095-NLR-NLR-V-40-In-the-Matter-of-an-Application-under-section-19of-the-Courts-ordinance.pdf
In re A Proctor.
367
1938
Present: Hearne, Keuneman,' and Nihill JJ.In re A PfoocTOR.
In the Matter of an Application under section 19 of theCourts Ordinance.
Proctor—Properly entrusted to him in his private capacity—Breach of trust—Suspension from practice—Sufficient punishment—Application to strikename off the rolls.
Where the respondent (a proctor) was convicted of criminal breach oftrust of an attiyal which had been entrusted to him for sale, not in hisprofessional capacity, and where at the trial before the Supreme Courtthe complainant accepted the attiyal on the suggestion of the presidingJudge,—
Held, that suspension from practice for twelve months would be asufficient punishment for the respondent’s misconduct.
There is no absolute rule that a proctor convicted of an offence shouldbe struck off the rolls.
T
HIS was an application to remove the respondent’s name from theroll of practising proctors.
E. F. N. Gratiaen (with him N. Nadarajah and P. Navaratnarajah),for respondent.—The respondent was convicted of criminal breach oftrust of an attiyal entrusted to him for sale by Mrs. Rasiah. Before thePolice Court prosecution the attiyal was offered to Mrs. Rasiah, but shedenied that it was the same attiyal and refused to accept it. Later,at the conclusion of the Supreme Court trial, she accepted it on theadvice of the Chief Justice, who was the presiding Judge. Restitutionhas been made, and this is a matter which should be taken into considera-tion in favour of the respondent. (In re Hill'.) A still more weightyconsideration is the fact that the alleged offence was not committed bythe respondent in his official capacity. He was not employed byMrs. Rasiah as her proctor in this matter. The attiyal was entrustedto him in his private capacity as a friend. In determining whetherhe should be struck off the roll, the question whether the misconductwas professional or not is material. It should be considered whetherthe particular wrong done is connected with his character of proctor.(In re Hill (supra) ); In re A Solicitor, ex parte The Incorporated LawSociety=; Coderey on Solicitors (4th ed.) 230. Respondent has beenv sufficiently punished. He received only a temporary benefit in a sumof Rs. 50. He has to support a wife and seven children, and if he isbarred from practising as a proctor, that would mean utter ruin anddisaster for himself and his wife and family. A proctor who appropriatedhis client’s money for his own use was not removed from the roll ofproctors, but suspended from practice for a period. (In re A Proctor’.)Similarly in the case of two proctors found guilty of deceit and mal-practice. (In re Two Proctors'.) Respondent is not seeking to defendhimself. He merely desires to point out the mitigating curcumstancesand throw himself at the mercy of the Court.
• is L. T. net.2 61 L. T. SIS.
* 36L._ R. 9.
■ 37 N. L. R. 352.
368
i
HEARNE J.—In re A Proctor
M.T. de S. Ameresekere, C.-G. (with him D. Jansze, C.C.) in-support.—The consequence of a conviction for an offence involving moral'turpitudehas invariably been removal from the roll. In the two cases cited, In reA Proctor and In re Two Proctors there were no convictions. However,there is nothing to prevent a departure form what may be regarded ascursus curiae. It is conceded that the offence was not committed by therespondent qua proctor. With regard to restitution, this is hot admitted.On the evidence it is clear that the value of the attiyal had been demandedby Mrs. Rasiah, and the respondent had sent a cheque which was dis-honoured. He had made use of the attiyal for his own purposes bypawning it. It is not admitted that the attiyal returned was the identicalone entrusted to him. No restitution has in fact been made. There hasbeen, at least, one case where a proctor had made restitution, yet his namehas been removed. Even if this application is allowed, it will be opento the proctor in appropriate circumstances to have his name restored tothe roll.
E. F. N. Gratiaen, in reply.—With regard to the cursus curiae. This isthe only case where a sentence of imprisonment was not passed on aproctor convicted of misappropriation. In passing a sentence of fineonly the presiding Judge referred to the extenuating circumstances.The attiyal was first tendered to Mrs.- Rasiah long ago, before the PoliceCourt inquiry.
