High Court recently handed down a judgment on a case related to a charge of “obtaining access to a computer with a view to dishonest gain for another”, contrary to Crimes Ordinance (Cap 200) s.161(1)(c). (HCMA 466/2017) It ruled that the Department of Justice’s (“DoJ”) proposition in law was wrong because the respondents were in fact using their own computers or computers they were authorized to use. The court found that the interpretation argued by the DoJ was infinitely wide and incompatible with the Court of Final Appeal’s judgment in Li Man Wai, which stated that the said offence only prohibits the unauthorized and dishonest extraction and use of information. The court found that the DoJ’s “infinite possibilities” proposition would result in the anomalies inconsistent with the established legal principles in criminal law, and could not have been the intention of the Legislature. (See paras 67-68 of the judgment)
The court found that “obtaining access to a computer” and “using a computer” have different meanings. To prove the actus reus of the offence, the prosecution must prove “the unauthorized extraction and use of information” from a computer. (See para 68 of the judgment)
The Civil Rights Observer welcomes the High Court’s decision as it clarifies the definition and ambit of the offence. The Civil Rights Observer is highly concerned that the past arrests and prosecutions made by the police and DoJ against conducts such as online speech, taking upskirt pictures, leaking confidential information, and infringing intellectual property rights were in fact abusive application of the offence. Police and the DoJ should not bend s.161(1) into a “catch-all” offence in order to secure a conviction even if the conduct in question appears problematic, as imposing criminal liability on someone requires utmost prudency. Not only would the abusive application appear absurd to the public, it would tarnish the confidence the people have in criminal justice and in the prosecution.
The Civil Rights Observer stresses that a person convicted will have to face penalty that involve restrictions to his/her liberty and rights, in addition to the enormous stress and economic and time costs during criminal procedure. The Police and DoJ must make arrest or prosecution only with sound legal basis and in the interest of the public, and with utmost prudency. Also, legally prescribed offences must be certain as required by the principles of the rule of law and of human rights.
In view of the judgment, the Civil Rights Observers has the following demands and suggestions to the Police and the DoJ:
- The Police and DoJ should educate the frontline law enforcement agents and prosecutors on the essence of this judgment to ensure their understanding of the latest development of the law and the correct application of the offence;
- The Police must only make a Crimes Ordinance s.161(1) prosecution after obtaining legal advice from the DoJ;
- 161(1) charges can only be made with the approval of a deputy director of public prosecution or above to ensure prudency in its application;
- The DoJ should review s.161(1) and consider proposing amendments to reflect the court’s judgment and the legislative intent;
- The DoJ should work closely with the Law Reform Commission regarding the creation of specific offences for voyeurism and non-consensual visual recording of another person for a sexual purpose etc as soon as possible, and to commence necessary research and preparation for introducing relevant
21 August 2018