Hong Kong’s Law Reform Commission has proposed creating five new cyber crime offences, with tougher penalties of up to life imprisonment, after concluding that existing punishments are too weak to safeguard national security.

A consultation paper, released on Wednesday, recommended new legislation against: unauthorised access to a programme or data; unauthorised interception, disclosure or use of computer data for a dishonest or criminal purpose; illegal interference with computer data; illegal interference with a computer system; and knowingly making available or possessing a device or data for the purpose of committing a crime.

(From left) Members of the Cybercrime Sub-committee of the Law Reform Commission (LRC) the Secretary of the LRC senior counsel Wesley Wong, Chow Kam-pui, senior counsel Derek Chan and the Secretary to the Sub-committee Cindy Cheuk announcing the Consultation Paper on Cyber-Dependent Crimes and Jurisdictional Issues in a press conference on July 20, 2022. Photo: GovHK.

The commission, whose proposals will be considered during a public consultation period ending October 19, recommends penalties of two to 14 years’ imprisonment for most offences, compared to two to five years under existing laws. For “aggravated offences,” such as illegal interference with computer data or a computer system, the highest penalty could be life imprisonment, the commission recommends.

Senior counsel Derek Chan, a member of the commission’s cybercrime sub-committee, said life imprisonment could be applied in cases such as someone interfering with the computerised traffic control system, leading to a large number of car crashes.

The barrister said the current highest penalty in such a case was five years’ imprisonment, which was “insufficient” given the severity of the offence.

The commission began its study in early 2019, and said it had taken into account the enactment of the Beijing-imposed national security law in June 2020.

“The duty of Hong Kong to safeguard national security reaffirmed the need for reform of cybercrime laws in Hong Kong and the sub-committee has taken this into consideration in its pursuit of the cybercrime project,” the consultation paper read.

A banner inside the Hong Kong government headquarters promoting the national security law. Photo: GovHK.

The sweeping security legislation criminalises subversion, secession, collusion with foreign forces and terrorist acts, which are broadly defined to include disruption to transport and other infrastructure.

Exemptions on public interest grounds?

The public consultation invites suggestions on whether there should be exemptions from criminal liability, lawful excuses, or a specific defence for certain purposes or professions.

When asked whether the public interest could be a reasonable excuse for illegally accessing a computer, Chan said the commission did not make specific recommendations.

“The whole point about using reasonable excuse is to let the court to have some flexibility, and the defendants to have some flexibility, arguing what can or may be reasonable or may not be reasonable by reference to our own societal standards,” he said on Wednesday.

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Candice Chau

Candice is a reporter at Hong Kong Free Press. She previously worked as a researcher at a local think tank. She has a BSocSc in Politics and International Relations from the University of Manchester and a MSc in International Political Economy from London School of Economics.