049-NLR-NLR-V-63-IN-RE-FERNANDO.pdf
In re Fernando
233
Present: Basnayake, G.J., Pulle, J., and H. N. G. Fernando, J.In re FERNANDO
S. C. Application No. 5—In the matter of a Rule Nisi issued underSection 17 of the Courts Ordinance (Chapter 6) on John Henry MatthewFernando, Proctor of the Supreme Court, Colombo
Proctor—Removal from office—Considerations applicable—Courts Ordinance (Cap. 6),e. 17.
The respondent, a Proctor, had been convicted of criminal breach of trustand of dishonest misappropriation of property under sections 389 and 386respectively of the Penal Code.
Held, that the respondent’s name should be struck out of the Roll of Proctors .
Rule nisi issued under section 17 of the Courts Ordinance.
M. Tiruchelvam, Solicitor-General, with A. C. AUes, Deputy Solicitor-General, and A. E. Keuneman, Crown Counsel, for Applicant.
M. C. Abeyewardene, with L. G. Weeramantry and V. NaUiah, forRespondent.
Cur. adv. vult.
1 (1940) 5 C. L. J. 68.
234
BASNAYAKE, C.J.—In re Fernando
March 23, 1959. Basnayaku, C.J.—
The respondent a proctor of this court was convicted of the followingoffences :—
“ 1. That between the 27th October, 1947, and the 10th November1947, at Colombo, within the jurisdiction of the said District Court-being entrusted with property, to wit, Imperial Bank of India ChequeNo. PB/7—649775 for Rs. 7,000 and Bank of Ceylon Cheque No. 639307for Rs. 8,000, in the way of your business as an Agent, by one Wanna-kawattawaduge Martin Marthelis Fernando of No. 29, Kawdana Road,Dehiwela, you did commit criminal breach of trust in respect of the saidproperty, and that you have thereby committed an offence punishableunder Section 392 of the Penal Code.
“ 2. That at the time and place aforesaid and in the course of thesame transaction, you did dishonestly misappropriate a sum ofRs. 15,000 being proceeds of the two cheques referred to in Count (1)above, the property of the said Wannakawattawaduge Martin MarthelisFernando, and that you have thereby committed an offence punishableunder Section 386 of the Penal Code. ”
Upon the said conviction he was sentenced to undergo simple imprison-ment for a term of six weeks on the first count and on the second count topay a fine of Rs. 500 or undergo a term of six months’ simpleimprisonment.
In appeal the conviction on the first count was altered to a convictionof an offence under section 389 of the Penal Code and subject tothat variation the appeal was dismissed. This alteration was made inview of the decision in King v. Cooray 1 which held that where the entrust-ment is not made to the offender in the way of his business as a banker &c.the offence of criminal breach of trust does not come within theambit of section 392.
Learned counsel for the respondent submitted that having regard tothe circumstances of this case we should not remove the respondent fromhis office of proctor but that we should suspend him for a term.
His main submission was based on the assumption that the alterationof the conviction in appeal showed that the money was not entrusted tothe respondent in his capacity as a proctor. We are unable to agree. Theevidence in the case which we have perused leaves no room for doubt thatthe clients concerned came to him to obtain his services as a professionalman and not in any other capacity. But even if the assumption of learnedcounsel be correct it makes no difference. The jurisdiction this courtexercises under section 17 of the Courts Ordinance has nothing to do withpunishment. The power to remove or suspend a proctor from his officeis one that is meant to be exercised for the protection of the profession
1 (1953) 54 N. L. R. 409.
BASNAYAEE, C.J.—In re Fernando
235
and the public and for the purpose of maintaining a high code of conductamong those whom this court holds out as its officers to whomthe publicmay entrust their affairs with confidence. If a proctor is adequately toperform the functions of his office and serve the interests of his clients,he should be able to command the confidence and respect of Judges, ofhis fellow practitioners and of his clients. When a proctor is convictedof a criminal offence more especially of an offence involving his honestyand his fidelity it must inevitably mean the loss of that confidence andrespect without which he can no longer adequately perform the functionsof his office. Such a person this court cannot hold out to suitorsand others as a person in whom they may with safety place theirconfidence and who can be trusted to advise them, and to undertake theiraffairs.
This was the test laid down by this court in the recent case The Solicitor-General v. Abdul Coder 1. There is no reason why the same test shouldnot be applied in the instant case. It was urged that the money which therespondent misappropriated was paid as long ago as 1953. But that pay-ment while discharging the respondent’s civil liability to his clients doesnot in any way affect the considerations that govern the exercise of thedisciplinary powers of this court. There are many instances 2 in ourreports of advocates and proctors having been removed from office forconvictions which though quite unconnected with their professional dutieshave made them unfit to be entrusted thereafter with the offic^of advocateor proctor as the case may be. It is unfortunate that the respon-dent should find himself in this situation after nearly 20 years in his pro-fession. But the interests of the profession and the public which areparamount require that he should be removed from his office andwe accordingly make order that John Henry Matthew Fernando, Proctorof the Supreme Court, be removed from his office and direct that his namebe struck out of the Roll of Proctors of this court.
Puxde, J.—I agree.
Fernando, J.—I agree.
Buie made absolute.
(1958) 60 N. L. R. 49.
In re EUawala (1926) 29 27. L. R. 13 (acceptance of a bribe).
In re Ranaainghe (1931) 1 C. L. W. 47 (Criminal breach of trust by advocate).
In re Kandiah (1932) 25 C. L. W. 87 (offence against the Opium Ordinance 27o. 5 of1910).
In re Ariyaratne (1932) 34 27. L. R. 196 (culpable homicide not amounting to murder).
In re W. A. P. Jayalilleke (1933) 35 N. L. R. 376 (unlawful assembly, house-trespassand hurt).
In re Brito (1942) 43 27. L. R. 529 (offence under the Post Office Ordinance sendingindecent or grossly offensive post cards).