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第一, 唐炜臻被判有罪有显然的司法歧视因素
从环球邮报的报道看来,法庭判唐炜臻刑首要证据是他给他的顾客们说该公司的基金还有7千万,但是实际上银行账上只有一千。其次的证据是他给顾客做假账隐瞒了他们账上的真实投资价值。关于这点他在网上的申诉好像没有驳斥过,所以很可能他的确是这样造假了。
Mr. Tang was found guilty in October of operating a Ponzi scheme after his trial heard he raised $52-million from more than 200 investors in his Oversea Chinese Fund LP, many of them members of the Chinese community in Toronto. His trial heard testimony that he told investors in early 2009 that the fund had more than $70-million in assets, when in fact it had just $1,000 in its bank accounts. Mr. Tang was also accused of giving clients false account statements that misrepresented the value of their investments.
但是,是不是造假了就必然构成欺诈罪了呢?从几乎同期的另一桩北方电讯三头目欺诈的案子结局看来并不是如此:
At trial, Crown prosecutors tried to prove that Dunn, Beatty and Gollogly were complicit in releasing accruals – money set aside to cover future liabilities – onto Nortel's balance sheets during quarters that needed to show the company was turning a profit when it wasn't.
检控官指控北电三嫌疑人共谋篡改北电账上的应计费用,使得公司看上去在赢利虽然实际上并没有赢利。
The Crown argued that this practice, which was kept from the board of directors and the firm's investors, generated return-to-profitability bonuses for themselves even though the company was in the red. 检控官说他们秘密这样做,给他们自己挣了赢利的奖金,虽然公司已经亏损。
In his judgment, Marrocco said the decision to only release $80 million in excess accruals when it had $189 million to boost numbers during the company's first quarter of 2003 were not out of the ordinary.法官说嫌疑人这样做不是太出格。
This policy did not lead to misrepresenting Nortel's "financial results to the investing public or Nortel's audit committee or Nortel's board of directors," he wrote.法官说这不指向欺诈。
也就是说,北电嫌疑人也同样在账上造假了,私下违法篡改了帐目欺骗客户,跟唐炜臻的造假一样。而且他们的造假给自己带来了巨大的奖金收入,唐炜臻自己没有得到任何法律规定之外的个人收入。我估计他一定是想要隐瞒亏损的事实,以求有时间周转挽回直到发现不可能。
即使如此恶劣,北电的嫌疑人被法庭认定不是欺诈。负责调查的还说要证明帐目造假了容易,但是要证明这样造假是有犯罪企图的就很难。
Greg Draper, who heads investigative and forensic services at chartered accountancy and business consulting firm MNP, says that the burden of proof was difficult to meet in this case.
"To prove that there was not just intention to do the conduct, moving the money and making the financial statements that were made, but to do it with a criminal purpose to defraud shareholders and the corporation is difficult to prove," he said.
那为什么唐炜臻同样的情况,就没有被这样认为呢?这就有司法歧视的嫌疑。
再看远一点,根据加拿大政府的数据,安省因为重罪欺诈被判刑的平均刑期是3到6年。唐炜臻却要服刑11年。在加拿大杀人罪包括谋杀和误杀,平均服刑才5年。难道唐炜臻的罪大于杀人了? |
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