Articles: Law

SJ v Cheng Ka Yee & others
HK Court of Final Appeal, 4-Apr-2019
As we predicted last August, HK's highest court confirms that the Government has been overreaching by charging people with "obtaining access" to their own computers with criminal or dishonest intent. In such cases the Government must now prove the core offence rather than using the catch-all "but she used her computer/ smartphone/ smartwatch to prepare for an offence". You can't "obtain" something you already have.
SJ v Cheng Ka Yee & othersSection 161
HK Court of First Instance, 6-Aug-2018
Kudos to Deputy Judge Pang Chung Ping, who calls out the Government for its abuse of section 161 of the Crimes Ordinance, "obtaining access to a computer" with dishonest intent. He rules that something which is not a crime without the use of a computer cannot be a crime just because a computer is used, and that "obtaining access" to someone else's computer is not the same as "using" your own computer, whether it is a smartphone or any other type of computer. We wait to see whether the Government will take this to the higher courts, but in our view, the game is over.
4 in court for alleged illegal use of computers to get school interview questions
ICAC, 28-Aug-2015
This is another stretch of the Crimes Ordinance using the offence of "obtaining access to a computer with a view to dishonest gain for herself or another". The ICAC says that the teachers' smartphones are computers, but presumably the claim is that the teachers used them to take pictures of the question sheets before they were returned. If they had instead used a digital camera, or even an analogue film camera, then the offence would not apply. Another reason to amend the ordinance.

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