Kwok v R

Case [2007] NSWCCA 281 24 September 2007

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Reported Decision: 64 ACSR 307

New South Wales

Court of Criminal Appeal

CITATION: KWOK v Regina [2007] NSWCCA 281

HEARING DATE(S): 20 August 2007

JUDGMENT DATE:
24 September 2007

JUDGMENT OF: Santow JA at 1; Hidden J at 113; Howie J at 114

DECISION: 1. The appeal against conviction is dismissed.; 2. Leave to appeal against sentence is granted and the appeal allowed.; 3. The sentences imposed in the District Court are quashed. In lieu the following sentences are imposed:; (i) On the first count the appellant is sentenced to a term of imprisonment for 9 months to be served by way of periodic detention. ; (ii) On the second count the appellant is sentenced to a term of imprisonment of 9 months to commence 6 months after the sentence on the first count commences and is to be served by way of periodic detention. The appellant is to be released on a recognisance release order after serving 3 months of that sentence.

CATCHWORDS: CORPORATIONS LAW: - Section 184(2)(a) of the Corporations Act 2001 (Cth) imposing criminal offence where director uses position dishonestly with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation - appellant charged with two charges of dishonest use of his position as a director with the intention of gaining an advantage for two other companies with which through family members he was associated - no detriment to the corporation shown - circumstances involved a lease to the corporation of which the appellant was a director of land owned by the two associated companies of the appellant - leases not shown to be on specially favourable terms but advantage lay in securing certainty that the leases would be granted - effect of reducing the period stipulated for each offence to a time just prior to the coming into force of changes to the Criminal Code (Cth) introducing a new definition of dishonesty differing from that hitherto applicable in relation to the Corporations Act - appeal on ground of failure to give a direction, offered and declined at trial, in terms of R v Ghosh [1982] QB 1053 at 1064 whereby dishonesty is made out according to ordinary standards of reasonable and honest people but also requiring the defendant to know ordinary people considered relevant conduct to be dishonest - distinction between acting improperly and acting dishonestly for purposes of statutory offences - relevance of concealment by the director concerned in indicating dishonesty. - SENTENCING: - appeal against sentence as unduly harsh, manifestly excessive and placing disproportionate weight on need for general and personal deterrence - trial judge’s failure first to consider sentence before considering how sentence was to be served here by way of periodic detention - error in structuring the two sentences for the two offences in terms of giving a longer sentence for second offence than first when relevantly indistinguishable - no error as to deterrence being properly taken into account - re-sentencing according…

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 Kwok v R

Details

AGLC: Kwok v R [2007] NSWCCA 281
Case: [2007] NSWCCA 281
Decision Date: 24 September 2007

CaseChat Overview and Summary

The appellant, Kwok, appealed against his conviction and sentence for two counts of dishonest use of his position as a director, contrary to section 184(2)(a) of the Corporations Act 2001 (Cth). The crux of the dispute revolved around Kwok's alleged use of his directorship position in a manner that was dishonest and aimed at securing an advantage for two other companies linked to him through family members. The Crown did not argue that the corporation suffered any detriment from these transactions. Instead, the crux of the case hinged on the interpretation of the term "dishonesty" as it applied to the Corporations Act and the trial judge's handling of the jury direction on this issue.

The central legal issues before the court were whether the trial judge correctly instructed the jury on the definition of dishonesty and whether the sentence imposed was unduly harsh. The court needed to determine if the jury was properly guided to understand the distinction between acting improperly and acting dishonestly in the context of statutory offences. Additionally, the court had to consider whether the concealment of certain facts by Kwok was indicative of dishonesty, and whether the trial judge erred in his sentencing process by not adequately considering the principles of totality and the appropriate weight to be given to general and personal deterrence.

The court found that while the trial judge did not give a direction in the exact terms of the Ghosh test, the jury was sufficiently directed on the issue of dishonesty. The court held that the trial judge's direction adequately captured the essence of the Ghosh test, and thus, there was no miscarriage of justice. Regarding the sentence, the court acknowledged that the trial judge had not followed the prescribed order in considering the sentence before determining its execution but found no substantive error in the sentence itself. The court noted that while the sentence was indeed harsh, it was not manifestly excessive. The court further observed that the trial judge appropriately considered the need for deterrence but erred in giving a longer sentence for the second offence without justification. After applying the principles of totality, the court decided to modestly reduce the sentence.

The court ordered a reduction in the appellant's sentence, reflecting the principles of totality and ensuring a fair and proportionate punishment. This reduction addressed the identified error in the trial judge's approach to sentencing, while still acknowledging the necessity of deterrence in this case.

Orders