A forensic investigation has concluded that the now-shuttered Alliance Finance Limited (AFL) obtained benefits totalling nearly $1 billion from the criminal conduct for which it was convicted, the authorities have disclosed.
The disclosure was included in an application filed in the Supreme Court by the Assets Recovery Agency (ARA) seeking to compel AFL, through its former principals, to fork over approximately $960 million to the Government, either through a forfeiture order or a pecuniary penalty.
The application was made under Jamaica’s Proceeds of Crime Act (POCA).
The ARA is the enforcement arm of the Financial Investigations Division (FID), the Ministry of Finance-based agency mandated to enforce the provisions of POCA.
AFL’s ordinary shares were acquired by Sagicor Group Jamaica in 2022.
AFL, through then directors Robert and Peter Chin, pleaded guilty in the Kingston and St Andrew Parish Court in March 2022 to the offences of lending foreign currency without being an authorised dealer and accepting deposits in Jamaica without authorisation, both in breach of the Bank of Jamaica and the Banking Services acts, respectively.
The company was fined $21 million under a plea deal.
Seventeen additional charges that were filed against Alliance Investment Management Limited under POCA were dismissed by Chief Parish Court judge Chester Crooks, who ruled that there was no case for it to answer.
Keith Darien, principal director at the FID, said the $960 million assessed as AFL’s benefits from its criminal conduct was based on a forensic probe of the company’s financial records and accounts.
“It represents gross profits from their business activities, not net profits, for operating an illegal foreign exchange business and for operating as a bank without having the requisite licences,” Darien said during an interview with The Sunday Gleaner on Friday.
An application is also pending in the Supreme Court against another company which the ARA believes obtained total benefits of “close to $1 billion” from criminal conduct involving the sale of counterfeit goods.
“When people break the law, apart from being punished for their criminal actions, the State, via the FID, will seek to recover all the benefits that you have obtained from that criminal activity. That is the message we are sending to people who believe they can benefit from crime,” he insisted.
However, attorneys for the AFL have rubbished the $960 million figure as “absolutely ridiculous”.
“We have no idea how they came to that calculation … . You will have to ask them. As far as we are concerned, the figure is totally ludicrous,” attorneys Tom Tavares-Finson, KC, and Sean-Christopher Castle said on Friday in response to Sunday Gleaner questions.
They also questioned the method used by the ARA to determine the near $1 billion figure, saying it “appears” financial investigators looked at AFL’s entire business operation, potentially including hundreds of thousands of transactions, “when the company was only charged with and entered into a plea agreement for 30-plus transactions”.
“We think they threw out a wide blanket and are hoping to land somewhere,” Tavares-Finson and Castle said.
But citing sections Six, Seven, and Eight of POCA, the FID principal director defended the decision to go after AFL and the methodology used to calculate the figure.
“POCA says if the criminal conduct occurred over a one-month period, or if you were charged for two offences and obtained a benefit from one, then you are deemed to have a criminal lifestyle and benefited from your general criminal conduct,” Darien said, summarising the provisions in the three sections.
“So, it triggers a number of assumptions, which are, essentially, all the benefits that are obtained – which includes property held, transfers to your bank account and expenditure – those are taken to be obtained from your general criminal conduct and must be repaid to the Crown,” he explained.
The legislation places the onus on a defendant to prove to the court that the assumptions are incorrect.
POCA empowers the FID to go after the company’s gross profit and not their net profit, Darien disclosed, describing the $960 million assessed to AFL as “a conservative figure”.
The application by the ARA is set to be heard on December 20.
The date was set by Supreme Court judge Vinette Graham-Allen on Friday after Tavares-Finson requested time to “see if we can arrive at a consensus”, describing the case as “fairly complex”.
