Overview of the key events and Tribunal findings
32 As noted above, in about September 2013, Mr Wang met Mr Chen. Mr Chen had approached Mr Wang's firm seeking assistance in preparing and lodging applications for AFSLs. In late 2013, Mr Wang was introduced by Mr Chen to Mr "Jerry" Chia Wee Keat and Mr "Alvin" Heng Swee Boon, as potential clients of Wang & Associates. Mr Wang was told that Alvin and Jerry had a large sales team in Malaysia and that Jerry was responsible for training and employing many foreign exchange brokers. Mr Wang visited Jerry in Malaysia and was impressed by what he saw. They went on holidays together in August 2014, and developed a good relationship.
33 Mr Wang and Jerry later decided to commence a foreign exchange business together. Mr Wang was interested in developing such a business, as an alternative to continuing his legal practice. They agreed to set the business up through Easy Capital Global, controlled by Mr Wang, which at that time held an AFSL. As part of the establishment of that business, Mr Wang and Jerry reached agreement that Jerry would contribute an amount of cash for establishment costs, with the sum of US$100,000-$150,000 being discussed, while Mr Wang would contribute the corporate vehicle Easy Capital Global and its AFSL. Nothing was in writing, other than discussions via a messaging application WeChat, and there was no final agreement as to whether Jerry's funds would be a capital contribution or a loan.
34 Before turning to the detail of how this plan was implemented, and what went wrong, it is convenient to give an overview summary so as to better appreciate the detail of the evidence that follows. What mattered from the above discussions between Mr Wang and Jerry was that Mr Wang understood Jerry would be contributing substantial funds towards the proposed foreign exchange business from overseas. As will be seen, the scam that ensued involved funds from two third parties in Singapore who only dealt with Jerry, or his associates, at the time that the funds were provided. The funds from one overseas third party went into an Australian dollar bank account of Easy Capital Global, while the funds from the other overseas third party went into a US dollar bank account of Easy Capital Global, all in late October 2014. The Tribunal accepted that those funds appeared to Mr Wang to have come from Jerry, because no other source of money going to Easy Capital Global was in contemplation at the time.
35 All of the funds from one overseas third party in the Australian dollar Easy Capital Global account, and most of the funds from the other overseas third party in the US dollar Easy Capital Global account, were transferred from those accounts to an overseas bank account of Vivid Quark Seychelles in late November 2014, before, on the Tribunal's findings (and contrary to ASIC's primary case), Mr Wang had any reason to think the money had come from anyone other than Jerry.
36 In late August 2014, ASIC wrote to Easy Capital regarding the company representing to the public that it had an AFSL when it did not, and that the AFSL quoted on its website, www.easyfxtrading.co, was in fact licenced to Easy Capital Global. Wang & Associates wrote to ASIC on 19 September 2014, noting that Easy Capital was not currently operating, that there was "no agreement of any nature" between Easy Capital and Easy Capital Global, and that Easy Capital had not permitted Easy Capital Global to trade under the name "Easy Capital" or under its Australian Company Number. Mr Wang denied in his s 19 examination that he authorised the letter, but noted "we do send a letter on behalf of Easy Capital some time to ASIC and tell them OK this is not our website." On 19 September 2014, Easy Capital also withdrew its application for an AFSL.
37 In December 2014, Mr Wang decided to end the relationship with Jerry upon the stated basis that he was not as good a salesman as he had expected, a proposition that the Tribunal did not accept. The Tribunal instead found that Mr Wang had, by September 2014, become aware of concerns that Easy Capital was appearing to pass itself off as Easy Capital Global. The third party whose funds went into the Australian dollar Easy Capital Global account then emailed two months later in late January 2015, to complain that he had not been receiving interest payments on his investment, and sought the repayment of his money. With Mr Wang's authority, the remaining sum of $21,442.91 was then transferred from the Australian dollar Easy Capital Global bank account to the overseas bank account of Vivid Quark Seychelles, while the third party was told that investigations were continuing as to what had happened with his money.
38 Once the Tribunal:
(1) was not satisfied that the evidence met the quality of evidence required to establish, on the balance of probabilities, that Mr Wang was involved in the scam (see s 140(2) of the Evidence Act 1995 (Cth); and Briginshaw v Briginshaw (1938) 60 CLR 336); and
(2) accepted the evidence of Mr Wang that he believed the transfers into the Easy Capital Global bank accounts were from Jerry,
the critical findings turned on Mr Wang's conduct once he was on notice that Jerry was not, or at least may not have been, the source of the funds deposited with Easy Capital Global after being contacted by the overseas third party. This included in particular the transfer of the remaining funds from the Australian dollar Easy Capital Global bank account to the overseas bank account of Vivid Quark Seychelles with Mr Wang's authority after that contact took place. This appeal is about the Tribunal's approach to this issue and the findings it made. The core complaint by Mr Wang turns on the Tribunal's conclusion that the $21,442.91 payment was made to ensure that the investor could not recover the balance of moneys originally deposited, or to make it appear to the third party that he could not recover them. With this in mind, I turn to the detail of what transpired.
