In re APPLICATION BY D. S. JAYASINGHE

102-NLR-NLR-V-40-In-re-APPLICATION-BY-D.-S.-JAYASINGHE.pdf


385
In re Application by D. S. Wijesinghe.
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1939Present: Hearne, Keuneman and the^Kxf tser JJ.
A
In re APPLICATION BY D. S. JAYASINGHE.
Proctor—Disbarred on conviction—Application for re-enrolment—Redemption.of character—Attempt to make reparation—Re-enrolment must be con-sistent with public safety.
Where an application for re-enrolment is made by a Proctor who hasbeen removed from the roll upon conviction for a criminal offence,the question to be decided by the Supreme Court is not only whetherhe has redeemed his character but also whether he may with proprietybe allowed to return to the practice of an honourable profession.
An honest attempt to make reparation is regarded as some evic^e^ce ofredeemed character.
In re an Advocate (39 N. L. R. 476) referred to.
T
HIS was an application for restoration to the roll by a Proctorwho had been removed from the roll.
As a result of the conviction of the petitioner of the offences of cheatingand forgery in 1923, he was removed from the roll of Proctors. Heapplied to have his name restored to the roll and filed certificates fromvarious people to testifj7 to his character during the thirteen years thathave elapsed since his relelase from prison.
C. V. Ranawake (with him C. E. A. Samarakkody and DodwellGunewardene), in support of the application.—The petitioner has placedsufficient material before the Court entitling him to ask it to exercise itsdiscretion in his favour. There is evidence of a palpable and definiterepentance and the manifestation of an honest career for a long period.Though no actual reparation has been made there is an offer of reparationwhich the petitioner’s client, has accepted; there is no hard and fast ruleon this last point. See Bertram C.J. in In re Application of a Proctor1.Counsel also cited In re Poole ’ and Application of C. C. J. Seneviratne
J. W. R. Ilangakoon, K.C., A.G. (with him D. W. Fernando, C.C.), onnotice.—In these applications the interest of the public at large should beconsidered and not that of a few well-wishers of the petitioner. Further,the interest of the profession must be taken into account. The Courtmust be satisfied that he wiil not misplace the confidence the public willplace on him. The existence of Proctors is due to that confidence.As a rule a Proctor, whose name has once been struck off the roll cannotbe readmitted. When a chance is to be given, he is suspended. In thecase of Ellawala, he was not found wanting in his professional capacity.The reasons for disenrolmeni are considered in In the matter of the com-plaint of D. C. de Silva against Mr. Edgar Edema V The application for re-admission on similar grounds was refused in Visser v. Cape Law Society'.There is no guarantee that a man who has once succumbed to temptationwould not succumb to it again. He cannot be readmitted as a solace inold age.
> (1925) 39 N. L. R. 517.3 (1928) 30 N. L. R. 899.
* (1869) I,. R. 4 C. P. 350.* (1877) Ram. 380, at p. 384.
3 (1930) S. .1. I.aw Rep. Cape P. Dio. 159.
40/29
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HE ARNE J.—In re Application by D. S. Wijesinghe.
C. V. Ranawake, in reply.—No case is so bad that under no circum-stances may a person in the petitioner’s position be readmitted.Abrahams C.J. in In re Application for Readmission as an Advocate' says,
I do not think we can now say that the case was so bad that under noeiroumstances could we admit the applicant to the ranks of the profession ”.
The petitioner has redeemed his lost character; the Court has to lookinto the conduct and conduct alone of the petitioner during the periodfollowing his punishment. See Attorney-General v. Ellawala5 and In rePyke’.
March 20, 1939. Hearne J.—
This is an application by Mr. D. S. Wijesinghe to have his namerestored to the roll of Proctors of this Court. His name was removedfrom the roll sixteen years ago on conviction of the offences of cheatingand forgery. He makes the application on the ground that during thethirteen years that have followed his release from prison he has shownhimself to be a fit person to practice once again the profession to whichhe was called.
I am not altogether impressed with the petition. The petitioner hassought to minimise the very serious crimes of which he was convicted.He says that he had failed to keep his own money separate from hisclient’s money and that “he had utilized the latter with the result that,when required, it was not available”. The truth is, however, that the'fraud he committed on his client was carefully planned and concealedand extended over a period of several months. He says that he did notconsider very serious what later proved to be a gross dereliction of duty.It is impossible to believe, in the light of the facts disclosed at the trial,that he did not realize the serious nature of his acts and that theyamounted, not merely to dereliction of duty, but to grave offences againstthe law of the land. There is, at the least, an absence of frankness in thepetition.
The principles on which this Court would act in application's similarto the present one have been stated on previous occasions.
