DHAMMIKA CHANDRATILEKE v. SUSANTHA MAHES MOONESINGHE

014-SLLR-SLLR-1992-2-DHAMMIKA-CHANDRATILEKE-v.-SUSANTHA-MAHES-MOONESINGHE.pdf


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Dhammika Chandratileke v. Susantha Mahes Moonesinghe
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DHAMMIKA CHANDRATILEKEv.
SUSANTHA MAHES MOONESINGHE
SUPREME COURTBANDARANAYAKE, J.
AMERASINGHE, J. ANDDHEERARATNE, J.
4TH JUNE AND 12TH DECEMBER, 1992.
Attorney-at-Law – Disciplinary Rule – Deceit and criminal breach of trust -Judicature Act 42(2) read with the Supreme Court Rules 1978.
S. M. Moonesinghe an Attorney-at-Law carrying on business under the name andstyle of T. M. Associates received a deposit of Rs. 50,000/- from Mrs. DhammikaChandratileke for which he issued a promissory note agreeing to pay interest at24% per annum. He paid interest upto July 1988 and thereafter defaulted. Afterseveral requests and demands he issued Mrs. Chandratileke a cheque forRs. 20,000/- on 1.2.89 encashable on 15.6.89. But the cheque bounced when itwas presented as the account had been closed. Moonesinghe kept on putting offMrs. Chandratileke and eventually on a complaint made by her, the SupremeCourt issued a Rule under s.42(2) of the Judicature Act. The Rule alleged thatMoonesinghe had committed deceit and criminal breach of trust in a sum ofRs. 50,000/-.
Held:
The respondent Moonesinghe should be removed of the office of attorney-at-lawand his name struck off the roll.
Held: per Bandaranayake and Dheeraratne, JJ.
When formulating a Rule one has to bear in mind that s.42(2) of the JudicatureAct recites a species of conduct to wit: deceit, malpractice, crime or offencewhich is viewed with disapproval by the Supreme Court. An Attorney-at-Law guiltyof such conduct is liable to be disciplined by the Court in terms of s. 42(2) andRules made in terms of Article 136(1)(g) of the Constitution.
The language of section 42(2) of the Judicature Act cannot be divided into parts,one variety of unconscionable conduct by an attorney-at-law permitting the courtsto exercise its jurisdiction, to wit; deceit or malpractice, whereas some othervariety of unconscionable conduct, to wit; crime or offence divesting the court of
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its jurisdiction. It is essential the language of section 42(2) aforesaid be viewed asa whole and a Rule formulated in such a manner as to give a respondentsufficiently clear particulars as to the specific conduct that is being examined bythe Supreme Court as disciplinary action is not confined to conduct or acts donein the course of an Attorney’s professional practice. Thus in the course of givingparticulars in the instant case, a reference has been made to the deceptionpractised on the complainant by the respondent and a specific reference made tothe transaction concerning the acceptance of money on trust on deposit toaccrue interest and the breach of such trust described in the Rule as criminalbreach of trust. This description in the Rule is legitimate and does in fact give therespondent a clear intimation of what is in the mind of the disciplining authority. Itis nothing more than giving the respondent particulars of the matter to beexamined by the Court.The Rule as formulated is therefore without exceptioncorrect upon the facts.
Per Bandaranayake, J.
“The Supreme Court admits a person of good repute and of competentknowledge and ability to the office of Attorney-at-Law, likewise the Supreme Courtmay admonish, reprimand, suspend or remove him from such office for guiltyconduct of the species enumerated in s. 42(2) aforesaid as the case may be …”
“The use of the word 'charge' in s.42(3) of the Judicature Act must be understoodin this way. The matters contained therein are descriptive of the course of conductof an Attorney to be examined. The provisions of section 42(3) and (4) areconsistent with this view of section 42(2). The Supreme Court here is exercising adisciplinary jurisdiction and not a penal jurisdiction. It is the exercise of a specialjurisdiction conferred on the Supreme Court alone.
Per Amerasinghe, J.
“Conviction for an offence is neither necessary, nor invariably sufficient, tomake a person amenable to the disciplinary jurisdiction of tliis Court. It is not anirrelevant matter, for conviction for an offence is a prima facie, albeit only a primafacie, reason for this Court to act in disciplinary proceedings. The question inproceedings of this nature, is not whether an attorney-at-law has been, or may beconvicted for or found guilty of an offence or not, and if guilty whether he shouldbe punished, but whether, having regard to the misconduct established, he is a fitperson to be continued on the roll, and if so, on what terms.”
“An attorney whose misconduct is criminal in character, Whether It was donein pursuit of his profession or not . . . may be struck off the roll, suspended
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from practice, reprimanded, admonished or advised, even though he had notbeen brought by the appropriate legal process before a court of competentjurisdiction and convicted, and even though there is nothing to show that aprosecution is pending or contemplated".
If there has been a charge and conviction in full force and effect “the attorneyis debarred from traversing the conviction or from regarding the findings of facton which the conviction is based, but it would be open to him to confess andavoid, that is to show by extra matter that, in spite of the conviction, he yet wasnot guilty of the crime or offence whereof he was convicted, whereby he wouldbe liable under section 42 of the Judicature Act."
“This Court is the sole arbiter of the question whether or not a person is fit toremain on the roll and, upon what conditions … In the determination of thatquestion, its powers are unfettered and untramelled by the findings of fact, theirinterpretation, and the decisions of other judges and tribunals on the basis ofthose facts."
"Even if there is no conviction, yet if the attorney's conduct is otherwisecriminal in character, the Court would usually order the removal of his name fromthe roll, if it was of a particularly reprehensible nature."
"Although criminal misconduct prima facie makes a person unfit to be anattorney-at-law, this, however, is not an inflexible rule.”
“A court acting in the exercise of its criminal jurisdiction is concerned withfinding out whether the specifically, precisely and narrowly defined ingredients ofan offence have been proved beyond reasonable doubt, strictly in accordancewith the formal rules of evidence and procedure laid down for that purpose, if itfinds a person guilty, it pronounces a sentence of punishment. The punishments itmay impose are statutorily prescribed (see Chapter III of the Penal Code), andmay, in certain instances, include death, rigorous or simple imprisonment,whipping, forfeiture of property or fine. Our task, in the exercise of the disciplinaryjurisdiction vested in us in terms of section 42 of the Judicature Act, is thedetermination, based on an appropriate degree of proof, having regard to thenature of the charge, whether a person we formerly admitted should be struck offthe roll, suspended, reprimanded, admonished, or advised for his unprofessionalconduct. In the performance of that task, this court proceeds with itsinvestigations under section 42 of the Judicature Act, unfettered by invariable andinflexible standards of proof or of rigid rules pertaining to procedure and theadmissibility of evidence.
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“I am inclined to think that the word “offence” in section 42(2) of the JudicatureAct has a wider meaning than that given to it in the Penal Code and Code ofCriminal Procedure. I think it means, disciplinary offence and includes, convictionfor an offence by a competent court, conduct that is criminal in character,malpractice – whether the professional misconduct involves moral turpitude or not- deceit, and all other forms of unprofessional conduct in the sense ofmisconduct the Court ought to have taken into account at the time of theadmission of any attorney-at-law in deciding whether he was a person of goodrepute.”
Cases referred to:
Bhandari, v. Advocates Committee (1956) 3 All ER 742, 744.
Re Dematagodage Don Harry Wilbert (1989) 2 Sri LR 18, 28,29, 30, 32,35.
Re Two Solicitors, ex parte Incorporated Law Society (1909) 53 Sol. Jo. 342.
' 4. Hall v. Jordan (1947) 1 All ER 826.
Younghusband v. Luftig (1949) 2 All ER 72.
Wilson v. Inyang (1951) 2 All ER 237.
In re Weare (1893) 2 QB 439, 442, 445, 446, 447, 449, 450.
Re Solomon Victor Ranasinghe (1931) .1 CLW 47.
The Solicitor-General v. Chelvatamby (1938) 13 CLW 80.
Solicitor-General v Cooke (1939) 41 NLR 206.
Re Aiyadurai (1950) 52 NLR 510.
Solicitor-General v. Abdul Cader(1958) 60 NLR 49.
Re Fernando (1959) 63 NLR 233.
Short v. Pratt (1822) 1 Bing. 102 Vol. 130 (1912 Ed.) ER 42.
In the Matter of Knight and Hall (1823) 1 Bing. 142Vol. 130 (1912 Ed.) ER 58.
Re Hill (1868) LR 3 QB 543,545, 548.
Re a Solicitor (1907) 51 Sol. Jo 212.
Re P. P Wickremasinghe S.C. Rule 2 of 1981, S.C. Mins, of 19.7.82.
Re Edgar Edema (1877) Ramanathan 380,384.
Stephens v. Hill(1842) 10 M & W 28 Vol. 152 ER (1915 Ed.) 368.
Re Isaac Romey Abeydeera (1932) 1 CLW 358,359.
In re a Proctor (1933) 36 NLR 9.
In re C. £ de S. Senaratne (1953) 55 NLR 97,100.
Re Donald Dissanayake Rule 3 of 1979 S.C. Minutes of 31.10.1980.
Re Rasanathan Nadesan Rule 2 of 1987 S.C. Mins, of 20.5.1988.
Re Vallance (1889) Times 9 April & 29 October.
Re Knight (1&23) 1 Bing 142.
Re Thirugnanasothy (1973) 77 NLR 236, 239.
Re Garbett (1856) 18 CB 403.
R v. Southerton (1805) 6 East 126.
Re W. H. B. (1842) 17 L. Jo. 165.
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Re Kandiah (1932) 25 CLW 87.88.
In re A. P. Jayatilleke (1933) 35 NLR 376,377,378.445.
Attorney-General v. Seneratne (1958) 60 NLR 77.
Re Brito (1942) 43 NLR 529.533.
(Jndugodage v. Rasanathan (1989) 2 Sri LR 165,167.
Re Arthenayake (1987) 1 Sri LR 314,341.346.
Re Abeydeera (1932) 1 CLW 359.362.
Ex parte Brounsall (1778) 2 Cowp. 829 Vol. 98 ER (1909 Ed.) 1385.
Re an Advocate (1951) 52 NLR 559,560.
Re Bradley (1901) 36 L. Jo. 351.
Re Page (1823) 1 Bing. 160.
Attorney-General v. Ellawala (1926) 29 NLR 13.17.18,31.
Solicitor-General v. Ariyaratne 1 CLW 400.
Re Gaston K. de /az Rule 2 of 1988 SC Minutes of 29 May 1989.
Attorney-General v. Ariyaratne (1932) 34 NLR 196.
Re Cooper (1898) 67 UQB 276.
Re Watts, Ex parte Incorporated Law Society (1899) 43 Sol. Jo. 192.
Re Jellicoe (1899) 43 Sol. Jo. 192.
Re A Solicitor (1955) Times 22nd and 27 October.
Re A Solicitor (1891) 7 TLR 420.
Re A Solicitor (1896) 40 Sol. Jo. 389.
In re A Proctor (1938) 40 NLR 367.
Re a Solicitor, Ex parte Incorporated Law Society (1889) 37 WR 598, 61 LT812.
Re M. Shelton Perera Rule 2 of 1987 S.C. Minutes of 28.9.1979.
Re de Soysa (1954) 56 NLR 287.
Re Dharmalingam (1968) 76 NLR 94.
In re Simon Appu (1900) 4 NLR 127.
In the matter of K (1900) 4 NLR 155.
In re Dharmaratne 1862 Ramanathan 134.
Re the complaint of Dr. C. J. Kriskenbeck against A. J. a Proctor of theSupreme Court (1878) 3 NLR 242.
The Solicitor-General v. Jayawickrema (1952) 53 NLR 320.
In re Batuwantudawa (1950) 51 NLR 513 and (1967) 72 NLR 198.
Re Wijesinghe (1939) 40 NLR 385,387.
Re D (1888) 23 L Jo. 67.
Emperor v. Rajani Kanta Bose et al 49 Calcutta 804.
In the matter of an application to be readmitted and re-enrolled as anAdvocate of the Supreme Court (1936) 39 NLR 476.
Re King (1845) 8 QB 129.
Re Hall, Dollond v. Johnson (1856) 27 LT (OS) 230.
Re Blake (1860) 3 & E 34,37,40; 30 U QB 32,34,35.
Re Strong (1884)) 53 LT (N S).
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Re Hopper (1890) 34 Sol. Jo 568.
Myers v. Elman (1939) 4 All ER 484.497.
Sittingbourne and Sheerness Rail Co. v. Lawson (1886) 2 TLR 605.
Simes v. Gibbs (1838) 6 Dow 310.
Brendon v. Spiro (1937) 2 All ER 496.
Re A Solicitor, Ex parte Incorporated Law Society (1906) 93 LT 838.
Ex parte Champ (1843) 2 LT (OS) 168.
Bunny v. Judges of New Zealand (1862) Moo. P.C.C. 164.
Re A Solicitor, Ex parte Incorporated Law Society (1898) 1 Q B 331.
Re lies (1922) Sol. Jo. 297.
Macauley v. Sierra Leone Supreme Court Judges (1928) A C 344.
Re Seneviratne (1928) 30 NLR 294.
Re Monerasinghe (1913) 3 CWR 370.
Re W. A, P. Jayatilleke (1953) 56 NLR 49.
Re Ranasinghe (1951) 15 CLW 26.
Re Senaratne (1928) 30 NLR 299.
In the matter of an application for the readmission as a Proctor 39 NLR 517.
Attorney-General v. Ellawela (1931) 29 NLR 32.
Re Wickremasinghe (1945) 46 NLR 204.
Re Salgadoe (1936) 6 CLW 125.
Re Arumugam S.C. Application 7 of 1988 Spl. S.C. Mins, of 13.12.1988.
Proceedings on Rule Nisi to remove Attorney-at-Law from roll of attorneys.