39 On 27 October 2014, Dr Cuntai Guan, a Singapore resident, transferred US$100,000 (A$111,112.69) into an Australian dollar account held by Easy Capital Global in Australia. The Tribunal described the circumstances of that transfer, and made related finding as follows (at [32]-[36]):
Dr Guan is a Professor in the School of Computer Science and Engineering in Singapore. Dr Guan's evidence is he had a conversation with a friend in early October 2014 who said he had invested with Easy Capital Global and had been receiving interest for some months. The friend pointed out that he did not know the salesman Mr Chu very well and that the interest rate might be unsustainable. (The reference by the friend to Easy Capital Global cannot be correct as it was not trading at the time. Easy Capital however was trading).
Dr Guan thereafter met Mr Chu, who said words to the effect "Easy Capital Global is registered and regulated by ASIC in Australia. Easy Capital Global is monitored by ASIC and if anything happens you can seek help from ASIC". He showed company information for Easy Capital Global evidencing that it was registered by ASIC in Australia.
Dr Guan's affidavit indicates that Mr Chu, in the course of the conversation, also referred to Easy Capital as well as Easy Capital Global. Mr Chu provided Dr Guan with a business card which referred to Easy Capital. That business card also contains a web address of www.easyfxtrading.com and gives the address of the company as Level 22, 31 Market Street, Sydney, which is the address of Mr Wang's firm. Mr Chu also had a laptop computer with him and said words to the following effect: "Easy Capital Global has an online portal you can access at www.easyfxtrading.com. I can open your investment accounts for you straight away. After your money has been received by Easy Capital Global, your accounts will be activated".
Mr Chu then showed him how to access the website and how to access online accounts which would be activated upon his investment. He decided to invest USD $100,000 with Easy Capital Global in two USD $50,000 instalments. Mr Chu then sent him details of the Easy Capital Global bank account and he took a screenshot of that. On 27 October 2014 he transferred USD $100,000 to the Australian bank account provided by Mr Chu. Easy Capital Global Pty Ltd, National Australia Bank Account. He received confirmation that the transaction was completed on 30 October 2014. Converted from US dollars to Australian dollars the sum of money was $111,112.69.
I am satisfied that Chu, who was the salesman for Jerry and Alvin, was pretending to represent Easy Capital Global and that he used the names of the two companies Easy Capital and Easy Capital Global in such a way as to confuse his audience. Mr Wang says, and I accept, that he had never met Mr Chu and that he was never employed by Easy Capital Global and had no authority to act on its behalf.
40 Thus, the Tribunal found that Dr Guan had been a victim of a scam at the hands of Jerry and Alvin, together with the salesman, Mr Chu, which resulted in him transferring funds to Easy Capital Global under the pretence of that taking place with a different entity, Easy Capital.
As noted above, the Tribunal rejected ASIC's contention that Mr Wang was involved in the scam. The Tribunal instead found that Jerry was using the details of Easy Capital Global for his own purposes, to enable him to use Dr Guan's funds to make his contribution to the establishment of the Easy Capital Global business with Mr Wang.
41 At about the same time, a relative of Dr Guan, Ms Hong, made a deposit of US$50,000 into another account, being a US dollar account held by Easy Capital Global in Australia. It seems that she was also a victim of the scam perpetuated by Jerry, Alvin and Mr Chu.
42 As a matter of arithmetic, it may be seen that:
(1) the two sums of US$50,000 from Dr Guan deposited into the Australian dollar account held by Easy Capital Global; and
(2) the $US$50,000 from Ms Hong deposited into the US dollar account held by Easy Capital Global,
added up to the higher amount of US$150,000 that had been discussed between Mr Wang and Jerry.
43 The Tribunal found that:
(1) Mr Wang believed that the funds deposited into the Easy Capital Global accounts by Dr Guan and Ms Hong represented Jerry's contribution to the establishment of the business with him; and
(2) Easy Capital Global was not trading or conducting any financial services business at the time the funds were received.
44 On 14 November 2014, US$49,900 was transferred out of the US dollar account held by Easy Capital Global, being the funds apparently deposited by Ms Hong. The Tribunal made no finding that this transfer amounted to any improper conduct on the part of Easy Capital Global, noting only that the incorrect description of the purpose of the transfer demonstrated incompetence within Mr Wang's organisation, the description not being made by him, nor directed by him.
45 On 18 and 19 November 2014, a total of $91,796.19 was transferred from the Australian dollar account held by Easy Capital Global to Vivid Quark Seychelles (as a matter of arithmetic, this left, as a capital sum, $19,316.50 of the $111,112.69 deposited as two tranches of US$50,000 by Dr Guan). The Tribunal made no finding that these transfers amounted to any improper conduct on the part of Easy Capital Global, or Mr Wang. The Tribunal found that the lack of supporting records for the expenditure demonstrated incompetence and irresponsibility on the part of Mr Wang.
