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Present: Grenier J.
PERRY v. GARDEN.
562—P. C. Colombo, 29,483.
Quarantine and Prevention of Diseases Ordinance, 1807—Regulation23—Medical practitioner attending on patient—Posting of infor-mation to proper, authority within three hours—Mens rea.
Regulation 23 framed under “ The Quarantine and Preventionof Diseases Ordinance, 1897,” runs as follows :—
" Any medical practitioner or person professing to treatdisease attending any diseased person shall withinthree hours of such attendance give information inwriting to the proper authority, stating the name of thediseased person, his residence, and the nature of hisdisease.”
Held, that the mere putting the letter in the post was not asufficient compliance with the law.
The clear meaning of the regulation is that the informationshould be in the hands of the proper authority within three hours.The question of mens rea does not arise in respect of a statutorysegulation like the present.
PPEAL from an acquittal by the Attorney-General. Thefacts are set out in the judgment.
Walter Pereira, K.C., S.-G., for the appellant.—The terms of theregulation are quite explicit. The notice must reach the properauthority within three hours. Posting the notice within threehours is not a sufficient compliance with the regulation. Moreover,this notice has not been posted at all, as the Galle Face Hotel letterbox is only a private letter box.
Hayley, for the respondent.—-The charge is bad. Where it isa question of hours, it is not sufficient to state “ on or about,” andobjection was taken to it at the trial. The appellant cannot nowraise the question whether the posting of the letter was sufficient,for it was never argued in the Court below. The prosecution thereattempted to show that on March 12 the accused became awarethat the patient was suffering from an infectious disease, and thatwe did not report it till the 15th. The whole case was fought onthose lines. We satisfied the Magistrate that the disease was notdiagnosed until the 15th. Now there is a complete change of front,and the charge is that on the 15th we posted the notice in the GalleFace Hotel box, which is a private box, and in the alternative thatwe were wrong in posting it at all. We are seriously prejudiced aswe might have shown that the hotel box is not a private box. In
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fact, there is evidence from which this can be gathered. It is proved Sept.20,1911that letters are taken in a locked bag into the post office sortingp^ry v.
room, and are not merely re-posted in the post office. Lastly, itGarden
was sufficient to post the notice. Section 5 ($) of Ordinance No. 3of 1897 provides that the Governor may make regulations “ forprescribing and regulating the form and mode of service on deliveryof notices and other documents.” This has not been done, and,therefore, when regulation 23 says that a medical practitioner must“ give information in writing,” those words must be interpreted inthe light of the construction put upon them by Government itself,
Which has, through its agent, the Municipality, supplied formsintended to be posted, marked “ On H. M. S.,” and carried free bythe post office. It would be a physical impossibility for busypractitioners to take the notices in person. How is the regulationto be followed if the disease is diagnosed at night, when the officesof the “ proper authorities ” are shut ? In any event the respon-ent is not liable. Section 6 of the Ordinance says that a person isguilty of an offence if he contravenes any regulation “ withoutlawful authority or excuse.” Here there was “ lawful excuse,”because the Government supplies forms intended for posting, andit is admitted by the witnesses for the prosecution that 99 per cent,of such notices are sent by post, and no objection has ever beentaken to that method of giving notice.
Cur. aclv. vult.
September 25, 1911. Grenier J.—
This is an appeal by the Attorney-General from an acquittal,and the grounds are clearly stated in his petition of appeal. Theaccused, who is a medical practitioner, was charged with havingfailed to comply with the requirements of regulation 23 framed under“ The. Quarantine and Prevention of Diseases Ordinance, 1897,”in that he being a medical practitioner failed on or about March 12,
1911, to give information in writing to the proper authority withinthree hours of his attendance on one Mr. Hollingsworth, who wassuffering from a “ disease ” within the meaning of the Ordinance,stating the name and residence of the person suffering from the“ disease ” and the nature of the “ disease.” The offence is onepunishable under section 7 of Ordinance No. 3 of 1897, under whichthe Police Magistrate is empowered to pass a sentence of six months’imprisonment of either description, or a fine not exceeding Rs. 1,000,or to pass both a sentence of imprisonment and fine. The regulationin question was passed in the interests of public health to preventthe spread of any disease of a contagious, infectious, or epidemicnature, and hence, I presume, the Legislature has thought fit tomake the breach of the regulation punishable in the" way prescribedby section 7 of Ordinance No. 3 of 1897.
The Magistrate, before whom a large body of evidence was placed,both by the prosecution and defence, found that the accused did
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Sept. 25fi9ll not have knowledge that the disease he was treating Mr. Hollings-GwemEit J. worth for was an infectious one till between 12 and 1 p.m. on March“—“15. He also found that the accused filled in the form “ B ” and
Gardenposted it before 4 p.m. on March 15, within three hours of his having
left his patient, with the knowledge that the patient was sufferingfrom an infectious disease. The Magistrate says in his judgment thatthe form was one supplied by the authorities, and that the postoffice must be taken in this case to be the agent of the authorities,and that he notices that the form is “ On H. M. S.,” and is carriedfree of any charge. The Magistrate further found the accusedposted the form within three hours of his attendance of the patient,at which attendance he obtained the knowledge that the patient wassuffering from an infectious disease, and he considered the accusedentitled to an acquittal, as it was the usual practice for notice tobe given through the post office and not by messenger, and theaccused had posted the notice within three hours of leaving thepatient.
