Hong Kong’s top court ruled on Thursday that section 161 of the Crimes Ordinance – “access to a computer with criminal or dishonest intent” – was not meant to cover a person using their own tech devices.
The decision was a rebuke to the Department of Justice, which has been criticised for using the charge as a catch-all mechanism to prosecute a range of computer-related crimes. The central question was whether the phrase “obtain access to a computer” should be interpreted as “gaining access” to a computer belonging to someone else, or simply “using” any computer.
The case arose in 2016 when four primary school teachers were accused of using smartphones to take photos of their schools’ entrance exam papers and distributing the photos. They had been charged under subsection 161(1)(c) of the Crimes Ordinance – “obtaining access to a computer with a view to dishonest gain for himself or another.”
See also: Dishonesty and computers: how a loosely drafted offence is abused by prosecutors
They were acquitted by a magistrate, and an appeal court upheld the decision. The government then took the case to the Court of Final Appeal in February.
On Thursday the city’s top court dismissed the government’s appeal unanimously, saying that it arrived at the conclusion by looking at the legislative history and purpose of the 1993 statute that created the offence.
A 1992 legislative memorandum used the term “gaining access,” the judges noted: “The language of the memorandum itself, using as it did the term ‘gaining access,’ indicates a purpose directed at conduct by an offender involving access to somebody else’s computer.”
Other provisions in the same 1993 statute also made references to the access or misuse of a computer other than the offender’s own, the judges added.
Prosecutors tried to argue that a narrow interpretation of the offence would “significantly undermine its purpose and efficacy in combating computer-related crime” – for example, hacking, phishing, identity theft and upskirt photographs.
However, the court said the case was not about advancing 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,” the judgment read.
Prior to Thursday’s judgment, the section 161 offence has been invoked to criminalise various activities, including online fraud, computer hacking, upskirting and online publication of obscene or threatening information.
Critics have also said there was a gradual broadening of the terms of the offence: following a 2013 case, mobile phones fell under the definition of “computer” in section 161.
During the February hearing, Director of Public Prosecutions David Leung made the argument that the offence should cover a person using a computer or phone to search Google Maps for an escape route after committing a crime.
However, the argument was met with some scepticism from judges, with one asking whether the offence would cover a person who threw a computer at someone else.
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