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HKSAR v. KO KAM FAI - [2001] HKCA 204; CACC000083/2001, 20 June 2001

R. v. HUNG HAK SING and Another - [1995] HKCA 321; CACC000642/1994, 4 August 1995

This is a Court of Appeal decision.

The prosecution arose out of an earlier conspiracy in which customs officers had arranged for illegal immigrants to enter Hong Kong from China for transit abroad. These two applicants were charged with other offences related to that original conspiracy.

On 11 November 1994 after trial Judge Eccleton in the District Court convicted the 1st applicant (Hung) of one offence of obtaining access to a computer with a view to dishonest gain contrary to s. 161 of the Crimes Ordinance, Cap. 200.

The trial judge convicted Hung on his interpretation of s.161 of the Crimes Ordinance in the following terms:

"However Section 161 of the Crimes Ordinance specifically extends the meaning of "gain" beyond that of monetary terms.

When sensitive or classified information is given to an unauthorised person whether money changes hands or not and regardless of the use to which that person intends to put such information there has been a dishonest gain in that the otherwise unobtainable information or knowledge has been gained by that unauthorised person."

Hung appealed to the Court of Appeal.

Facts of Hung's Case

The facts of Hung's offence were that on 14 May 1993 he obtained access to the Immigration Dept computer containing the Travel Record and Immigration Control Enforcement system to discover whether certain people were on the watch list.

The indictment alleged that he obtained access to the computer with a view to dishonest gain for himself and /or another. The prosecution case was that Hung obtained access at the request of Lee Kang Sun, a senior customs officer who was the main participant in the original conspiracy, and that the access was with the view to dishonest gain because Hung performed the service in the expectation that he would be paid for it.

The Laws

The relevant part of s.161 of the Crimes Ordinance Cap. 200 provides

"(1) Any person who obtains access to a computer -

(c) with a view to dishonest gain for himself or another;

.... commits an offence and is liable to conviction upon indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1) "gain" and "loss" are to be construed as extending not only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent, and -

(a) "gain" includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(b) "loss" includes a loss but not getting what one might get, as well as a loss by parting with what one has".

Held by the Court of Appeal Mortimer JA (giving the judgment of the Court):

The act is complete once access is obtained. It is then for the prosecution to prove that the person had the requisite intent - in this case a view to dishonest gain for himself or another. Once the judge had decided that the applicant obtained the access to the computer in this case as an act of friendship, that he was unaware of the underlying illegal purpose, and that he was not expecting any monetary payment or other reward, evidence relevant to proof that any gain was dishonest called for very careful consideration.

Assuming that obtaining information may be sufficient gain within the meaning of the section the judge decided that as the access to the computer was unauthorised, it was therefore dishonest - without further examination of his other findings apparently inconsistent with dishonesty. This finding we cannot accept. Looking at the judge's reasons in the round, it was not open to him to find that the access to the computer was shown by the prosecution to be with a view to dishonest gain.

The Court of Appeal allowed the appeal and quashed the conviction.

Coram: Litton, V.-P., Mortimer and Ching, JJ.A.
Date of Judgment: 4 August 1995; 8 September 1995