Spenser Wilkinson J

The appellant in this case was a Chinese Probationer Nurse in her third year of probation employed in the General Hospital, Kuala Lumpur. She was charged before the District Judge (as he then was) as follows:-

That you on 8.9.48 at about 4 am caused the death of Liew Kam Fook, male, aged 10 months old by a negligent act not amounting to culpable homicide to wit, by allowing the ignorant mother of the deceased to administer an overdose of Oleum Chinnapodium when you were a nurse on duty at Ward No. 2 of General Hospital, Kuala Lumpur, on that day and thereby committed an offence under s. 304A of the Penal Code.

When charged with this charge on the 3rd of February, 1949 the appellant claimed trial and the case was postponed for hearing to the 25th February. Upon the matter coming up for trial on the 25th February the appellant was presumably re-charged; at all events, she then pleaded guilty. There is nothing on the record to show whether or not the learned District Judge interrogated the appellant as to what exactly she thought she was admitting but this plea of guilty was then recorded. The prosecuting officer proceeded to outline the facts of the case as follows:-

Accused gave bottle to the ignorant mother of child Liew Kam Fook with instructions to give child a dose at 4 a.m. Dose 3 drops. Mother gave half bottle of oil of Chinnapodium and a little later gave the other half. Child became violently ill and died. Post Mortem revealed cause of death due to overdose. Accused gave birth to a child 1 month later.

The appellant then made a few remarks in mitigation and the case adjourned "for evidence on investigation as to accused's medical condition and sentence". The same afternoon two medical officers who had been in the General Hospital at the time of the alleged offence gave evidence which was directed mainly to the appellant's physical condition when the incident took place. At the conclusion of the evidence of these two medical officers the learned trial Judge recorded that the appellant did not wish him to call any other witnesses but asked for leniency. He then recorded a conviction. On conviction the appellant was sentenced to five months simple imprisonment.

The law relating to negligence is by no means free from difficulties and the question whether a particular act or omission amounts to criminal negligence or merely to civil negligence has been frequently canvassed in the Courts both here and in England. Except, therefore, in a case where the facts are simple and the law applicable to those facts beyond doubt it seems to me to be impossible to expect an accused person unversed in the law and unrepresented by counsel to be able to say, yes or no, whether he has been guilty of criminal negligence. In this particular case, where the appellant was a young Chinese girl and the circumstances in which the alleged negligence took place were obscure, it was, in my opinion, wrong for the learned District Judge to accept the plea of guilty.

The law as to criminal negligence has been laid down in England in a long series of cases culminating in the decision in the leading case of Rex v Bateman 19 Cr App R 8 the principles of which decision were applied