N. R. M. Daluwatte, PC. with Rohan Sahabandu for the Bar Association of SriLanka.
Hector Yapa, Deputy Solicitor-General with Asoka de Silva, Deputy Solicitor-General for Attorney-General.
Respondent absent and unrepresented.
Cur. adv. Vult.
5th June. 1991.
BANDARANAYAKE, J.
Upon the complaint of Mrs. Dhammika Chandratileke of a fraudperpetrated against her by Susantha Mahes Moonesinghe, Attorney-at-Law. the Court decided to notice the Respondent Attorney. Copiesof the affidavit of Mrs. Chandratileke along with a notice calling for anexplanation were despatched through the usual channels to the Fiscal
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for service and to the Respondent's known residences in view of theprovisions of s. 42(3) of the Judicature Act, These attempts failed.
Section 42(2) of the Judicature Act provides as follows:
"Every person admitted and enrolled as an Attorney-at-Lawwho shall be guilty of any deceit, malpractice, crime or offencemay be suspended from practice or removed from office by anythree judges of the Supreme Court sitting together.”
Numerous registered letters sent to the Respondent’s knownaddress were returned undelivered except for one sent to hisaddress in Panadura (which was also the address of the Respondentaccording to a warrant of detention made against the Respondent bythe Magistrate’s Court of Mount Lavinia in cases 56280 and 60932)and which was not returned. This is significant. The Fiscal reportedhis inability to effect personal service as the Respondent could not befound. According to a letter written by the Respondent dated16.2.1990 to A. L. M. Ameen, President’s Counsel, who was a witnessat the inquiry (the letter being produced) the Respondent had left thecountry. That letter bears no address of the sender. The courtproceeded to frame a Rule against the Respondent which it did on
24.12.90.
The Rule referred to the following amongst other matters:-
“And whereas the said complaint of the said Mrs. DhammikaChandratileke and other information available to this courtdiscloses that you have committed –
deceit; and
criminal breach of trust of the (said) sum of Rs. 50,000/-(falling within the ambit of section 42(2) of the Judicature ActNo. 2 of 1978).
And whereas this Court has decided that proceedings forsuspension or removal from the office of Attorney-at-Law should betaken against you under section 42(2) aforesaid read with theSupreme Court Rules 1978.
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These are therefore to command you in terms of section 42(3) ofthe Judicature Act of 1978 to appear before this court and showcause . .. why you should not be suspended or removed from officeof Attorney-at-Law…
The Respondent did not appear before the Court nor was herepresented on the date fixed for inquiry. Fiscal reported thatsummons could not be served on the Respondent and the registeredletters sent to the Respondent containing the summons were returnedundelivered. The Court postponed the inquiry for 21.2.91.
On'21.2.91 also the Respondent was absent and unrepresented.Summons were returned undelivered. The case was postponed for
Mr. Daluwatte, President’s Counsel representing the BarAssociation of Sri Lanka undertook to provide the address given bythe Respondent to the BASL. Registrar was directed to reissuesummons to that address which was done. On 25.3.91 again therespondent was absent and unrepresented and summons returnedundelivered. At this stage Court directed substituted service bypublication in the newspapers. This was done. Inquiry was refixed for
Once again the respondent was absent and unrepresented.But the Court decided to proceed with the inquiry ex parte and theinquiry commenced. Whilst the inquiry was in progress Registrar,Supreme Court, received a letter at 11.45 a.m. dated 2.6.91purporting to be from a Law Firm in the Seychelles stating that theywere acting for the respondent and that they were instructed that therespondent had got to know about the pending Rule against himbefore the Supreme Court of Sri Lanka from the newspapers andprayed that the respondent be granted a further date so thatarrangements could be made for the respondent to be representedat the inquiry. Despite the uncertainty of the genuineness of thiscommunication the Court postponed the inquiry for 12.11.91 and thewriter from Seychelles, to wit: Director, Francis Rachel Law Centre,Francis Rachel Street, Victoria, Seychelles was so informed. On12.11.91 as the respondent was again absent and unrepresentedinquiry proceedings of 4.6.91 were adopted by the Court with theconsent of all Counsel present and further evidence of HattonNational Bank officers were taken and the inquiry concluded. Nofurther communication has been received from the Seychelles LawCentre.
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The evidence recorded on 4.6.91 was as follows: Mrs. DhammikaChandratileke, Assistant Registrar, University of Colombo, who wasthe complainant, stated that on the recommendations of Mr.Mahathanthila, Registrar of the University at that time, thecomplainant invested Rs. 50,000/- with the respondent, S. M.Moonesinghe, carrying on business under the name and style of“T. M. Associates”. That was on 27.7.87. In consideration of that shewas issued Promissory Note P2 for the repayment of the capital andinterest at 24% per annum but with a deduction of Rs. 2000/- being1st month’s interest, amounting to a sum of Rs. 72,000/-. She hadearlier visited T. M. Associates on 19.1.87 and met the RespondentMahes Moonesinghe and having spoken to him and on his promise topay 24% interest on a deposit which worked out to Rs. 2000/- permonth, she handed over the capital sum of Rs. 50,000/- to him. Therespondent issued to her promissory note P2 which was signed byhim in her presence. The document P2 contains an undertaking that- quote – “I, the undersigned Susantha Mahes Moonesinghe . . .promise to pay Mrs. Dhammika Chandratileke… the sum of SeventyTwo Thousand currency for value received with interest thereon at therate of 24% per centum per annum, from date hereof." It was Mrs.Chandratileke's evidence that the first month’s interest amounting toRs. 2000/- was deducted and the note given for Rs. 72,000/-. Shealso stated that she has received interest in October 1987, did notreceive interest for November 1987 and received interest fromDecember 1987 to July 1988 totalling Rs. 18000/-. She had to go tothe respondent’s office to collect these sums of monthly interest andsign a registrar maintained by him. A yellow card issued to her shehad lost. The July 1988 interest was given later. Thereafter in August1988 the Respondent informed her that he was financially bankruptand that the auditor was checking his balance account. ThereafterRespondent sent letter P3 informing her that his office was shifting toDuplication Road. Witness identified the signature of the Respondentin P3. Thereafter witness visited the office at Duplication Road (R. A.de Mel Mawatha) more than 20 times. She met the respondent two orthree times and asked for the return of the capital sum invested.Respondent replied that he did not have money to settle her andgave her a post-dated cheque P4. This cheque was issued on theHatton National Bank and dated 15.6.89 the payee being Mrs.Chandratileke for the amount of Rs. 20,000/-. When issuing the
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cheque the respondent made an endorsement on P2 to the effectthat witness received Rs. 20,000/- as return of part capital by chequeNo. 293718 dated 15.6.89 drawn on Hatton National Bank. Witnesssigned endorsement and identified same. The cheque had beensigned, witness says, by M. Moonesinghe and the cheque Numberwas 293718. This cheque was issued to her by the respondent on
2.89. Witness said she kept the cheque with her until the first weekof July 1989 because she did not have a current account in a Bank.She handed it to Mr. Mahatantila to be presented for claim throughhis bank account (the People's Bank, Union Place Branch, Colombo)which he had done on 13.7.89. She endorsed the cheque when shegave it to Mahatantila. Later Mahatantila returned the cheque to heras it had been returned to him with an endorsement “Account closedon 13.3.1989” in red ink.
Witness thereupon complained to the Police. Witness handed overthe original cheque to OIC Kollupitiya on 12.8.89. She alsocomplained to the CID Fraud Bureau. A certified copy of hercomplaint to the Police was produced P5. Witness said that to dateshe has not received Rs. 20,000/- or other part of the capital suminvested from the respondent. The witness was tendered for cross-examination by Mr. N. R. M. Daluwatte, President’s Counselrepresenting the Bar Association of Sri Lanka. Her evidence was notchallenged.
Witness Mahatantila confirmed that he advised Mrs. Chandratileketo invest money with T. M. Associates. He also confirmed thatMrs. Chandratileke gave his cheque P4 for encashment throughhis Bank account which he did after 15.6.89 and that it was returnedby the Bank with a note reading “account closed” on 13.3.89in red ink. Witness returned the cheque P4 to Mrs. Chandratileke.
Witness M. L. M. Ameen, President’s Counsel produced aphotocopy of a letter dated 16.6.90 written to him by Susantha MahesMoonesinghe, Attorney-at-Law and Notary Public marked P1. Theoriginal of P1 had been produced in a case in Magistrate’s Court,Mount Lavinia. In the letter P1 the writer has stated that he hadconsiderable difficulty in appearing before the Magistrate’s Court asthe CID who were investigating into a complaint had been following
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him on such occasions. Mr. Ameen also said that he received atelephone call from Mahes Moonesinghe from Singapore after hereceived P1 (16.2.90) and that he informed Moonesinghe that a Rulehad been issued against him by the Supreme Court and that thematter was called before the Court and that as he was not present itwas put off. Moonesinghe had replied that he had heard about theRule. Moonesinghe did not indicate when he would come to SriLanka. Mr. Ameen had appeared for Moonesinghe in the Magistrate'sCourt but was not representing him in the matter of the Rule.
Witness J. A. D. R. Jayasinghe, Acting Registrar, Magistrate'sCourt, Mount Lavinia, produced the original of the letter P1 (markedalso as P1). The letter is dated 16.2.90 and has been written to Mr. M.
M. Ameen, Attorney-at-Law on the letter-head paper of SusanthaMoonesinghe, Solicitor and Notary Public. No address is given of thesender. Mr. Ameen identified the signature of Susantha MahesMoonesinghe. It states that the writer had to leave the Country andremain out until such time as matters are sorted out. The letter refersto two cases filed against the writer to wit: M.C. Mount Lavinia CasesNos. 56280 and 60932 and requests Mr. Ameen to continue toappear in those cases on his behalf in his absence. This witness wassubmitted for cross-examination but no questions were asked of him.
Next, evidence regarding the Bank account of the respondent atthe Hatton National Bank was led. S. M. Moonesinghe had openedAccount No. 330788 with the Hatton National Bank, City Office on31.1.89 with a cash deposit of Rs. 20,000/-. Thereafter therespondent had made deposits to the credit of this account andmade withdrawals. Witness produced statement of account P6.Cheque P4 bearing No. 293.78 refers to account No. 330788aforesaid. The statement shows that the account had been openedon 31.1.89 and closed on 13.3.89. Sums of money had beenfrequently deposited and frequently withdrawn from this account inthe short period of its existence. On 13.3.89 the credit balance wasRs. 24.25. One sees the unsatisfactory state of this account. Forexample, on 3.3.89 the credit balance was only Rs. 339.25. Thenthere has been a deposit of money amounting to Rs. 15000/- by 7thMarch and again a balance of only Rs. 24.50 by 13.3.89. This showsa pattern of deposits and quick withdrawals. When the respondent
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issued P4 the post-dated cheque dated 15.2.89 for Rs. 20,000/- on1.2.89 the respondent had opened this account only the previous day(31.1.89) with a cash deposit of Rs. 20,000/-. Then on 15.2.89 therespondent had deposited Rs. 30000/- by 5 cash deposits and onthe same day withdrawn Rs. 25,000/- by cash cheque leaving abalance of only Rs. 5,694.25 to meet the cheque P4 for Rs. 20,000/-.Undated letter (a copy of which was produced as P7) was sent bythe Senior Manager of the Bank, J. M. J. Perera informing therespondent of the closure of his account No. 330788 forunsatisfactory conduct. This letter states . . . “We regret to note thatwithin the short period (since 31.1.89) we have returned 4 chequesdrawn by you for lack of funds … We expect you to maintain aminimum balance of Rs. 20,000/-… we hereby give you notice toclose your account by 3rd March 1989 …" Cross-examination byMr. Daluwatte, President's Counsel, was directed at elucidating a fewmatters arising upon the evidence.
The evidence regarding the cheque P4 was as follows: RomaliAbeysekera, Staff Officer, Hatton National Bank, City Office, statedthat P4 came to her through the clearing department. P4 related toaccount No. 330788 of S. M. Moonesinghe. She made anendorsement on the cheque stating that the account had beenclosed on 13.3.89 and returned the cheque. This witness also statedthat she had come across abut 20 cheques stated as drawn by S. M.Moonesinghe after the account was closed. That was both beforeand after discovering P4. Witness also identified letter P7 the lettersent by the Manager by registered post to S. M. Moonesingheinforming him that his account was closed for unsatisfactory conduct.P7A the registered postal article receipt dated 13.3.89 wasproduced. P7B a document maintained by the Bank showed letter8002 had been sent to S. M. Moonesinghe to the address given in hisapplication P8. I am satisfied that the respondent was duly informedin February that he should close his account by 3rd March. WitnessGunatillake, Staff Assistant of the Hatton National Bank produced acertified copy of the application made by S. M. Moonesinghe to openthe account marked P8. In that application the applicant has styledhimself as a businessman. Witness also produced as P9 thespecimen signature of S. M. Moonesinghe retained by the Bank. Thiswitness confirmed through entries made by the Bank Manager in
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P10, a record card containing entries “CNR" which means covers notreceived (i.e.) insufficient funds, that several cheques issued by S. M.Moonesinghe were returned for lack of funds. This witness wasfamiliar with the signature of the manager.
The above constituted the evidence led by the Deputy Solicitor-General against the respondent. This is the only evidence placedbefore this Court. The testimony of the complainant has been amplysupported by the documentary evidence to wit: the Promissory NoteP2, cheque P4 and supported by the evidence of witnessMahatantila. The Court unhesitatingly accepts their testimony astruthful and reliable. The fact that the respondent accepted theinvestment of Rs. 50,000/- from the witness Chandratileke on27.10.87 is proved beyond reasonable doubt. The respondentagreed to pay interest of 24% per annum at that time in monthlyinstalments. The respondent has paid monthly instalments of interestup to and including July 1988. Thereafter he has paid nothing and infact stated that he was bankrupt. Upon the complainant demandingsome payment the respondent has given her a post-dated cheque forRs. 20,000/- on 1.2.89 encashable on 15.6.89. But the Bankstatement P6 shows that the respondent had only a balance ofRs. 24.25 on 13.3.89. When the Bank account was closed.
