In a recent decision (Secretary for Justice v Cheng Ka-Yee, HCMA 466/2017) the Court certified the following question of law as being of great and general importance: “Is the actus reus of the offence under section 161(1)(c) of the Crimes Ordinance, Cap 200 (CO) restricted to the unauthorised extraction and use of information from a computer?” (the Decision)
Section 161 (1) of the CO 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.”
The Decision originates from the prosecution of four primary school teachers who had used their mobile phones and a school computer to leak admission interview questions of the school. The teachers were charged with the offence of obtaining access to a computer with criminal or dishonest intent under section 161 of the Crimes Ordinance, Cap 200.
Their acquittal by the Magistrates’ Court was upheld by the Court of First Instance “CFI), which held that using a person’s own mobile smartphone or using a computer which is not unauthorised to leak questions did not amount to “obtaining access to a computer”.
The CFI held that section 161(1)(c): “…only prohibits the unauthorized and dishonest extraction and use of information” and that “obtaining access to a computer” and “using a computer” have different meanings and that to prove the actus reus of the offence, the prosecution must prove “the unauthorized extraction and use of information” from a computer.
The Secretary for Justice made an application for a certificate to enable it to appeal the CFI’s decision to the Court of Final Appeal (CFA), that a point of law of great and general importance was involved in the Court’s judgment dated 6 August 2018. By that judgment, the CFI had dismissed the Secretary for Justice’s appeal against the acquittal of the teachers.
The CFI held that as the three teachers 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 one teacher 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 Court said that although the result of this application probably would not affect the teachers’ acquittals it would be in the interests of the public that there be a final resolution of the proper construction of the controversial offences under section 161 of the CO, as this affects not only the offence under section 161(1)(c), but also other offences under section 161 of the CO.
Offences under section 161 of the CO include technology crimes like online fraud, illegal access to a computer system and taking upskirt photos and videos.
It can be seen that the CFI’s interpretation of “dishonest use of computer” was construed narrowly. Although this case did not deal with offences such as taking upskirt photos, where offenders usually use their own smartphones to take photos, which does not involve unauthorized extraction and use of information, this narrow interpretation may affect how the Department of Justice lays charges in respect of such offences. It is noteworthy that, the Department of Justice has had to suspend prosecution of crimes relating to smartphones, including “up skirt photo” crimes, and consider alternative charges, at least for the time being, rather than relying on section 161 of the Crimes Ordinance.
It remains to be seen whether the CFA will endorse such narrow interpretation of the actus reus of the offence under section 161(1)(c). We shall provide a further update once the CFA has decided the issue.