In re BRITO

130-NLR-NLR-V-43-In-re-BRITO.pdf


In re Brito.
529
1942Present: Howard C.J-, Soertsz and de Kretser JJ.
In re BRITO.
In the Matteh of Section 17 of the Courts Ordinance.
Proctor—Conviction for sending indecent post cards—Application to strikeproctor off the roll—Unfit to remain member of profession—Powers ofSupreme Court—Courts Ordinance, s. 17.
A Proctor may be struck off the roll for an offence which has norelation to his character as a Proctor. In such a case the question iswhether the offence is such as makes a person guilty of it unfit to remaina member of the profession.
The Supreme Court has a discretion and will inquire into the natureof the offence and will not, as a matter of course, strike a Proctor offthe roll merely because he has been convicted.
It is the duty of the Court to regard the fitness -of the proctor tocontinue in the profession from the same angle as it should regard hisfitness if he was a candidate for enrolment.
T
HIS was an application in which the respondent, a Proctor, wascalled upon to show cause why his name should not be removed
from-the Roll of Proctors.
C. S. Barr Kumar akulasinghe, f®r the respondent.—There is noabsolute rule that a Proctor convicted of an offence should be struck offthe roll. It is a matter of discretion. The offences committed by therespondent are punishable under the Post Office Ordinance (Cap. 146)and bear no relation to his character as a Proctor. There are manyextenuating circumstances in the present case, and the "respondent hasbeen already sufficiently punished. Vide In re AbeydeeraRe a Solicitor -and In re a Proctor *.
J.Mervyn Fonseka, S.-G. (^vith him H. H. Basnayake, C.C.), in supportof the rule, was called upon to comment upon the decision in In re aProctor (supra).—It is clear from the report of the argument in In re aProctor that important decisions were not referred to. That case doesnot contain any definite statement of principle. For any gross mis-conduct, whether in the course of his professional practice, or otherwise,the name of a Proctor will be expunged from the roll—Attorney-General v.Ellawala'. The material question is whether the offence committed issuch as makes the person guilty of it unfit to remain a member of theprofession. The leading case on the subject is In re Weare, a Solicitor*.See also In re Kandiah ° and Jamshad Kanga v. Kaikhushru Bharucha Attention may be invited to the fact that the respondent wrote not ontythe three post cards which are the ■ subject-matter of the charge andconviction but also several other similar post cards. 1
1 (1932) 1 C. L. 11'. 339.* (1926) 29 N. L. R. 13 at p 31.
– (1SS9) 61 L. T. 842.6 £. R. (1693) 2 Q. B. D. 439.
3 (1938) 40 -V. L. R- 367.* S- C. Minutes of 2nd November, 1932 ■
7 A. I. R. 1935 Bom. 1.
530
HOWARD C.J.—In re Brito.
Barr Kumarakulasinghe in reply.—In the case of In re Weare, aSolicitor (supra) the. offence committed by the Solicitor was of a seriousand offensive nature from the point of view of society. It is not so in thepresent case. The post cards in question were written by the respondentat a time when he was suffering under and obsessed with a deep sense ofpersonal grievance and in circumstances which affected his balance ofmind. The respondent is truly penitent now and has in his affidavitexpressed his regret.
.Cur. adv. milt.
September 16, 1942. Howard C.J.—
The respondent, a Proctor of this Court, has been called upon to showcause why his name should not be removed from the Roll of Proctorsentitled to practice before this Court.
On November 6, 1941, the respondent was convicted in D. C. Colombo,No. N. 338/22,541 on three counts punishable under section 71 (1) of thePost Office Ordinance (Cap. 146), in that on September 2, 1940, October 11,1940, and October 15, 1940, respectively, he did send by post a postcard addressed to Mrs. Babsy Phyllis Ludowyk, having thereon wordsof an indecent or grossly offensive character. Upon these convictionsthe respondent was sentenced to six months’ rigorous imprisonmenton each count, the sentences running concurrently. On an applicationby way of revision to have the said convictions and sentences set aside,this Court on March 6, 1942, refused the said application and affirmedthe said convictions and sentences.