Respondent opened the account on 31.1.89 with a deposit ofRs. 20,000/-. He wrote P4 for Rs. 20,000/- the next day on 1.2.89.From 31.1.89 to 13.3.89 – a period of 6 weeks – the respondent hasmade transactions through this account either of deposits, purporteddeposits or withdrawals on 31.1.89, 2.2.89, 6.2.89, 7.2.89, 9.2.89,10.2.89, 13.2.89, 14.2.89, 15.2.89, 21.2.89, (4 entries), 23.2.89(6 entries), 24.2.89, 28.2.89, 3.3.89, 7.3.89 (6 entries) and 10.3.89. ByP7 he had been informed by the Bank that he should close hisaccount by 3rd March. I am satisfied that by 7.3.89 the respondentknew the parlous state of his account and that he had no funds in thisaccount to meet P4. Thus, knowing that P4 will be dishonoured therespondent has taken no step to inform the complainant of the factthat he had no funds to meet P4 or to make other arrangementsregarding payment of dues to the complainant.
The Rule specifies that the complaint and other informationavailable to the court discloses that the Respondent has committed –
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deceit; and
committed breach of trust of a sum of of Rs. 50,000/-;
which was money deposited with the Respondent by the complainantas savings to accrue interest. It requires the Respondent to showcause as to why he should not be suspended or removed from theoffice of Attorney-at-Law;
When formulating a Rule one has to bear in mind that s.42(2) ofthe Judicature Act recites a species of conduct, to wit: deceit,malpractice, crime or offence which is viewed with disapproval by theSupreme Court. An Attorney-at-Law guilty of such conduct is liable tobe disciplined by the Court in terms of s.42(2) and Rules made interms of Article 136(1) (g) of the Constitution.
The language of section 42(2) of the Judicature Act cannot bedivided into parts, one variety of unconscionable conduct by anAttorney-at-Law permitting the court to exercise its jurisdiction, towit:deceit or malpractice, whereas some other variety ofunconscionable conduct, to wit: crime or offence divesting the courtof its jurisdiction. It is essential that the language of section 42(2)aforesaid be viewed as a whole and a Rule formulated in such amanner as to give a Respondent sufficiently clear particulars as tothe specific conduct that is being examined by the Supreme Court asdisciplinary action is not confined to conduct or acts done in thecourse of an Attorney's professional practice. Thus in the course ofgiving particulars in the instant case, a reference has been made tothe deception- practised on the complainant by the Respondent anda specific reference made to the transaction concerning theacceptance of money on trust on deposit to accrue interest and thebreach of such trust described in the Rule as criminal breach of trust.This description in the Rule is to my mind legitimate and does in factgive the Respondent a clear intimation of what is in the mind of thedisciplinary authority. It is nothing more than giving the Respondentparticulars of the matter to be examined by the Court. The Rule asformulated is therefore without exception correct upon the facts. I amtherefore unable to agree with the view expressed by my brotherAmerasinghe, J. in this regard.
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Dhammlka Chandratileke v. Susantha Mahes Moonesinghe
(Bandaranayake, J.)
317
The Supreme Court admits a person of good repute and ofcompetent knowledge and ability to the office of Attorney-at-Law;likewise the Supreme Court may admonish, reprimand, suspend orremove him from such office for guilty conduct of the speciesenumerated in s.42(2) aforesaid as the case may be. In any event nomatter of law arising from the Rule Nisi was raised or argued by anyCounsel appearing at the inquiry.
The use of the word ‘charge’ in s.42(3) of the Judicature Act mustbe understood in this way. The matters contained therein aredescriptive of the course of conduct of an Attorney to be examined.The provisions of section 42(3) and (4) are consistent with this view ofsection 42(2). The Supreme Court here is exercising a disciplinaryjurisdiction and not a penal jurisdiction. It is the exercise of a specialjurisdiction conferred on the Supreme Court alone.
Upon the facts it is abundantly clear that the Respondent deceivedthe complainant into the belief that P4 will be honoured and she willrecover part of her monies due to her. Also the Respondent has beenin breach of the trust reposed in him when the complainant depositedmoney with him in order that interest may accrue on the deposit. TheRespondent has failed to pay interest or repay the capital suminvested. The Respondent has not denied the allegations or offeredany explanation whatsoever in his defence. The Respondent is guiltyof both charges laid in the Rule. The Respondent therefore is guilty ofgross misconduct.
Upon the foregoing proved facts in my view the Respondent isunfit to function as an Attorney-at-Law of this court. I am of opinionthat the Rule should be made absolute. I direct that the RespondentSusantha Mahes Moonesinghe be removed from the office of anAttorney-at-Law of this court and that his name be struck off the Rollof Attorneys’-at-Law.
Registrar to take steps accordingly.
DHEERARATNE, J. -1 agree.
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AMERASINGHE, J.
I have had the advantage of reading a draft of the judgment ofBandaranayake, J. I respectfully agree with His Lordship thatMoonesinghe should be removed from office. Moonesinghe wascharged in the Rule with (1) deceit and (2) criminal breach of trust.As for the charge of deceit, I agree that Moonesinghe is guilty ofdeceit. As for criminal breach of trust, I agree that Moonesinghe isguilty, but, perhaps we reach that conclusion somewhat differently.
In a technical sense, criminal breach of trust is a specificallydefined offence in section 388 of the Penal Code. There was noevidence that Moonesinghe was convicted by a competent court. Ido not hold him “not guilty” or “guilty" of the offence of criminalbreach of trust as defined in the Penal Code-, for that is matter to bedetermined by a competent court designated by the Code ofCriminal Procedure for that purpose in other proceedings, if it isdecided that he should be prosecuted.
Conviction for an offence is neither necessary, nor invariablysufficient, to make a person amenable to the disciplinary jurisdictionof this Court. It is not an irrelevant matter, for conviction for an offenceis a prima facie, albeit only a prima facie, reason for this Court to actin disciplinary proceedings. The Court has a wide jurisdiction indeciding what is unprofessional conduct that makes a personamenable to disciplinary proceedings. The question in proceedingsof this nature, is not whether an attorney-at-law has been, or may beconvicted for or found guilty of an offence or not, and if guilty whetherhe should be punished, but whether, having regard to the misconductestablished, he is a fit person to be continued on the roll, and if so, onwhat terms. It may well be that the facts establishing unprofessionalconduct may also be the foundation of a criminal prosecution, past,present or to come. However, it is unnecessary to decide, and I wishto make it clear that I have not decided, that the facts proved satisfythe criteria set out in section 388 of the Penal Code, for theascertainment of whether Moonesinghe is guilty of the penal offenceof criminal breach of trust is not the object and intention of theseproceedings. Having regard to the object and intention of theseproceedings, I find that a non-technical, popular, meaning – uti
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Dhammika Chandratileke v. Susantha Mahes Moonesinghe
(Amerasinghe, J.)
319
loquitur vulgus – rather than the technical meaning usually given tothe phrase by lawyers, is more appropriate and agreeable indeciding what criminal breach of trust means in the Rule. I findMoonesinghe guilty of criminal breach of trust in that non-technical,popular sense. However, having regard to the ambiguous nature ofthe phrase, and the horrendous consequences of being, albeitmistakenly, supposed that he has been convicted of the penaloffence criminal breach of trust, I want it to be clearly understood inwhat sense I find him guilty of criminal breach of trust. Criminalbreach of trust is a phrase which should not be allowed to needlesslyescalate into a sentence. For what he has done, he does not, more orless, owe the law his life. (Timon).
On 27 July 1987, Mrs. Dhammika Chandratileke, an AssistantRegistrar at the University of Colombo, on the recommendations ofMr. Mahathanthila, the Registrar of the University of Colombo,invested a sum of Rs. 50,000/- with Susantha Mahes Moonesinghewho was carrying on the business of borrowing and lending moneyunder the name and style of an organization known “T.M. Associates(Pvt) Ltd”. In return, Moonesinghe, issued a Promissory Note (P2)dated 27 October 1987. In terms of the Promissory noteMoonesinghe personally undertook to pay Mrs. Chandratileke ondemand or order the sum of Rs. 72,000. In terms of a contract arrivedat discussions held between Moonesinghe and Mrs. Chandratileke,she was to be repaid the capital and interest at the rate of 24 percentum per annum, less the first month’s instalment, in monthlyinstalments of Rs. 2000. Nine monthly payments were made betweenOctober 1987 and July 1988. The instalment for November 1987 wasnot paid.
In his letter dated 28 August 1988, Moonesinghe informed Mrs.Chandratileke that “due to unforeseen commitments", the"Company", was “reluctantly compelled to suspend payments for thenext three months commencing 01st September 1988.” Paymentswere to be thereafter “revised and reviewed from time to time.” Theletter, he explained, “was an appeal for understanding, support andforbearing" and Mrs. Chandratileke was told "not to hesitate to writeor meet" Moonesinghe if she wished to discuss “any personal matteror to know further details.”
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This was easier said than done: After over twenty visits to hisoffice, and after meeting him on several occasions to obtain a returnof her money, on 1 February 1989 Mrs. Chandratileke succeeded inobtaining a cheque (P4) for Rs. 20,000 from Moonesinghe.Moonesinghe wrote the following endorsement on the PromissoryNote (P2): “Received Rs. 20,000/- as part capital by chq. No. 293718(HNB) dated 15-6-89. Balance due to me on this Pro-note is 20,725/-".Mrs. Chandratileke signed it. The cheque given to Mrs. Chandratilekeon 1 February, 1989 was dated 15 June 1989. It was signed byMoonesinghe, and drawn on the Hatton National Bank. When thecheque was presented, it was returned dishonoured, bearing theendorsement “Account closed on 13.3.1989”. Mrs. Chandratilekethen complained to the Police on 12 August 1991. (P5).
She also complained to the Chief Justice. In her letter dated 8September 1989, Mrs. Chandratileke prayed that his Lordship “bepleased to direct an inquiry to be held to ascertain whether Mr.Mahes Moonesinghe is a fit and proper person to hold the office of anAttorney-at-Law". On 30 November 1989, Mrs. Chandratileke, set outher complaint in the form of an affidavit. A copy of the affidavit with aletter calling for his observations were sent to Moonesinghe byRegistered post to three addresses: at Malabe, Rajagiriya andPanadura. The documents sent to Malabe and Rajagiriya werereturned undelivered. When there was no response fromMoonesinghe, a copy of the affidavit and Registrar's letter were sentto the Panadura address where the earlier documents had beendelivered. This time they were returned undelivered.
A Rule nisi was issued'by this Court on 24.12.1990 requiringMoonesinghe to appear before this Court on 21 January 1991 andshow cause why in terms of section 42(2) of the Judicature Act, heshould not be suspended or removed. Section 42(2) of the JudicatureAct No. 2 of 1978 provides that before any attorney-at-law issuspended or removed, “a notice containing a copy of the charge orcharges against him and calling upon him to show cause within areasonable time why he should not be suspended or removed, as thecase may be, shall be personally served on him. If, however,personal service cannot be effected, the Supreme Court shall ordersuch substituted service as it may deem fit." The fiscal reported his
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(Amerasinghe, J.)
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inability to serve summons personally on Moonesinghe. Notices sentby registered post were returned undelivered. By order of Court,substituted service was published in the newspapers. There was noresponse from Moonesinghe.
On 4 June 1991, the Court commenced its inquiry in the matter ofthe Rule. According to the evidence of Mr. M. L. M. Ameen, P.C., atthat inquiry, he had been retained by Moonesinghe to appear for himin the Magistrate’s Court of Mount Lavinia. He produced a copy of aletter (P1) dated 16 February 1990 from Moonesinghe. In that letter,Moonesinghe explained why he was an elusive Fugitive: He said thatwhen he appeared in Court, his creditors attempted to “waylay” him;and once he had to leave the court-house “from the rear side”. Sincehe did not think it was "safe any more… to appear in public”, he “hadto leave the country and remain out until such time these matters aresorted out." According to Mr. Ameen, P.C., Moonesinghe telephonedhim from Singapore and told him that he was aware of the issue ofthe Rule. During the inquiry held by the Supreme Court on 4 June1991, a letter, dated 2 June 1991 addressed to the Registrar of theSupreme Court purporting to be from the Director of the FrancisRachel Law Centre, Attorneys-at-Law and Notaries Public of theSeychelles, was placed before the Court. The Director stated that ithad been gathered by their “client” Susantha M. Moonesinghe, afterreading about it in the newspapers, that an inquiry was pendingagainst him in the Supreme Court. The Centre, which was acting forand on behalf of Moonesinghe, prayed that an adjournment of theproceedings be granted to enable Moonesinghe to be represented atthe inquiry. The Court adjourned the inquiry and fixed further hearingfor 12 November 1991 and so informed the Director of the FrancisRachel Law Centre by Registered Post. In a letter dated 6 September1991, the Director-General of the Postal Services Divisions of theSeychelles stated that that Law Firm no longer existed. When thematter came on for inquiry of 12 November 1991, Moonesinghe wasabsent and unrepresented. With the consent of the counsel for theBar Association of Sri Lanka and the Deputy Solicitors-General whowere present, the evidence already recorded was adopted andfurther evidence was recorded.
In Bhandari v. Advocates Committee(,) (followed with approval inRe Dematagodage Don Harry Wilbert™) it was said that “in everyallegation of professional misconduct involving an element of deceit
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or moral turpitude a high standard of proof is called for, and wecannot envisage any body of professional men sitting in judgment ona colleague who would be content to condemn him on a merebalance of probabilities."