46 On 12 December 2014, an investor, Mr Hoong, sent an email to the email address of Mr Wang's paralegal, Ms Puimen Tang, with the subject line "Easy Capital Global Pty Ltd e-wallet Withdrawal Request delay". Mr Hoong noted that he had been unable to make withdrawals from his account and, on enquiry from Ms Tang as to how he had obtained her email address, noted that he was provided it by the Financial Ombudsman Service. Ms Tang replied, stating that "[w]e are only the legal representative for the above. We will contact the client to advise of your situation", and forwarding her response to Mr Wang. The Tribunal found that Mr Hoong had "probably invested in Easy Capital and not Easy Capital Global", but that to a prudent company director, this would have sounded an alarm. Mr Wang's evidence was that he did not read the email, indicating to the Tribunal a lack of competence for failing to deal with it.
47 On 26 January 2015, Dr Guan sent an email to the email address of Ms Tang, addressed to Mr Wang. In that email, Dr Guan described himself as an "Easy Capital Customer'", noted that he had made an investment of US$100,000, but had not received any interest payments, and sought the return of his US$100,000. This was well after Mr Wang knew in September 2014 of concerns that Easy Capital had been passing itself off as Easy Capital Global, well after the late November 2014 transfers, and well after Mr Wang had decided to end the relationship with Jerry. The verbatim text of Dr Guan's email is important in that context:
Dear Mr Jay Wang
I am an Easy Capital customer. I invested US$100K in your company last Oct/Nov. Since the opening of the accounts in your company, I never received any investment interests from your company. I got your contact from ASIC, Australia.
Therefore, I request your company to return my deposit of USD$100K, and I reserve the right to demand for the interests your company owes me so far.
Your response is appreciated.
Best regards,
Dr Guan
P.S. My account information is as follows: [bank account details]
48 The Tribunal found that this email demonstrated that Dr Guan thought that he had invested his money with Easy Capital, rather than Easy Capital Global, and that a confusion had arisen in the mind of investors, and certainly in Dr Guan's mind, as to which of the two companies their money had gone to. This email was forwarded to Mr Wang on the same day. The Tribunal was satisfied that Mr Wang received the email on the basis that, although Ms Tang would deal with many emails herself, she would know that it was important, given it dealt with USD $100,000 and raised a matter of great concern. The Tribunal further noted that this email was within the context of ASIC's previous concerns that it appeared Easy Capital had been making representations that it had an AFSL.
49 Dr Guan sent a further email on 28 January 2015 reminding Mr Wang of his prior email. Between 29 January and 15 April 2015, email communications took place between Dr Guan and either Mr Wang or Ms Tang. Where Ms Tang was not the only recipient, she was often otherwise copied into email correspondence, as was another employee of Wang & Associates, Ms Stella Song. The Tribunal found that Mr Wang's emails to Dr Guan were in some instances misleading, but not dishonest.
50 In order to fully appreciate what was before the Tribunal, and thereby understand the context and the flavour of Mr Wang's communications, it is necessary to reproduce the text of this long series of emails in full and in chronological order as follows (verbatim):
(1) Email from Ms Tang to Dr Guan, sent on 29 January 2015 (following a reminder email from Dr Guan addressed to Mr Wang, but sent to Ms Tang's email address earlier that day):
This company has never had any trading last year, how did you trade with us?
We are planning to start to provide financial service this year of 2015. However, we haven't started yet.
Kind regards
Puimen Tang
(2) Email from Dr Guan to Ms Tang, sent on 29 January 2015 (forwarded to Mr Wang that same day):
Dear Mr Tang
Thanks very much for your reply. I found the following information from FOS [Financial Ombudsman Service] website:
Easy Capital Global Pty Ltd
Member number: 29879
ACN/ABN: 15154582242
Formerly known as Aifa Global Pty Ltd
Hide contact details
Member details
Date joined: 10/12/2013
Complaint contact
Mr Jay Wang
Managing Director
Easy Capital Global Pty Ltd
[Address, phone and email details]
It helped me to launch this complaint to Mr Jay Wang.
Could you confirm that this company (Easy Capital Global Pty Ltd, website http://www.easyfxtrading.com) has never started any trading last year?
Your prompt response is very much appreciated.
Best regards,
Dr Guan
(3) Email from Mr Wang to Dr Guan, sent on 29 January 2015 (which the Tribunal considered to be "somewhat misleading"):
Dear mr guan
I don't know where you got that website, but that has never been ours.
I will get my assistant ms puimen tang to assist you. If you need any more.
Regards
Jay
(4) Email from Dr Guan to Mr Wang, sent on 29 January 2015 (which provided the Tribunal with a reasonable inference that Dr Guan did not think there was a link between the two companies, as to which Mr Wang should have enlightened him):
Dear Mr Wang
Thanks very much for your reply. Ms Puimen has responded to my email too. Thanks to her.
It looks your company got exactly the same name as another company, whose website I sent to you.
A group of investors are launching a complaint to ASIC for this company due to its cease of paying interest (it was suspected that this company violated laws).
For your information, please find the signature below of the MD of this company with whom we singed contract.
- - - - - - - - - - - -
For and on behalf of Easy Capital Global PTY LTD:
Signature: [signature]
Name: Simon Robert (Managing Director)
- - - - - - - - - - - -
If you find this person or company has got misconduct in your company's name, you may like to report to ASIC or even police.
