The Federal Court has sentenced four individuals to suspended prison terms and imposed a one million dollar fine on Sydney money remittance business Vina Money in a prosecution conducted by the Commonwealth Director of Public Prosecutions (CDPP), following a joint investigation by the ACCC and the Australian Federal Police.
The sentences relate to price fixing of the Australian dollar/ Vietnamese dong exchange rate and the transaction fees charged to customers who were sending money from Australia to Vietnam, which took place between January 2012 and August 2016.
Four individuals, who were linked to Vina Money and its competitor, money remittance business Hong Vina, pleaded guilty earlier this year and are the first individuals to be sentenced under criminal cartel laws.
The CDPP today withdrew a remaining criminal cartel charge against a fifth individual, a 33-year-old man from Sydney.
"This is the first time individuals have been sentenced for a criminal cartel offence since cartel conduct was criminalised in 2009," ACCC Chair Gina Cass-Gottlieb said.
"It is a significant milestone that follows a joint investigation between the ACCC and the Australian Federal Police and a successful prosecution by the CDPP."
In June 2022, the Federal Court:
- imposed a fine on Vina Money of $1,000,000;
- sentenced former company secretary and director of Vina Money, Van Ngoc Le, to imprisonment of 2 years and 6 months;
- sentenced former company secretary and director of Vina Money, Tony Le, to imprisonment of 9 months;
- sentenced former company secretary and director of Hong Vina, Khai Van Tran, to imprisonment of 1 year and 7 months; and
- sentenced former shareholder of Hong Vina, Thi Huong Nguyen, to imprisonment of 2 years and 4 months.
All four individuals were released on recognisance orders to be of good behaviour, without serving time in custody.
During sentencing, Justice Abraham highlighted "the need to deter those who may see possible penalty as a cost of doing business" and described cartel conduct as "evil". She noted that the conduct, at least in relation to the fixing of the exchange rates, was deliberate, took place over a sustained period, had a degree of sophistication and was directed at financial gain.
However, Justice Abraham considered the personal circumstances of the accused and COVID-19-related delays and decided to release all four individuals on recognisance orders.
Vina Money and Hong Vina operated competing money remittance businesses in Footscray, Victoria, and in Cabramatta in NSW. Both businesses used a large Vietnamese commercial bank (Sacombank) to make payments in Vietnam on their behalf.
The Court heard evidence of communications between the two businesses and Sacombank which encouraged Vina Money and Hong Vina to agree on exchange rates instead of competing. This arrangement continued for several years.
The businesses also agreed to stop discounting their fees and charged full transaction fees in their branches.
"Cartel behaviour, including price fixing, means consumers pay more than they would if there was fair competition, and other businesses are deprived of a level playing field. We remain focused on deterring, detecting and dismantling cartels that have the potential to harm Australian consumers and competition in the economy," Ms Cass-Gottlieb said.
"Enforcing cartel laws remains an enduring priority for the ACCC and we will continue referring serious cases of alleged cartel conduct to the CDPP for consideration for criminal prosecution. This case also shows that the links between the ACCC and AFP are increasing our effectiveness and ability to enforce cartel provisions."
Background
In April 2019, the CDPP laid criminal cartel charges against Vina Money and five individuals (four men and one woman).
In July 2021, all accused were committed to the Federal Court for trial.
On 3 February 2022, Vina Money and three individuals (former directors and secretaries of Vina Money, Van Ngoc Le and Tony Le, and former director and secretary of Hong Vina, Khai Van Tran) entered pleas of guilty. On 17 May 2022, a fourth individual (former shareholder of Hong Vina, Thi Huong Nguyen) entered a plea of guilty.
The offenders were sentenced on 9 June 2022. The sentences could not be published earlier pending resolution of the court proceedings involving the fifth individual.
Note
The ACCC investigates cartel conduct, manages the immunity process and, in respect of civil cartel contraventions, takes proceedings in the Federal Court. The ACCC works to detect cartels including through education programs, proactive intelligence gathering and data assessment and working with overseas counterparts to identify cartels that operate on a global level.
The ACCC also manages an immunity program that enables past or present cartel members to confess their actions and cooperate with investigations in exchange for immunity from ACCC-initiated civil and (through the CDPP) criminal proceedings.
Anyone with information about cartel conduct is urged to call the ACCC Cartel Hotline on (02) 9230 3894.
The CDPP is responsible for prosecuting criminal cartel offences in accordance with the Prosecution Policy of the Commonwealth. The ACCC refers serious cartel conduct to the CDPP for consideration of prosecution in accordance with the Memorandum of Understanding between the CDPP and the ACCC regarding Serious Cartel Conduct.
For corporations, the maximum fine for each criminal cartel offence is the greater of:
- $10 million
- three times the total benefit that has been obtained and which is reasonably attributable to the commission of the offence, or
- if the value of the benefit obtained cannot be determined, 10 per cent of the corporation's annual turnover connected with Australia.
An individual convicted of a criminal cartel offence may be sentenced to up to 10 years' imprisonment or fined up to $444,000, or both.
