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Hong Kong’s top court to consider validity of commonly used law for smartphone-related crime – including upskirting – in February

  • Prosecutors get green light to challenge ruling that using offence of accessing a computer with dishonest intent was wrongly applied in a case
PUBLISHED : Friday, 02 November, 2018, 8:35pm
UPDATED : Friday, 02 November, 2018, 11:09pm

Hong Kong’s top court will determine in late February next year whether the Department of Justice can continue to use an existing law to take action against smartphone-related crimes, potentially ending months of limbo in bringing such cases to court.

The Court of Final Appeal on Friday gave prosecutors the green light to challenge a lower court’s ruling that using the offence of accessing a computer with dishonest intent – under Section 161(c) of the Crimes Ordinance – was wrongly applied in the case of four schoolteachers.

The four were found not guilty of leaking entrance examination questions using their smartphones and computer. The decision meant the department had to review pending cases of smartphone-related crimes, including upskirting, and put prosecutions on hold.

Director of Public Prosecutions David Leung Cheuk-yin conceded the impact of the ruling in August went further than the 15 smartphone-related court cases put on hold for months.

“There have been quite a number of cases for which we have not pressed charges – pending the current appeal – and there are far more actual cases than that,” Leung told the court on Friday.

He would not reveal the figures, but stressed some smartphone cases could still be brought to court under the separate offences of loitering or “outraging public decency”.

Decision on law used to tackle upskirting may not come until next year

On August 10, the High Court refused to prosecute the teachers who leaked exam questions by using their own smartphones to take and send images. The decision put the offence – often described as a “one size fits all” charge – to the test.

High Court judge Pang Chung-ping said in his August ruling that the justice department had wrongly applied the law. The court said prosecutors should prove there was “unauthorised extraction and use of information”, instead of the conventional application that the mere “use” of a computer or smartphone would suffice.

At Friday’s hearing, Court of Final Appeal permanent judge Roberto Ribeiro agreed there was public importance in hearing the legal questions involved, which he described as “interesting and difficult”.

One question, for example, was what would be the case if the defendants were copying exam papers by hand and sending them by post rather than by WhatsApp, the judge said.

The hearing on February 26 would hear debates on the scope of what actions could come under Section 161 and whether the prosecution had a case to argue that the teachers were being dishonest.

Hong Kong ‘needs upskirting law’ after overused charge suspended

Leung warned that if the offence was struck down, it could affect other computer crimes, including hacking into computers, operating phishing websites, using already hacked computer data, and taking indecent photos and videos publicly or privately by mass media.

He said there was great and general public importance for the top court to hear the appeal.

While not objecting to a review of the legal principle, defence counsel David Boyton, for one of the teachers, said the court should not reopen the case to find out if defendants had dishonest intent for handling the exam papers.

“The judge had dealt with the issue clearly and correctly … this is a moral wrong, this is not a criminal wrong,” Boyton said.

The judge had dealt with the issue clearly and correctly … this is a moral wrong, this is not a criminal wrong
David Boyton, lawyer

The lower court described the teachers’ leaking of papers as “wholly inappropriate and disgraceful, which no doubt deserved to be condemned”. The prosecution argued that it would be an injustice not to review the case.

Boyton and another defence lawyer, James Tze, also argued that the Law Reform Commission was already studying a law on voyeurism. Any moves on upskirting or related crimes should be left to the commission, and not be dealt with under Section 161, they said.

Ribeiro, on hearing that the four teachers were sending “past papers” for admission to primary school, remarked: “I must say this is a purely Hong Kong phenomena that Primary One students have to go through an interview, so I’m not very familiar with that.”