30 April, 2019
In its landmark decision on 4 April 2019, the Court of Final Appeal (CFA) ruled that the charge of obtaining access to a computer for criminal or dishonest gain for oneself or another under section 161 (1) (c) of the Crimes Ordinance (Cap 200) does not apply to the use by a person of his or her own computer, which includes a smartphone (Secretary for Justice v Cheng Ka Yee & Ors, FACC 22/2018).
In recent years, section 161(1) of the Crimes Ordinance has been used to prosecute a wide range of smartphone/computer-related crimes, such as the taking of up skirt photos using a smartphone in private places, uploading of obscene or false information in the internet, dissemination of information online to encourage others to carry out illegal acts, or the use of a computer to further a dishonest act. The CFA has clarified that the section, which was enacted in 1993, does not apply if someone used their own computer/smartphone to commit the crime. The Court has refused to expand the section purely because it would be beneficial for Hong Kong to have a section that can be used to combat computer-related crime. The technology and the way people use it now are very different from what happened in 1993. The current legislation is clearly inadequate to address wrongdoings in the present time. The CFA’s decision sends a strong reminder that there is an urgent need to update the legislation in order to tackle the different kinds of dishonest or wrongful acts by the use of a computer/smartphone, whether or not it is one’s own device.
Background of the case
Primary school teachers used mobile phones and a computer to transmit to third parties questions to be used in competitive primary school admission interviews. The 1st to 3rd Respondents (R1-R3) were teachers at the primary school in question, while the 4th Respondent (R4) was a teacher at another primary school and a former classmate of R2. R1 and R2 used their mobile phones to take photographs of the interview questions and sent the photographs to third parties using WhatsApp. R2 sent her photographs to R3 who then used a school computer to type up the interview questions into a Word document, which was then sent by email on the school computer to R2 and, using her mobile phone, to a friend. R2 sent the Word document by email to R4 and a friend. R4 used her mobile phone to take photographs of the questions and transmitted them to two friends by WhatsApp.
The Charge – Section 161(1)(c) of the Crimes Ordinance
Section 161 (1) of the Crimes Ordinance provides that:
“Any person who obtains access to a computer-
(a) with intent to commit an offence;
(b) with a dishonest intent to deceive;
(c) with a view to dishonest gain for himself or another; or
(d) with a dishonest intent to cause loss to another,
whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.”
Each Respondent was charged with the offence of obtaining access to a computer with criminal or dishonest intent under section 161(1)(c) of the Crimes Ordinance. They were acquitted by the Magistrates’ Court, which acquittal was upheld by the Court of First Instance (CFI). There was no dispute that “smartphone” fell within the definition of “computer” under section 161. The CFI held that as R1, R2 and R4 had used their own smartphones to take photographs, or to receive/send them by WhatsApp, this was not unauthorized extraction and use of information from a computer. They were not obtaining access to a computer under section 161. The Court also held that R3 was not obtaining access to a computer under section 161, as the use of the desktop computer to create the Word file was not unauthorized and she did not obtain or extract the Word file from the school’s computer system.
The Secretary for Justice obtained leave to appeal to the CFA on the basis that a point of law of great and general importance was involved in the case.
Question before the CFA
The central question before the CFA was one of statutory construction, namely whether the offence created by s.161(1)(c) of the Crimes Ordinance covers the use by a person of their own computer with the requisite intent. Given the absence of any evidence of a limit on R3’s authority to use the relevant desktop computer, the Secretary for Justice conceded that, for the purposes of the appeal, the school computer could be treated as though it was her own. The CFA made is clear, however, that this concession was limited to this appeal and did not create a precedent for future cases involving the use by a person of a computer allocated to them by their employer.
CFA’s ruling
The CFA unanimously dismissed the appeal, holding that s.161(1)(c) of the Crimes Ordinance, on its proper construction, does not apply to the use by a person of his own computer, not involving access to another’s computer. It said:
- When tasked with statutory construction, the Court looks to the text of the provision to be construed, its context, including the statute of which it is part and its legislative history, and its purpose.
- The text of the provision here, particularly the words “obtain” and “access did not sit easily with the use by a person of their own device because one does not have to “obtain access” to his own computer.
- The context included the amendments to a number of statutes made by the Computer Crimes Ordinance No 23 of 1993 (CCO), which created new offences and broadened the range of existing offences. The other provisions enacted by the CCO appeared to define the offences by reference to access to or misuse of a computer other than the offender’s own computer.
- The purpose of the provision could be seen clearly from the Legislative Council Brief, which was to create a new offence of dishonest accessing, making it unlawful to “gain access to computers” with the relevant intent. The language used (“gain access”) indicated a purpose directed at conduct by an offender involving access to somebody else’s computer.
- The text, context, and purpose in this case pointed towards construing section 161(1)(c) of the Crimes Ordinance so that it does not extend to the use of the offender’s own computer.
For further information, please contact:
Joseph Kwan, Partner, Deacons
joseph.kwan@deacons.com.hk
