Introduction

The wide interpretation of the charge of “obtaining access to computer with a view to dishonest gain for himself or another” under section 161(1)(c) of the Crimes Ordinance (Cap 200) (the “s.161(1)(c) Charge”) was considered in the Court of First Instance (“CFI”) in Secretary for Justice v Cheng Ka Yee and others [2018] HKCFI 1809, which was discussed in our publication in September 2018 “When would using a computer be a crime? CFI decision narrowed the scope of application of the offence of accessing a computer with dishonest intent”.

The Department of Justice appealed the decision. The case was finally determined in the Court of Final Appeal (“CFA”) case in Secretary for Justice v Cheng Ka Yee and others [2019] HKCFA 9. The CFA unanimously dismissed the appeal and upheld the CFI’s decision that the s.161(1)(c) Charge should not apply to a person’s own computer when it did not involve access to another’s computer.

Interpretation of “obtaining access”

The CFA decided, inter alia, that as a matter of language, one always “obtain” access to something to which one did not have access before. Also, the statutory language is a bit redundant as the verb “obtain” is a synonym for “access” when used as a verb. The overlap emphasizes the oddness of applying the s.161(1)(c) Charge to the use by a person of their own computer.

Also, during the legislative history, the interpretive provision “a person obtains access to a computer if (and only if) he causes a computer to perform any function” was deleted. The words “(obtaining access) with or without authority” did not appear in the bill either.

The CFA concludes that the s.161(1)(c) Charge does not apply to the use by a person of his or her own computer, not involving access to another’s computer. The CFA dismissed the prosecution’s appeal accordingly.

Comparison with a previous case

Secretary for Justice v Wong Ka Yip Ken

In a previous CFI case Secretary for Justice v Wong Ka Yip Ken [2013] 4 HKLRD 604, the defendant set his smartphone to record a video in the ladies’ washroom of his office, and was charged with the s.161(1)(c) Charge. The CFI considered the definition of “computer” and held that on a proper interpretation, the dictionary meaning of “computer” as “a device for electronic data storage, processing and retrieval” applied and included the defendant’s smartphone. The defendant was hence found guilty. In the judgment, there was no discussion on the definition of “obtaining access” or whether the s.161(1)(c) Charge applies to a person’s own device.

If this case was decided after the latest CFA judgment in Cheng Ka Yee, the result would be different. As the defendant in Wong Ka Yip Ken was using his own smartphone device to record the video, it would not satisfy the definition of “obtaining access” as the defendant was using his own device, and it did not involve access to another’s computer.

For the possible alternative charges for the Wong Ka Yip Ken:

• “outraging public decency” may not apply, as it is difficult to prove the elements of “capable of being seen by two or more persons who are actually present” and “in a place where there was a real possibility that members of the general public might witness it”;
• “disorder in public places” may not apply, as the female toilet of the company is unlikely a “public place”;
• “loitering causing concern” may or may not apply, it depends on whether the female toilet of the company is considered as a “common part of a building”, for example, it depends on whether the toilet is in common use by the occupiers of the building;
• The prosecution may have to rely on the new offence of “voyeurism” proposed by the Law Reform Commission, which criminalises acts of non-consensual visual recording of another person done for a sexual purpose.

Conclusion

The s.161(1)(c) Charge had been used to prosecute cases involving stealing of information and breach of privacy by the use of a computer (including a smartphone), but there had been an excessive usage of the s.161(1)(c) Charge, which exceeded the original purpose of the law. The Department of Justice considered that it should cover all computer-related crimes and the objective of the offence was to prevent the improper use of a computer that could lead to a crime. The CFA’s ruling in Cheng Ka Yee has rectified the situation by narrowing the scope of the charge. As Mr Justice French NPJ commented in his judgment, it is not the function of the Court to adopt a construction of a statute that advance a desirable public policy. The Court seeks to ascertain the purpose of the statute to inform its construction. It does not identify a purpose which it thinks would be beneficial and then construe the statute to fit it.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.