R v Khoo - [2013] NSWSC 1518

Supreme Court

New South Wales

Medium Neutral Citation: R v Khoo [2013] NSWSC 1518
Hearing dates: 10 October 2013
Decision date: 11 October 2013
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Bail Refused

Catchwords: BAIL - application for bail pending sentence appeal to Court of Criminal Appeal - special or exceptional circumstances required under s.30AA Bail Act 1978 - four offences of communicating inside information contrary to ss.1043A(2) and 1311(1) Corporations Act 2001 (Cth) - "tipping" offences - sentences of imprisonment involving minimum term of 14 months expiring in October 2014 - whether grounds of appeal most likely to succeed - held they were not - whether likely hearing date of appeal considered with grounds of appeal established special or exceptional circumstances - held they did not - bail refused
Legislation Cited: Bail Act 1978
Corporations Act 2001 (Cth)
Criminal Appeal Act 1912
Cases Cited: Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103
Director of Public Prosecutions v Louizos [2008] NSWCA 271
DPP v Lindskog (unreported, Victorian County Court, his Honour Judge Parsons, 14 March 2013)
Hili v The Queen [2010] HCA 45; 242 CLR 520
Lee v R [2012] NSWSC 1168
R v Wilson (1994) 34 NSWLR 1
RR v R [2011] NSWCCA 235; 216 A Crim R 489
Yang v R [2012] NSWCCA 49
Zreika v R [2012] NSWCCA 34
Texts Cited: ---
Category: Principal judgment
Parties: Regina (Crown)
John Kay Jin Khoo (Applicant)
Representation: Counsel:
Mr MG McHugh SC (Crown)
Mr M Thangaraj SC (Applicant)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Amond Legal (Applicant)

File Number(s): 2013/249899
Publication restriction: ---

Judgment

JOHNSON J: This is an application for bail by John Kay Jin Khoo.

The Applicant was sentenced by his Honour Judge Marien SC in the Sydney District Court on 8 August 2013, following his pleas of guilty to four offences of communicating inside information contrary to ss.1043A(2) and 1311(1) Corporations Act 2001 (Cth). These offences are colloquially described as "tipping" offences.

With respect to Counts 1 and 2 (committed in September-October 2010 and October-November 2010), the maximum penalty was five years' imprisonment. With respect to Counts 3 and 4 (both committed in June-July 2011), the maximum penalty for this crime had been increased by the Commonwealth Parliament to imprisonment for 10 years.

On Counts 1 and 2, the Applicant was sentenced to concurrent terms of imprisonment of nine months, commencing on 8 August 2013 and expiring on 7 May 2014. On Counts 3 and 4, the Applicant was sentenced to concurrent terms of imprisonment of one year and eight months, commencing on 8 November 2013 and expiring on 7 July 2015.

As against a total effective head sentence of one year and 11 months, his Honour directed the release of the Applicant after 14 months on 8 October 2014, conditional upon the Applicant entering a recognisance in the sum of $500.00 to be of good behaviour for the balance of the sentence.

On 8 August 2013, the…

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 Khoo

Details

AGLC: R v Khoo [2013] NSWSC 1518
Case: [2013] NSWSC 1518
Decision Date: 11 October 2013

CaseChat Overview and Summary

The appellant, Khoo, was convicted and sentenced to imprisonment for four offences of communicating inside information in breach of the Corporations Act 2001 (Cth). Khoo was appealing the decision to deny his application for bail pending the outcome of a sentence appeal to the Court of Criminal Appeal. The legal issues before the court were whether the grounds of appeal were most likely to succeed and, if so, whether that, combined with the likely date of the hearing of the appeal, constituted special or exceptional circumstances under section 30AA of the Bail Act 1978 (Vic). The court considered the evidence and submissions presented by both parties, examining the merits of the appeal and the likelihood of the sentence being quashed or reduced. The court found that the grounds of appeal were not most likely to succeed and, even if they were, the likely date of the hearing of the appeal did not constitute special or exceptional circumstances. The court therefore dismissed the application for bail.

The court held that the grounds of appeal were not most likely to succeed as they were based on perceived errors of law by the trial judge. The court considered that the trial judge had applied the correct legal principles and that the sentences imposed were within the range of penalties that the sentencing judge could lawfully impose. The court also found that the likely date of the hearing of the appeal did not constitute special or exceptional circumstances as it was not so remote that it would cause substantial injustice to the applicant. The court emphasised that the Bail Act 1978 (Vic) required a high threshold to be met in order for special or exceptional circumstances to be established. The court found that the circumstances of this case did not meet that threshold. The court therefore refused the application for bail.

Orders