Regards,
Dr Guan
(5) On 2 February 2015, the auditor of Easy Capital Global sent an email wanting to know where the deposits of $111,112.69 (the US$100,000 from Dr Guan) and USD $49,990.00 (from Ms Hong) had come from and to whom the withdrawals had been paid. Jenny Li, the accountant, responded and copied in Mr Wang. The Tribunal's discussion of that response (at [92]-[93]) is reproduced in the succeeding substantive paragraph (at [51(1)]).
(6) On 8 February 2015, Dr Guan also sent a letter to Mr Simon Robert to the address of Mr Wang's legal office. The Tribunal's discussion of that letter (at [94]-[95]) is reproduced in the succeeding substantive paragraph (at [51(2)]).
(7) Email from Dr Guan to Mr Wang, sent on 10 February 2015:
Dear Mr Wang
Could you confirm if the following bank account belongs to your company:
Bank Name: National Australia Bank
Bank Swift Code: [code]
Bank Account Holder: Easy Capital Global Pty Ltd
Beneficiary USD Account No: [number]
Bank Address: [address]
Look forward to your response asap.
Thanks
Best regards,
Dr Guan
(8) Email from Mr Wang to Dr Guan, sent on 10 February 2015:
Dear mr guan
Let me check with my accountant.
Regards
Jay
(9) Email from Mr Wang to Dr Guan (after Mr Wang checked with his accountant, and a reminder email from Dr Guan), sent on 11 February 2015 (emphasis added):
Dear Mr Guan
Thanks for your email.
It is our account and we do received that payment from you. However, at that time, a person called jerry Chie told us he wanted to send money to us to setup a joint business with him including buying mt4 having a website etc.
I'm investigating the matter now.
Could you tell me
1 do you know mr jerry Chie?
2 what's your relationship with him?
3 do you believe that mr Chie in any way deceived you?
Regards
Jay
(10) Email from Dr Guan to Mr Wang, sent on 11 February 2015 (noting that Mr Wang knew Mr Heng Swee Boon as Alvin):
Dear Mr Wang
Thanks very much for your confirmation.
I do not know any Jerry Chie. The persons approaching me to enter into investment with Easy Capital Global were Mr Leo Chu and Mr Heng Swee Boon.
In this case, could you advise how I can get back my money transferred to your company's account?
Best regards,
Dr Guan
(11) Email from Mr Wang to Dr Guan, sent on 11 February 2015:
Dear Mr Guan
We are currently investigating the matter. We will notify you within two weeks.
Thanks for your understanding.
with regards
Jay
(12) Email from Dr Guan to Mr Wang, sent on 12 February 2015:
Dear Mr Wang
My friend below also transferred US$50k to the same account as I did:
Qing Hong:
Username: [username]
MT4 ID: [number]
In addition, 3 other friends transferred money to the following account:
Recipient's Name: Easy Capital Pty Ltd
Recipient's Address: [which appears to have been the suite number and level number of Wang & Associates, although noting a possible error in the street number of 21 Market Street, rather than 31 Market Street]
Recipient's Bank: National Australia Bank Limited
SWIFT Code: [code]
Recipient's Account Number: [number]
Username: [username] (US$50k)
MT4 No: [number]
Username: [username] (US$50k)
MT4 No: [number]
Username: [username] (US$50k)
MT4 No: [number]
Could you kindly help confirm if your company also received their payment?
Thank you very much.
Best regards,
Dr Guan
(13) Email from Mr Wang to Dr Guan, sent on 12 February 2015 (emphasis added):
Dear Mr guan
This becomes very serious now. Please give us 14 days to investigate the matter and we shall promptly update you in the mean time.
Regards
Jay
Five days after the above email, on 17 February 2015, the remaining sum of $21,442.91 was transferred out of the Australian dollar account held by Easy Capital Global to Vivid Quark Seychelles. The emails prior to and following that transfer need to be read in that critical context, as the Tribunal must be taken to have done. The email correspondence relevantly resumed eight days after that transfer had taken place.
(14) Email from Mr Wang to Dr Guan (following a reminder from Dr Guan on 25 February 2015), sent on 25 February 2015:
Thanks mr guan.
I have investigated the matter. I found the reason and issue. I also get mr jerry Chie and mr Alvan Heng agree to solve the issue.
Due to the Chinese New Year, it may take longer.
I will write to you next Wednesday as I'm taking my holiday this week.
Regards
Jay
(15) Email from Dr Guan to Mr Wang, sent on 25 February 2015:
Dear Mr Wang
Thanks very much for your update. Really appreciate.
May I confirm that we are able to get the initial capital back? Could you advise when?
Sorry to disturb you during the Chinese New Year.
Best regards,
Dr Guan
(16) Email from Dr Guan to Mr Wang, sent on 5 March 2015:
Dear Mr Wang
I wish you a great Chinese New Year holiday.
I'd like to follow up with you on this matter.
Could you please advise how this matter is solved? How are we able to get back our initial capital?
Many thanks for your help.
Best regards,
Dr Guan
(17) Email from Ms Tang to Dr Guan (copied to Mr Wang and following a reminder from Dr Guan on 6 March 2015), sent on 6 March 2015 (emphasis added):
Dear Dr Guan Cuntai
After our client's investigation we found out the following:-
1. Mr Chia Wee Keat approached our client in early 2014 offering certain amounts of money to develop the Malaysia market for our client. Our client did receive the money including your $100k.