The Rule nisi charges Moonesinghe with (1) deceit and (2) criminalbreach of trust. Both deceit and criminal breach of trust involvedishonesty. Section 22 of the Penal Code (Cap. 25) states that“Whoever does anything with the intention of causing wrongful gain toone person or wrongful loss to another person is said to do that thing“dishonestly”. Where knowledge or intention is an ingredient of adisciplinary offence, it is the view in the United Kingdom that it seemsappropriate that the criminal standard of proof should apply. (SeeCordery's Law Relating to Solicitors, 1961, 5th Ed. at p.467.Cf. ReTwo Solicitors, ex parte Incorporated Law Society Hall v. Jordan w;Younghusband v. Luftig(5); Wilson v. Inyang(6). Although in Re Wilbert(supra) at p.29 Fernando, J. states that “a degree of proofcommensurate with the subject-matter is necessary", and although indeciding a matter involving dishonesty, his Lordship was satisfied"beyond all reasonable doubt" that the attorney was guilty (see at p.28), however, at p.28 his Lordship states that “In proceedings of thisnature, it is not necessary that the acts alleged ,be proved beyondreasonable doubt.”
In this case I cannot have any real doubt as to the facts. They havebeen established beyond reasonable doubt. I think Moonesingheintentionally deceived Mrs. Chandratileke into an erroneous belief thathe meant to repay the sum of Rs. 50,000/- she had given him withinterest and thereby induced her to give him the said sum of moneywhen he had no intention of repaying the money in the manneragreed upon. What Moonesinghe really had in mind was wrongfulpersonal gain, and he dishonestly induced Mrs. Chandratileketo give him the said sum of Rs. 50,000/-. He then dishonestlymisappropriated or converted to his own use the sum of Rs. 50,000/-given to him by Mrs. Chandratileke in violation of his undertaking andhis legal obligation to repay the money so entrusted to him. I have nodoubt that when Moonesinghe issued the Cheque for Rs. 20,000 on1 February, 1989 (P4), it was a sham. It was a piece of trickery. He
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Dhammika Chandratileke v. Susantha Mahes Moonesinghe
(Amerasinghe. J.)
323
deceived Mrs. Chandratileke. He persuaded her to show him the“understanding, support, and forbearance' he had prayed for in hisletter of 28 August 1989 and accept a post-dated cheque bymisleading her to confidently believe that a sum of Rs. 20,000 wouldbe paid to her on or after 15 June 1989 and that the balance sum ofRs. 20,725/- would be paid sometime thereafter. The cheque wasdrawn on an account Moonesinghe had opened a day before. Hehad made a cash deposit of Rs. 20,000 when he opened hisaccount. This was not with the intention of having sufficient funds tohonour his cheque, but to meet the requirement of the Bank that heshould make a minimum deposit of Rs. 20,000/-. It was a minimumsum he never maintained to honour either his obligations to the Bankor to Mrs. Chandratileke. Deducting the cost of the cheque bookissued to him, viz., Rs. 105, he had insufficient funds to meet thevalue of the cheque even when he issued it. In any event, had heRs. 20,000 in his account on that date, it was of little use toMrs. Chandratileke, since her cheque was dated 15 June 1989. Bythat date, the account had been closed. Moonesinghe, of course,could not have known that the cheque would not be honouredbecause his account would be closed by June 15. Indeed, he mighthave optimistically hoped that it would go on for as long as possibleto enable him to carry out more of his sinister designs. He did notvoluntarily close his account. The Bank ordered him, by a letter sentby Express Registered Post (P7), to close his account by 3 March1989 and proceeded to close it on 13 March 1989, becauseMoonesinghe had with reckless disregard been issuing chequeswithout sufficient funds in his account to meet his obligations andfailed to keep the minimum credit balance of Rs. 20,000/- required ofhim as an account holder. All of this is manifestly clear fromMoonesinghe’s Statement of Account (P6) and the evidence of theBank’s officers. Several cheques had been returned for lack ofsufficient funds before the account was closed. Romali Abeysekera,a Staff Officer of the Bank stated in her evidence that about twentycheques drawn by Moonesinghe were presented after the accounthad been closed. Having regard to the way in which he operated hisaccount, I have no doubt in my mind that Moonesinghe knew that thecheque he gave Mrs. Chandratileke was a worthless piece of paperand that it would not be honoured at any time. If his intentions werehonourable, why did he fail to inform Mrs. Chandratileke of the fact
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that his account was closed and allow her to hopefully retain thecheque and present it for payment several months after his accountwas closed?
I am of the view that the charge of deceit has been amply proved.Moonesinghe is guilty of deceit that was grave and reprehensible. Itwould, as was said by Lord Justice Lindley in re Weave171 be a "stretchof charity which would degenerate into absurd and ridiculousweakness” to allow myself to express any doubts on these matters. Itwould, as Lindley, LJ said, be “idle and childish to come to any otherconclusion”
The Rule also charges Moonesinghe with "criminal breach oftrust". Criminal breach of trust may be either a penal offence,conviction for which would be a prima facie reason why the SupremeCourt should act in the exercise of its disciplinary powers in terms ofSection 42 of the Judicature Act; or the phrase may be taken to be aconvenient, shorthand way of describing, in a non-technical way,deceitful conduct involving a breach of confidence which is grave incharacter, making an attorney-at-Law who is guilty of suchunprofessional conduct amenable to the disciplinary jurisdiction ofthe Supreme Court in terms of section 42 of the Judicature Act. I shalldeal with these matters separately.
What “Criminal breach of trust” usually, in an everyday sense,means to us, as lawyers, and, therefore, technically, is an offencedefined in the terms set out in section 388 of the Penal Code. Sincethis is primarily a matter for decision by lawyers about the allegedmisconduct of a lawyer, I shall first deal with the question from alawyer’s point of view.
Section 389 of the Penal Code provides for the punishment of aperson guilty of the offence of Criminal breach of trust as defined inthe Penal Code.
Being a “thing made punishable by” the Penal Code, criminalbreach of trust is, in terms of section 38 of the Penal Code andsection 2 (s.v. “offence") of the Code of Criminal Procedure, an“offence”.
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Dhammika Chandratileke v. Susantha Mahes Moonesinghe
(Ameras'mghe, J.)
325
In terms of Article 13 (3) of the Constitution, “Any person chargedwith an offence shall be entitled to be heard in person or by anattorney-at-Law, at a fair trial by a competent court.” And Article 13(5)of the Constitution provides that “Every person shall be presumedinnocent until he is proved guilty.” A court having jurisdiction in termsof section 10 and the First Schedule of the Code of CriminalProcedure is a competent court to hear, try and determine whetherthe offence of criminal breach of trust had been committed.
No evidence was placed before this Court, as it was done, forinstance, in Re Ranasinghem The Solicitor-General v.Chelvatamby™; Solicitor-General v. Cooke(,0); in Re Aiyadurai""; inSolicitor-General v. Abdul Cader"2* and in Re Fernandom, showingthat Moonesinghe had been convicted for the offence of criminalbreach of trust by a competent court having jurisdiction in terms ofthe Code of Criminal Procedure.
What may the Court do when, as in this case, an attorney-at-lawcharged in a Rule with misconduct that appears to be a criminaloffence, has not been convicted for that offence?
Where the amenability of an attorney-at-law to the disciplinaryjurisdiction of this Court is supposed to depend (because the Rule isso framed in restricted terms) on the question whether he is guilty ofan offence as defined in the Penal Code and Code of CriminalProcedure, and guilt is denied, the Court, may, perhaps, postponethe hearing of the disciplinary inquiry until the attorney concernedhad been heard and tried by a court of competent jurisdiction asdefined by the Code of Criminal Procedure. This, I think, is as far asShore v. Pratt1'*'; In the matter of Knight and Hallm; Re Hill,m perCockburn, J and per Blackburn, J at pp. 545, 548; Re a Solicitor"71should be permitted to take us.
There is no denial in the case before us. Nor is the Rulerestrictively framed in this matter. There was no occasion for theCourt to consider whether in the exercise of its discretion, theseproceedings might be postponed.
Even where the amenability of an attorney to the disciplinaryjurisdiction of this Court does not depend on conviction for an
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offence, it may in the exercise of its discretion, where its findings onthe same facts might prejudice the attorney, postpone thedisciplinary proceedings. In Re P. P. Wickremasinghe(,8) a Rule wasissued on 18 June 1981 on an attorney-at-law, charging him withdeceit and malpractice by appropriating the money of his client to hisown use. On 16 October 1981, counsel, on behalf of the attorney,informed the Supreme Court that there was a criminal charge inrespect of the same matter in the High Court of Colombo andrequested that the inquiry pertaining to the Rule be postponed onaccount of possible prejudice. Samarakoon; CJ (Weereratne andSharvananda, JJ agreeing) ordered (SC Minutes of 16 October 1981)that "the inquiry be postponed and fixed on a date subsequent to thefinal determination of the High Court case.” The Court, not beingsubject to statutory constraints of time in these matters, may await thedecision of the criminal court, if in its opinion, in the circumstances ofa particular case, it considers that to be the desirable course of.action. The attorney, in the meantime, in the exercise of the powers ofthe Court in terms of the proviso to section 42 (3) of the JudicatureAct, may, as he was in Wickremasinghe's case, be suspended frompractice. (For the later proceedings in the case see SC Minutes of 19July 1982 per Wimalaratne, Victor Perera and Soza, JJ).
Alternatively, instead of postponing the proceedings, it may refrainfrom making a decision touching a matter pending before a criminalcourt, and proceed to deal with the attorney on the basis of the othermatters alleged in the Rule. Thus in Dematagodage Don HarryWilbert<2>, where the attorney was charged in the Rule with havingfraudulently used as genuine a certificate which he knew or hadreason to believe to be a forged document, and of deceit, Fernando,J at p.29 (Atukorale and Bandaranayake, JJ agreeing) said asfollows:
It transpired that criminal proceedings are contemplatedagainst the Respondent for forgery; although not obliged to doso, in view of our order in this matter, we refrain from making anyfinding in respect of the charge of fraudulently or dishonestlyusing as genuine a certificate known to be forged.
The attorney was found guilty of deceit and struck off. The phrase,"although not obliged to do so", does not, in my view, mean that there
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(Amerasinghe, J.)
327
was the recognition of a right to convict and punish the attorney of anoffence under section 459 of the Penal Code for using as genuine aforged document, as if the Court had parallel jurisdiction with a Courtempowered by the Code of Criminal Procedure to determine such amatter: Fernando, J. had earlier at p.28 made it manifestly clear thatthe proceedings before him were “not criminal or penal in nature”.And at p.30 his Lordship stated that “The jurisdiction under section42(2) does not involve considerations of punishment or penalty orstigma”. I think his Lordship meant that this Court is not precluded,on the facts established, of finding an attorney guilty, not of a specificpenal offence as if it had a parallel jurisdiction, but of unprofessionalconduct that would make a person unfit to continue on the roll,although such a finding might be based on the same facts uponwhich an attorney had already been convicted; or upon which apending or contemplated, or possible, prosecution might befounded. With such a view, I would respectfully agree.
The fact that there nas been no conviction, or that a prosecution ispending, or that no prosecution is contemplated, does not precludethis Court from holding an inquiry, in the exercise of its disciplinaryjurisdiction, with a view to ascertaining whether an attorney was guiltyof misconduct, criminal or otherwise, that makes him unfit to be amember of the legal profession. In fact, the several interests of theState, the Courts and the administration of justice, suitors, the publicand the profession, require that the matters of this sort should bedetermined by this Court without delay, where it is feasible to do soon the available evidence. It was realized over a century ago that thisCourt should not unduly delay the disposal of these matters. In ReEdgar Edema m, Phear, CJ. observed as follows:
We took time to consider our judgment not so much on accountof any doubt upon the facts in issue between the parties, as forthe purpose of endeavouring to find some ground upon whichwe could offer the respondent a locus poenitentiae and a hope,however slight, of being allowed upon condition at some futuretime to apply for admission to his lost post. We regret, however,that reflexion does not enable us to do so, and therefore the rulewill be made absolute unconditionally.
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I think the purpose of section 4 of the Penal Code was to affirm thepower of the Supreme Court to deal with acts of misconduct (albeitlimited in terms of that section, to acts of malpractice), even thoughthe misconduct was criminal in character and may also haveconstituted an offence under the Penal Code. I should like to refer toStephens v. Hill™ (on which I think section 4 of the Penal Code wasbased). Lord Abinger, CB, explained the matter in the followingterms, where an attorney had attempted to win his case bypersuading a witness to keep away from the trial:
“I never understood that an attorney might not be struck off theroll for misconduct in a cause in which he was the attorney,merely because the offence imputed to him was of such anature that he might have been indicted for it. So long as I haveknown Westminster Hall, I never heard of such a rule as that;but in the case of applications calling upon an attorney toanswer the matters of an affidavit, I have known Lord Kenyonand also Lord Ellenborough frequently say, you cannot have arule for that purpose, because the misconduct you impute to theman is indictable; but you may have one to strike him off the roll.Now an attorney who has been guilty of cheating his client, orthe opposite party, in such a manner as to render himselfindictable, is unfit to be allowed to remain on the roll, or topractise in any court; and I see no objection, on principle, to theCourt’s removing him at once from it. If indeed he were calledon to answer the matters of an affidavit, he would not bycomplying, be guilty of a contempt for which he might bepunished by attachment, and if the offence imputed to him wereof an indictable nature, it would be most unjust to compel him todo so; for which reason a rule to answer the matters of anaffidavit is never granted in such a case, but only a rule to strikehim off the roll, which gives him a full opportunity of clearinghimself from the imputation, if he can, while, on the other hand,it does not compel him to criminate himself … In all caseswhere an attorney abuses the process of the Court of which heis an officer, and his proceedings are of such a nature as tendto defeat justice in the very cause in which he is engagedprofessionally, I never heard that, because by possibility he maythereby have exposed himself to be indicted as a cheat or for
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conspiracy, he is to be permitted to remain on the roll . . . Sucha rule would be extremely injurious; for in no case could anyremedy be had against the attorney, unless the client would firstprosecute him to conviction, until which time he could not bestruck off the roll or prevented from practising. Where, indeed,the attorney is indicted for some matter not connected with thepractice of his profession as attorney, that also is a ground forstriking him off the roll, although in that case it cannot be doneuntil after conviction …"
Conviction for an offence is only a prima facie reason why this Courtmay act in matters of this kind. An attorney whose misconduct iscriminal in character, whether it was done in pursuit of his professionor not, (this Court has wider powers than those affirmed by section 4of the Penal Code), may be struck off the roll, suspended frompractice, reprimanded, admonished or advised, even though he hadnot been brought by the appropriate legal process before a court ofcompetent criminal jurisdiction and convicted; and even though thereis nothing to show that a prosecution is pending or contemplated.(See Re Edgar Edema (,9>; Re Isaac Romey Abeydeera<2,); In re aProctor™-, In re C. E. de S. Senaratne<23); Re Donald Dissanayake(24);Re P P. Wickremasinghe(,8); Re Rasanathan Nadesan(2S); Stephens v.Hill (supra)-, Anon, (supra)-, Re Hill (supra)-, Re Vallancem; Anon(1894) 24 L. Jo 638. But cf. Short v. Prattm and Re Knight™).
