BY Lagi Keresoma
APIA, SAMOA – FRIDAY 16 SEPTEMBER 2016: The Court of Appeal has quashed a conviction against Greek man, Nico Gianno, on the 2 charges of false accounting, and dismissed the appeal on his 3 year sentence.
The 3 year sentence was on the 6 charges of obtaining money by deception which he is jointly charged with business partner Rosita Standfield who received 15 months sentence on the charge.
The pair arrived in Samoa in May 2015 as representatives of the UFU Group in Thailand then made presentations to various people to invest and get more profits out of the group’s digital currency UToken scheme which was operating in 12 countries.
False accounting charge quashed
The Court of Appeal after perusing the elements provided from the trial, decided to allow the appeal and quashed the convictions against the false accounting.
“This is because the two ANZ International Telegraphic Transfer Application forms cannot properly be said to be “documents required or used for accounting purposes” in terms of the charges under the Crimes Act.”
“It is evident that their purpose is compliance with Samoan exchange control rules, not the keeping of ANZ’s financial accounts. They would not be required for the latter purpose nor has it been proved that they are relied upon by ANZ for accounting purposes. “
The Court’s decision was basically drawn from the evidence provided by ANZ Trade Finance Supervisor Ms.Tuia, who gave evidence not “as an accounting expert, but because she had familiarity with remittance of moneys out of Samoa.”
Her evidence was that the “bank did not use the form for accounting procedures, but to check the telegraphic transfers but not for any other purpose.”
“With respect to the witness, we rather doubt that she had any idea that the question was directed to a phrase in the charges and it seems to us that she must have been correct when she said that the forms were used only to check the telegraphic transfers. It is hard to see how they could have had any use in relation to the bank’s accounts.”
“In any event, there was no adequate proof to the contrary from a properly qualified witness,”
During the trial, a police officer from Thailand was called to give evidence and told the Court that on the 10th April 2015; the Thailand police raided the headquarters of the UFUN Group in Bangkok.
He said “police seized its (UFUN) computer, database and bank account records and arrested three of its senior executives who were charged with the offence of obtaining by deception.”
“One of the photographs forming part of the appellants’ presentations was identified as being of the building where the police raid had taken place.”
On the 12th May 2015, Gianno and Standfield opened an account with the ANZ bank in Samoa under the name of Gianno, and $5,500.00 was deposited.
The purpose of opening an account according to evidence during the trial, “was so he could receive his salary, which was payable in London.”
More deposits followed and by the 18 May 2016, $133,042.45 was in the account, with only one deposit slip indicating that the money was for investment in the UToken scheme.
One of the investors who was not clear where his money of $31,711 tala went, sought clarification from CBS. The procedure was explained to him and he thought to be more work, so Stanfield asked if the money could be sent as a gift to which she was told yes.
Standfield, Gianno and the investor then went o ANZ bank “to remit funds from the account in his name to Gianno’s personal account in London.”
The banks can only remit $20,000 as gifts overseas without CBS approval, and $11,000 was sent to Gianno’s account in London on the 18 May 2015.
At one point, Gianno was asked by the bank teller why he was sending money overseas, and his response was, to care for his wife and children, but later admitted to police he was not married.
The following day, 19 May 2015, another $20,000.000 was again sent to Gianno’s account in London, and when he tried to send another $20,000.00 on 20 May 2015, the bank teller got suspicious and alerted the Central Bank of Samoa.
CBS then issued an order on ANZ to freeze Gianno’s account. Both Standfield and Gianno and another colleague were arrested at the Faleolo international airport as they tried to leave Samoa.
The Chief Justice’s decision
Chief Justice Patū Tiava’asu’e Falefatu Sapolu accepted the evidence by witnesses of what Standfield and Gianno were telling them about the “tenfold increase and rejected Gianno’s denial.”
He also accepted the Thailand police officers evidence and suspected that Standfield and Gianno knew that their office in Bangkok was closed, but failed to reveal that during their presentations.
Gianno insisted that he had never been in Thailand and was not sure if UFUN had an office in Thailand; however, Patū pointed out that his (Gianno) business card named “several countries including Thailand.”
CJ Patū also pointed out a letter written by Standfield to Prime Minister Tuilaepa on the 19 April 2015, stating that Gianno was her business partner and that Bangkok was UFUN’s headquarter.
The Chief Justice also accepted evidence by the CBS witnesses.
The Court of Appeal decided that CJ Patu’s conclusion “that the only reasonable inference to be drawn from the circumstances was that when the appellants made the false representations they had an intention to deceive the investors.”
CJ Patū found Standfield and Gianno guilty of six joint charges of obtaining by deception.
On the individual charge of false accounting against Gianno, Patū said that what had to be proven against Gianno on the two charges of false accounting were the remittances application form filled in by Gianno cited his family as the purpose of sending money overseas, knowingly, as he knew he has no wife or children.
CJ Patū noted that the money remitted belongs to the investors, not his as mentioned in the form he filled. More evidence proved that Gianno had also misled the bank with information hence the 2 charges of false accounting, which he was found guilty of.
Appeals against sentence
Giannos’ defense counsel, Leota Ray Schuster appeal argument focused on the fact that the 6 complainants or investors did not lose out on the transactions between them and Gianno.
Leota said the sentence was “out of line” referring to the level of amount obtained by deception.
The Court of Appeal argued that there were “six victims of the offending who were induced to part with an aggregate sum of $41,149.”
“The appellants, in a calculated and pre-meditated way, were preying on naive and/or gullible victims.”
“They took advantage also of Ms. Stanfield’s family connection, so that there was an element of abuse of trust.”
The Court of Appeal had also considered if the 3 years sentence should be adjusted following the quashing of the other charges, but decided against it.