In urging the Court to take a lenient view of the conduct of therespondent and not to proceed to the extreme step of removing therespondent’s name from the Roll of Proctors, his Counsel has stressedthe fact that the offences of which the respondent were-convicted werenot committed by him qua Proctor and have no connection with hisconduct as such. And, therefore, so far as these offences areconcerned, he must be treated like an ordinary individual. Mr. BarrKumarakulasinghe, in contending, on behalf of the respondent, thatthis is a case in which, having regard to extenuating circumstances,the Court should exercise its discretion in his favour, has relied on thecase of In re a Solicitor; Ex parte the Incorporated Law Society Iagree with the dictum of Baron Pollock in this case when he states that“ the mere conviction is not binding upon the Court in a case of thiskind, and that the Court can, and 'may, and ought, to enter upon andweigh all the facts of the case, including any extenuating circumstancesthat exist in favour of the Solicitor, then I think our duty is to look andsee upon what facts the judgment of the Court was based, &c.” In.-thesame case, Manisty J., stated that “ it was not qua Solicitor that hecommitted the offence of which he had been convicted and that waspointed out (In re Hill') as a very strong fact to be considered. So faras the offence was concerned he was like an ordinary individual.”Mr. Barr Kumarakulasinghe also relied on the judgment of Hearne J.,In re a Proctor (supra), in which case the Court thought that suspension'from practising as a Proctor for twelve months was a sufficient penalty for aProctor convicted of committing criminal breach of trust. In this case
> oil. r. si j.
3 IS r.. T. 501.
HOWARD C.J.—In re Brito.
531
also the offence was not committed by the respondent qua Proctor.The Court in coming to a conclusion seems to have been guided solelyby the two cases to which I have referred. Other cases in -which referencewas made to other matters which the Court should take into considerationwhen the offence was not committed qua Solicitor were not cited. Wehave had the advantage of considering these cases. In the case ofIn re Weave, a Solicitor, In re The Solicitors Act, 1888 (supra), a Solicitorwas convicted of allowing houses, of which he was the landlord, to be usedby the tenants as brothels. In an application by the Incorporated LawSociety to strike the name of the Solicitor off the roll, it was held that aSolicitor may be struck off the roll for an offence which has no relationto his character as a Solicitor, the question being whether it is such an'offence as makes a person guilty of it unfit to remain a member of the profes-sion. Conviction for a criminal offence prima facie makes a Solicitor unfit tocontinue on the roll: but the Court has a discretion and will inquire intothe nature of the crime, and will not as a mere matter of course strike himoff because he has been convicted. Both the other English cases I havecited were referred to in the judgment of Lord Esher in this case. Inthe course of his judgment, Lord Esher M.R., stated as follows: —
“ All these cases seem to me to show that it is not necessary that theoffence, at all events, if it be a criminal offence, should be committedby the offending party in his character as an attorney; the question iswhether it is such an offence as makes it unfit that he should remain amember of this strictly honourable profession. Where a man has beenconvicted of a criminal offence that prima facie at all events doesmake him a person unfit to be a member of the honourable profession.That must not be carried to the length of saying that wherever aSolicitor has been convicted of a criminal offence the Court is bound tostrike him off the roll. That was argued on behalf of the IncorporatedLaw Society in the case of In re a Solicitor, Ex parte the Incorporated LawSociety (supra). It was there contended that where a solicitor hadbeen convicted of a crime it followed as a matter of course that he mustbe struck off ; but Baron Pollock and Manistry J. held that, althoughhis being convicted of a crime prima facie made him liable to be struckoff the roll, the Court had a discretion and must inquire into whatkind of a crime it is of which he has been convicted, and the'Court maypunish him to a less extent than if he had not been punished in thecriminal proceeding. As to striking off the roll; I have no doubt thatthe Court might in some cases say, ‘ under these circumstances we shalldo no more than admonish him or the Court might say, ‘ We shalldo no more than admonish him and make him pay the costs of theapplication or the. Court might suspend him, or the Court mightstrike him off the roll. The discretion of the Court in each particularcase is absolute. I think the law as to the power of the Court is quiteclear.”