I might go further: If Moonesinghe had been charged with thecommission of an offence in a competent court and acquitted, hecould and ought, nevertheless, to have been dealt with by this Court,as the proctor was in Re Thirugnanasothym. See also Re Garbett(29);R v. Southerton(30); Re W.H.BP'K In Re Thirugnanasothy a proctor hadbeen acquitted of criminal misappropriation by a District Court. Hewas, nevertheless, struck off the roll, G. P. A. Silva, SPJ., explaining atp.239 that although the reasons for the acquittal were “sound", theywere “technical in nature".
On the other hand, if an attorney answering a Rule has evidence,besides that produced at the trial and conviction, which showsconclusively that he was not guilty of the crime or offence whereof hewas convicted, he is not debarred in proceedings of this nature frombringing forward that evidence to avoid becoming amenable to the
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disciplinary jurisdiction of the Supreme Court. This does not meanthat if a conviction if in full force and effect, that is, if it has beenaffirmed in appeal or has not been appealed against, within the timeallowed for appealing, this Court will permit the matter to be rearguedbefore it on the evidence upon which that conviction was based; itwill not rehear a matter which has been heard and determined, orallow argument that evidence which was believed by the courtshould not have been believed or that evidence disbelieved by itshould have been accepted. The attorney is debarred fromtraversing the conviction or from rearguing the findings of fact onwhich the conviction was based, but it would be open to him toconfess and avoid, that is to show by extra matter that, in spite of theconviction, he yet was not guilty of the crime or offence whereof hewas convicted, whereby he would be liable under Section 42 of theJudicature Act. (See per Macdonell, CJ in Re Kandiah(32). See also Inre A. P. Jayatilleke(33) per Dalton, ACJ. The question was raised butnot decided in Attorney-General v. Seneratne.m CF Re Wilbert(supra) at p. 32).
Conviction for an offence is a prima facie reason why the SupremeCourt should act in the exercise of its disciplinary powers in terms ofsection 42 of the Judicature Act. (Cf. per Howard, CJ in Re Britol3S)).In the absence of contrary evidence, the Court may proceed to acton it in disciplinary proceedings. (E. see per Garvin, SPJ in ReSolomon Victor Ranasinghe(W). However, it is only a prima faciereason that might move the Supreme Court to exercise its disciplinaryjurisdiction. This Court is the sole arbiter of the question whether ornot a person is fit to remain on the roll and, upon what conditions. (Cf.Re Wilbers (supra) at p.32). In the determination of that question, itspowers are unfettered and untrammelled by the findings of fact, theirinterpretation, and the decisions of other judges and tribunals on thebasis of those facts. (Cf. Re Thirugnanasothy{28); Undugodage v.Rasanathan m). The reasons are not difficult to understand.
The objectives of this Court in exercising its disciplinaryjurisdiction and the objectives of a court exercising its criminaljurisdiction are quite different. Although section 4 of the Penal Coderefers to the power of the Court to punish attorneys-at-law, anddespite the fact that many an eminent Judge, pace, undoubtedlythrough a mere lapsus calami, has sometimes referred to
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“punishment” in the exercise of the disciplinary powers of the Court,(e.g. see per Rose. CJ. In re SenaratnelZ5> per G. P. A. Silva, SPJ inRe Thirugnanasothym; per Atukorale, J in Re Arthenayakei37) andper Ranasinghe, CJ in R. Nadesanl!S)y, and although the need fororders that have a deterrent effect was referred to by Macdonell, CJ.in Re Abeydeera (M we ought not to be influenced by punitiveconsiderations in making orders in matters of this kind. For thepurposes of this Court, in matters of the kind before us, it is not thepunishment of a guilty attorney-at-law, but the consideration of thequestion whether he is a proper person to be continued on the rollthat concerns us. (See per Lord Mansfield in Ex parte Brounsalli39per Gratiaen, J in Re an Advocate(40>; per Basnayake, CJ in ReFernando(,3); per Fernando, J in Re Wilbert™). It is because of thatreason that a person may be struck off the roll for an offencecommitted even before admission (Re Bradley See also ReWilbert, supra, at p.30), at any rate, if the application to remove him ismade soon after admission. (Anon. (1831) 2 B & Ad 766; cf, RePage{t,)).
In Ex parte Brounsall (supra), an attorney had been convicted ofstealing a guinea. He had been branded in the hand and confined ina house of correction for nine months. Five years later, although hehad committed no other act of misconduct, the question was raisedwhether he was an unfit person to practise as an attorney. LordMansfield said: “This application is not in the nature of a second trialor a new punishment. But the question is, whether, after the conductof this man, it is proper that he should continue a member of aprofession which should stand free from all suspicion." Although hisLordship was of the view that the rule should be made absolute, “as itwas for the dignity of the profession that a solemn opinion should begiven”, others were consulted and on June 27, 1778 Lord Mansfieldsaid: “We have consulted all the Judges upon this case, and they areunanimously of opinion, that the defendant’s having been burnt in thehand, is no objection to his being struck off the roll. And it is on thisprinciple; that he is an unfit person to practise as an attorney. It is notby way of punishment; but the Court on such cases exercise theirdiscretion, whether a man whom they have formerly admitted, is aproper person to be continued on the roll or not. Having beenconvicted of felony, we think the defendant is not a fit person to be anattorney. Therefore let the rule be made absolute.”
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As Lord Esher, MR, in Re Weare (supra) at p.442 observed. LordMansfield did not lay down any new law, but the law was “veryauthoritatively laid down by him with his usual felicity of expression."Referring to Lord Mansfield’s statement of the law, Lord Esher (atp.443) said: “There it seems, to me, is the whole law on the matterlaid down as distinctly as can be, and in a way the propriety of whichnobody, as it appears to me, can doubt.”
The italics in the words quoted from the decision of Lord Mansfieldare mine. The first group of words I have italicized in the observationsof Lord Mansfield were quoted with approval by Garvin, J in Attorney-General v. Ellawala <43>.
Fernando, J (Atukorale and Bandaranayake, JJ agreeing) in ReWilberte> said:
… these proceedings are not criminal or penal in character, butare intended to protect the public, litigants, and the legalprofession itself. Over half a century ago it was observed inSolicitor-General v. Ariyaratne mba these proceedings involvenot a question of punishing a man, but quite a differentquestion, ought a person against whom such offences havebeen proved, remain on the roll of an honourable profession?
Since our purposes are different, our respective methods ofascertaining and evaluating the facts correspondingly vary: A courtacting in the exercise of its criminal jurisdiction is concerned withfinding out whether the specifically, precisely and narrowly definedingredients of an offence have been proved beyond reasonabledoubt, strictly in accordance with the formal rules of evidence andprocedure laid down for that purpose. If it finds a person guilty, itpronounces a sentence of punishment. The punishments it mayimpose are statutorily prescribed (see Chapter III of the Penal Code),and may, in certain instances, include death, rigorous or simpleimprisonment, whipping forfeiture of property or fine. Our task, in theexercise of the disciplinary jurisdiction vested in us in terms ofsection 42 of the Judicature Act, is the determination, based on anappropriate degree of proof, having regard to the nature of thecharge, whether a person we formerly admitted should be struck offthe roll, suspended, reprimanded, admonished, or advised for his
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unprofessional conduct. In the performances of that task, this Courtproceeds with its investigations under section 42 of the JudicatureAct, unfettered by invariable and inflexible standards of proof (Cf. inRe Wilbert {supra) at p.29), or of rigid rules pertaining to procedureand the admissibility of evidence. (Cf. Attorney-General v. Ellawalam).
It has not been established that Moonesinghe has been convictedfor the offence of criminal breach of trust. However, I have explainedthat conviction for an offence is neither necessary, nor indeed,invariably sufficient, to make a person amenable to the disciplinaryjurisdiction of this Court.
We have also seen that the objects and intentions of a criminalprosecution, on the one hand, and the objects and intentions ofproceedings of this nature, on the other, are altogether different.Although to us, as lawyers, the phrase “criminal breach of trust” in aneveryday, usual and ordinary, sense means criminal breach of trustas defined in the Penal Code, I must in these proceedings, reject thatmeaning, since another meaning is more agreeable and appropriateto the object and intention of these, thank goodness, rare, unusualand extraordinary legal proceedings. (Cf. Maxwell, Interpretation ofStatutes 11th Ed, 1962 at p. 53). The phrase "criminal breach oftrust” in the Rule is not used, in a technical sense, but in its ordinarysense, as when it is used by members of the public generally, that is,in its popular sense. In the circumstances, it is unnecessary for me todetermine whether the ingredients of “criminal breach of trust” set outin section 388 of the Penal Code have been established.
As to whether Moonesinghe was guilty of criminal breach of trust inthe sense relevant to these proceedings, I have no doubt whatsoeverin affirmatively answering that question. In my view, Moonesingheacted in a way that was not straightforward. Rather, he acted in away that was knavish and wanting in probity. He persuadedMrs. Chandratileke, both by reason of his membership of anhonourable profession and by communication, to employ him in amanner implying confidence. He then put to wrong use or uses a sumof money given to him by Mrs. Chandratileke in flagrant disregard oftheir understanding, agreement or contract. And further, on account
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of such confidence, and on account of an insincere and falseassurance to eventually repay her in full, Moonesinghe persuadedMrs. Chandratileke to accept a post-dated cheque, by way ofrepayment in part of the sum of money she had given him, whichMoonesinghe probably believed at the time he issued it, andcertainly knew long before it was due for presentation, would bedishonoured.
Would my holding Moonesinghe guilty of criminal breach of trust ina non-technical sense cause him prejudice, so much so that I shouldrefrain from making a finding in that regard? In Undugodage v.Rasanathanm) an attorney-at-law had been charged with themisappropriation of certain sums of money. With regard to onecharge, the Court found that there had been no misappropriation asalleged in the Rule. With regard to the other charge ofmisappropriation, Atukorale, J (H. A. G. de Silva and Jameel, J.agreeing) held that, although that act of misconduct “would, to saythe least, constitute the clearest instance of a malpractice within themeaning of Section s.42 (2) of the Judicature Act" which wassufficient to warrant his removal from office, yet this had not beenraised before the disciplinary committee, and since the attorneywould be gravely prejudiced if it were raised at the stage of thedisciplinary inquiry before the Supreme Court, the Court did notdeem it “proper or possible" to “reach a finding adverse to therespondent” on that charge. Would Moonesinghe have beenprejudiced by any ambiguity? I do not think so. Perhaps he believedthat the Rule was not concerned with criminal breach of trust in atechnical sense but rather in a non-technical sense? Why did heretain counsel to appear for him in certain criminal charges againsthim (although unrelated to this case) but not in the matter of the Rule?I think he knew the difference between the technical and non-technical sense of the phrase and understood perfectly well thesense in which the charge of criminal breach of trust was made in theRule. I would certainly not have been prepared, if an objection hadbeen raised, to smother or hush up these proceedings on the basisthat “criminal breach of trust” has more than one meaning.
In Attorney-General v. Ellawala (43,1 the Court (Garvin, Dalton andLyall Grant, JJ) said that:
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The power of this Court to investigate charges againstmembers of the legal profession is unfettered by rigid rules ofprocedure relating to the initiation of such proceedings or byany strict definition of or limitation as to the nature of thematerial upon which alone such proceedings may be founded.Whenever in the opinion of this Court an occasion has arisen toinvestigate a charge against an advocate or proctor which, iftrue, renders him liable to suspension or removal from office ithas the power to initiate proceedings for the investigation of thecharge. It is essential, not only in the interests of the profession,but of the public, individual members of which are constraineddaily to commit their most vital interests to members of the legalprofession, that cases of misconduct, and especially ofdishonourable conduct, which come under or are brought to thenotice of this Court should be fully investigated, and that theirinvestigation should not be hampered or burked by meretechnicalities. I
I would respectfully agree. However, I should like to add this: In theframing of Rules nisi, in arriving at conclusions on the facts, and inmaking orders, this Court has been cautious and restrained. I mightmention a few examples. In Re Donald Dissanayake (supra) where anattorney dishonestly converted his client’s money to his own use, andthere was no conviction, the Rule issued was in respect of deceit andmalpractice. In Re Isaac Romey Abeydeera (supra) in similarcircumstances, the proctor was simply charged in the Rule with"misconduct” that was said to have made him amenable to thedisciplinary jurisdiction of the Court in terms of the relevant statutoryprovisions at that time. In Re Nadesan (supra) there was noconviction, but the Rule charged the attorney with criminal breach oftrust. Even though he pleaded guilty, the Court, in making its order,dealt with him on the basis that he was a “person who has beenguilty of misappropriation, deceit and malpractice." H. N. G.Fernando, CJ and Samerawickrame and Weeramantry, JJ in ReDharmalingam (supra) found a proctor who had misappropriated hisclient's survey fees guilty of malpractice and no more, althoughSeneviratne, J. in Re Arthenayake (at p.346) was of the view that thefacts of Dharmalingam disclosed criminal misappropriation asdefined by Section 386 of the Penal Code. Atukorale and De Alwis,
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JJ in Re Arthenayake {supra) adopted the view that in ReDharmalingam the proctor was guilty of malpractice. In Re Wilbert{supra) Fernando, J (Atukorale and Bandaranayake, JJ agreeing),although “not obliged to do so”, (see at p.29) refrained from making afinding on the charge of dishonestly using as genuine a certificateknown to be forged, since criminal proceedings in that regard werecontemplated, the attorney being struck off on other grounds.