In the case of an advocate who was convicted of a criminal offence in1920 and disbarred in 1922 it was held in 1928 that it would be prematureto reinstate him (30 N. L. R. 299). Eight years later he renewed hisapplication. On this occasion Abrahams C. J. said, “ I do not thinkwe can now say that the case was so bad that underfno circumstancescould we admit the applicant to the ranks of the profession ”. TheChief Justice then proceeded to hold that the applicant had redeemedhis past and that “ it would be unjust to prevent him from once moreearning his giving in the profession for which he is qualified ” (39 N. L. R.476).
Considerable reliance has been placed on this case. It. is arguedthat it lays down that the sole question a Court is required to decideis whether a person who has been convicted of-a crime of dishonestyhas .redeemed his character. I do, not agree. Re-establishment ofcharacter, so far as it can be inferred from certificates or affidavits is an
i .(1936) 39 N.L.R. 47G, at p. 476.3 (1865) 34 L. J. Q. B. 181.
I 3 (1926) 29 N. h. n. 13 and S. C. Mins. Feb. 8.
,1923, and S. C. Mins. May 4, 1937.
HEARNE J.—In re Application by D. S. Wijesingh_.—
indispensable condition, but reading the judgment of the Court as awhole it is clear (o me that the question of the safety of readmitting theAdvocate concerned, having regard to the nature of the crime he hadcommitted, was also present to the minds of the Judges, of the Court.
I see no difference between the principle enunciated by this Courtand the principle enunciated in (1910) 12 Cal. L. J. 625, that a Court mayin its discretion readmit a Proctor who has been struck#off the rolls “ifsatisfied that during the interval that has elapsed since the order ofremoval was made, he has borne an unimpeachable character, and may.vith propriety be allowed to return to the practice of an honourableprofession I stress the word propriety. It means, I think, that thematter must be regarded not merely from the point of view of theapplicant but also from the point of view of the public. That, I think,is the significance of the words of Abrahams C.J., “ I do not think we cannow say that the case was so bad that under no circumstances could weadmit the applicant to the ranks of the profession'”. He indicatedthat in his opinion the reinstatement of the Advocate involved no riskto the general public who in their dealings with him have the right toexpect the highest standard of honour and trustworthiness.
The same idea appears in the judgment of Bertram C.J. when he says‘We are prepared to exercise the jurisdiction of this Court in favour ofthe applicant because we are satisfied that in so doing we are not indanger of readmitting to the roll a person who is not entitled to beLreated with professional confidence ” (In re a Proctor).'
In In re Advocate' the question of restitution was not considered,possibly because the amount involved was small, possibly becauserestitution had be'en made. The crime of which the Advocate concernedhad been convicted was the result of a single act of dishonesty andrelated to a sum of Rs. 1,000. In the case of In re • a proctor (supra)however it was stressed, while in Visser v. Cape Law Society", where theCourt was not satisfied that an attorney, who had been struck off the rolls,on conviction of the crimes of forgery, perjury and theft, had made anyattempt to repair the wrong he had done, an application for, reinstatementvvas refused. An honest attempt to make reparation has, I think,rightly been regarded as some evidence of reformed character.
In the present case the proceedings at the applicant’s trial indicatethat he systematically defrauded his client, Mr. Rustomjee. The amountinvolved was considerable, Rs. 12,000. No restitution has been .made,and although the applicant appears to have been in fairly regularemployment, no explanation has been offered of his failure to makerestitution even on a small scale. On the subject of his earnings thepetition is silent.
Certain “ certificates ” which have obviously been prepared for thepurpose of supporting the application have been brought to our notice.The writers express the hope that the applicant will be regarded ashaving lived down his misfortune and- that he will be reinstated. Mis-fortune is a word that would more appropriately have been appliedby them to the lot of Mr. Rustomjee. In phrases borrowed, from1 39 N. L. B. 517.3 39 N. L. It. 470.
3 (1930) S. A. Law Rep. Cape P. Div. 159.
388
Ebert v. Ebert.
previous judgments of this Court they also express the opinion that theapplicant has “ reconstructed his life ” and “ rehabilitated his characterIn the case of some of the certificates it is doubtful whether the opinionsare based on first hand knowledge.
Those who have employed the applicant are much more restrainedin. their language. The Editor-in-Chief of the Times of Ceylon for whichhe worked as proof reader describes his work as “ satisfactory ”, whileMr. Crowther of the same paper says that he discharged his duties withcredit and fidelity. Mr. Goonesinghe of the Ceylon Labour Union statesthat his work in the management and editorship of the “ Comrade ” and“Viraya” was performed diligently and to his entire satisfaction, andthat as a social worker he has been of great use to the members of theLabour Union.
There is nothing out of the ordinary in these certificates and I do notgather from them that the applicant, in any of the positions held by him,was entrusted with financial responsibility.
Looking to all the facts and the principles on which this Court hasacted in the past, I regtet I am unable to say that we could withpropriety accede to the application which, in my opinion, should bedismissed.
Keuneman J.—I agree.de Kretseh J.—I agree.
Dismissed.