to his left eye on or about November 1st, 1937, whilst working on the appellant's estate, that he was not sent to hospital for medical attendance until November 12th, and that as a result he has lost the sight of his eye. There was a conflict of evidence as to whether Malingum reported the accident to the appellant at once. Malingum states that he did but the appellant in his evidence says that he first heard of it from his dresser on November 12th and that he sent Malingum to hospital at once. The Magistrate states that he finds it difficult to believe the appellant on this point since he did not call his dresser to support his statement. Illustration $(G)$ of section 114 of the Indian Evidence Act entitles the Court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it and it is indeed difficult to understand why this vital witness was not called. As we shall indicate later we consider that he ought to have been called by the prosecution but the fact that they failed to call him is no reason why the appellant should not have done so to assist his case if indeed he would have supported this statement.

On these findings of fact the Magistrate found that the offence had been proved and in a full and most careful judgment the learned Judge came to the same conclusion. Before us the Attorney General for Uganda intimated that he was instructed not to support the conviction. Mr. Clark appeared for the appellant.

The first point taken was that the charge was too wide and was bad for duplicity. The appellant was in one Court charged with neglecting to provide proper medicines and medical atendance. It was urged that there should have been one count dealing with the medicines and another count dealing with the medical attendance but that appears to us to be a highly technical objection and one totally. devoid of any substance. The appellant cannot in any way have been embarrassed or prejudiced for it is clear that in effect he was only being charged with one offence namely neglecting to ensure that the injured eye was properly attended to. We were referred to the well known cases of $R$ v. Disney (24 Cr. App. R. 49) and $R$ v. Wilmot (24 Cr. App. R. 63) but a study of those cases shows that they are not really in point and reference to the ratio decidendi in $R$ v. Thompson (1914, 2 K. B. 99), R v. Thomas (2 East P. C. 934) and R v. Giddins (Car and M 634) makes it clear that this charge is a perfectly proper What is charged is really one transaction; only one sentence one. could be passed and the appellant could not hereafter complain that he does not know of what he has been convicted. It would have been a different matter if the charge had been framed in the alternative. We would however observe that though not bad in law the charge was drafted in a slovenly manner and that it is most important in all cases that the charge should be carefully framed. It is not sufficient that the words of the section should be slavishly copied. They should be adapted to meet the circumstances of each particular case.

The next ground of appeal was that the subsection creating the offence only applies to the particular class of servants specified in the first subsection, namely servants employed at such a distance from their homes as to render it impossible for them to return to their homes at the conclusion of their daily work. It was argued that section 25 must be read as a whole and that all five subsections must be taken as dealing only with this one class of servants, in which case the appellant would not be liable as there was no evidence that Malingum belonged to that class. We, like the learned Judge in the Court below, find ourselves quite unable to take that view even though it is apparently the view of the Tanganyika Government. It may be that it was the intention so to restrict the application of the whole section but if so the Legislature has signally failed to make its intention clear. It is for us to interpret the law as it stands and we, like the Judge below, know of no principle of legal interpretation which lays it down that where there is in one subsection a specifically expressed qualification limiting the application of that subsection to a certain class the same qualification and limitation should be engrafted into all the other subsections. The section must be taken to mean what it says. Subsection (1) is specifically restricted to the class of servant therein specified, subsection (2) is specifically limited to the cases in which the provisions of the "Ordinance", not of the previous subsection, require that employers should house and feed a servant. Subsection (3) is in part general and in part restricted to porters engaged for a journey. Subsection (4) contains a similar qualification but subsection (5) is absolutely general and it is difficult to conceive wider words that "Every employer shall provide his servants". If it had been intended to limit the application of this subsection it would have been a simple matter to have used some such words as "Every employer of servants falling within the class described in subsection (1) hereof". In the absence of any such words of qualification it is not for us to read them in.

We would add that the marginal note to the section reads "provision of food, necessaries and medicine for servants". If the intention were as counsel has suggested one would expect it to read "for servants from a distance" or something like that. We are in entire agreement with the further weighty reasons which led the learned Judge below to reject this argument.

The final ground of appeal was that the Judge having found that there were deficiencies in the evidence for the prosecution ought to have held that the Crown had not proved its case beyond reasonable doubt. Here, it seems to us, the appellant is on firmer ground. This is a penal section rendering offenders liable to imprisonment or heavy fines. It must accordingly be construed strictly and the Court should require that offences be strictly proved by adequate evidence. Sub-<br>section (5) makes it an offence if an employer fails to provide medical attendance which is procurable during the serious illness of a servant. It seems to us that in order to establish that offence it is incumbent upon the prosecution to prove $(a)$ that the servant was during the relevant period suffering from an illness which a person of the class of the employer ought to have realized was serious, $(b)$ that medical attendance was procurable and (c) that the employer knowing that his servant was suffering from such serious illness did not provide medical attendance.

**m** the present case we are not satisfied that these three ingredients which go to make up the offence were properly proved.

Assuming for the moment that the servant did report his injury to his employer in person on the day of the accident there is no evidence to show whether at that time the injury appeared to be serious. If it only appeared trivial it might well have been reasonable for the employer to consider that treatment by the dresser would suffice. The doctor merely gave evidence as to the state of the eye when he saw it many days later. No question was put to him as to whether the seriousness of the injury would have been apparent from the beginning. In our opinion the dresser ought certainly to have been called by the prosecution to describe the appearance of the eye when he first saw it and how he treated the injury. There should also be evidence on the record that medical attendance was procurable. The Judge below clearly appreciated the deficiencies in the evidence but he took the view that they had not prejudiced the appellant. That is the only part of his very clear and able judgment with which we are not in entire agreement. It is the duty of the prosecution to prove their case beyond reasonable doubt and in order to do that they must prove every ingredient which goes to make up the offence. For the reasons which we have given above we are of opinion that there are gaps in the evidence which leave a reasonable doubt as to whether the offence was brought home to the appellant. That being so the appeal must be allowed and the conviction quashed.