The question that remains is this: whether after the conduct of thisman, what is the appropriate order that should be made in this case?As Chief Justice Sir Alan Rose observed in Re Senaratnem, it is“always difficult in matters of this kind" to arrive at a decision on thatquestion.
Although Section 42(2) of the Judicature Act only refers to theoptions of removal or suspension where an attorney has been guiltyof deceit, malpractice, crime or offence, striking off the roll orsuspension are not the inevitable and invariable orders this Courtmay make.
The appropriate order is a matter within the plenary and absolutediscretion of the Court. Esher, Mr, in Re Weare {supra) – a casefollowed with approval by our courts (e.g. see In re Jayatileke said):
I have no doubt that the Court might in some cases say,“Under these circumstances we shall do no more thanadmonish him”; or the Court might say, “We shall do no morethan admonish him and make him pay the costs of theapplication0; or the Court might suspend him, or the Court mightstrike him off the roll. The discretion of the Court in eachparticular case is absolute. I think the law as to the power of theCourt is quite clear.”
The Supreme Court, in the exercise of its absolute and plenarydiscretion in this matter, having regard to the special circumstancesof each case, including primarily, but not exclusively, the nature of thedisciplinary offence in question, has made orders ranging fromremoval, through suspension, to merely stating in strong terms whatwas expected of the lawyer concerned. In searching for the rightdecision to make in these matters, a feel, a general sense, based on
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what the Court has done in the past, (not merely in cases assumed tobe “exactly in point" – if it were ever possible in matters of this kind tofind such cases), is helpful. Not one case was cited in this, or in anyother connection, by learned counsel in these proceedings; but thisis what I have found. I hope it will be of some use to others.
In general, (but not invariably or inevitably – See e.g. Solicitor-General v. Chelvatamby(3;; Re Aiyadurait’1' and Re Gaston K. deVazin) referred to below and see also the observations in ReJayatileke (supra) at p. 377) conviction for a criminal offence,whether connected with his character as an attorney or not, andwhether involving money matters or not, makes a person unfit to holdthe office of an attorney-at-law, and the Court orders removal from theroll. (E.g. see Re Solomon Victor Ranasingheiei where an advocateconvicted of criminal breach of trust was struck off; Solicitor-Generalv. Cooken0), Solicitor-General v. Abdul Cader(12), and Re Fernandowhere proctors convicted of criminal breach of trust were struck off;Re Kandiahiaa>, where an advocate convicted of an offence underSection 8 of the Opium Ordinance No. 5 of 1910 was struck off; ReA. P. Jayatilleke™ a proctor convicted of unlawful assembly wasstruck off; Attorney-General v. Ariyaratne{tai a proctor convicted ofculpable homicide was struck off; Re Brito (35> a proctor convictedunder the Post Office Ordinance for sending a post card with wordsof an indecent and grossly offensive character was struck off. Seealso Anon (1815) 1 Chitty’s Practice Reports, 1770-1822, 557 n; Exparte Brounsall™; Re Weare(7); Re Cooper(4T>, cf. Re Watts, Ex parteIncorporated Law Society(481; Re Jellicod491 Ibid; Re A Solicitor™; Rea Solicitor15'1; Re a Solicitor ™.)
Even if there is no conviction, yet if the attorney’s conduct isotherwise criminal in character, the Court would usually order theremoval of his name from the roll, if it was of a particularlyreprehensible nature. Thus in Attorney-General v. Ellawalam aproctor who had accepted a gratification in his capacity as a memberof the district committee appointed under the Buddhist TemporalitiesOrdinance was struck off for being guilty of “gross misconductinvolving deceit”, although he had not been convicted of any penaloffence. Similarly, the Court would strike off an attorney guilty ofcriminal misconduct, especially if it was done in the exercise of his
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professional functions. (E.g. See Re Edgar Edema ('9> where a proctorwho misappropriated his client's money was removed from the roll;Re Isaac Romey Abeydeera<21) where a proctor who had dishonestlyappropriated his client's money, although not convicted of criminalbreach of trust, was struck off; Re Donald Dissanayake(24) where anattorney had misappropriated his client’s money and was guilty ofdeceit and malpractice which he explained was due to his “helplessaddiction to liquor”, he was struck off, Samarakoon, CJ observingthat “Those whose professional lives are ruled by Bacchus are adanger to the public and it is unsafe to allow them to hold themselvesout to the public as licensed attorneys-at-law; Re RasanathanNadesan(25), where an attorney was guilty of misappropriation of hisclient’s money, deceit, professional negligence and malpractice wasstruck off).
Although criminal misconduct prima facie makes a person unfit tobe an attorney-at-law, this, however, is not an inflexible rule. (Cf. In reA. R Jayatilleke(33)following In Re Weare (supra); In re a Proctor*3';Re a Solicitor, Ex parte incorporated Law Society<M>. The Court,perhaps, ought not to pass over the matter without marking its senseof the misconduct, but it may certainly decide on some other orderwithout going to the extent of striking him off the roll. (E.g. see Re Hill(supra) followed in The Solicitor-General v. Chelvatamby (supra)where a proctor guilty of criminal breach of trust was suspended andordered to pay costs). The appropriate order is a matter for the Courtin the exercise of its discretion having regard to the circumstances ofthe case. Lord Esher, MR, in Re Weare, (supra), at p.445 explainedthe matter in the following terms:
Where a man has been convicted of a criminal offence, thatprima facie at all events does make him a person unfit to be amember of the honourable profession. That must not be carriedto the length of saying that whenever a solicitor has beenconvicted of a criminal offence the Court is bound to strike himoff the roll. That was argued on behalf of the Incorporated LawSociety in the case of In re a Solicitor, Ex parte Law Society,(supra). It was there contended that where a solicitor had beenconvicted of a crime it followed as a matter of course that hemust be struck off; but Baron Pollock and Manisty, J., held that,
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although his being convicted of a crime prima facie made himliable to be struck off the roll, the Court had a discretion andmust inquire into what kind of a crime it is of which he has beenconvicted, and the Court may punish him to a less extent thanhe had been punished in the criminal proceeding.
In the same case, Lopes, LJ, at p.449 fin. – 450 said as follows:
It is perfectly clear that the mere fact that the person hasbeen convicted of a criminal offence does not make itimperative on the Court to strike him off the roll. There arecriminal offences and criminal offences. For instance, one canimagine a solicitor guilty of an assault of such a disgracefulcharacter that it would be incumbent on the Court to strike himoff the roll. On the other hand, one can imagine an assault of acomparatively trifling description, where in all probability theCourt would not think it its duty to interfere. The sameobservation would arise with regard to indictments for libel.There are libels and libels, some of which would compel theCourt to act under the plenary power it possesses, others wherethe Court would hesitate before it so acted.
Moonesinghe is guilty of deceit. Deceitful conduct, which is notnecessarily criminal in nature, has resulted in various orders: In Re M.Shelton Perera(5$) a proctor who gained admission to the Law Collegeby deceitfully leading the Principal to believe he was not employedwas suspended for three years. In Re a Proctor™ a proctor who hadmisappropriated money without a criminal or dishonest intention wassuspended for three months and ordered to pay costs. In ReDharmalingam(57) (supra) a proctor who had misappropriated thesurvey fees deposited with him and was merely guilty of malpracticewas suspended for four months. Where deceitful conduct, as in thecase before us, is criminal in character, the order has usually been forremoval. Thus in Re Dematagodage Don Harry Wilbert® an attorneywho provided forged documentation for admission to the LawCollege was struck off; In Re Edgar Edema (supra), Re DonaldDissanayake (supra), and in Re R. Nadesan, (supra) lawyers guilty ofmisappropriation and deceit of a criminal character were struck offeven though they had not been convicted. In Re Thirugananasothy
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{supra) though acquitted, the Court struck off a lawyer guilty of deceitof a criminal character.
Acts of malpractice have also been variously dealt with. In Re A. V.de Silva (1934) an advocate who was guilty of touting was removedfrom the roll; In Re de Soy$a(S6) a proctor in his professional capacitysigning false certificates to enable persons to obtain identity cardswas suspended for three years; In Re Arthenayake1371 an attorneywho had been guilty of gross negligence in the discharge of hisprofessional duties and in correspondence with his client indulged inunbecoming language, was suspended for two years; In Re aProctor™ where a proctor without criminal intention had negligentlymisappropriated his client’s money, was suspended for six monthsand ordered to pay costs; In Re Dharmalingam (57> a proctor whomisappropriated the survey fees deposited with him with the resultthat his client's case was dismissed, was suspended for four months;In re Edwin Bevan (1897) a proctor who signed and issued blankletters of demand was suspended for three months; In Re twoProctors (1935) where two proctors were guilty of deceit andmalpractice in drawing up the terms of settlement submitted to acourt, one of them was suspended for six months and the other forthree months; In re Simon Appu(58) a proctor signing a plaint drawnby a petition drawer was suspended for three months; In the matterof K(59) a proctor who appeared drunk in court was suspended forthree mdnths; In re Dharmaratne(60) a proctor who had prepared apetition of appeal in false and scandalous terms insulting the judgeagainst whose order his client was appealing, was suspended for amonth; In Re the complaint of Dr. C. J. Kriskenbeck against A. J. aProctor of the Supreme Court™ where an advocate who was foundguilty of “the small tyranny of cross-examination and bullying awitness, was in strong terms told what the expected standards wereand the matter was dropped; In The Solicitor-General v.Jayawickreme(62) where when an advocate was guilty of malpracticefor dealing directly with a client and not through the intervention of aproctor, the case being the first of its kind in this country, the Courtdid no more than make the Rule absolute.
In exercising the Court's disciplinary powers, many a thing hasbeen taken into consideration. In re Batuwantudawa K,f in refusing to
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re-enroll an advocate who had been convicted of forgery andcheating and sentenced to imprisonment. Dias, SPJ said that therewas a solemn duty cast upon the Court to make it clear, ‘particularlyat a time when public morality is at a low ebb", that it is not an easymatter for a person convicted of offences of this kind to be restoredto the ranks of an honourable profession, the good name of which hehas degraded by his conduct.” I have no evidence before me of thestate of “public morality”. And in any event one might with Terence(Phormio 454) say Quot homines tot sententiae; suo quoique mos. Somany men, so many opinions; his a law to each.
Account has also been taken of the fact that the attorney was notaware of the wrongful nature of his act. (See Re Simon Appu (supra)-.Re a proctor 1933 36 NLR at 16). There is no suggestion here thatMoonesinghe was ignorant of the reprehensible nature and quality ofhis acts. The fact that the attorney was acting under pressure (Re aProctor(53)) or had domestic problems at the time (ReDhramalingam(S7)) on certain occasions moved the Court to take alenient view. However, in Re Nadesan (25>, the fact that the delinquentattorney was mentally depressed on account of the ill-health of hismother and mother-in-law did not prevent the Court from striking offthe attorney for misappropriating his client's money. The age of theattorney, (see Re Simon Appu (supra); Re Aiyadurai (supra), ReChelvatamby (supra),) and his years of standing at the Bar (e.g. seeRe Simon Appu; Re Aiyadurai (supra); Re a Proctor (1933) 36 NLR 9,Solicitor-General v. Chelvatamby (supra); Re de Soysa(S6>) have alsobeen considered. In Re Fernando (supra) however, Basnayake, CJregarded long standing at the Bar as being merely an “unfortunate"circumstance. I have no evidence in this case of the age or standingof Moonesinghe, nor of any stresses that unbalanced him. The longinterval between the commission of the offence and the considerationby the Court has also been taken into account. In ReThirugananasothy (supra) at p.239 it was held that delay incomplaining, unless explained was a mitigatory factor. In Re GastonR de Vaz (supra) the lapse of fourteen years led the Court to treat thematter as one of re-enrolment. There has been no such lapse of timein the matter before us. Mrs. Chandratileke acted with sufficientcelerity to bring this matter before us.
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Where there has been misappropriation, although Basnayake, CJin Re Fernando (supra) at p.235 considered the fact of restitution tobe irrelevant when the Court is exercising its disciplinary powers,repayment being regarded as a mere discharge of one’s civilliabilities, restitution has been taken into account in other cases. InSolicitor-General v. Chelvatamby (supra) restitution was considered amitigatory factor although belated and “not in consequence ofcontrition”. In Re Aiyadurai (supra) at p.511 the fact that restitutionwas intended was held to warrant “some degree of leniency”; In Re P.P. Wickremasinghe(18), the fact that the money had been paid backwith interest was regarded as a mitigatory circumstance. In ReWijesinghel64) restitution was considered in the matter of anapplication for re-enrolment. In Solicitor-General v. Cooke (supra)Soertsz, J at p. 207 said that although restitution cannot be ignored,the weight to be given to that fact depended on the circumstances.On the other hand the refusal to make good the loss (ReThirugnanasothy (supra) at p.240) or the evasion of payment “undercover of a series of fictitious stories and fraudulent excuses” (ReEdgar Edema (supra); or an unfulfilled promise of repayment (ReAbeydeera (supra) have been held to aggravate the offence. In thematter before me, Moonesinghe’s pretended partial restitution byissuing a post-dated cheque, which he always believed or knew wasa worthless piece of paper, and which he was willing to permit Mrs.Chandratileke to present for payment when he knew that his accounthad been closed, is conduct that aggravates his offence.
