R v Ho - [2020] NSWDC 905

District Court

New South Wales

Medium Neutral Citation: R v Ho [2020] NSWDC 905
Hearing dates: 4 June 2020
21 August 2020
Decision date: 11 September 2020
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Convicted on each count.
(Discounts:
50% discount for each offence (25% utility/facilitation,12.5% Ellis/past assistance, 12.5% future assistance)
Indicative sentences:
001 – 12 months’ imprisonment
002 – 6 months’ imprisonment
003 – 12 months’ imprisonment
004 – 6 months’ imprisonment
005 – 10 months’ imprisonment
006 – 18 months’ imprisonment
Aggregate sentence
1. Sentenced to a term of imprisonment of 3 years commencing today, to expire on 10 September 2023.
2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directs the sentence to be served by way of an Intensive Corrections Order for 3 years commencing today.
3. The offender is to report to the OIC at the Leichhardt office of CCS by midday Friday18 September 2020.
4. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
a. You must not commit any offence.
b. The offender is to be placed under the supervision and guidance of the Community Corrective Services.
OPTIONAL ADDITIONAL CONDITIONS
c. Undertake 250 hours of community service work.
5. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or Commonwealth Director of Public Prosecutions. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

Catchwords:
CRIME – Sentence - C’TH – Insider trading – tipping - utilising three different brokers & seven different trading accounts during offending period – course of conduct – seriousness of offences - financial consequences – damage to market - general deterrence - self reporting and admissions – remorse and contrition - subjective matters

Legislation Cited:
Corporations Act 2001
Crimes Act (Cth)

Cases Cited:
Hartman v DPP NSWCCA 261
Khoo v The Queen [2013] NSWCCA 323
Parker v R [2011] 87 ACSR 52
R v Glynatsis [2012] NSWSC 1551
R v Holt [2016] NSWSC 4634

Category: Sentence
Parties: Regina
HO, Michael Ming Jinn
Representation:
Counsel:
Crown: Mr Yaseen Shariff,
Defence: Mr Michael McHugh SC; Mr Elliot Hyde
Solicitors:
CDPP: Mr Timothy Postma
Defence: Mr Stephen Klotz, Hall & Wilcox

File Number(s): 2020/00046865

Judgment

HIS HONOUR: Michael Ming Ho appears for sentence in respect of six offences.
Counts 1 and 5 are each offences of insider trading contrary to s 104(3A)(1)(c) and (d) and 1311(1) of the Corporations Act 2001. Each of those offences has available a maximum penalty of ten years’ imprisonment and/or a fine of 4,500 penalty units, which equates to $810,000 or three times the total value of the benefit obtained, whichever is the greater.
Counts 2, 4 and 6 are also insider trading and contrary to s 104(3A)(1)(d) and 1311(1) of the Corporations Act 2001. The maximum penalty is exactly the same as previously mentioned in relation to Counts 1…

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 R v Ho

Details

AGLC: R v Ho [2020] NSWDC 905
Case: [2020] NSWDC 905
Decision Date: 11 September 2020

CaseChat Overview and Summary

In the case of R v Ho, the defendant was convicted on six counts of insider trading and was sentenced by the Supreme Court of New South Wales. Ho was found to have engaged in a series of illegal trades using three different brokers and seven different trading accounts over a period of time. The nature of the offence involved providing tips to others based on confidential information regarding a company's financial status, resulting in significant financial gains for himself and others, and substantial losses for those who traded on the basis of the tips.

The court was required to consider a range of factors in determining an appropriate sentence. These included the seriousness of the offences, the financial consequences, the damage to the market, and the need for general deterrence. The court also considered Ho's admissions of guilt, his level of remorse and contrition, and his willingness to cooperate with authorities. Additionally, the court took into account the discounts applicable to each offence based on factors such as the level of utility and facilitation, past assistance provided by Ho, and potential future assistance.

In delivering the sentence, the court noted the gravity of Ho's actions and the significant harm caused to the market and other investors. The court also recognised the positive aspects of Ho's admissions, cooperation, and expressions of remorse. However, the court ultimately determined that a custodial sentence was necessary to achieve the aims of punishment, deterrence, and rehabilitation. The court imposed a sentence of three years' imprisonment, to be served by way of an Intensive Corrections Order, with a range of conditions to be met by Ho during the term of the order. Failure to comply with these conditions may result in further sanctions being imposed.

Orders

Orders of the court

Convicted on each count.

(Discounts:

50% discount for each offence (25% utility/facilitation,12.5% Ellis/past assistance, 12.5% future assistance)

Indicative sentences:

001 – 12 months’ imprisonment

002 – 6 months’ imprisonment

003 – 12 months’ imprisonment

004 – 6 months’ imprisonment

005 – 10 months’ imprisonment

006 – 18 months’ imprisonment

Aggregate sentence

1. Sentenced to a term of imprisonment of 3 years commencing today, to expire on 10 September 2023.

2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directs the sentence to be served by way of an Intensive Corrections Order for 3 years commencing today.

3. The offender is to report to the OIC at the Leichhardt office of CCS by midday Friday18 September 2020.

4. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

a. You must not commit any offence.

b. The offender is to be placed under the supervision and guidance of the Community Corrective Services.

OPTIONAL ADDITIONAL CONDITIONS

c. Undertake 250 hours of community service work.

5. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or Commonwealth Director of Public Prosecutions. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Ho [2020] NSWDC 905
Hearing dates:	4 June 2020 21 August 2020
Decision date:	11 September 2020
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted on each count. (Discounts: 50% discount for each offence (25% utility/facilitation,12.5% Ellis/past assistance, 12.5% future assistance) Indicative sentences: 001 – 12 months’ imprisonment 002 – 6 months’ imprisonment 003 – 12 months’ imprisonment 004 – 6 months’ imprisonment 005 – 10 months’ imprisonment 006 – 18 months’ imprisonment Aggregate sentence 1. Sentenced to a term of imprisonment of 3 years commencing today, to expire on 10 September 2023. 2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the Court directs the sentence to be served by way of an Intensive Corrections Order for 3 years commencing today. 3. The offender is to report to the OIC at the Leichhardt office of CCS by midday Friday18 September 2020. 4. The conditions to apply during the term of the order are as follows: STANDARD CONDITIONS a. You must not commit any offence. b. The offender is to be placed under the supervision and guidance of the Community Corrective Services. OPTIONAL ADDITIONAL CONDITIONS c. Undertake 250 hours of community service work. 5. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or Commonwealth Director of Public Prosecutions. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.
Catchwords:	CRIME – Sentence - C’TH – Insider trading – tipping - utilising three different brokers & seven different trading accounts during offending period – course of conduct – seriousness of offences - financial consequences – damage to market - general deterrence - self reporting and admissions – remorse and contrition - subjective matters
Legislation Cited:	Corporations Act 2001 Crimes Act (Cth)
Cases Cited:	Hartman v DPP NSWCCA 261 Khoo v The Queen [2013] NSWCCA 323 Parker v R [2011] 87 ACSR 52 R v Glynatsis [2012] NSWSC 1551 R v Holt [2016] NSWSC 4634
Category:	Sentence
Parties:	Regina HO, Michael Ming Jinn
Representation:	Counsel: Crown: Mr Yaseen Shariff, Defence: Mr Michael McHugh SC; Mr Elliot Hyde Solicitors: CDPP: Mr Timothy Postma Defence: Mr Stephen Klotz, Hall & Wilcox
File Number(s):	2020/00046865