Computer Crime Law in Hong Kong Why It Matters and What's Next? April 9 2019 Computer Science Hong Kong Polytechnic University

1. Computer crime law
in Hong Kong
why it matters and what’s next?
Charles Mok
Legislative Councillor (IT)
2019-4-9 Sharing @ PolyU COMP
Legal Aspects And Ethics Of Computing

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3. 3
The Interception of Communications
and Surveillance Ordinance (ICSO)
provides a statutory regime for the authorisation
and regulation of interception of
communications and covert surveillance
conducted by law enforcement agencies to
prevent or detect serious crime and protect
public security.
The Commissioner on Interception of
Communications and Surveillance is an
independent oversight authority, appointed by
the CE on the recommendation of the Chief
Justice.

4. 4
Post-Snowden:
Concern over
government
surveillance via
user data
requests without
court warrant

5. 5Source: Hong Kong Transparency Report, JMSC HKU

6. 6Source: Hong Kong Transparency Report, JMSC HKU

7. 7
Personal Data
(Privacy)
Ordinance

8. the Crimes Ordinance
(Cap. 200)
Section 161
access to computer with
criminal or dishonest intent
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What is the
s161
created for
originally?
How is the
s161 being
used?
What are the
problems
with how it is
used?
CFA’s
ruling:
Now
what?

9. 9
https://www.elegislation.gov.hk
161. Access to computer with criminal or dishonest intent
(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.

10. What was
the original
purpose?
After a study began in 1988,
s.161 came into operation in 1993
- pre-Internet age
- No social media, no smartphone and mobile
devices
Computer fraud was becoming an emerging area of
crime
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11. “
...the new offence of access to a
computer with criminal or dishonest
intent" aimed at penalising "access to a
computer for acts preparatory
but falling short of the
commission of a fraud.
--- then Secretary for Security, during the resumed
debate on the Second Reading of the Bill (1992)
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12. How about now?
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Application of s.161 has
become much wider, and
exceeded the original
purpose of the law

13. S.161 turned into
a catch-all for
the prosecution
More than 100 people were charged
every year in the past 5 years by this law.
⊙ Online fraud
⊙ Illegal access to a computer system
⊙ Sending / receiving confidential info
⊙ Taking upskirt photos/videos
⊙ DDoS attack
⊙ Posting threatening messages online
or inciting to “siege” LegCo
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14. s.161 is applied to charge any case
involving a ‘computer’
Usually as an alternative charge
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What are
“computers”?

16. HKSAR v Tsun Shui Lun [1999]
- A technical assistant to a radiologist at QM Hospital
released the medical records of the Secretary for
Justice to the press without her consent, claiming
the public’s right to know
- The case sparked public concern over privacy
- Tsun was charged with s.161 access to a computer
with a dishonest intent, sentenced to 6 months
imprisonment after trial in the magistracy
- “It is the intent or purpose of the offender at the
time of access which must be looked at, not his
intent or purpose at some later stage”
The
application
of s.161 in
court cases
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17. HKSAR v Tsun Shui Lun [1999]
- Significance: meaning of ‘gain’ under section 161
- not confined to financial or proprietary benefits
- covers intangible benefits and can be transient
- Applicable as long as a person anticipates a benefit
or advantage even it cannot be used
The
application
of s.161 in
court cases
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18. Security for Justice v Wong Ka Yip [2013]
- Wong was acquitted of s.161, obtaining access to
computer with view to dishonest gain (taking
videos of a colleague in the ladies’ toilet)
- The appeal was held, finding him guilty as charged
- The dictionary meaning of “computer” included
Wong’s smartphone: definition of “computer” as a
device for electronic data storage, processing and
retrieval
- Significance: established the smartphone could
perform all the functions of a computer and was a
“computer” in s.161
The
application
of s.161 in
court cases
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19. Same behaviour,
different consequences?
E.g. Taking/sending photo of stolen
exam paper using a smartphone =
Access to computer with criminal or
dishonest intent
What if the person used a
film camera or copied by hand?
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20. Number of cases related
to s.161 skyrocketed as
law enforcement had to
deal with more
computer-related
crimes
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21. S.161 &
Online
Speech
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⊙ Section 161 has a lower standard for prosecution
than the more substantial offences such as “illegal
gathering,” “criminal intimidation,” or “assaulting
police.”
⊙ In recent years, activists had been arrested for
online remarks
⊙ Usually sentenced to community service or
rehabilitation centre
⊙ Has the s.161 been applied selectively to repress
political activists’ speech on the Internet?

22. Is it fair for the
prosecution to apply the
law beyond the original
purpose and even
against online political
speech?
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Example in the Occupy Central movement
Tong Wai-leung, 20-year-old defendant,
uploading the personal data of a police officer
and that of his family onto the internet, then
claiming that someone had been directed to
assault said family members.
- arrested for “criminal intimidation”
- Tong pleaded guilty to obtaining access to
a computer with criminal intent.

25. at least 19 people have been
arrested for comments
made online from June 2014
to August 2016.
one could be found guilty merely by having an
“intention” of committing a crime while using a
computer
Thoughtcrime?
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26. Requesting the government to disclose details about the use of s.161 in LegCo
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24 April 2013
5 Nov 2014

27. Online petition campaign
in 2014 calling for the
stop of abuse and
reviewing the scope of
s.161
More than 5000 people
supported
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Civil society
groups
expressed
concerns
over the
scope of s.161

29. Government defended the
prosecution’s use of s.161 in
my motion debate calling for review
(2015)
- Necessary to address rising
computer crimes
- There is no inconsistency
- Critics misinterpreted the law
Taking the easiest charge
as catch-all in the
prosecution?
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31. “
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...The text of the provision, including the words
“obtain” and “access”, suggested an
unauthorised use of a computer, and did not sit
easily with the use by a person of their own
device....All in all, the text, context, and purpose
in this case pointed towards construing
s.161(1)(c) of the CO so that it does not extend
to the use of the offender’s own computer.
---Mr Justice French NPJ (Court of Final Appeal)
4 April 2019

32. The primary
school
teachers &
exam papers
case
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34. The Court of
Final Appeal
ruled the
existing s.161
did not apply
to a person’s
own phone
or computer.
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36. What’s next?
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More discussion over cyber
crime in the coming years
Specific offence against
upskirt photo/video taking?
Citizen’s freedom and
rights must be protected

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38. Thanks!
Stay in touch:
charlesmok@charlesmok.hk
Twitter @charlesmok
www.charlesmok.hk
facebook.com/charlesmokoffice
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