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Hong Kong courts

Ruling in favour of Hong Kong schoolteachers who leaked exam questions suspends prosecution of smartphone-related crimes

Legal sources tell Post court verdict deals ‘catastrophic’ blow in city’s efforts against problems such as taking of upskirt photos

PUBLISHED : Friday, 10 August, 2018, 8:01am
UPDATED : Friday, 10 August, 2018, 8:33am

Hong Kong’s Department of Justice has been forced to suspend the prosecution of smartphone-related crimes, including the taking of upskirt photos, after the High Court this week refused to convict four primary schoolteachers who leaked entrance exam questions.

Legal sources told the Post that the situation was “rather catastrophic” after the court decided the teachers had not committed a crime under the wrongly applied charge of “obtaining access to a computer for criminal or dishonest gain” – which is widely used to prosecute crimes involving smartphones.

“We may have just lost a one-size-fits-all charge, at least for now,” one government counsel said, after the department told prosecutors to “consider other charges” against upskirting crimes, rather than Section 161 of the Crimes Ordinance.

Teachers who leaked exam questions did not commit a crime, court rules

New prosecutions against smartphone-related crimes would have to be “withheld” pending further legal opinion, according to an internal memo issued by the department, which was confirmed by two independent sources.

It was not immediately clear how many cases would be affected, but Tuesday’s ruling is binding on other High Court cases as well as lower magistrate’s courts, unless the judgment is overturned on appeal.

For ongoing trials, prosecutors will have to get around this hurdle by reshaping their original cases under the same ordinance.

In the internal memo, the justice department indicated it was prepared to take the matter all the way to the Court of Final Appeal, arguing the ruling had placed an unfair burden on the prosecution to prove “unauthorised extraction and use of information” from smartphones.

Officer admits taking upskirt pictures – including 12 of his colleague

The teachers were first acquitted by a lower court in February 2016, and upon appeal by the department, the High Court on Tuesday ruled that they had not committed a crime. They had used their own smartphones rather than someone else’s device, and sending out the images of the exam questions did not constitute unauthorised extraction from a computer – even if their conduct was “wholly inappropriate and disgraceful” – the court decided.

The justice department told the Post it had not kept count of ongoing or fresh cases brought under the ordinance, but it had applied to appeal against the ruling.

The charge of “obtaining access to a computer with criminal or dishonest gain” was originally written into law in 1993 to curb technological crimes such as computer hacking. The courts later agreed that smartphones fell into the computer category under the ordinance, and offenders could face a maximum sentence of five years in jail.

The city’s anti-corruption agency used the same charge against celebrity tutor Weslie Siao Chi-yung, who was accused of leaking questions for the Hong Kong Diploma of Secondary Education exams, while another star tutor, Kris Lau Koon-wah, was similarly prosecuted.

The charge is regularly used to prosecute upskirting, which is not considered a sex crime by law and is also punishable under charges of loitering or “outraging public decency”.

The law has increasingly been used too broadly, and that deviates from its original purpose
Eric Cheung Tat-ming, HKU law school

Using Section 161 of the Crimes Ordinance, prosecutors achieved an 85 per cent conviction rate out of 293 cases between 2008 and 2014. The rate rose to 88 per cent between 2015 and September 2017.

Human rights groups have criticised the excessive use of the charge, arguing it went beyond its original intent.

In his Tuesday ruling, deputy High Court judge Pang Chung-ping said: “I fail to see the logic and legal basis in converting improper acts which are not otherwise offences under established legal principles into an offence under Section 161 [of the Crimes Ordinance] simply because a computer was involved in the commission of such misconduct.”

Eric Cheung Tat-ming, principal lecturer at the University of Hong Kong’s law school, said the use of smartphones should not be targeted above the actual crime when prosecuting an offender, and it had become open to abuse.

“The law has increasingly been used too broadly, and that deviates from its original purpose to curb illegal hacking,” Cheung said.

He welcomed the department’s appeal, saying it should help clarify the use of the law.