Hong Kong courts

Four Hong Kong primary teachers who leaked entry exam questions did not commit a crime, court rules

Judge says while teachers’ conduct was ‘wholly inappropriate and disgraceful’, it did not constitute a crime

PUBLISHED : Tuesday, 07 August, 2018, 8:00am
UPDATED : Tuesday, 07 August, 2018, 1:10pm

The conduct of four Hong Kong primary school teachers who leaked entry exam questions was “wholly inappropriate and disgraceful”, but their actions did not amount to a crime, an appeal court ruled on Monday.

Deputy High Court Judge Pang Chung-ping refused to convict Cheng Ka-yee, Tsang Wing-shan, and Wong Pui-man, from Church of Christ in China Heep Woh Primary School in Prince Edward and U Leng-kok, a teacher at another primary school, ruling that using their mobile phones to leak questions did not amount to the charge of “obtaining access to a computer” with a view to dishonest gain.

The four, in their late 30s and early 40s, were first acquitted by Kowloon City Court in February 2016, when they were found not criminally liable to leaking pictures and copies of questions that would be put to candidates vying for a place in the primary school.

The questions eventually found their way to parents, some of whom had also asked the teachers to refer their children to the school.

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Intended to target technological crime, the present charge has been slammed by critics for being too wide-ranging. For instance, someone found taking upskirt photos of others is sometimes charged with the crime as opposed to committing indecent acts in public.

The prosecutors, who argued that they did use a computer – their mobile phones – with a dishonest intent, had lodged an appeal following the lower court’s findings.

Their conduct was wholly inappropriate and disgraceful which no doubt deserved to be condemned
Pang Chung-ping, deputy High Court judge

Handing down his judgment, Mr Justice Pang said: “In my view, their conduct was wholly inappropriate and disgraceful which no doubt deserved to be condemned.”

But he drew a difference between “obtaining the access of a computer” and simply “using” a computer.

During the trial, the lower court heard on June 14, 2014, Cheng, Tsang and Wong had to attend a meeting at which the questions would be conveyed to the teachers.

Despite allegedly being told it was confidential, Cheng took pictures of them with her phone and sent them to a friend. Tsang also took some snaps and sent them to Wong, who typed them up on a computer and then sent them back to Tsang.

Tsang, who went to university with U, then sent it to her, who forwarded them to other parents.

But Pang ruled that using “their own” smartphones, as opposed to someone else’s devices, to take photographs and sending them did not amount to an unauthorised extraction from a computer. Neither was using a computer to type up the questions, even though it was the school computer.

“In my judgment, [it] does not support the contention that “obtaining access to computer” includes using a person’s own smartphone to communicate, to take photographs or to send messages,” he wrote.

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In the lower court’s ruling, magistrate Veronica Heung Shuk-han ruled that she was not sure if all three of them at Heep Woh had been warned of the confidentiality.

On Monday, Pang said: “They should know the need and importance of keeping the school’s information and material for school admission selection confidential.”

But he said this was not a case where he should intervene because the magistrate was entitled to her findings and that they were far from being “perverse” or “plainly wrong”.

The magistrate also ruled earlier that although some of the defendants took pictures of the questions at the briefing, they did not try to hide them – inconsistent with the charge of dishonest intent.

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Tsang said she took the pictures and sent them to Wong because she feared she might not make it to the session, the court heard earlier.

When they were acquitted two years ago, Tsang hinted to the reporters that the court drama originated from an internal dispute among staff.

“From the start until the end, [the allegations have] always been from that ridiculous teacher,” she said, without naming the person.

Cheng, Tsang and Wong are still teachers at Heep Woh according to the school’s website.