KWOK v Regina

(2007) 175 A Crim R 278; [2007] NSWCCA 281

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Corporations offences
3. › Dishonest use of position as director
4. › Element of dishonesty
5. › Whether objective test in Peters v R or two-limb test in R v Ghosh applies
6. › Distinction between dishonesty and impropriety
7. › Corporations Act 2001 (Cth), s 184(2)(a)
1. Criminal Law
2. › Corporations offences
3. › Dishonest use of position as director
4. › Advantage for another person
5. › Whether advantage established where no detriment to corporation and leases on market terms
6. › Advantage consisting of certainty of obtaining lease
7. › Corporations Act 2001 (Cth), s 184(2)(a)
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Amendment of indictment
5. › Whether amendment narrowing period of offending resulted in miscarriage of justice
6. › Whether prejudicial evidence admitted
7. › Application of proviso
8. › Weiss v The Queen
1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Failure to seek direction at trial
5. › Whether leave should be granted under rule 4 of Criminal Appeal Rules
6. › Direction offered and declined at trial

Quick Take

For offences under s 184(2)(a) of the Corporations Act occurring before 15 December 2001, the Peters v R objective test for dishonesty applies, not the Ghosh two-limb test. An 'advantage' under s 184(2)(a) may consist of the certainty of obtaining a transaction for an associated company, even where the transaction is on market terms and no detriment to the corporation is shown. A director's deliberate concealment of a conflict of interest to facilitate a transaction constitutes dishonesty, not mere impropriety. In sentencing, the length of sentence must be determined before the mode of service, and sentences for relevantly indistinguishable offences should not differ without explanation.