KWOK v Regina [2007] NSWCCA 281

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 to principles of totality leading to modest reduction in sentence.