2. However, Mr Chia Wee Keat has already taken the money for himself.
3. Our client has never been aware of your transfer at all.
As such, we suggest you take relevant action in Malaysia which would be the most appropriate jurisdiction and we enclose Mr Chia Wee Keat's identification and contact details for your information.
Kind regards
Puimen Tang
(18) Email from Dr Guan to Ms Tang (copied to Mr Wang), with attachments, sent on 6 March 2015:
Dear Mr Wang
This is not appropriate. Since I signed agreement with Easy Capital Global Pty Ltd (please see agreement) and my money has been transferred to your company's account, you hold responsibility to return the money to me. It is your fault to allow someone else (without my consent and permission) to take my money from the account.
If you refuse to solve the problem with me amicably, the action I will take will be reporting you to Australian police and making public all the illegal activities that Easy Capital Global Pty Ltd (NZ Global Financial Trading Pty Ltd) has been doing to media in China and the entire world.
Please help us to help yourself.
Regards,
Dr Guan
(19) Email from Mr Wang to Dr Guan, sent on 6 March 2015:
Mr guan
It was also your fault to trust someone who cannot represent easy capital global.
How can you sure that you sign the agreement with easy capital global? The person deceived you but our client is innocent party, mr jerry Chie deceived u by falsely representing he can represent easy capital global. But that's his fault and de emotive conduct.
We will report this to police as well.
We sympathise your loss but we are victim of this Mr jerry Chie deceptive conduct. When you report to police, please let us know. We will provide all necessary to assist. This is what we can help at the moment.
Regards
Jay
(20) Email from Dr Guan to Mr Wang, sent on 6 March 2015:
Dear Mr Wang
The fact is that we signed the contract with your company, unless you confirm that Robert Simon (who is the signatory of the agreement) has been falsely representing your company.
You told me you have got Mr Jerry Chia Wee Keat and Mr Alvin Heng Swee Boon to agree to solve the issue. Could you advise on the following?
• Could you tell me what you have agreed, and how you agreed to solve the issue?
• Did Chia Wee Keat take our money from you before or after you three reached this agreement?
• Did you meet them in Australia for this solution?
• Did Heng Swee Boon take our money too?
Sorry to ask so many questions. They are very helpful for us to sort the things out so we can report the right parties to police.
Wish to receive your response soon.
Best regards,
Dr Guan
(21) Email from Mr Wang to Dr Guan, sent on 7 March 2015:
Dear Mr guan
I confirm that we and our client has never been aware of mr Robert simon. We have no knowledge of such person at all.
Regards
Jay
(22) Email from Dr Guan to Mr Wang, sent on 7 March 2015:
Dear Mr Wang
Thanks a lot for your confirmation.
Just to clarify, by your client, do you mean Easy Capital Global Pty Ltd, or Easy Capital Pty Ltd, or both?
Could you kindly answer the questions I raised below?
• Could you tell me what you have agreed with Chia Wee Kiat, and how you agreed to solve the issue?
• Did Chia Wee Keat take our money from you before or after you three reached this agreement?
• Did you meet Chia Wee Keat and Alvin Heng in Australia when you discussed for this solution?
• Did Heng Swee Boon take our money too?
Your help is very much appreciated.
Best regards,
Cuntai
(23) Email from Mr Wang to Dr Guan, sent on 7 March 2015:
Easy capital global pty ltd only
(24) Email from Dr Guan to Mr Wang, sent on 7 March 2015:
Dear Mr Wang
You told me Chia Wee Keat has taken our money away. Can you provide evidence on when and how he did so?
Best regards,
Dr Guan
(25) Email from Mr Wang to Dr Guan, sent on 7 March 2015:
Yes we can.
I will write to you Monday next week.
(26) Email from Dr Guan to Mr Wang, sent on 7 March 2015:
Dear Mr Wang
Thanks. Do you also represent NZ Global Financial Trading Pty Ltd?
Best regards,
Dr Guan
(27) Email from Mr Wang to Dr Guan, sent on 7 March 2015:
Yes.
This is the company will start trading soon.
Mr Guan
Did you ever see mr Robert Simon?
Regards
Jay
(28) Email from Dr Guan to Mr Wang, sent on 7 March 2015, with attachments:
Dear Mr Wang
This is strange. Robert Simon talked to a lot of media in China to promote Easy Capital. Importantly, he used the same AFSL as your company (AFSL:418008). It looks he should have represented your company.
Please find information published at some of the news websites for your information.
It is clearer and clearer to me what has happened to our investment money. May I know if Mr Wang is willing to help us to recover the money belonging to me and the people I mentioned to you (total amount $300,000) and how you suggest we should do?
Best regards,
Cuntai
(29) Email from Dr Guan to Mr Wang (in response to Mr Wang's email at (25) above), sent on 10 March 2015:
Dear Mr Wang
May I know if you could send me the evidence that indicates Mr Chia Wee Keat took away our money from your company account and the date he did?
Thanks a lot.
Best regards
Dr Guan
(A similarly worded email was also sent from Dr Guan to Mr Wang later that day.)
