4 y( k- B9 L( w7 P9 d9 Mtvb now,tvbnow,bttvb[1] http://www.legco.gov.hk/yr14-15/chinese/panels/se/papers/se20150602cb2-1560-3-c.pdf 1 K8 u) {# ^$ Z1 u* o& ]& U5.39.217.76[2] HCMA723/1998公仔箱論壇0 D; ?: D- x& u5 W% W9 |
[3] HCMA77/2013 p. I' m' c7 |, G5.39.217.76[4] 判詞第50 段中提到: “There is a very wide range of criminal and dishonest activities which fall within the ambit of s.161. In this day and age, very serious crimes or frauds can be committed by gaining access to other people's computers and uplifting information contained therein. Examples include meddling bank records, transferring large sums of money from one account to another, and stealing secret programmes and data such as customers lists and business records. Such activities can be very serious and obtaining access into computers with such intention or for such purposes is no less grave.” . }( u4 f: Q1 X9 F f[5] 蘋果日報2014年12月8日報導：議員質疑只捕不控如恐嚇: http://hk.apple.nextmedia.com/news/art/20141208/18961819tvb now,tvbnow,bttvb* E0 O) K4 v8 x7 n% ^/ ]1 _
公仔箱論壇( y. q G7 a9 o) a
4 R/ E) w: x( r9 bIn the meeting on 2 June 2015 of Legislative Council Panel on Security, Councilor Charles Mok raised inquiries on the scope of applicability of section 161 of Crimes Ordinance (Cap. 200), access to computer with criminal or dishonest intent (“Section 161”).8 _* u4 `2 j% s
2 Y# V9 C B* M' v9 A+ \公仔箱論壇According to LegCo Paper Number (LC Paper No. CB(2)1560/14-15(03))[1], Security Bureau relied on the following two cases to establish that Section 161 aims at combating any acts of using computer with criminal or dishonest intent. / e* K" p( {5 o$ z" b& u8 O; S ( k# P: `/ |5 E' }4 n% ]- HKSAR v Tsun Shui Lun[2]3 E. x7 x% k' ?' |
- Secretary for Justice v Wong Ka Yip, Ken[3]公仔箱論壇6 M; u9 ?$ C( p4 m6 N+ h
For the reasons below, the statement made by the Security Bureau is simply a sweeping generalisation./ [- l2 b4 v8 h
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(I) The first case referred to does not state Section 161 applies to online statementstvb now,tvbnow,bttvb# d, O+ S9 }; u2 n" Q$ m
In HKSAR v Tsun Shui Lun, the defendant was charged with an offence under section 161(c) for his unauthorized access into another person’s computer. The Security Bureau quoted paragraph 20 of the judgment which apparently only focuses on authorised access into another person’s computer, rather than online statements. 2 q( v2 @6 t# @9 r. q; z公仔箱論壇In fact, the Security Bureau only partially quoted paragraph 20 of Hon Chan CJHC’s judgment. In the remaining part of paragraph 20, the judge named a few acts of unauthorised access into another person’s computer, which includes: ! L, W( f7 C2 ^. u F- A businessman wants to acquire information about his competitors in order to enable himself to have an advantage over them. 5 |. i# I4 i3 R$ @TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。- A disgruntled employee wants to ruin his employer’s business by revealing his employer’s trade secrets to others. * d* f, r( e; i! ^5 m0 ^TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。- An ex-employee wants to obtain a list of his former employer’s customers in order to solicit business from them.7 g! @! m- b0 c# |# l2 p
- A dissatisfied bank officer wants to erase the bank’s records form the computer in order to cause confusion or to irritate the bank’s customers. ; I, t$ Y6 ^& l5 c3 A6 wHon Chan CJHC when considering sentencing in paragraph 50 of the same judgment also listed some examples of criminal and dishonest activities which fall within the ambit of Section 161. All the examples are related to commercial crimes. [4] However, these examples do not include online statements, which have been frequently prosecuted, and are of an entirely different nature.tvb now,tvbnow,bttvb/ l; J6 W$ }. i3 q! S: n& p
Therefore, the statement made by Security Bureau (ie the Judge has clearly indicated that Section 161 aims at combating any acts of using computer with criminal or dishonest intent) is over-generalised, even entirely wrong.5.39.217.761 M9 x$ J- u) j2 o5 G3 Q- }( Q
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(II) The second case referred to does not reach an conclusion as the Security Bureau claimed 6 O. F0 c: W, N9 ~" z ?5.39.217.76The Security Bureau also referred to Security for Justice v Wong Ka Yip, Ken to support the statement that, according to Section 161, once an offender had accessed the computer, and at the material time he had one of the four intents or purposes set out in section 161, he would have contravened the section. 7 n- V. v5 `2 N7 n a2 @* g. c5 | & x0 T" @ A; e0 g5 UIn fact, this case only confirmed that Section 161 covered acts using smart phone or any other electronic devices to commit the offence. This means that if the device used is not an electronic one, Section 161 will be inapplicable. The Security Bureau cannot (and absolutely should not) extend the judgment limitlessly so as to achieve the conclusion that it wishes to see.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。0 r4 f. x6 D/ o( @
4 k! o/ f# S, E* d+ [2 H7 f, Utvb now,tvbnow,bttvbThere are also doubts as to whether it is appropriate to engage Section 161 to deal with this type of indecency cases. Although it is established that Section 161 could be used to prosecute crimes using mobile phones as device, it gives an impression that engaging Section 161 to prosecute is just done out of convenience. # F4 u; f& H* O6 z1 H9 Ktvb now,tvbnow,bttvbCalling for Review of Applicability of Section 1615.39.217.76+ K; c& Z& O" x- g& E- ^( s9 G U" Z
On the aforesaid, the Security Bureau should review the applicability “access to computer with criminal or dishonest intent” as soon as possible, in order to avoid ill-use of Section 161 in prosecution. Section 161 should not be engaged for the sole reason of “cherry picking the charge which appears easier to secure a conviction”.[5]tvb now,tvbnow,bttvb& D) H: k) v- g2 z" }' y) f
公仔箱論壇8 \5 C: O5 _3 _1 ~) l l
Progressive Lawyers Group2 E0 ^7 _2 A/ \, l/ X. [
9 June 20155.39.217.76' E& U& W2 {: L' O7 G
( ^6 k( D8 G+ _, k: ?$ J公仔箱論壇[1] http://www.legco.gov.hk/yr14-15/chinese/panels/se/papers/se20150602cb2-1560-3-c.pdf5.39.217.767 h; h) _* q0 B, O3 \
[2] HCMA723/1998. `5 R8 N$ a5 M1 t
[3] HCMA77/201* Q+ ^1 r& L, W) C
[4] Paragraph 50 of the judgment states: "There is a very wide range of criminal and dishonest activities which fall within the ambit of s.161. In this day and age, very serious crimes or frauds can be committed by gaining access to other people's computers and uplifting information contained therein. Examples include meddling bank records, transferring large sums of money from one account to another, and stealing secret programmes and data such as customers lists and business records. Such activities can be very serious and obtaining access into computers with such intention or for such purposes is no less grave."7 w( m, A& s8 v+ L0 {5 n
[5] Apple Daily, 8 December 2014, Councilor questioned: arresting but not prosecuting are no different from blackmail: http://hk.apple.nextmedia.com/news/art/20141208/18961819
