The Queen v Robert Neil Aspinall
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Mr. Justice Timothy Owen |
| Judgment Date | 29 July 2016 |
| Judgment citation (vLex) | [2016] CIGC J0801-2 |
| Docket Number | INDICTMENT NO: 0069/2016 |
| Court | Grand Court (Cayman Islands) |
| Date | 29 July 2016 |
The Hon. Mr. Justice Timothy Owen Q.C.
Robert Aspinall, on your appearance before this Court last Friday you entered pleas of Guilty to 6 of 14 counts on Indictment 69/16. That Indictment charged two counts of theft contrary to s.241 of the Penal Code (2010 Revision), two of forgery contrary to s.285 of the Penal Code (2010 Revision), nine counts of transferring/converting/using criminal property (money laundering) contrary to the Proceeds of Crime Law (2014 Revision) and a single count of false accounting contrary to s.255 of the Penal Code (2010 Revision).
The counts to which you pleaded Guilty were Count 1 (theft of USD 50,414.20), Count 2 (forgery), Count 3 (theft of USD 445,000), Count 4 (forgery), Count 7 (converting criminal property in the sum of USD 200,000) and Count 10 (converting criminal property in the sum of USD 50,536.58).
The Crown had anticipated these pleas and indicated in Ms Salako's very helpful Sentencing Submissions dated 28th July 2016 that they were acceptable to the Crown on a full fact basis. In the circumstances, the Counts to which you have pleaded Not Guilty are directed to lie on the file.
Thanks to the co-operatior, between your legal team and the Crown which has hallmarked this case from the outset, complete agreement has been reached as to the implications of Ms Salako's reference to the ‘full fact basis’ for plea. Accordingly, I am able to incorporate into this Ruling an agreed summary of the conduct, which has brought you before the Grand Court and the subsequent police investigation into it (which I take directly from Ms Salako's written Submissions as amended following input from your legal team).
In 2009 Robert Aspinall (‘RA’) was employed by Deloitte as a Senior Manager. On the 1 October 2012 he was promoted to Director, Financial Advisory. As Director, he had the authority to authorise payments on behalf of Deloitte.
In 2012 RA and Managing Partner Stuart Sybersma of Deloitte Cayman were joint Voluntary Liquidators for two connected funds registered in the Cayman Islands. These funds were known as Level Global Overseas Master Fund Ltd and level Radar Master Fund Ltd (‘Level’). The funds were to be dissolved through voluntary liquidation as a result of allegations against the investment manager for insider trading. The U.S. Securities and Exchange Commission had initially won a settlement of approximately USD21.5 million against the former investment manager. As Voluntary Liquidators of Level, RA held a fiduciary role and was able to make decisions in the administration of the Level's assets including authorisation of payments to third parties including creditors and investors.
On the 18 October 2012 RA sent an email to HSBC in which he stated that he was considering opening a company, so as to ensure that he had a level of protection between himself and his assets. He enquired of HSBC whether they would be willing to open an account in the Cayman Islands for a company registered in the BVI with him as the sole director and shareholder. RA assured HSBC that he was able to provide evidence that he was the beneficial owner, shareholder and director of the registered BVI Company.
On the 22 October 2012 RA sent an email to HSBC stating that he wanted to call his company Freestyle Fund Services Limited but that BVI regulations prevented him from using the word ‘Fund’ within the company name. He stated that he may have to change the registered name of his company slightly but he wanted the corporate account name with HSBC, Cayman Islands to remain as Freestyle Fund Services Limited.
On the 25 October 2012 a company by the names of Freestyle Financial Services Ltd was registered in the BVI. This fictitious company was registered in the BVI 24 days after he was promoted to Director. It is this fictitious company that RA later went on to use to steal client funds and conceal his criminality from Deloitte.
On the 6th November 2012 HSBC confirmed by letter to RA that the opening of an account in the name Freestyle Fund Services Ltd had been approved. On the very same day by email the Senior Administrator at Deloitte, Elaine Jacqueline Willis (‘EJW’), received instructions from RA to arrange a wire transfer of USD50,314.20 from a fund' known as Asian Capital Master Fund (‘Aslan’) to the account of Freestyle Funds Services Ltd. As with the Level accounts, RA was one of the account signatories for the liquidated funds. The documents or information provided in support of this instruction can be described as follows:
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i. Purported updated bank details for Freestyle Fund Services Company LLC (in fact the bank details provided were for the fictitious company created by RA);
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ii. An Advisory Agreement between Freestyle Fund Services Ltd and Asian;
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iii. The agreement provided for commission in the sum of USD50,314.20 to Freestyle Fund Services Ltd on the sale of an investment called Ivaco;,
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iv. Banks statements showing the proceeds of sale; and
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v. Payment request sheet showing EJW as the preparer, Robert Rintoul (former Manager) as the reviewer and RA as the approver.