(30) Email from Mr Wang to Dr Guan, sent on 12 March 2015:
Mr guan
Please give us some time to allow us to fully investigate the matter and I'm thinking to report to police. And then you may contact police.
Jay
(31) Email from Dr Guan to Mr Wang, sent on 12 March 2015:
Dear Mr Wang
Thanks for your reply. We are looking forward to hearing from you soon.
At the same time, we will report to police.
Any information which can prove that our money has been taken away by an authorised person from your company's account would be helpful to us as well as to you.
Best regards,
Dr Guan
(32) Email from Mr Wang to Dr Guan, sent on 12 March 2015:
Dear mr guan
Our client will assist you as much as it can. Please let me know whether you are going to take action in Malaysia as well, our client may join you as a plaintiff. Our client may not take legal proceedings in Australia as they believe that mr jerry Chie is not an Australian citizen.
Regards
Jay
(33) Email from Dr Guan to Mr Wang, sent on 12 March 2015:
Dear Mr Wang
Here is the thing, we do not have any evidence to prove Mr Chia Wee Keat took OUR money. We rely on you to provide the evidence to prove that he illegally stole the money from the bank account which belongs to Easy Capital Global Pty Ltd. We have been waiting for the information from yiu which you promised to send to me last Monday. I'm wondering if you could send it to me any time soon, so that we can report it to police?
Best regards,
Cuntai
(34) Email from Mr Wang to Dr Guan, sent on 12 March 2015:
Mr guan
How can you prove to me that mr Chie's deposit is actually yours?
(35) Email from Mr Wang to Dr Guan, sent on 12 March 2015:
Mr guan
We would like to take this very serious. Please send me all information that you have to prove the money is yours and any information that induced you to deposit into our clients account. All information and documents you ever have any information in relation to mr Robert simon you mentioned.
Regards
Jay
(36) Email from Mr Wang to Dr Guan, sent on 12 March 2015:
Mr guan
Just also let us know whether you intended to start proceedings in Malaysia and our client would like to join the proceedings as well. We can start from there.
Jay
(37) Email from Dr Guan to Mr Wang, with attachments, sent on 12 March 2015 (emphasis in original):
Dear Mr Wang
1. You confirmed that the following account belongs to your company (referring to your email dated Wednesday, 11 February 2015 10:12 am):
Bank Name: National Australia Bank
Bank Swift Code: [code]
Bank Account Holder: Easy Capital Global Pty Ltd
Beneficiary USD Account No: [number, bolded]
Bank Address: [address]
2. In that same email, you confirmed you received my payment in your above account.
3. I did an investigation, out of the US$300,000, which I mentioned in the email to you dated Thursday, 12 February 2015 6:49 am, US$150,000 was transferred to your account (including my US$100,000 and Qin Hong's US$50,000). The other US$150,000 was transferred to another account which may not have something to do with you.
4. I have bank proof that the above mentioned US$150,000 was received by your account above. Please see attachment.
Therefore, I request you to return the US$150,000 to me and Ms Qin Hong. If I do not receive the money in 2 weeks' time, I will report your company to police and take legal actions.
Best regards,
Dr Guan
(38) Email from Ms Tang to Dr Guan and Mr Wang, sent on 20 March 2015:
Dear Mr Guan Cuntai
For the US$150,000 you mentioned was transferred to our client's bank account (including my US$100,000 and Qin Hong's US$50,000).
Please provide a transfer receipt accordingly please of this deposit.
Kind regards
Puimen Tang
(39) Email from Ms Tang to Dr Guan and Mr Wang, sent on 20 March 2015:
Dear Mr Guan Cuntai
I refer to my previous email and advise that you have only provided a transfer receipt for $50K, can you provide us with the other $100K?
Kind regards
Puimen Tang
(40) Email from Dr Guan to Ms Tang and Mr Wang, sent on 20 March 2015:
Dear Puimen
Please find the two receipts of the US$100K and US$50K in the attachment. Please note, for the US$100k, the receipt indicates in AUD (AU$111,112.69).
Best regards,
Cuntai
(41) Email from Dr Guan to Mr Wang and Ms Tang, sent on 27 March 2015:
Dear Mr Wang
I have sent the receipts requested by Puimen. Please also refer to the emails below I sent you which showed that I have given you enough time to investigate. Can you please let me know when you will return back the US$100,000 and US$50,000 to me and Ms Qin Hong respectively?
Best regards.
Cuntai
(42) Email from Mr Wang to Dr Guan, sent on 27 March 2015 (emphasis added):
Mr guan
It is very serious, easy capital global is also a victim of mr Chie. We need more time to find out where the funds went. Easy capital global is currently trying to find from mr Chie what he did. I hope that you understand the situation. You were deceived by mr Chie to deposit the money and mr Chie used your money to claim it was his to come into a negotiation with easy capital global.
We have given you his passport and other personal details. I suggest you to report it to police in Malaysia, and we start from assisting police. Only Malaysian police can find him. After locating him, we will be able to solve the issue.
