Finance company legal adviser found guilty of fraud

Finance company legal adviser found guilty of fraud

Hugh Edward Staples Hamilton (62) has been found guilty at the Auckland High Court today of 14 charges arising out of the collapse of Belgrave Finance Limited (Belgrave Finance). The charges were brought in a joint prosecution by the Serious Fraud Office (SFO) and the Financial Markets Authority (FMA).

The charges related to loans, with a value of more than $12 million, made by Belgrave Finance to various related companies between June 2005 and March 2008.

Mr Hamilton, a former barrister and solicitor, was a legal adviser to the other individuals, Mr Schofield, Mr Smith and Mr Buckley, who were charged in relation to Belgrave for substantive fraudulent representations and use of Belgrave investors' funds.

Mr Hamilton was found not guilty of 25 charges, these included 11 charges of false statement by a promoter, 11 Companies Act charges of making a false statement to a trustee and three theft charges.

Justice Faire's comments regarding the verdict, included that he was satisfied that Mr Hamilton "had knowledge that Mr Schofield, Mr Smith or Mr Buckley, through their borrowing were causing Belgrave to be in breach of the Debenture Trust Deed." Justice Faire also found beyond reasonable doubt that Mr Hamilton "intended to assist in the offending".

FMA Head of Enforcement, Belinda Moffat, said, "Professional advisers play a critical role in ensuring compliance in financial markets. This case shows that advisers who fail in this basic obligation and who are instrumental in enabling their clients to commit financial crimes will be held accountable for their actions."

SFO Director Julie Read added, "This was a complex matter which has been dealt with through our coordination with the FMA, ensuring the most effective and efficient application of specialist skills and resources to the investigation."

Mr Hamilton has been remanded on bail and will next appear for sentencing on 4 July 2014.

ENDS

For further information

Andrea Linton
Serious Fraud Office
027 705 4550

Andrew Park
Financial Markets Authority
021 220 6770

Note to editors

Background to investigation

Belgrave Finance Limited was incorporated in September 2000.

Belgrave Finance provided financial accommodation and mortgage facilities for commercial and residential property developments. Funds for lending were sourced primarily from the issue of securities to the public in the form of debenture stock and convertible capital notes.

Belgrave Finance was placed into receivership in on 28 May 2008 owing around $22 million to approximately 1,200 investors. The company was placed into liquidation in April 2010 and at the time, was the twentieth finance company to collapse in two years.

Following the collapse of Belgrave Finance, the (then) Securities Commission made initial investigations into the company before referring the matter to the SFO in June 2010. The SFO Director determined that an investigation into the affairs of Belgrave Finance may disclose serious or complex fraud, and the SFO commenced an investigation under Part II of the Serious Fraud Office Act in July 2010.

Charges were also laid against former director Shane Joseph Buckley who pleaded guilty and was sentenced to three years' imprisonment and former director Stephen Charles Smith who pleaded guilty and received four years' imprisonment. Also charged was the controller of the company Raymond Tasman Schofield who has been granted a stay of prosecution on the grounds of terminal illness, conditional upon review.

SFO charges

Crimes Act offences

Section 220: Theft by person in special relationship
(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person-
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.

(2) Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.

(3) This section applies whether or not the person was required to deliver over the identical property received or in the person's possession or control.

(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.

Section 223: Punishment of theft
Every one who commits theft is liable as follows:
(a) in the case of any offence against section 220, to imprisonment for a term not exceeding 7 years; or
(b) if the value of the property stolen exceeds $1,000, to imprisonment for a term not exceeding 7 years; or
(c) if the value of the property stolen exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 1 year; or
(d) if the value of the property stolen does not exceed $500, to imprisonment for a term not exceeding 3 months.

Section 242: False statement by promoter, etc
(1) Every one is liable to imprisonment for a term not exceeding 10 years who, in respect of any body, whether incorporated or unincorporated and whether formed or intended to be formed, makes or concurs in making or publishes any false statement, whether in any prospectus, account, or otherwise, with intent-
(a) to induce any person, whether ascertained or not, to subscribe to any security within the meaning of the Securities Act 1978; or
(b) to deceive or cause loss to any person, whether ascertained or not; or
(c) to induce any person, whether ascertained or not, to entrust or advance any property to any other person.

(2) In this section, false statement means any statement in respect of which the person making or publishing the statement-
(a) knows the statement is false in a material particular; or
(b) is reckless as to the whether the statement is false in a material particular.

FMA charges

Companies Act offences

Section 377: False statements
(1) Every person who, with respect to a document required by or for the purposes of this Act,-
(a) makes, or authorises the making of, a statement in it that is false or misleading in a material particular knowing it to be false or misleading; or
(b) omits, or authorises the omission from it of, any matter knowing that the omission makes the document false or misleading in a material particular-
commits an offence, and is liable on conviction to the penalties set out in section 373(4).

(2) Every director or employee of a company who makes or furnishes, or authorises or permits the making or furnishing of, a statement or report that relates to the affairs of the company and that is false or misleading in a material particular, to-
(a) a director, employee, auditor, shareholder, debenture holder, or trustee for debenture holders of the company; or
(b) a liquidator, liquidation committee, or receiver or manager of property of the company; or
(c) if the company is a subsidiary, a director, employee, or auditor of its holding company; or
(d) a stock exchange or an officer of a stock exchange,-
knowing it to be false or misleading, commits an offence, and is liable on conviction to the penalties set out in section 373(4).

(3) For the purposes of this section, a person who voted in favour of the making of a statement at a meeting is deemed to have authorised the making of the statement.

About the SFO

The Serious Fraud Office (SFO) was established in 1990 under the Serious Fraud Office Act in response to the collapse of financial markets in New Zealand at that time.

The SFO's role is the detection, investigation and prosecution of serious or complex financial crime. The SFO's focus is on investigating and prosecuting criminal cases that will have a real effect on:

• business and investor confidence in our financial markets and economy
• public confidence in our justice system and public service
• New Zealand's international business reputation.

The SFO operates three investigative teams:

• Evaluation and Intelligence;
• Financial Markets and Corporate Fraud; and
• Fraud and Corruption.

The SFO operates under two sets of investigative powers.

Part I of the SFO Act provides that it may act where the Director "has reason to suspect that an investigation into the affairs of any person may disclose serious or complex fraud."

Part II of the SFO Act provides the SFO with more extensive powers where: "...the Director has reasonable grounds to believe that an offence involving serious or complex fraud may have been committed..."

The SFO's Annual Report 2013 sets out its achievements for the past year, while the Statement of Intent 2013-2016 sets out the SFO's three year strategic goals and performance standards. Both are available online at: www.sfo.govt.nz(external link) 

About the FMA

The FMA was established on 1 May 2011 under the Financial Markets Authority Act 2011, in response to the need to address failures in the financial markets, made evident from the global financial crisis. The Government recognised that New Zealand required a single financial markets conduct regulator to proactively monitor and enforce financial markets legislation.

The FMA is an independent Crown entity and has the following functions:

• to monitor compliance with, investigate contraventions of, and enforce securities and investment law, financial reporting law, and companies law, in respect of financial markets participants;
• to promote confident and informed participation in the financial markets;
• to license and supervise particular financial markets participants, including financial advisers, trustees and statutory supervisors, auditors, and securities markets;
• to monitor and conduct inquiries and investigations into financial markets and financial markets participants; and
• to keep the law under review.

The FMA is committed to taking appropriate enforcement action against those whose behaviour threatens market integrity and investor confidence in New Zealand.

More information about the FMA can be found at www.fma.govt.nz