State v Bank of the South Pacific [2016] FJMC 131; Criminal Case 1380.2016 (2 September 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 1380/16

STATE

-v-

BANK OF THE SOUTH PACIFIC

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

FAILURE TO COMPLY WITH THE REQUIREMENTS OF OPENING OF TRUST ACCOUNT: Contrary to Section 3(1)(a) of the Trust Account Act 1996 as amended by Trust Accounts (Amendments) Decree 2012.

Particulars of Offence

BANK OF THE SOUTH PACIFIC of level 12, Suva Central Building, Corner of Renwick Road & Pratt Street, Suva between the 1st day of March 2016 and the 30th day of April at Suva in the Central Division established a trust account no. 80534947 without a copy of the written approval of the Minister of Justice, when AminiasiNadike an employee of the Bank of the South Pacific established the said trust account

2] Summary of facts that you have admitted are as follows;

1. The accused is the Bank of the South Pacific having its registrered office at Level 12, Suva Central Building corner of Renwick Road & Pratt Street. The accused is financial institution.
2. On the 11th day of March 2016, AlipateQetaki, a legal practitioner, the director of Qetakis Advisory & Consultancy placed a request to the Bank of the South Pacific (the accused) for the opening of a Trust Account. He provided the following:
   • ➢ Tax registration;
   • ➢ His identity;
   • ➢ Corporate statement of Qetakis Advisory & Consultancy;
   • ➢ Certificate of Company Registration; and
   • ➢ His practicing certificate as a Legal Practitioner
3. He was attended by AminiasiNadike a representative of Bank of the South Pacific located at Suva Central under its BSP First Branch (Unit).
4. After vetting the documents the same day emailed AlipateQetaki the pre-requisite of opening of a trust account which was:
   • ➢ A valid practicing certificate
   • ➢ Certified true copy of trustee’s notification
   • ➢ An approval letter from the registrar and attorney general to act as trustee; and
   • ➢ A minimum deposit of $250
     
5. The email was acknowledged by AlipateQetaki who advised the accused that his practicing certificate was renewed but did not provide the approval from the Minister of Justice.
6. On the 8th of April 2016 the Trust-Enterprise Account Opening Checklist (Annexure 1) and the Business New Account Application from (Annexure 2) were complete where it was stated by an officer of the accused that all documents are in order. The Business New Account Application form had the Trust Account No. 80534947 listed.Despite not receiving the written approval AminiasiNadikeproceeded on receiving the Trust account application and processing the same. At the time of processing the bank account no. 80534947. AminiasiNadike was acting within the actual scope of his employment as an officer of the Bank of the South Pacific (the accused). The accused bank then established the bank account (Annexure 3) and received a deposit of $250 on the 13th of April 2016. At the time the accused established the bank account no. 80534947 there was no written approval from the Minister of Justice.
7. On the same date, AminiasiNadike subsequently sent an email to AlipateQetaki and the Legal Practitioners Unit, informing them that the Trust Account No. 80534947 for Qetaki’s Advisory & Consultancy had been opened by the accused (Annexure 4).
   

3] Sec.3 (1) (1C) of the Trusts Account (Amendment) Decree 2012 states that The officer in charge of the office or branch of a bank where a trustee seeks to establish a trust account shall not establish any such trust account until the officer is provided with a copy of the written approval of the Minister.

Sec.28. of the Trust Accounts Act 1996 states that;

(1) A person who

(a) Contravenes or fails to comply with any provision of the Act is guilty of an offence against this Act and is liable on conviction to a penalty of $3,000; or

(b) with intent to defraud contravenes or fails to comply with any provision of this Act is guilty of an offence against this Act and is liable on conviction to a penalty of $10,000 or to imprisonment for 3 years.

(2) Any person who is convicted of an offence against this Act shall be guilty of a further offence against this Act if the offence continues after the person is convicted and liable to an additional penalty of $500.00 for each day during which the offence so continues.

Sec 32 (5)of the Sentencing and Penalties Decree 2009 states that

“A court in fixing the amount of a fine to be paid by an offender may have regard to (among other matters)

(a) any loss or destruction of, or damage to, property suffered by any person as a result of the offence; and

(b) the value of any benefit derived by the offender from the commission of the offence.”

4] I shall now proceed to consider your sentence as to be consistent with the prescribed penalty, mitigating factors and aggravating factors.

In mitigation your counsel submitted that you have no previous convictions. It was admitted by the state. You have pleaded guilty at the 1^st available opportunity. Accordingly you are entitled to a reduction from the maximum penalty for your good character and early guilty plea.

Further your counsel submitted that you had no intention to defraud the legislation but this an oversight of the employee who handled the action. The defence counsel also said that the bank investigated to the wrong immediately and will take action against the employee. These submissions show your remorsefulness that the court draws its attention but you are not entitled to a reduction from the maximum penalty.

There is no aggravating factor in this case.

Having regard to all these factors Under Sec.28. (1) (a) Of the Trust Accounts Act 1996 $1500 fine is imposed. In default of the payment of this fine the court will take action under Sec. 40 (1) of the Sentencing and Penalties Decree 2009.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

2/9/2016