Regards
Jay
(43) Email from Dr Guan to Mr Wang, sent on 27 March 2015:
Dear Mr Wang
I take your answer as refusing to return our money which was transferred to your account, albeit you have seen all the proof and evidence. We have nothing to do with Mr Chia. Your company has all the responsible to return the money to us. It's your responsibility to sue Mr Chia. Your company has violated laws as illegally possessing capitals not belonging to your company.
You forced us to take the legal action against your company, and you are responsible for any consequences caused to your company.
Best regards,
Dr Guan
(44) On 27 March 2015, Ms Tang sent an email to Mr Wang, noting "Jay they signed a agreement with robert georges who is no affiliation with easy capital. He is not a director of this company."
(45) On 28 March 2015, Mr Wang replied to Ms Tang:
Hi puimen
Can you prepare all documents related into one file as I previously instructed.
We only possibly have one issue is that the money went to our account from these guys and jerry Chie claimed that was his money. I need to find out where the money went. More Likely jerry took the money.
Then these guys have to prove the jerry or mr Robert Georges entered agreement on our behalf. Otherwise, we don't know what's the relationship between jerry and these guys, it's their internal dispute. They may bring us in to give evidence but they cannot say we are liable.
(46) That same day, 28 March 2015, Mr Wang also sent an email to "Mikki Wang", asking "Please help to find out where the 150k went." Mikki's response, with attachments, on 30 March 2015 included:
Hello Jay
QIN HONG deposited USD$49990.00 on 27/10/2014 into EACAPUSD01. This money was transferred to VIVID QUARK HK on 18/11/2014 as you requested.
…
Dr Guan deposited AUD $111,1112.69 into Easy Capital Global cheque account #844902493 on 30/10/2014. $91,761.19 was transferred to VIVID QUARK HK on 19/11/2014 (as server/network/website one-year service), and rest of $21,442.91 transferred to VIVID QUARK HK on 17/02/2015 when we closed this account.
…
(47) Email from Mr Wang to Dr Guan, sent on 28 March 2015:
Dear mr guan
We will take our responsibility. If you believe that you want to take legal action, you are welcome.
As I said to you easy capital global is a victim, the best ways to take action is to take is in Malaysia. We can provide whatever assist you need. But if you want to blame us. Sorry we cannot help.
Regards
Jay wang
(48) Email from Mr Wang to Dr Guan, as a further response to his email above at [50(43)], sent on 28 March 2015:
Mr Guan
Further to my last email.
You have entered into an agreement with Robert (xxx) who we have no idea about it. The person come to see us is a person called jerry Chie. If you blame us you have to prove that jerry or mr Robert entered agreement with you on our behalf. Otherwise, we don't know what's the relationship between jerry and you. it's your internal dispute. They may bring us in to give evidence but they cannot say we are liable.
We have fully provide the information to you. You need to take your own action.
Regards
Jay
(49) Email from Dr Guan to Mr Wang, sent on 14 April 2015:
Mr Wang
There are two issues here. The first part of investors (including names like Pu Su, Wu Jie and Dong Ran) who sent their fund to a fake company (Easy Capital Pty Ltd). I will leave Pu Su and so on to find ways to recover their money.
The second part (including me and Qin Hong) is completely different. Our money was mistakingly sent to your company. You do not have any evidence to show that someone called Jerry Chia took our money with our consent. Therefore, you have all the obligations to return our money (in total US$150,000). If you do not return our money, you actually violated laws by committing fraudulence and illegally possessing other people's capital.
Here is the deal: if you return our US$150,000, I promise you I will not go after you anymore.
I do not think it is worthwhile for you to keep this small amount of money but taking the risk of tarnishing the reputation of your company when everyone in the world (especially in China, where your big business is) gets to know this situation.
I wish you take this into consideration.
Regards
Dr Guan
(50) Email from Mr Wang to Dr Guan, sent on 14 April 2015:
Mr Guan
You totally misunderstand me. I encourage you to sort out this issue via legal proceedings. I also encourage you to call all the people together to get the person should be responsible and bring them into jail.
Regards
Jay
(51) Email from Dr Guan to Mr Wang, sent on 14 April 2015:
Mr Wang
Can you give us evidence that Chia took our money? Any evidence? If not, it is only logic to say that the money is still with you.
Best regards,
Dr Guan
(52) Email from Mr Wang to Dr Guan, sent on 15 April 2015:
Guan
Due to your intimidation, I decide to resort this via legal system. From now on, except you sort assistance via court, I will not help you.
Please get Malaysia police involved and start court proceedings to resolve this.
Good bye and good luck
Jay
(53) Email from Dr Guan to Mr Wang, sent on 15 April 2015:
Mr Wang
It is the Australian police who will help us.
Regards,
Dr Guan
(54) Email from Mr Wang to Dr Guan, sent on 15 April 2015:
Good luck.
51 As noted above, during the chain of emails reproduced above:
(1) On 2 February 20015, the auditor of Easy Capital Global sent an email inquiring about the source of the deposits that had in fact been made by Dr Guan and Ms Hong. As to the response to that email, the Tribunal said the following (at [92]-[93]):
On 2 February, the auditor of Easy Capital Global sent an email wanting to know where the deposits of USD [sic - this is the amount in Australian dollars, as correctly recorded in the Tribunal reasons at [35]] $111,112.69 (Dr Guan) and USD $49,990.00 (Ms Hong) had come from and to whom the withdrawals had been paid. Jenny Li, the accountant, responded and copied in Mr Wang with the following information:
"The deposit of $111,112.69 was by Jerry Chie, a business partner, for technology services including data centre, server, network, website, MT4 software license, technology department and maintenance in order to set up a FX business. A withdrawal of $91,761.19 was made to Vivid Quark Technology for technology services on 19 November 2014.