Although a charge will not be dropped because the complainanthas made a private arrangement with the attorney (see Anon (1863)9 LT 299; Anon (1873) 19 Sol. Jo 635, yet the fact that thecomplainant Indicates an intention not to pursue the matter may beconsidered in mitigation. (E.g. Re P. P. Wickremasingheim.Understandably, Mrs. Chandratilake has not shown any intention ofpardoning Moonesinghe.
The amount involved is of little or no consequence if the offence isserious. (E.g. Re Abeydeera (supra). In the matter before us theoffence is serious and the amount involved is considerable.
One of the most important considerations in matters of this sort isthe professional relationship of the attorney to the complainant. An
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act which is ordinarily reprehensible deserves to be more severelymarked if it is done by an attorney-at-law in pursuit of his profession.In Re Hill''*1, Blackburn. J. at p. 548 said that in considering the orderthe Court should make "It always should be considered whether theparticular wrong done is connected with the character of an attorney.The offence morally may not be greater, but still, if done in thecharacter of an attorney, is more dangerous to the suitors, and shouldbe more severely marked." If the misconduct with which an attorneyis charged and of which he has been found guilty was committed inhis capacity as an attorney-at-law, it is an aggravating circumstance.(See Re Ranasinghe (supra); Solicitor-General v. Abdul Cader(supra); Re Fernando; Re Edgar Edema (supra); Re Abeydeera(supra); Re Donald Dissanayake (supra); Re Nadesan (supra); ReHillm Re D|65;; Re Weare (supra) at p. 444; See also in re A. P.Jayatileke!33)).
Was there something Moonesinghe did as an attorney-at-law in thecourse of his professional employment towards a client, or towards acourt or to an opponent in litigation or, in a non-contentious matter,the “other side"? There was no litigation, no court, or “other side" inthis matter. Nor was there a client-attorney relationship. It is evidentfrom Mrs. Chandratileke's letter to the Chief Justice as well as fromher affidavit that the organization known as T & M Associates (Pvt)Ltd. was not seen by her as a firm of attorneys-at-law, but rather,as she says, “a financial institution" which she claims ought tohave been registered under the Control of Finance Companies Act(Cap. 329). In his application to open his bank account (P8),Moonesinghe left the column relating to his "Occupation, Professionor Employment" without any entry; and in the Signature Cardpertaining to his bank account (P9) he described his“Designation/Occupation/Profession", not as an attorney but as a"businessman". There was no relationship of attorney and clientbetween Moonesinghe and Chandratileke. The conduct in question,in my view, was not in pursuit of his profession as an attorney-at-lawand does not constitute professional misconduct. This is a mitigatorycircumstance. Thus in Solicitor-General v. Chelvatamby'-91 reportedsub. nom. In re a Proctor1*31, a proctor convicted of criminal breach oftrust but not of property entrusted .qua a proctor was suspended fortwelve months and ordered to pay costs. In Re Aiyadurai'"1 a proctor
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convicted for criminal breach of trust of property not entrusted to himin his professional capacity was suspended for six months.
On the other hand, the response of Moonesinghe to the Rule hasbeen most unsatisfactory. There has been no apology, or expressionof regret or any sign of repentance, and he has failed to explain hisconduct or show cause why he should not be dealt with by this Court.These are matters we should not ignore. (See Re Simon Appu(supra); Solicitor-General v. Jayawickrama (supra) at p. 322; ReArthenayake at p. 334-335; Re Wilbert (supra) at 34). In the matterbefore us Moonesinghe’s disrespect for this court by failing to submithis observations when they were called for by the Court and byfailing to respond to the Rule was exacerbated by his attempt to stallthe proceedings by pretending to act through a firm of attorneys inthe Seychelles.
How then should we deal with such a man in the circumstances ofthis matter? It has been said that the Supreme Court has inherentdisciplinary powers over its officers. (Cf. Re Arthenayake1371 perSeneviratne, J; Re Dematagodage Don Henry Wilbert™ perFernando, J). It also does, and has always had, wide statutorypowers to deal with its officers in matters of discipline. Article XXIV ofthe Royal Charter of Justice of 1801, which set up the Supreme Courtof Judicature of this Island empowered the Court to “approve, admitand enrol" advocates and proctors, and gave the Court the adjunctpower to remove “on reasonable cause” those who had been soadmitted. The Supreme Court was empowered by Article 17 of theCharter of Justice of 1833 to admit as Proctors or as Advocates of theSupreme Court persons “of good repute" and competent knowledgeand ability. No reference was made to the power of removal orsuspension; but the Court did exercise those powers. For instance, inRe Dharmaratne™ it suspended a proctor who was found guilty ofgross and culpable misconduct. In Re Edgar Edema™ the Courtstruck off the name of a proctor from the roll for misappropriating hisclient’s money for his own use.
Section 16 of The Courts Ordinance No. 1 of 1889 gave the Courtthe power to admit “persons of good repute and competentknowledge and ability” as Advocates or as Proctors of the Court.Section 17 provided that “Every person so admitted and enrolled,
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who shall be guilty of any deceit, malpractice, crime or offence, maybe suspended from practice or removed from office by three Judgesof the Supreme Court sitting together."
The Administration of Justice Law No. 44 of 1973, removed thedistinction between the two branches of the profession, and throughSection 33 empowered the Supreme Court to admit and enrol asattorneys-at-law “persons of good repute and of competentknowledge and ability." Section 35 of the Administration of JusticeLaw provided that “Every attorney-at-law who shall be guilty of anydeceit, malpractice, offence or other conduct unworthy of anattorney-at-law may be suspended from practice or removed fromoffice by any three Judges of the Supreme Court sitting together."
Section 62 of the Judicature Act No. 2 of 1978, inter alia, repealedthe provisions of Chapter 1 (Section 5-54) of the Administration ofJustice Law No. 44 of 1973. However, the Judicature Act of 1978enacted in Section 40(1) that the Supreme Court may, “in accordancewith the rules for tfn time being in force, admit and enrol asattorneys-at-law persons of good repute and of competentknowledge and ability." In Section 42(2) the Judicature Act providesthat “Every person admitted and enrolled as an attorney-at-law whoshall be guilty of any deceit, malpractice, crime or offence may besuspended from practice or removed from office by any three judgesof the Supreme Court sitting together." Although it was in termssimilar to Section 35 of the Administration of Justice Law, the words“or other conduct unworthy of an attorney-at-law" were removed.
In Re Arthenayake (supra) Seneviratne, J. at p. 349 said that in theinterests of the Bar and that of the public Section 42(2) of theJudicature Act should be amended by the addition of the words “orother conduct unworthy of an attorney-at-law”. Although the phrasecertainly did usefully put the matter beyond any doubt, and mighthave been retained out of an abundance of caution, which, with greatrespect, is what I think Seneviratne, J. meant, I do not think theremoval of the words “or other conduct unworthy of an attorney-at-law” has diminished the powers of the court, I am inclined to thinkthat the word “offence" in Section 42(2) of the Judicature Act has awider meaning than that given to it in the Penal Code and Code of
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Criminal Procedure. I think it means disciplinary offence andincludes, conviction for an offence by a competent court, conductthat is criminal in character, malpractice – whether the professionalmisconduct involves moral turpitude or not – , deceit, and all otherforms of unprofessional conduct in the sense of misconduct the Courtought to have taken into account at the time of the admission of anyattorney-at-law in deciding whether he was a person of good repute.
In terms of Section 42(1) of the Judicature Act, the Supreme Courtis given the power to refuse to admit and enrol any person applyingto be admitted as an attorney-at-law, declaring in open court itsreasons for such refusal, if required to do so by the applicant. It is notwithout significance that the power to refuse admission is embodiedin a sub-section of the same section containing the provisionsregarding the power to suspend or remove admitted attorneys, ratherthan in the section relating to admissions. The two matters areinextricably linked. Disciplinary control over persons the Court hasadmitted as attorneys-at-law is a power that is accessory or adjunctto its power of admission. The power to admit and the power toexercise disciplinary control by removal, suspension, reprimand,admonition or otherwise are concomitant. I should venture to expressthe view that if Section 40 of the Judicature Act merely gave the Courtthe power of admission without, as it does in Section 42(2) JudicatureAct, expressly conferring the powers of removal and suspension,' yet,as a matter of necessary implication, it also gave the Court the powerto remove, suspend or otherwise exercise disciplinary powers overthe persons appointed by the Court to act as its officers. (Cf. Section14(f) of the Interpretation Ordinance (Cap. 12)). As we have seen,when it had no express statutory powers to do so under the Charterof Justice of 1833, which in express terms only gave a power ofadmission, the Court had no hesitation in suspending (ReDharmaratne (supra)), and removing (see Re Edgar Edema (supra))members of the Bar.
And so, in deciding what is to be done, I think I should ask myselfthis: What would I have done if Moonesinghe was an applicant foradmission as an attorney-at-law? As Howard, CJ observed in ReBrito**'1: “Our duty is to regard the fitness of the respondent tocontinue in the profession from the same angle as we should regard it
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if he was a candidate for enrolment." In re Hillm, where an attorneyhad admitted embezzlement of money he had received, but not in hiscapacity as an attorney, Cockburn, CJ said this:
"i should add, there is one consideration I omitted, and which, Ithink is entitled to great weight. It is that put to us in the courseof the discussion, namely, that if those facts had been broughtto our knowledge upon the application for this gentleman'sadmission, we might have refused to admit him; and I think thefact of his having been admitted does not alter his position;having been admitted, we must deal with him as if he were nowapplying for admission; and as in the case of a person applyingfor admission as an attorney, we should have considered all thecircumstances, and either have refused to admit, or havesuspended the admission for a certain time, so where a personhas once been admitted we are bound, although he was notacting in the precise character of an attorney, to take notice ofhis misconduct."
In terms of the Supreme Court Rules (1978) (made under Article 136of the Constitution and published in Gazette Extraordinary No. 9/10on November 8, 1978), every person who intends to apply foradmission as an attorney-at-law is required, inter alia, to submit to theSupreme Court a “certificate from two or more Attorneys-at-law of atleast seven years' standing that the applicant is a person of goodrepute and that there is no impediment or objection to his enrolmentas an attorney-at-law." (Rule 68 (e)). When these certificates havebeen filed, the Supreme Court is required by Rule 69 to direct theRegistrar “to inquire and report whether the applicant is of goodrepute and whether there exists any impediment or objection to hisenrolment as an attorney-at-law, and upon such report the SupremeCourt shall either direct the applicant to be sworn or affirmed, andadmitted and enrolled, or make such other order as it may deemproper."
Persons have been admitted to the legal profession in this countryalways only if they are persons of good repute. In the common orgeneral estimate, and in the relative estimation of the Court, and ofadmitted attorneys-at-law of prescribed standing, a person must beregarded as decent and respectable enough to be a member of an
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honourable profession. The State, the court before whom he mayappear, the litigants and members of the public who may seek hisadvice or to whom they may entrust their affairs, and the legalprofession and its members, ought to be considered.
First, I should consider the matter from the duty we owe the State.Let me explain. Three salient features characterize the role ofconsulting professions like the legal profession: (a) the provision ofservices related to basid'values; (b) self-regulation and (c) amonopoly or near monopoly of services. The legal monopoly, or nearmonopoly, over our professional services has this implication: We donot have a right to practice, but only a privilege conferred by theState, provided certain conditions are fulfilled. The Supreme Courthas from the time of the Charter of Justice of 1801, been entrustedwith the task of determining what those conditions are, andconferring or taking away the. privilege of practising as a member ofthe legal profession. We, therefore, owe the State a duty to ensurethat only those who are qualified by continuing to satisfy theconditions upon which they were admitted are permitted to hold thefranchise given to them. Mokerjee, J in Emperor Rajani Kanta Bose etalt6e} followed with approval by Howard, CJ in Re Brito (supra) atp. 532 said:
The practice of the law is not a business open to all who wishto engage in it, it is a personal right or privilege limited toselected persons of good character with special qualificationsduly ascertained and certified; it is in the nature of a franchisefrom the State conferred only for merit and may be revokedwhenever misconduct renders the person holding the licenceunfit to be entrusted with the powers and duties of his office.Generally speaking the test to be applied is whether themisconduct is of such a description as shows him to be an unfitand unsafe person to enjoy the privilege and manage thebusiness of others as (an attorney-at-law), in other words, unfitto discharge the duties of his office and unsafe becauseunworthy of confidence.
The fact that the right to practice is a revocable franchise was alsoreferred to by Macdonell, CJ in Attorney-General v. Ariyaratne(supra), at p. 197.
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One of the essential conditions for admission to the legalprofession is that a person must be of good repute. In thecircumstances of this case, Moonesinghe would certainly not havequalified. Therefore, in discharging the obligations we owe the State,th4 franchise granted by us to Moonesinghe to practise as a memberof the legal profession must be revoked.
