Smartphones should be classified as computers, according to a high court judge who yesterday convicted a man of one count of dishonest use of a computer after he had tried to use a mobile phone to take a photo of a woman inside a toilet.
The scope of the word "computer" had been clarified by Court of First Instance judge Barnabas Fung Wah in an appeal lodged by the Department of Justice, which tried to overturn an earlier decision by a magistrate who had acquitted Ken Wong Ka-yip of one count of dishonest use of computer in March last year.
Wong originally admitted the charge in front of then-magistrate Kwok Wai-kin. But the magistrate acquitted the 40-year-old plumber, ruling that the mobile phone involved could not be classified as a computer under the Crimes Ordinance, even though he accepted that the literal meaning of the word "computer" was broad enough to cover smartphones.
The offence took place in November 2011 when Wong was found to have set up his smartphone inside a toilet, allegedly with the intent of taking a photo of a woman who worked in the same office as him, according to prosecutor Winnie Lam.
But Wong was not successful since the woman found the phone before any photo had been taken.
The Department of Justice in its appeal said it was important to clarify the definition and scope of the term "computer" to determine whether it included smartphones. It also cited other legislation including the Evidence Ordinance to argue that "computer" carries a broader meaning which encompasses devices that "store, process or retrieve information".
In his ruling yesterday, Mr Justice Fung found the magistrate had been wrong in narrowing down the meaning of the word to exclude mobile phones, and therefore found Wong guilty of the offence. In his written judgment, given in Chinese, he said the court should identify the purpose of the legislation in order to properly interpret the law.
However, he declined to give a definite meaning of the word "computer", writing that in light of rapid technological development the meaning could vary from time to time.
"I believe the reason the Legislative Council does not define the meaning of the word computer under the Crimes Ordinance is based on the fact the technology has developed so rapidly that the definition has become too broad and variable to have an exhaustive meaning."
After yesterday's ruling, Wong was sentenced to two weeks in jail but this was suspended for two years in light of him pleading guilty and the fact the crime had been unsuccessful.