The Attorney-General has apparently challenged the finding ofthe Magistrate that the accused did not have knowledge that the •disease was an infectious one till between 12 and 1 p.m. on March 15,and submits in his petition of appeal that the accused had reasonto suspect at 12 o’clock on March 15 that Mr. Hollingsworth wassuffering from an infectious disease and failed to report to the properauthorities within three hours of his suspicion, as the regulationapplies to suspected cases of infectious disease.
The term “ disease ” has been defined in the interpretation clauseof the regulation to mean “ infected or suspected of being infectedwith disease;'’ It seems to me however immaterial, in the view thatI have taken of the regulation in question, at what particular periodof time the accused had knowledge or suspected that the diseaseMr. Hollingsworth was suffering from was an infectious one. Thequestion is whether, on his discovering or suspecting that Mr. Hol-lingsworth was a “ diseased person,” he gave information in writingwithin three hours to the proper authority. I will assume that theMagistrate was correct in his finding that the accused knew thedisease was an infectious one between 12 and 1 p.m. on March 15,although he might have had reason to suspect at 12 o’clock that itwas a case of infectious disease. The regulation in question runsas follows :—
Any mt'dicnl practitioner or person professing to treat diseaseattending any diseased person shall within three hours of such.attend-ance give information in writing to the proper authority, stating thename of the diseased person, his residence, and the nature of hisdisease.
The use of the imperative ” shall ” clearly indicates the intentionof the Legislature, and the regulation taken as a whole can onlyhave one meaning, and that is that the medical practitioner is bound
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within three hours of his attendance on a diseased person to giveinformation in writing to the proper authority. The term “ properauthority ” has been defined to mean in the interpretation clause“ the Chairman of a Municipal Council,” or the Principal MedicalOfficer, or the Provincial Surgeon of the Province, or the HealthOfficer of the Municipality, or any officer appointed by the Governorto perform the duties of the proper authority. It is admitted bythe defence that the accused posted the form supplied by theauthorities in the letter box of the Galle Face Hotel. At the timehe so posted it, I think he must have known that there was noreasonable probability of its reaching the Medical Officer of Healthuntil considerably over three hours had elapsed. In fact, it did notreach its destination till the day after it was posted. I cannothold, having regard to the stringent provisions of regulation No. 23,that the mere putting of a letter in the post was a sufficient com-pliance with the law. The clear meaning of the regulation, as Iread it, is that the information should be in the hands of the properauthority within three hours, as otherwise there would be no limitof time within which the information should be given. The regu-lation does not mean that you are to post your letter at any timewithin three hours, and then not concern yourself as to when theletter reaches its destination. The information must be in the handsof the proper authorities at any time within three hours, and youmust take the necessary steps to ensure its delivery within that time.
It was submitted by the learqed counsel for the respondent thatin the circumstances I have mentioned a medical practitionerwould be obliged to have a messenger with him always. I thinkwe need not concern ourselves about matter of detail in sendingthe information, but we have to look to the plain meaning of theregulation and give it its proper effect.
Now, the ground upon which the Magistrate has acquitted theaccused is one that I cannot possibly sustain. It may be thepractice, as he finds, for notice to be given through the post andnot by messenger, but no practice of this kind can be advanced injustification of a breach of the regulation. The accused may beunfortunate in having been selected for the present prosecution,but in law the practice relied upon by the Magistrate cannot bepleaded so as to excuse the accused from the consequences of hisnon-compliance with the regulation ; so long as the regulationstands, there is no escape from it in the present case.
It was urged by counsel for the accused that there was anabsence of mens rea in this case ; but I fail to see how in respectof a statutory regulation like the one in question such a position canbe advanced. It must be presumed that the accused had knowledgeof the object and meaning of this regulation, as any ordinary manon reading it would have, and therefore the element of mens readoes not enter into the case at all.
Sept. 33,191 J
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The only other point I need notice is that it was contended forthe accused that he had “ lawful "excuse ” for not complying withthis regulation in the manner required by it, because the practicehad been to post the notice on a certain form, and not. send itby messenger. 1 can hardly consider any practice which sets atdefiance the regulation itself as constituting a lawful excuse. If"the regulation is oppressive, and compliance with it is difficult,proper steps should be taken to amend it or to alter it; so long asit is part of our statute law, it must be obeyed.
I would set aside the acquittal and convict the accused of theoffence charged against him, and as this is the first case of its kindthat I know of I would impose a fine of Rs. 10.
PERRY v. GARDEN