Khoo v R

Case [2013] NSWCCA 323 20 December 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khoo v Regina [2013] NSWCCA 323
Hearing dates: 8/11/13
Decision date: 20 December 2013
Before: Leeming JA at [1];
Bellew J at [12];
RS Hulme AJ at [23]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - insider trading - tipping - whether sentence manifestly excessive - whether sentencing judge failed to take proper account of individual factors
Legislation Cited: Corporations Amendment (No 1) Act 2010 (Cth)
Corporations Act 2011 (Cth)
Cases Cited: DPP v Lindskog [2013] VCC (unreported, Parsons CCJ, 14 March 2013)
Fridrich v Bradford 542 F 2d 307 (6th Cir, 1976)
Ex parte King; Re Blackley (1938) 38 SR (NSW) 483
Green v The Queen [2011] HCA 49; 244 CLR 462
Hartman v R [2011] NSWCCA 261
Hili v The Queen [2010] HCA 45; 242 CLR 520
Pearce v R (1998) 194 CLR 610
R v Dalzell [2011] NSWSC 454
R v De Silva [2011] NSWSC 243
R v Ellis (1986) 6 NSWLR 603
R v Glynatsis [2013] NSWCCA 131
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
R v Morgan (1993) 70 A Crim R 368
R v Mungomery [2004] NSWCCA 450
R v O'Brien [2011] NSWSC 1553
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Rivkin [2004] NSWCCA 7
R v Taylor [2000] NSWCCA 442
R v XY [2013] NSWCCA 121
R v Zerafa [2013] NSWCCA 222
RR v R [2011] NSWCCA 235; 216 A Crim R 489
Texts Cited: National Companies and Securities Commission, Insider Trading Legislation for Australia: An Outline of the Issues and Alternatives (AGPS,1986,)
R Baxt, A Black and P Hanrahan, Securities and Financial Services Law (LexisNexis. 8th ed, 2012.)
Category: Principal judgment
Parties: John Khoo (Applicant)
Regina (Respondent)
Representation: Counsel:
M Thangaraj SC (Applicant)
MMG McHugh SC (Respondent)
Solicitors:
Amond Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/386642
Publication restriction: None
Decision under appeal

Date of Decision:

2013-08-08 00:00:00

Before:

Marien DCJ

File Number(s):

2012/386642

Judgment

LEEMING JA: I have had the advantage of reading, in draft, the judgment of R S Hulme AJ. I agree with his Honour's reasons and conclusions. I also agree with the additional observations of Bellew J. I wish to provide the following additional reasons why ground (viii), which asserted that the sentence of full time imprisonment was manifestly excessive, should be rejected.

I start with authority. In R v Glynatsis [2013] NSWCCA 131, McCallum J said at [79]:

"The acquisition or disposal of financial products by people having the unfair advantage of inside information is criminalised because it has the capacity to unravel the public trust which is critical to the viability of the market. It is, as previously observed by this Court, a form of cheating. The fact that people of otherwise good character and compelling personal circumstances are tempted to engage in such conduct emphasises the need…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khoo v R

Details

AGLC: Khoo v R [2013] NSWCCA 323
Case: [2013] NSWCCA 323
Decision Date: 20 December 2013

CaseChat Overview and Summary

The appellant, Khoo, was convicted on 21 counts of insider trading and one count of tipping. The appeal was against his sentence, with the primary contention being that it was manifestly excessive. The case was heard in the High Court of Australia. The respondent, the Crown, maintained that the sentence was appropriate given the gravity of the offences.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had failed to take proper account of the individual factors relevant to the appellant. The court considered the nature and seriousness of the offences, the appellant's role, and the need for general deterrence. It also examined the sentencing judge's assessment of the individual factors, including the appellant's personal circumstances and culpability.

The court found that while the offences were serious, the sentence was not manifestly excessive. It noted that the sentencing judge had considered the individual factors relevant to the appellant. The court held that the sentence was within the range of appropriate responses to the crimes committed, and that there was no error in the way the judge had exercised their discretion. The appeal was dismissed, and the original sentence upheld.

The final orders of the court were that the appeal against sentence be dismissed and that the sentence imposed by the trial judge be upheld. The appellant's conviction remained intact, but the court's decision on the sentence meant that the punishment would proceed as originally determined.

Orders