R v Zhu

Case [2013] NSWSC 127 15 February 2013

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: R v ZHU, Bo Shi [2013] NSWSC 127
Hearing dates: 23 November 2012
Decision date: 15 February 2013
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Convicted of the offence of insider trading.
(1) In respect of the offences committed between 6 November 2006 and 23 November 2007, whilst employed by Caliburn Partnership Pty Ltd contrary to s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), sentenced to a term of imprisonment of 6 months to commence on 15 February 2013 and to expire on 14 August 2013.
(2) In respect of the offences committed between 21 January 2008 and 9 July 2010, whilst employed by Credit Suisse Management (Australia) Pty Ltd, contrary to s 1043(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), sentenced to a fixed term of imprisonment of 3 months to commence on 15 February 2013 and to expire on 14 May 2013.
(3) In respect of the offences committed between 17 July 2010 and 29 September 2011, whilst employed by Hanlong Mining Investments Pty Ltd contrary to the provisions of s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), sentenced to a term of imprisonment of 2 years to commence on 15 May 2013 and to expire on 14 May 2015.
Direct that the Offender be released on 14 May 2014 at the expiration of 12 months of that sentence on a recognisance that he be of good behaviour during the balance of the term upon him giving security in the sum of $1,000 without surety.

Catchwords: CRIMINAL LAW - section 1043A(1)(d) Corporations Act 2001 (Cth) - insider trading - sentencing principles for such offences - mitigating factors - unethical work environment - factors relevant to imposition of a custodial sentence
Legislation Cited: Corporations Act 2001 (Cth)
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1914 (Cth)
Proceeds of Crime Act
Cases Cited: Braun v R (2008) 190 A Crim R 497; [2008] NSWCCA 269
DPP v O'Riley [2010] VSC 138
Hartman v R (2011) 87 ACSR 52; [2011] NSWCCA 261
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 85 ALJR 195
Pearce v The Queen (1998) 194 CLR 610
R v DeSilva [2011] NSWSC 243
R v DeSilva [2011] NSWSC 243
R v Doff (2005) 55 ACSR 200; [2005] NSWCCA 119
R v Doff (2005) ACLR 317; [2005] NSWSC 50
R v Firns [2001] 51 NSWLR 548
R v Hartman [2010] NSWSC 1422
R v Hartman [2011] NSWCCA 261
R v McKay (2007) ACSR 470
R v McQuoid [2009] EWCA Crim 131; [2009] 4 All Eng 388
R v Pantano (1990) 48 A Crim R 328
R v Rivkin (2003) 198 ALR 400; 45 ACSR 366; [2003] NSWSC 447
R v Rivkin [2003] NSWCCA 307
R v Agius; R v Zerafa [2012] NSWSC 978
R v Bateson [2011] NSWSC 643
R v de Silva [2011] NSWSC 243
Texts Cited: Report…

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 Zhu

Details

AGLC: R v Zhu [2013] NSWSC 127
Case: [2013] NSWSC 127
Decision Date: 15 February 2013

CaseChat Overview and Summary

In the matter of R v Zhu, the defendant was charged with insider trading under section 1043A(1)(d) of the Corporations Act 2001. The case was heard in the Federal Court of Australia, where the primary issue was the appropriate sentence to be imposed on the defendant for engaging in insider trading. The defendant had traded shares in contravention of the insider trading provisions of the Act, benefiting from confidential information regarding the financial performance of a company.

The court was required to determine the sentencing principles applicable to insider trading offences and to consider the mitigating factors presented by the defence, including the defendant's lack of previous criminal history, remorse, and the unethical environment in which the offence occurred. The defence argued that the defendant was influenced by the prevailing culture within the company, which encouraged unethical conduct. The court needed to assess the relevance of these factors in determining whether a custodial sentence was warranted and, if so, its appropriate length.

In delivering its judgment, the court acknowledged the seriousness of insider trading but also recognised the mitigating circumstances presented by the defence. The court found that the defendant's lack of criminal history and genuine remorse were significant mitigating factors. However, the court also considered the need to deter future insider trading and uphold the integrity of the financial markets. Ultimately, the court determined that a custodial sentence was necessary but balanced the need for deterrence with the mitigating factors, ultimately sentencing the defendant to a term of imprisonment.

Orders