In his judgment in this case Lopes L.J. cited with approval the followingpassage from the judgment of Blackburn J., In re Hill (supra) : —
“ We are to see that the officers of the Court are proper personsto be trusted by the Court with regard to the interests of suitors, and
532
HOWARD C.J.—In re Brito.
we are to look to the character and position of the persons, and judgeof the acts committed by them upon the same principle as if we wereconsidering whether or not a person is fit to become an Attorney. Ifhe has previously misconducted himself we should see whether thecircumstances were such as to prevent his being admitted, or whetherhe had condoned his offence by his subsequent good conduct, theprinciple on which the Court acts being to see that the suitors are notexposed to improper officers of the Court.”
The principles formulated In re Weare (supra) have been followedin various cases in Ceylon. In Attorney-General v. Ellawala (supra) thefollowing passage from Lush’s Practice, p. 218, was cited with approval: —
“ For any gross misconduct, whether in the course of his professionalpractice, or otherwise, the Court will expunge the name of the Attorneyfrom the roll.”
Again In re Isaac Romey Abeydeera, a Proctor of the Supreme Court (supra)Macdonell C.J, cited with approval the following passage from thejudgment of Mukerjee J., in Emperor v. Rajani Kanta Bose et al.l.
“ The practice of the law is not a business open to all who wish toengage in it ; it is a personal right, or privilege limited to selectedpersons of good character, with special qualifications duly ascertainedand certified ; it is in the nature of a franchise from the State conferredonly for merit and may be revoked whenever misconduct renders theperson holding the licence unfit to be entrusted with the powers andduties of his office. Generally, speaking the test to be applied iswhether the misconduct is of such a description as shows him to bean unfit and unsafe person to enjoy the privileges and to manage thebusiness of others as a proctor, in other words, unfit to discharge theduties of his office and unsafe because unworthy of confidence.”
The Chief Justice then applied this test and stated as follows : —
“We are compelled by the»facts proved and admitted in this matterto say that the respondent is not a person who should be allowed tomanage the business of others as a Proctor because he has abused theconfidence of those who entrusted their business and money to himas such Proctor.”
We have applied the principles laid down in the various cases I have■ cited to the facts of the present case. The Respondent was convicted ofsending to Mrs. Ludowyk post cards of a particularly obscene, disgustingand abusive character. In doing so he has committed what can Only bedescribed .as a personally disgraceful offence. It is said that he actedas he did because he was labouring under a deep sense of personalgrievance. The fact that he could react in such a manner shows hisunfitness for membership of an honourable profession. Ought anyrespectable Proctor be called upon to enter into that intimate intercoursewith him which is necessary between two Proctors even though they areacting for opposite parties? In my opinion no other Proctor ought to be
1 49 Calc. p. 804.
533
Inspector of Police v. Kaluaratchi.
called upon to enter into such relations with a person who has so con-ducted himself.- The conviction is prima facie a reason why the Courtshould act. Section 16 of the Courts Ordinance is worded as follows: —
“ Subject to the rules hereinafter set out in the Second Schedulethe Supreme Court is authorised and empowered to admit and enrolas advocates or proctors in the said Court, and as proctors in any of theDistrict Courts of the Island, persons of good repute and of competentknowledge and ability.”
How can it be said that the respondent is a “ person of good repute ” ?Our duty is to regard the fitness of the respondent to continue in theprofession from the same angle as we should regard it if he was a candidatefor enrolment. In my opinion the disgracefulness of the offence leavesus with no option but to strike the respondent off the roll. If he continuesa career of honourable life for so long a time as to convince the Court thatthere has been a,complete repentance and a determination to perseverein honourable conduct, the 'Court will have the right and the power toreinstate him in his profession. For the time being the order is thathe be struck off the roll.
Soertsz J.—I agree.
de Kretser J.—I agree.
Rule made absolute.