The appellant, a legal practitioner, was convicted in the Subordinate Court of the theft of K480, the property of a client. He was sentenced to four months' imprisonment with hard labour, suspended for one year. 15 In deciding to suspend the sentence the magistrate appears to have been influenced by the serious consequences to a professional man and by the health of the appellant, who was a diabetic.
In the course of the trial counsel for the appellant made certain statements from the bar as to what were regarded in the legal profession 20 as reasonable fees for the kind of work done by the appellant in this case.
(i) Counsel is not entitled to give what is in effect unsworn evidence.
If he wished what he was saying to be accepted as proven fact he should either have ceased to act as counsel and become a witness, or have called other evidence on the issue.
(ii) The courts cannot ordinarily determine a sentence by reason of the ill health of a convicted person, but there may be exceptional cases where the court would be merciful because of the exceptional results which might ensue from a prison sentence 30 by reason of the convict's state of health.
(iii) Where health is to be taken into account there must be adequate medical evidence, either viva voce or at least by a written certificate.