There is a duty on our part to the courts before whom he maypractise to ensure that an attorney will maintain the highest standardsof conduct so that he might be a person fit to be an officer of thecourt. He must be a person who can be trusted by the Court. Hemust be able to command the confidence and respect of the judges.See Re Fernando (supra) followed in Re Nadesan (supra). Rule 51 ofthe Supreme Court (Conduct of and Etiquette for Attorneys-at-Law)Rules of 1988 provides that "An Attorney-at-Law shall not mislead ordeceive or permit his client to mislead or deceive in any way theCourt or Tribunal before which he appears.” Moonesinghe is guilty ofdeceit. Having regard to the nature and quality of Moonesinghe’sdishonesty, which in my view is grave, I do not think he could havebeen depended upon to observe the cardinal principles enshrined inRule 51.1 would, therefore, not have admitted him, In the matter of anapplication to be readmitted and re-enrolled as an Advocate of theSupreme Court1®1 Chief Justice Abrahams (Maartensz and MoseleyJJ agreeing) said at, p. 477: "Weshould of course be very careful inadmitting to the profession – members of which should observe thehighest standard of honour and trustworthiness – a man who hasbeen guilty of crime and dishonesty.” And so, I do not thinkMoonesinghe is a fit person to continue as an officer of this Court.
There is duty we owe the public. In re Hillm Cockburn, CJ said:“When an attorney does that which involves dishonesty, it is for theinterest of suitors that the Court should interpose and prevent a manguilty of such misconduct from acting as an attorney of the Court.”Significantly, in the matter before us, Mrs. Chandratileke in her letterto the Chief Justice complained that she and other members of thepublic invested large sums of money with Moonesinghe “relying” onhis “integrity as a professional man.” There was no client-attorneyrelationship in this case, but Mrs. Chandratileke, was Justified, as amember of the public who had dealt with a member of the legal
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profession in whom she was entitled to repose confidence, inrequesting the Chief Justice to direct an inquiry to ascertain whetherMoonesinghe was "a fit and proper person to hold the office ofattorney-at-law." She was entitled to ask for an inquiry to ascertainwhether the franchise given to this man should be withdrawn. In ReC. D. de S. Senaratne<23) a proctor who was guilty of deceit andnegligence was suspended and ordered to pay costs. Rose, CJ(Nagalingam, SPJ, and K. D. de Silva, JJ agreeing) held at p. 100that “the interests of the profession and the public demand a suitablerecognition of the respondent's misconduct" even though thecomplainant had merely suffered “inconvenience, annoyance andanxiety." Similarly in Solicitor-General v. Cooke (supra) (followed perRanasinghe, CJ. in Re Nadesan (supra)), Soertsz, J. ordered that aproctor convicted of criminal breach of trust be struck off because“the interests of the public and the prestige of the profession to whichthe respondent belongs" required it. (see also Attorney-General v.Ellawala (supra) at p. 18).
In Re Fernandol'3), a proctor had been convicted of criminalbreach of trust and dishonest misappropriation of property. It wasargued that the money was not entrusted to him in his capacity as aproctor. Basnayake, CJ. (Pulle and Fernando, JJ. agreeing) followedthe decision in The Solicitor-General v. Abdul Cader<12> and said asfollows:
The evidence in the case which we have perused leave noroom for doubt that the clients concerned came to him to obtainhis services as a professional man and not in any othercapacity. But even if the assumption of learned counsel iscorrect, it makes no difference. The jurisdiction this Courtexercises under Section 17 of the Courts Ordinance has nothingto do with punishment. The power to remove or suspend aproctor from his office is one that is meant to be exercised forthe protection of the profession and the public and for thepurpose of maintaining a high code of conduct among thosewhom this Court holds out as its officers to whom the publicmay entrust their affairs with confidence. If a proctor isadequately to perform the functions of his office and serve theinterests of his clients, he should be able to command the
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confidence and respect of Judges, of his fellow-practitionersand of his clients. When a proctor is convicted of a criminaloffence, more especially of an offence involving his honesty andfidelity, it must inevitably mean the loss of that confidence andrespect without which he can no longer adequately perform thefunctions of his office. Such a person this Court cannot hold outto suitors and others “(the emphasis is mine)” as a person inwhom they may with safety place their confidence and who canbe trusted to advise them, and to undertake their affairs … It isunfortunate that the respondent should find himself in thissituation after nearly 20 years in his profession. But the interestsof the profession and the public which are paramount requirethat he should be removed from his office…
Although Cockburn, CJ in Re Hill {supra) referred to the interest of"suitors”, it is clear that criminal misconduct and deceit, whether it beconnected with his character as an attorney-at-law or not, may renderhim unfit to be an attorney-at-law. (See R v. Southerton (supra) atp. 143; Re King™; Re Hall, Dollond v. JohnsonRe Blake™; ReStrong17"-, Re Hopper™; Re Weare|7>. Indeed the disciplinary powersof the Court remain as long as a person’s name is on the roll anddoes not depend on whether he has ceased to practise. (Cf. Myers v.Elman™, Sittingbourne and Sheerness Rail Co. v. Lawson™-, Simesv. Gibbs™; Brendon v. Spiro™; Re a Solicitor, Ex parte IncorporatedLaw Society™; Ex parte Champ™; I do not think that Cockburn, CJintended his remarks to be confined to the misconduct of attorneys-at-law acting for litigants. The case before the Chief Justice related tothe misconduct of an attorney by misappropriating funds entrusted tohim as a clerk to a firm of attorneys. However, the Chief Justice didnot hesitate to suspend the man for twelve months. That the ChiefJustice was using the term to refer to any person who may deal withan attorney, whether a professional client or not, is clear from hisearlier statement in Re Blake™. In that case, as in the matter beforeus, the matter arose out of a loan transaction where there was noattorney-client relationship. In that case, the Chief Justice said: I
I am of opinion that Blake is amenable to the summaryjurisdiction of this Court, although the misconduct of which hehas been guilty did not arise in a matter strictly between
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attorney and client, but out of a simple loan transaction. Iproceed on the general ground that where an attorney is shownto have been guilty of gross fraud, although the fraud is neithersuch as renders him liable to an indictment, nor was committedby him while the relation of attorney and client was subsistingbetween him and the person defrauded, or in his character asan attorney, this Court will not allow suitors to be exposed togross fraud and dishonesty at the hands of one of its officers.
Lord Esher, MR, In re Weare (supra) referred at p. 444 to the dictumof Cockburn, CJ., and added that the word “strictly” ought to be leftout.
In Black (supra) Crompton, J (3 E & E at p. 40 and 30 LJ QB atp. 35) cites a passage from Chitty’s Archbold's Practice, 11th Ed.P. 146: “The Court will, in general, interfere in this summary way, andstrike an attorney off the roll, or otherwise punish him, for grossmisconduct not only in cases where the misconduct has arisen in thecourse of a suit, or other regular and ordinary business of an attorney,but where it has arisen in any other matters so connected with hisprofessional character as to afford a fair presumption that he wasemployed in or entrusted with it in consequence of that character." Inthat case blake had made fraudulent use of a deed entrusted to himbecause of his character of attorney; and Crompton, J went on tosay: “In the present case I cannot say that Blake's fraud was notcommitted in a matter connected with his professional character. If hedid not act in it as an attorney, he, at all events, took advantage of hisprofessioal position to deceive.”
That is not the position here. Moonesinghe neither acted in hisprofessional capacity nor did he take advantage of his professionalposition to deceive. However, the fact that he was an attorney-at-lawdid influence Mrs. Chandratileke, and perhaps others, and lead themto trust him. Moonesinghe was confidently entrusted with a large sumof money in consequence of being a member of an honourableprofession. There is a duty we owe the public generally to admit andkeep enrolled only those who can be held out to members of thepublic as persons who may with safety be trusted to advise them andundertake their affairs. (See per Phear, CJ, in Re Edgar Edema(supra) at p. 384; Attorney-General v. Ellawala (supra) per Garvin,
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Dalton and Lyall Grant, JJ at p. 18; per Soertsz, J in Solicitor-Generalv. Cooke (supra) at p. 207; per Basnayake, CJ in Solicitor-General v.Abdul Cader (supra) and in Re Fernando (supra).
Moonesinghe has betrayed the confidence reposed in him as aprofessional man in a most reprehensible manner. His misconducthas rendered him unfit to be held out to members of the public as aperson qualified to advise them and to undertake their affairs and inwhom they may safely place their confidence. I would not haveadmitted him if we were considering the matter of his admission. Hemust therefore be removed from the office of attorney-at-law.
In addition to considering the question of good repute from thepoint of view of the State, the Court and the administration of justice,and from the point of view of the public, the matter should also belooked at by us as trustees of the legal profession. In Re anAdvocatem Gratiaen, J at p. 560 said:
Our duty must be measured by the rights of litigants who mayseek advice from a professional man admitted or readmitted tothe Bar by the sanction of the Judges of the Supreme Court. It isalso measured by the right of the profession, whose trustees weare, to claim that we should satisfy ourselves that re-enrolmentwill not involve some further risk of degradation to the reputationof the Bar.
Those observations of Gratiaen, J were quoted with approval byFernando, J sub. now re Ranasinghe in Re Wilbert (supra) at p. 28.
We have seen that at the time of applying for admission, anapplicant is required to submit certificates from two or moreattorneys-at-law of at least seven years standing that the applicant isof good repute. (Rule 68 (e) of the Supreme Court Rules 1978). Thisis in addition to the Court’s own inquiry on the question in terms ofRule 69, reflecting the Court’s concern for the opinion of ourprofessional brethren of good repute and competency. Rules 60 and61 of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules of 1988 (Gazette Extraordinary No. 535/7 of 7 December1988) made by the Supreme Court under Article 136 of theConstitution provides as follows:
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An Attorney-at-Law must not conduct himself in anymanner which would be reasonably regarded as disgraceful ordishonourable by Attorney-at-Law of good repute andcompetency or which would render him unfit to remain anAttorney-at-Law or which is inexcusable and such as to beregarded as deplorable by his fellows in the profession.
An Attorney-at-Law shall not conduct himself in anymanner unworthy of an attorney-at-law.
In this exercise of our powers conferred by Section 42(2) of theJudicature Act, there is, I think, a duty we own the profession, as LordMansfield said in Ex Parte Brounsall(39> to ensure that it “should standfree from suspicion". Perhaps the duty is one we owe the fraternity oflawyers on a wider basis?; although, undoubtedly, what action onecountry might take in relation to misconduct committed elsewherewould depend on the circumstances. (E.g. see Bunny v. Judges ofNew Zealand™; Re A Solicitor, Ex parte Incorporated Law Society™;Re lies™; Macauley v. Sierra Leone Supreme Court Judges™. In ReBatuwantudawe (supra) it was held that it was the duty of theRegistrar of the Court to forthwith inform the English Inn to which thedelinquent lawyer belonged of the decision of this Court with regardto his removal. There is also, more obviously, a duty to ensure that themembers of the profession he may regularly meet are not required todeal with an unworthy person. In Re Wearem Lord Esher, MR, atp. 446 said as follows:
The Divisional Court, having heard the case, has come to theconclusion that this solicitor has been convicted of a criminaloffence of such a disgraceful kind that he ought to be struck offthe rolls. The Court is not bound to strike him off the rolls unlessit considers that the criminal offence of which he convicted is ofsuch a personally disgraceful character that he ought not toremain a member of that strictly honourable profession. Nowwhat is the offence? The offence is being a party to the use of ahouse belonging to him as a brothel. Is it or is it not personallydisgraceful? Try it in this way. Ought any respectable solicitor tobe called upon to enter into that intimate intercourse with himwhich is necessary between two solicitors, even though they are
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acting for opposite parties? In my opinion, no other solicitorought to be called upon to enter into such relations with aperson who has so conducted himself. I think he has beenconvicted of a personally disgraceful offence.
In the same case (at p. 447) Lord Justice Lindley said:
The question is, whether a man is a fit and proper person toremain on the roll of solicitors and practise as such. That is thequestion. Now, asking that question, how can we say that aperson who acts as this man is proved to have acted is a fit andproper person to remain on the roll of solicitors? Whatrespectable solicitor could without loss of self-respect, knowingthe facts, meet him in business? And what right have we toimpose upon respectable solicitors the duty of meeting him inbusiness?
In relation to the charge of deceit, Moonesinghe has been guilty ofsuch disgraceful conduct that I should have been quite unwilling toadmit him to the legal profession and to impose upon respectablemembers of our profession the duty of meeting such a man inbusiness. Having been admitted, he must now be removed from thehonourable profession in which he now has a place.
All is not lost. If I might adopt the words of Schneider, ACJ in ReSeneviratnem I can only hope that this decision will have “thesalutary effect of awakening in" Moonesinghe “a higher sense ofhonour and duty." As Lord Esher observed in Re Weare (supra) andfollowed with approval in Attorney-General v. Ellawala (supra) atp. 32, “if he continues a career of honourable life for so long as toconvince the Court that there has been a complete repentance and adetermination to persevere in honourable conduct”, he may beconsidered for readmission. (See Re Monerasinghem; Re W. A. P.Jayetilleke{66 Re Ranasinghem; Re Batuwantudawam ReSenaratnem; In the matter of an application for the readmission as aProctorm; Attorney-General v. Ellawelam; Re Wijesinghem; In ReBritto (supra) at p. 533; Re Wickremasinghem Re Salgadoem ReArumugaml92); Re Gaston R. de Vaz'K). For the time being he must bestruck off the roll. No sympathetic considerations must stay my hand.
I cannot show a forbearance or practise a generosity of an
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[1992] 2 Sri LR.
unacceptable kind. (See per Soertsz, J in Solicitor-General v. Cookefollowed per Ranasinghe, CJ in Re Nadesan; see also perGratiaen, J in Re an Advocate (supra)).
For the reasons set out in my judgment, I am of the opinion that theRule must be made absolute. I make order that Susantha MahesMoonesinghe, Attorney-at-Law, be removed forthwith from the officeof attorney-at-law, and direct that his name be struck out of the Roll ofAttorneys-at-Law of the Supreme Court of Sri Lanka.
Rule made absolute.