The Department of Justice has been allowed to go to the top court to appeal a case concerning the nature of the “access to computer with criminal or dishonest intent” charge under section 161 of the Crimes Ordinance.
Last month, the department lost a case at the High Court in which four primary school teachers were accused of using their smartphones to take photos of their schools’ entrance exam papers and distributing the photos.
High Court judge Pang Chung-ping said in his ruling that prosecutors must prove that “unauthorised extraction and use of information from the computer” had occurred in bringing a case under the charge. Pang said that “obtaining access to a computer” and “using a computer” have different meanings, and the usage of one’s own computer would not constitute a crime under section 161.
The charge has often been criticised for its application to a broad range of cases where computers were involved. The department said it has asked to suspend 15 cases where the charge was used.
In an application to go to the Court of Final Appeal for the August case, the department said the case involved significant legal viewpoints. It said the intention of the law – the misuse of computers – should be understood fully, and prosecutors should not need to prove that the accused have accessed information without authorisation.
The department raised an example that if a hacker sent fraudulent links through email and recipients suffered damages as a result, it would not be a crime under the interpretation given by Pang since no unauthorised use was involved – even though it was clearly an inappropriate use of a computer.
Judge Pang approved the appeal, saying that the definition under the controversial charge was arguable and involved public interests. He added that the appeal had the potential to affect other cases.