What is Obtaining a Financial Advantage by Deception?

It is reported that Max Kiattisak Eung, who is also known as Kiattisak Eungpongpan from Tempe NSW has been charged with 2 counts of obtaining financial advantage by deception.

The charges followed after ASIC conducted an investigation into Eung who is alleged to have obtained a total advantage of $166,500 which ASIC say was dishonestly obtained from the accounts that were held with MLC Ltd and Nulis Nominees (Australia) Ltd.

It is alleged that Eung obtained these funds by unauthorised withdrawals from each of those account holders accounts.

Eung worked for NAB in the capacity of an authorised representative and financial advisor between the period 21 May 2015 and 20 December 2016.

It wasn’t until June 2018 when ASIC had banned Eung from giving further financial services or credit activities.

The ASIC Investigation

While Eung was a financial advisor under NAB, ASIC’s investigations revealed that between March 2016 to December 2016 he allegedly created 2 fake bank accounts in his clients names, opened false bank accounts by providing incorrect documents; withdrew his clients funds to the fake bank accounts he had created before misappropriating those funds, and attempted to gain access to funds in the other fake bank account he created by impersonating his own clients.

ASIC’s investigation also revealed that Eung allegedly engaged in dishonest conduct and was not a person of good character.

It is reported that ASIC was concerned that Eung would contravene credit and financial services laws and concluded that he is not a proper person to be involved in credit activities.

Eung’s ban was recorded on ASIC’s register and the financial advisers and credit representatives registers.

The investigation which led to Eung’s ban was conducted as part of ASIC’s Wealth Management Project.

This project started in October 2014 in an attempt to promote better standards of the major financial advice businesses such as NA, Westpac, CBA, AMP, ANZ and Macquarie.

The project has banned fourty-seven advisors and a director from the financial services sector.

Eung’s matter is currently being prosecuted by the Commonwealth Director of Public Prosecutions (CDPP). His matter is next listed at the Sydney Downing Centre Local Court on 7 May.

What is Obtaining Financial Advantage by Deception in NSW?

Anyone found to be guilty of obtaining a financial benefit or advantage by deception in NSW will be left to face a maximum penalty of up to 10-years imprisonment under section 192E(1)(b) Crimes Act 1900 (NSW).

If the charge is dealt with to finality in the Local Court, instead of the District Court, the Local Court Magistrate is limited to imposing a maximum penalty of up to 2-years jail.

What is ‘Deception’?

The word ‘deception’ here is defined in section 192B Crimes Act 1900 (NSW), and includes any deception, by conduct or words, as to fact or law and includes a deception in regards to an intention of a person using the deception. It also includes any conduct that causes a machine, computer or electronic device to make an unauthorised response.

What is ‘Dishonesty’?

The word ‘dishonestly’ here is when a person is being dishonest according to the standards of ordinary people, and known by that person to be dishonest according to those standards of ordinary people (section 4B Crimes Act 1900 (NSW)).

If a person charged with obtaining financial advantage by deception is found not guilty, that person can still then be found guilty of larceny as an alternative (section 192E(4) Crimes Act 1900 (NSW)).

What is the Prosecution Required to Prove in Order to Secure a Guilty Verdict for a Charge of Obtaining Financial Advantage by Deception?

A person charged with this offence will only be found guilty by a court if the prosecution is successful in first proving each of the following elements of this crime beyond reasonable grounds in court:

1. The accused person ended up receiving a financial benefit; and
2. The cause of that benefit was because of the accused person’s ‘deception’; and
3. In doing that, the accused person was ‘dishonest’ i.e. knowing he/she wasn’t entitled to the advantage.

What are Some Defences to a Charge of Obtaining Financial Advantage by Deception?

A person charged with this offence will ultimately be found not guilty by a court if any one or more of the following defences to this charge apply:

1. The accused person held an honest belief that he/she was legally entitled to the financial advantage. To succeed in this, one must be able to conclude that a reasonable person in the accused person’s showed would have held such a belief; or
2. The main cause of the financial advantage was not from the conduct of the accused person charged with this offence.
3. The accused person was acting under s necessity or duress.

The accused person will be acquitted if the prosecution fail to prove any one of more of the essential elements of this crime.

The charge if obtaining a financial advantage by deception can be withdrawn early by the prosecution through successful negotiations through your legal representatives. This has been successfully achieved through drafting and sending compelling ‘legal representations’ to the relevant prosecutor at the relevant time.

Fraud charges are taken extremely seriously by the courts. It is critical to obtain urgent and reliable legal advice as early as possible if ever charged with such an offence.

Available 24/7, specialising in complex fraud cases, our criminal defence lawyers appear in Sydney city, Parramatta and all other courts.

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