047-NLR-NLR-V-41-THE-SOLICITOR-GENERAL-v.-COOKE.pdf
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SOERTSZ A.C.J.—The Solicitor-General v. Cooke.
1939 Present : Soertsz A.C.J., Keuneman and de Kretser JJ,
THE SOLICITOR-GENERAL v. COOKE.
In the Matter of a Rule issued on J. M. T. Cooke,Proctor of the Supreme Court
Proctor—Conviction jor criminal breach of trust—Money entrusted by client—
Attempt at reparation—Courts Ordinance, s. 17 {Cop. 17).
Where the respondent, a Proctor, was convicted of criminal breach oftrust of money entrusted to him by a client,—
Held, that he should be removed from the roll of Proctors and thatsuspension from office for a period would not be a sufficient punishmentfor his misconduct.
In re a Proctor (40 N. L. R. 367) referred to.
HIS was an application by the Solicitor-General under section 17 of
A the Courts Ordinance asking that the name of the respondent beremoved from the roll of Proctors.
J. W. R. llangakoon, K.C., A.-G. (with him D. Jansze, C.C.) in support.
E. F. N. Gratiaen (with him S. Nadesan, instructed by R. R. Nalliah),for the respondent.
July 14, 1939. Soertsz A.C.J.—
This is an application made by the Solicitor-General under section 17of the Courts and Their Powers Ordinance, asking that the name of therespondent be removed from the roll of Proctors, on the ground that in
C. (Crl.) Jaffna, case No. 4,149, he was convicted of the offence ofcriminal breach of trust of a sum of Rs. 300 entrusted to him by a client,for investment.
The evidence discloses not only a serious offence committed with everycircumstance of deliberation, but also measures taken thereafter, involvingthe fabrication of evidence, in order to make the victim believe that hismoney had been put out on a mortgage. In point of fact, the moneyappears to have been used by the respondent, for purposes of his own, inthe financial difficulties in which he found himself at this time. Hisstory that, with the knowledge of his client, he gave this money to amoneylender has been rightly rejected by the trial Judge.
In this state of things, I was not a little surprised when the respondentappeared in answer to the notice issued on him to show cause, andsubmitted that he had nothing to say in regard to the conviction, butthat in regard to the application by the Solicitor-General, he desired tosay that there was no occasion for the removal of his name, and that itwould be sufficient to order his suspension from office for a period. Thissubmission shows either an entire inability on the part of the respondentto appreciate the gravity of his offence, or a too sanguine expectation ofsuch a lack of appreciation on our part. It was said on his behalf that
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Cur. adv. vult.
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he had made restitution, that he had restored the money to his client.The respondent was relying on certain observations made in similar casesthat a Court would take into account the fact that the delinquent hasmade restitution. No doubt, that is a fact which will be considered, orperhaps I should say, will not be ignored, on an occasion like this, but theweight to be attached to it must depend on the circumstances of eachcase. For my part, I can attach but little weight to a restitution that isnothing more than a last resort, when every attempt to defeat and delayhis client had failed. I cannot help feeling that when the respondentreturned the money he was thinking more of the advantage that mightaccrue to him from this course when the Judge was considering thequestion of sentence than of his obligations to his client.
The case of In re a Proctor', was cited to us. In that casea concession was made to the respondent on the ground that thecriminal breach of trust of which he was convicted was criminalbreach of trust of property entrusted to him in his private and not in hisprofessional capacity. This is a distinction which I am not disposed tomake, but I do not think it necessary to say anything more on that point,for in the case before us it is admitted that the respondent was acting inhis professional capacity.
It is impossible not to feel sorry for a professional man in a plight likethat of the respondent, but it is not open to us to show a forbearance orpractise a generosity that ignores the interests of the public and theprestige of* the profession to which the respondent belongs. If I mayrespectfully say so, I share the view of Coutts-Trotter C.J. in re Nara-simhachariar, High Court Vakil, Kumbakonum *, “ We have not only toconsider the interests of the Vakil even should we believe that hisrepentance is sincere and that his present intention is that he will give nocause for further complaint …. but we have to consider thepublic in a matter of this kind, and we have also to consider the legalprofession generally. How can we say that a man who has been guiltyof two such grossly dishonest and improper acts as these, can safely beentrusted with the interests and monies of future clients. We cannot.Were we to suspend him, we should mark our sense of disapproval ofsuch conduct by a suspension so long that it would practically beequivalent to debarring him from ever efficiently practising again, andalso we should prevent him from doing what we hope he will endeavour todo, namely, to put his affairs in order and earn his livelihood in some otherwalk of life. These cases are of such gravity that we feel that, in justiceto the public and the profession, we can do no less than order that theVakil be struck off the rolls ”.
For exactly these reasons, I would order that the name of the respondentbe struck off the roll of Proctors.
Keuneman J.—I agree.de Kretser J.—I agree.
1 40 K. L. B. 367.
* A. I. li. 1925 Madras 797.