The deposit of USD 49,990 made by Jerry Chie as a business partner, however it was returned on 18 November 2014.
…".
The first paragraph supports the evidence Mr Wang has given.
The second paragraph of the email is not correct. The USD $49,990 was not returned to Jerry on 18 November 2014. It was transferred to Vivid Quark Seychelles. This could mislead the auditor and indicates either dishonesty or incompetence. In his examination by the respondent pursuant to s.19 of the Australian Securities and Investments Commission Act 2001 (Cth), Mr Wang had said that he suspected that this money was paid to Vivid Quark for an IT service. In the evidence before this Tribunal he said that Jerry had borrowed money from Vivid Quark Seychelles and therefore in paying the money (which he thought had been contributed by Jerry to Easy Capital Global) to Vivid Quark Seychelles, he was thus paying off part of the loan by Vivid Quark Seychelles to Jerry. Hence, this payment has been categorised by Mr Wang and/or his organisation as rent, repayment of a loan, and payment for IT services. I am not prepared to find that he was dishonest about this, but again it shows Mr Wang in conducting the operations of his business is highly unreliable. The movement of money to and from Easy Capital Global was essentially two deposits and two withdrawals. It was a very simple matter to find out where the money had gone.
(2) On 8 February 2015, Dr Guan sent a letter to Mr Simon Robert, addressed to Mr Wang's legal office, about which the Tribunal said (at [94]-[95]):
On 8 February 2015 Dr Guan sent a letter addressed to Mr Simon Robert of Easy Capital Global Pty Ltd. The address on the letter was 2202/Level 22, 31 Market Street, Sydney, NSW 2000 - the address of all of the companies already mentioned and the address of Mr Wang's legal office. The letter stated:
"On behalf of a group of Easy Capital clients who invested in Easy Capital Pty Ltd, I am writing to you to request to withdraw our deposit from Easy Capital Pty Ltd.
Each of us clients invested fund ranging from US$50,000 to US$100,000 in Easy Capital, since November 2014, and Easy Capital Pty Ltd is obligated to pay monthly interests to us clients. However, since November 2014, Easy Capital Pty Ltd ceased to pay and interest to us clients (some new clients who invested since October 2014 did not receive any interest ever since transferring fund to Easy Capital Pty Ltd). For that reason, Easy Capital Pty Ltd has infringed the agreement between Easy Capital Pty Ltd and us clients. Furthermore, we understand from the easy capital website that Easy Capital Pty Ltd in currently under investigation.
We are extremely concerned about the money we invested. The fund we invested is our hard-earned money, some of which was the lifesavings of some of us. The loss of the investment fund would put some of us in great distress and hardship. Under the agreement between Easy Capital Pty Ltd and us clients, our initial capital is under protection. Therefore, we would like to withdraw our deposit from Easy Capital Pty Ltd immediately and reserve the right to demand for compensation for the loss of the interest that Easy Capital Pty Ltd owes us so far".
The first comment that should be made about this letter is that there is no such person as Mr Simon Robert. However, while the letter is addressed to Easy Capital Global Pty Ltd, the contents of the letter again show the confusion that has arisen between the companies because the body of the letter refers only to Easy Capital. There is no evidence that Mr Wang received this letter, but I assume he did since it is addressed to his office and to Easy Capital Global, his proposed FX company of which he is the sole director.
52 As noted above, after the 12 February 2015 email from Mr Wang to Dr Guan, on 17 February 2015 the remaining sum of $21,442.91 (the remaining $19,316.50 from the $111,112.69 deposited as two tranches of US$50,000 by Dr Guan, plus presumably some interest) was transferred out of the Australian dollar account held by Easy Capital Global to Vivid Quark Seychelles. The Australian dollar account held by Easy Capital Global account was then closed.
53 As outlined in the section above dealing with corporate entities, the Tribunal found that there was a very close relationship between Mr Wang and Vivid Quark Seychelles, the company being ultimately owned by his cousin's husband, which was used as a vehicle for his family to make investments in Australian companies and to transfer large sums of money to the bank accounts of companies the he controlled or had access to. The effect of the Tribunal's findings was that the ostensible appearance of the $21,442.91 transfer was to take it out of Mr Wang's access and control, without that being the practical reality at all.
54 The Tribunal found that this final transfer of $21,442.91 was a dishonest act, coming as it did after Mr Wang was on notice that the money ostensibly provided by Jerry may have come from Dr Guan (as was in fact found to be the case). That was the finding upon which the Tribunal based its conclusion that Mr Wang was not a person of good fame or character. That in turn resulted in a mandatory permanent banning order pursuant to s 920B(2) of the Corporations Act. It follows that this adverse finding is, necessarily, the primary focus of Mr Wang's appeal.