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Jail for securities company officer for aiding and abetting the company in fraud.

Tuesday, 20 August, 2024 - 08:08

To be clear, Yat Nam YUEN (known as April Yuen) has been sentenced to jail but it is subject to "an intensive correction order" and the actual conduct is referred to as "engaging in dishonest conduct". The importance of the case lies in the fact that it is the company that is alleged to have been dishonest, implying the presence of mens rea.

Australian legal language is rapidly becoming unique and translations are often needed.

An intensive correction order is an actual jail sentence that is similar to a suspended sentence subject to conditions. In this case, the primary condition is that she serve 100 hours community service within the two years of the jail sentence and, of course, does not commit further offences.

As to the offences, Australian Regulator ASIC which referred the case to the Director of Prosecutions, said "In June 2014, Yuen instructed the transfer of AUD6,800,000 out of BBY’s Futures client segregated account, a client money account used for futures clients, to fund a margin payment owed by BBY to ASX Clear Pty Ltd.

Similarly, in March 2015, Yuen caused the transfer of AUD1,600,000 of client money out of BBY’s Saxo Buffer account, a client money account, and AUD350,000 out of BBY’s Futures client segregated account, also a client money account, to fund a corporate payment owed by BBY.

The above transfers were in breach of BBY’s obligation to hold that client money on trust.

The transfers were not repaid to the relevant client money accounts and contributed to the client money shortfalls on BBY’s liquidation.

The sentence took into account Yuen’s plea and other mitigating factors resulting in a substantial discount.

"As a result of her convictions, Yuen will automatically be disqualified from managing corporations for five years and will be unable to be involved in the business of a market participant in connection with securities and futures markets."

BBY was a stockbroking and financial services business. It was placed into voluntary administration on 17 May 2015 and in liquidation on 22 June 2015 with significant shortfalls in clients' funds.

ASIC’s investigation in relation to BBY has also resulted in the conviction and sentence of BBY’s former Head of Operations Fiona Bilton and the charging of former BBY CEO Arunesh Maharaj (on matters unrelated to Yuen’s sentence.

ASIC’s investigation into BBY is continuing.

There is no difficulty in establishing regulatory failures but so far it is not clear how a company has been considered to have had the necessary state of mind for dishonest conduct.


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