Mr William Desmond Fong, of Darwin, Northern Territory, has been convicted and sentenced to six weeks imprisonment after pleading guilty to failing to attend an ASIC examination.
The conviction follows an ASIC investigation concerning actions taken by Mr Fong during the period of his directorship of Fong & Partners (NT) Pty Ltd. In the course of ASIC’s investigation, Mr Fong was required to appear at an ASIC examination on 3 October 2019 and offer reasonable assistance in connection with the investigation. Mr Fong failed to attend the examination.
ASIC commenced its investigation after receiving a supplementary report by Stuart George Reid of Rodgers Reidy following his appointment as liquidator to another company, NT Welding Pty Ltd, for which Mr Fong acted as an accountant.
Judge Elisabeth Armitage noted that the offence was serious and that it significantly frustrated ASIC’s ability to make proper enquiries. Her Honour noted the numerous prior convictions of Mr Fong for similar kinds of offending and that specific deterrence was paramount in the circumstances.
Mr Fong appeared before the Darwin Magistrates Court on 19 June 2020 via audio visual link from the Darwin Correctional Centre, where he is currently serving a custodial sentence for an unrelated matter.
The matter was prosecuted by the Commonwealth Director of Public Prosecutions.
Background
Under the Australian Securities and Investments Commission Act 2001 (ASIC Act), ASIC has information gathering powers that allow it to perform or exercise its functions. The power includes requiring a person to appear at an examination and give information relevant to a matter that ASIC is investigating.
Intentionally or recklessly failing to comply with a requirement to appear at an examination is a criminal offence under s.63 of the ASIC Act and carries a maximum penalty of 2 years imprisonment.
During the same hearing, but unrelated to his failure to attend an ASIC examination, Mr Fong was resentenced for a 2019 conviction, after he failed to assist the liquidator of Mature Consulting Services Pty Ltd, a company he was sole director and secretary. Her Honour fined Mr Fong $1,000 and resentenced him to a good behaviour bond on the condition he provide all outstanding books to the liquidator of Mature Consulting Services Pty Ltd by 26 August 2021.
