30 November 2012
An Acacia Bay man, Hugh Edward Staples Hamilton (61) has appeared at the Auckland District Court today charged with fraud following the 2008 collapse of Belgrave Finance Limited (Belgrave).
As a result of a joint prosecution by the Serious Fraud Office (SFO) and the Financial Markets Authority (FMA), Mr Hamilton is facing 19 Crimes Act charges of theft by a person in a special relationship, five charges of false statement by promoter, and 11 Companies Act charges of making a false statement to a trustee.
Mr Hamilton, a former barrister and solicitor, was a legal advisor to the other individuals charged in relation to Belgrave. He no longer holds a current practicing certificate.
Following the collapse of Belgrave in 2008, the FMA (then Securities Commission) made initial investigations into the company before referring the matter to the SFO in June 2010. As a result of the SFO investigation, in September 2011 the SFO and FMA commenced a joint prosecution.
The SFO initially laid 23 fraud charges against three people alleging that between June 2005 and March 2008 they used more than $18 million of Belgrave investors' funds to make related party loans and in doing so they misrepresented to investors how their funds would be used.
The FMA laid an additional 23 charges under the Securities Act and Companies Act.
Acting Chief Executive of the SFO, Simon McArley explained that additional information resulted in further enquiries into Mr Hamilton's involvement. The SFO and FMA now allege that Mr Hamilton is an accomplice to the substantive fraudulent representations and use of the Belgrave investors' funds.
"We believe that it is important to explore the culpability of all involved with financial crime. Professional advisors are not exempt and where we believe they have been complicit in offending, we will seek to bring those individuals to account." Simon McArley said.
FMA Head of Enforcement, Belinda Moffat, said it is alleged that Mr Hamilton was a party to the conduct of the Belgrave directors particularly with respect to related party lending and statements made to the trustee.
"This case highlights the importance of the role that professional advisers have to ensure that Trustees of issuers are provided with accurate information," Ms Moffat said.
On 30 August 2012, Shane Joseph Buckley (44) a former Belgrave Director was sentenced to three years imprisonment after pleading guilty for his role in defrauding the Belgrave investors. Mr Buckley was convicted on 19 charges of theft by person in a special relationship and four charges of false statement by a promoter laid under the Crimes Act by the SFO. Mr Buckley was also convicted on representative charges brought by the FMA under the Securities Act and the Companies Act.
Earlier this year, former Belgrave Finance Director, Stephen Charles Smith (43), and an associate, Raymond Tasman Schofield (49), were committed for trial on similar charges. The trial date is set for 29 April 2013.
For further information:
Andrea Linton Tony Reid
Serious Fraud Office FMA Media Manager
Phone: 027 705 4550 021 739 052
Note to editors
Background to investigation
Belgrave was incorporated in September 2000.
Belgrave 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 was placed into receivership in on 28 May 2008 owing around $22 million to approximately 1,000 investors. The company was placed into liquidation in April 2010 and at the time, was the 20th finance company to collapse in two years.
Following the collapse of Belgrave, the (then) Securities Commission made initial investigations into the company before referring the matter to the SFO in June 2010. The Director determined that an investigation into the affairs of Belgrave may disclose serious or complex fraud, and the SFO commenced an investigation under Part II of the Serious Fraud Office Act in July 2010.
Crimes Act offences:
Section 66: Parties to offences
(1) Every one is a party to and guilty of an offence who-
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
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 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.
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
Role of the FMA
FMA was established in 2011 under the Financial Markets Authority Act 2011.
It replaced the Securities Commission and took over some roles of the Ministry of Economic Development, in particular the regulatory role of the Government Actuary and some of the roles of the Registrar of Companies. FMA enforces securities, financial reporting, and company law as they apply to financial services and securities markets.
It also regulates securities exchanges, financial advisers and brokers, trustees and issuers - including issuers of KiwiSaver and superannuation schemes. Shortly it will also regulate auditors.
The FMA's Statement of Intent 2012-2015 sets out the FMA's strategic intent, statement of services and forecast financial statements and prescribes FMA's strategy for the coming three years from July 2012 to June 2015. It is available online at: www.fma.govt.nz
Role of 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 operates three investigative teams:
• Evaluation & Intelligence;
• Financial Markets & Corporate Fraud; and
• Fraud & 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 2012 sets out its achievements for the past year, while the Statement of Intent 2012-2015 sets out the SFO's three year strategic goals and performance standards. Both are available online at: www.sfo.govt.nz