019-NLR-NLR-V-37-IN-THE-MATTER-OF-AN-APPLICATION-UNDER-SECTION-19-OF-THE-COURTS-ORDINANCE.pdf
In re A. V. de Silva, Advocate.
09
1934
Present: MacdoneU C-J., Drieberg and Akbar JJ.
In re A. V. DE SILVA, Advocate.
In the Matter of an Application under Section 19
of the Courts Ordinance.
0
Advocate—Conviction for touting—Moral turpitude—Courts Ordinance, No. 1of 1889, s. 19.
Where an Advocate was convicted under section 2 (d) of OrdinanceNo. 11 of 1894 of the offence, viz., that “ being a legal practitioner, he hadtendered or given a gratification for procuring the' employment as suchpractitioner of himself ”.—
Held, the Advocate should be removed from office.
■ ;>• .v. i..
100
MACDONELL CJ.—In re A. V. de Silva, Advocate:
HIS was the hearing of a rule on the respondent, an Advocate.
I to show cause why he should not be removed from office undersection 19 of the Courts Ordinance by reason of his conviction undersection 2 (d) of Ordinance No. 11 of 1894.
J. E. M. Obeyesekere, Deputy S.-G. (with him M. F. S. Pulle, C. C.),in support.
Aelian Pereira, for respondent.
December 17, 1934. Macdonell C.J.—
This was a rule calling on the respondent, an Advocate of this Court,to show cause why he should not be removed under section 19 of theCourts Ordinance, by reason of his conviction under section 2 (d) ofOrdinance No. 11 of 1894, under the following circumstances:—
A’ certain lorry driver was charged in the Colombo Police Court withoverloading his lorry and pleaded guilty on February 14, 1933, but thecase was put off till February 20, 1933, to enable him to produce hislicence. On the latter date the driver was in Court with his wife and hismother, who had come there with the sum of Rs. 4 in all, wherewithto retain a particular Proctor whom they had in mind. They were metby a tout called Jamaldeen who diverted them from their intentionof retaining this Proctor, told them that he could get them an Advocateand took them to the respondent. They gave Rs. 3 to the respondentout of which the respondent gave Jamaldeen Re. 1 retaining Rs. 2 forhimself. The case was called and again put off to enable the driverto produce his licence, but the respondent did not appear in Court for him.After the case had been adjourned the two women, not unnaturallyannoyed at the respondent’s not appearing, met him and asked for theirmoney back again. The respondent did return them the Rs. 2 but toldthem that for the return of the other Re. 1 they must look to Jamaldeen.They did ask Jamaldeen for the return of this Re. 1 but he refusedThey then complained to a policeman and their statements of the aboveevents were taken the same morning. Jamaldeen was convicted underOrdinance No. 11 of 1894, and the respondent was then himself chargedunder section 2 (d) of the same, namely, that he “ being a legalpractitioner, had tendered or given a gratification for procuring theemployment as such practitioner of himself ”. He was convicted onthis charge on October 10, 1933, which conviction was affirmed on appealin this Court on July 23, 1934. This seems to be the first case of a legalpractitioner having misconducted himself in contravention of thisOrdinance, No. 11 of 1894. The respondent was in Court personally andsaid to us “ I have no cause to show. There was no dishonesty. I submitmyself to the Court ”. It was urged on behalf of the respondent that where-as at one time he had had a considerable practice, he had yet lost the sameduring recent years because of competition from younger and moreenergetic members of the Bar, and the Court was told that he had there-fore been “ driven by misfortune to the common subterfuge of employinga tout to give him some assistance ”, and it was added that this was byno means an isolated case. We were asked, as we understood, to say
T
Cur. adu. twit.
Paindathan v. Nadar.
101
that whereas employing a tout would be very improper for a young:Advocate endeavouring to build up a practice, and would be conductmeriting removal, in the case of a more senior man who had once hada practice and was trying to regain the same, the offence of-employinga tout should be more leniently dealt with.
The argument strikes us as a somewhat astonishing one, and we cannotaccede to it for a moment. The Bar and its traditions exist by reasonof the independence of each Advocate. He must succeed in accordancewith his merits, and it would be subversive of all the traditions of the Barif he were to employ any such assistance as that of a tout to obtain himpractice. This proposition seems to us an obvious one, and it is difficultto take seriously the contention that employing a tout can under anycircumstances be a venial offence.
It was argued further to us that the offence proved against therespondent did not involve any moral turpitude or dishonesty. The factin the case that having taken the money he did not appear in Court does,if unexplained, tend in the direction of dishonesty, but, quite apartfrom that, the conduct proved against the respondent does show moralturpitude and an entire forgetfulness of the duties and traditions of theprofession to which he belongs.
It would be wrong to allow any Advocate who has so far misbehavedas to employ a tout, to remain upon the roll of Advocates, and if so theorder must be that the respondent be removed from that roll.
Dhiebehg J.—I agree.
Akbar J.—:I agree.
Rule made absolute.