This payment was characterised in the liquidation records by RA as payment for ‘investment advisory fee.’
In respect of the payment of SD50,314.20 to Freestyle Financial Services Ltd, RA deceived his colleagues into believing that this was a legitimate payment to Freestyle Funds Services Company LLC FS by sending an email dated 6 November 2012. Freestyle Fund Services Company LLC was a legitimate company that had provided legitimate services to the Asian Fund through Deloitte. This email to his colleagues instructing a payment to Freestyle Funds Services Limited implied that he had spoken to the genuine manager, Adrian MacKay of Freestyle Fund Services Company LLC, who had provided him with updated bank details. The new bank account details were for the account in the name of Freestyle Financial Services Ltd.
The Advisory Agreement provided to EJW as support for the payment of USD50,314.20 purportedly bears the signature of Deloitte Managing Partner Stuart Sybersma. Mr Sybersma has reviewed the agreement and has stated that he did not sign the agreement. Mr Sybersma's signature was scanned onto the document without his permission or authorisation.
Mr Sybersma also asserts that the Advisory Agreement is based on a genuine Advisory Agreement between Asian and Freestyle Fund Service Company LLC. The only difference between the two Advisory Agreements is that RA's name has been inserted in the falsified document in place of Freestyle Fund Services Company LLC as the name of the ‘Advisor’ in the Agreement.
It was no coincidence that RA incorporated a company in the name similar to Freestyle Fund Services company LLC. Using a company name similar to a genuine company assisted him in deceiving his colleagues and concealing his criminality.
On the 13 November 2012 RA sent an email from his Deloitte email address to HSBC. Within this email he gave the bank instructions to transfer GBP40,000 from the Freestyle Fund Services Ltd account 100–066901–501 to a fixed deposit account. The authorisation signature for this transaction was that of RA.
Five months after stealing USD50,314.20 from the Asian Fund RA proceeded to provide false instructions for payments from the Level Fund to his fictitious company.
During the voluntary liquidation of Level USD453,519.50 was paid to Freestyle Fund Services Ltd from Level's account over a 6 month period. These payments were as follows:
| 1 March 2013 | $90,000.00 |
| 26 March 2013 | $90,000.00 |
| 17 April 2013 | $90,000.00 |
| 17 May 2013 | $62,500.00 |
| 24 May 2013 | $62,500.00 |
| 28 June 2013 | $8,519.50 |
| 14 August 2013 | $10,000.00 |
| 14 August 2013 | $10,000.00 |
| 21 August 2013 | $30, Q00.00 |
On the 18 March 2013, in other words after Freestyle Funds Services Ltd had received into its account USD 140,314.20 from two liquidation funds (Level and Asian), RA registered the domain name offreesty lefundseivices.com with an Internet domain register. On the date the domain name was registered a test email was sent from RA's Deloitte email address to investment@freestylefundservices.com.
The purpose of registering the domain name, an internet email address and the sending of an email from Deloitte was to legitimise emails that were later to be sent from RA to Freestyle Funds Services Ltd.
In March 2013 RA wrote to investors in his role as Joint Liquidator who held a small amount of shares in the Level liquidation. He wrote to enquire whether they were interested in participating in a secondary market transaction to sell their shares (and it is accepted that there was a genuine secondary market for such trading). Two investors indicated that they were interested in selling their shares and in fact went on to sale their shares. The purchaser of these shares was Freestyle Financial Services Ltd thus making this fictitious company a Level Fund liquidation share holder. The share transfer document lists Freestyle Financial Services Ltd as the buyer with the director listed as Andrew Chan. Andrew Chan is a fictitious name used by RA to conceal the fact that he was the beneficial owner / director of Freestyle Financial Services Ltd. Freestyle Financial Services Ltd paid USD495.64 for the shares. Against the purchase of these shares Freestyle Financial Services Ltd received on 28 June 2013 USD8,519.50 from the Level liquidation.
With the exception of the payment received by Freestyle Financial Services Ltd as a...
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