Media Release

20 October 2016

SFO alleges fictitious Forex trading and profits

A man has appeared in the Christchurch District Court today on charges filed by the Serious Fraud Office (SFO) in relation to an alleged foreign exchange (Forex) trading scheme purportedly operated by Arena Capital Limited trading as BlackfortFX.

Jimmie McNicholl has been charged under the Crimes Act with one charge of ‘Obtaining by deception’.

Another person has been charged and is yet to appear on this matter.

The SFO alleges that BlackfortFX obtained registration as a financial services provider by deception. Between May 2014 and May 2015 BlackfortFX is alleged to have been used as a façade purporting to offer a Forex trading service/platform to potential investors.

The SFO alleges that BlackfortFX was a Ponzi scheme into which investors paid approximately $8.3 million when there was in fact, no trading undertaken.

In May 2015 the Financial Markets Authority obtained asset preservation orders which lead to the appointment of a receiver and a liquidator.

SFO Director, Julie Read said, “There are hundreds of potential victims in this scheme whose funds will be at risk. Following the efforts of the FMA to obtain asset preservation orders, the SFO investigation has concluded that there is a serious case to answer regarding the activities of these two people.”

Both defendants will next appear in the Christchurch District Court on 17 November.

The SFO acknowledge the assistance of the Financial Markets Authority in the initial stages of this investigation.

ENDS

Note to editors

Background to investigation

Arena Capital Limited (Arena) was registered on the Financial Service Providers Register and purported to offer foreign exchange services to clients. In May 2015 the FMA confirmed that it was undertaking an investigation into Arena, trading as BlackfortFX. The FMA obtained asset preservation orders over the assets of Arena and associated persons. The matter was also referred to the Serious Fraud Office.

Arena was placed into liquidation in the Christchurch High Court on 24 July 2015.

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 228 Dishonestly taking or using document

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—

(a) dishonestly and without claim of right, takes or obtains any document; or

(b) dishonestly and without claim of right, uses or attempts to use any document.

(2) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document knowing that—

(a) the document was, dishonestly and without claim of right, taken, obtained, or used; and

(b) the document was dealt with in the manner specified in paragraph (a) with intent to obtain any property, service, pecuniary advantage, or valuable consideration.

Section 240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

(b) in incurring any debt or liability, obtains credit; or

(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

(d) causes loss to any other person.

(1A)

Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that, by deception and without claim of right, the document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.

(2) In this section, deception means—

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—

(i) knows that it is false in a material particular; or

(ii) is reckless as to whether it is false in a material particular; or

(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or

(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

Section 256 Forgery

(1) Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.

(2) Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine.

(3) Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2).

(4) Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.

(5) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any false document knowing it to be false and to have been made with the intention that it be used or acted on (in New Zealand or elsewhere) as genuine.

Section 258 Altering, concealing, destroying, or reproducing documents with intent to deceive

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person,—

(a) alters, conceals, or destroys any document, or causes any document to be altered, concealed, or destroyed; or

(b) makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.

(2) An offence against subsection (1) is complete as soon as the alteration or document is made with the intent referred to in that subsection, although the offender may not have intended that any particular person should—

(a) use or act upon the document altered or made; or

(b) act on the basis of the absence of the document concealed or destroyed; or

(c) be induced to do or refrain from doing anything.

(3) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document knowing that—

(a) the document was altered, concealed, or made, in whole or in part, as a reproduction of another document; and

(b) the document was dealt with in the manner specified in paragraph (a) with intent to—

(i) obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(ii) cause loss to any other person.

Section 260 False accounting

Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to deceive or cause loss to any other person,—

(a) makes or causes to be made, or concurs in the making of, any false entry in any book or account or other document required or used for accounting purposes; or

(b) omits or causes to be omitted, or concurs in the omission of, any material particular from any such book or account or other document; or

(c) makes any transfer of any interest in a stock, debenture, or debt in the name of any person other than the owner of that interest.

About the SFO

The 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 operational teams; the Evaluation and Intelligence team along with two investigative teams.

The SFO operates under two sets of investigative powers.

Part 1 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 2 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…”

In considering whether a matter involves serious or complex fraud, the Director may, among other things, have regard to:

• the suspected nature and consequences of the fraud and/or;

• the suspected scale of the fraud and/or;

• the legal, factual and evidential complexity of the matter and/or;

• any relevant public interest considerations.

The SFO’s Annual Report 2016 sets out its achievements for the past year, while the Statement of Intent 2014-2018 sets out the SFO’s strategic goals and performance standards. Both are available online at www.sfo.govt.nz

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