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Hong Kong courts

Hong Kong cybercrime law must not be a catch-all that compromises police

Judges’ ruling in case of teachers who leaked school entrance exam questions to parents via their mobile phones has wide implications for law enforcers

PUBLISHED : Friday, 10 August, 2018, 8:43pm
UPDATED : Friday, 10 August, 2018, 10:11pm

The offence that criminalises “access to a computer with dishonest or criminal intent” has been the subject of debate in Hong Kong for years. From taking upskirt photos to leaking exam papers; from cyber frauds and hacking to leaving provocative comments on the internet, the charge has been increasingly used in a wide range of cases. While critics see it as too sweeping and arbitrary, officials say it is an effective tool in combating crime.

Introduced amid growing concerns over cybercrime in 1993, the offence imposes a maximum of five years in jail on anyone obtaining access to a computer with the intent to commit an offence, a dishonest intent to deceive, a view to dishonest gain for oneself or another, or to cause losses to another. Of the 293 cases prosecuted between 2008 and 2014, 252 resulted in convictions, representing a rate of more than 85 per cent, according to the government.

Powerful as it, the law is being used in an array of cases, so much so that critics say it may be used arbitrarily. Admittedly, the use of computers and mobile phones has become such a part of life that it would seem difficult for anyone to stay away from such devices. Criminals are no exception. Although officials have dismissed claims the charge may be easily used, the circumstances in which the law may apply are wide-ranging. The charge is sometimes brought against the suspect along with other counts, giving the impression it is being used as a fallback to enhance the chance of conviction.

Leaked exam questions ruling halts upskirting prosecutions

In a recent court ruling in a case involving four teachers who leaked school entrance exam questions to parents via their mobile phones, the judge ruled that their actions did not amount to a crime. Even though the leak was described as wholly inappropriate and disgraceful, the accused were merely using their own phones and therefore did not constitute “accessing” someone’s computer.

The ruling has helped clarify the purview of the controversial law and prompted the government to suspend prosecutions of crimes related to smartphones for the time being. But the government has already applied for leave to appeal. If it becomes the reference for future cases, the scope of application may well become much narrower. The police and the Department of Justice should carefully study the implications for law enforcement.

Law enforcers around the world need effective ways to combat increasingly sophisticated crime in modern days. While the last thing we want is a well-intentioned law being used arbitrarily as a catch-all tool, the law enforcement power of police should not be unduly compromised. The latest case involving the use of mobile phones has renewed the debate on how to ensure the legislative tool can effectively serve its purpose.