The offence of gaining access to a computer with dishonest intent is fast becoming a textbook example of how the rule of law can morph into the abuse of law to get prosecutors whatever they want. The latest case involved a man who put a camera in his bathroom to produce pictures of a lady using it. Where does accessing a computer come into this? He looked at the resulting video on his cell phone. When we last visited this topic a High Court judge had just decided that a cell phone was a computer. Fans of judicial lawmaking may clap here, if they wish.

Photo: Wikicommons.

The almost infinite possibilities of this offence have not been lost on other people. The other day a DAB stalwart suggested that people who organised protests on their mobile phones could be prosecuted for “dishonest access” as well.

Indeed, why stop at cell phones. Many household appliances now have more computer power than a computer did a few years ago. Your car has more microchips than wheels. My new steam oven has enough computer power to baffle me. We also have one of those Japanese toilets which provides a variety of extra services and packs plenty of electronic ingenuity. Are you keeping your drugs stash in the washing machine? Could be a big mistake.

Now for the root of the problem. The relevant part of the Crimes Ordinance goes like this:

“(1) 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.

Now I do not think you need to be a mindreader to work out what was going on in the collective head of the legislature when this item was passed. The intention was to criminalise the act of obtaining access to a computer which you were not entitled to access. The idea that an otherwise boring or trivial crime might be transformed into a passport to five years of enforced leisure if you did it over an iPhone would have struck the people who voted for this as absurd.

Photo: Pexels.

As of course it is. Our man with the camera in his bathroom is clearly a pig. No gentleman would do such a thing. Still, he is I think entitled to wonder what is going on here. If he was committing an offence, why was he not charged with it. If he was not committing an offence, then how does this provision apply to him? I see the “intent” bit is necessary to deal with cases where the posited crime was not consummated. But that is no reason to use it when the miscreant has achieved his fell purpose, whatever it was. Is it the legal view that a video of your maid in the shower is a “dishonest gain”?

It is distressing that the misuse of this provision has been allowed to continue for years, albeit with most of the victims being small potatoes who were not lavishly lawyered. Do judges never look at the laws they are applying? Is this a symptom of the idleness and complacency which are the hazards (I will not say the hallmarks) of prolonged judicial office? The late Lord Bingham devoted much of his retirement to examining of what the rule of law required. One of the items he came up with was that “the law must be accessible, and as far as possible intelligible, clear and predictable”. Another standard worth a few moments thought in the Department of Justice is “public officials at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred”.

Perhaps we need to lower our standards these days. We can take comfort in the thought that abuse of the law is, so far, still done only by properly qualified lawyers. The Liaison Office’s hilarious variations on “treason” are a treat to come later.

Tim Hamlett

Tim Hamlett came to Hong Kong in 1980 to work for the Hong Kong Standard and has contributed to, or worked for, most of Hong Kong's English-language media outlets, notably as the editor of the Standard's award-winning investigative team, as a columnist in the SCMP and as a presenter of RTHK's Mediawatch. In 1988 he became a full-time journalism teacher. Since officially retiring nine years ago, he has concentrated on music, dance, blogging and a very time-consuming dog.