Cur. adv. vult.
December 21, 1938. Hearns 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 practise before this Court.
On May 27, 1938, the respondent was convicted in S. C. case No. 31,P. C. Kandy, No. 57,320, of an offence punishable under section 389of the Ceylon Penal Code, in that in or about July, 1930, “ he did commitcriminal breach of trust of an attiyal of the value of Rs. 1,250 entrustedto him at Kandy for sale by Mrs. E. R. Rasiah ”,
The facts of the case which the Jury by their verdict accepted werethat the attiyal which had been entrusted to the respondent for salehas been deposited by him as security for a loan which he obtainedfrom one S. J. Fernando.
Mrs. Rasiah in D. C. Kandy, No. 41,900, sued the respondent for therecovery of Rs. 7,500 (with this we are not here concerned) and on asecond cause of action for the recovery of the attiyal or its value.Judgment was entered of consent and- was followed by execution pro-ceedings in which, by the sale • of respondent’s property, a stun ofRs. 3,728.90 was recovered by the plaintiff.
Prior to the Police Court proceedings the respondent offered toMrs. Rasiah' an attiyal which he stated was the one entrusted to him,but she declined to accept it on the ground that it was not the originalattiyal she had handed to the respondent. This attiyal Was a productionat the S. C. trial and at its conclusion, as Mr. Gratiaen who appearedfor . the respondent at the trial states, the Chief Justice who presided
HE ARNE J.—Jit re A Proctor.369
a&vised .her to accept it which she did. It would, we think, in theseprofceedings be fair to assume that though belated and not, as it wouldappeal in consequence of contrition, restitution has in fact been made..
In the case of In re Hill1 in which an admitted attorney, being engagedin the employ of a firm of attorneys as managing clerk, embezzled twosiims of money amounting to £93 which he had received from a clientof the firm, the fact that he had repaid the sums of money was referredto as a relevant circumstance although repayment took place only uponthe discovery of the fraud.
But the most important consideration to which in our opinion weightshould be given is that the attiyal was not entrusted to the respondentin his capacity as proctor. This aspect of the matter was pressed onour notice by Mr. Gratiaen and was not disputed by the learned Solicitor*General.
In In re A Solicitor, ex parte The Incorporated Law Society",a Solicitor, while acting as a clerk to a firm of Solicitors, mis-appropriated various sums of money amounting to £175 belongingto his employers. For this offence he was sentenced to 18 monthssuspension. Later he was prosecuted in a criminal court and sentencedto six months imprisonment. The Incorporated Law Society thenapplied to. strike the Solicitor off the rolls on the ground of such convic-tion for felony, although the facts were the same as on the formeroccasion when he was suspended. It was held that there was no absoluterule that a Solicitor convicted of felony should be struck off the rolls.
Iii his judgment Pollock B. said, “ the mere conviction is not bindingupon the Court in a case of this kind, and the Court can, and may, andought, to enter upon and'weigh all the facts of the case, including anyextenuating circumstances . . . . ”
Manisty J. said, " It is very important to bear in mind, that the factsof this case are exactly the same as in the case of In re Hill (supra).It was not qua Solicitor that he committed the offence of which he hadbeen convicted and that was pointed out as a very strong fact tc beconsidered. So far as the offence was concerned he was like an ordinaryindividual …. It is not the case of a Solicitor, but it is the caseof a man committing a felony, he being a Solicitor at the time, andthat is pointed out strongly in the judgment of Cockburn C.J. andBlackburn J”
The respondent is a man of 49 years of age and has been in practice for17 years. He appears to have acted under the influence of considerablepressure. I think that in all the circumstances we are not called uponto go to the extent of striking him off the rolls. It will be sufficientin my opinion if we mark our sense of his misconduct by ordering thathe be suspended from practising as a proctor for twelve months from thisdate. He will bear the costs of this application which we fix at Rs. 52.50.
Ketjneman J.—I agree.
Nmnx. J.—I agree.
40/28 M8Z'T-5M-