Laws must reflect changes in society

To maintain community respect and consent, the law must keep up with changes in society. That is doubly true in the rapidly moving internet age. Failure to keep up can have unintended results. An example is to be found in the landmark decision by the top city court over the prosecution of smartphone-related crimes, including upskirt photos and videos. It ruled against a “one-size-fits-all” charge often used by the prosecution, and dismissed a government appeal against a lower court’s decision that the charge of “obtaining access to a computer for criminal or dishonest gain” should not apply to a person’s own phone or computer, as there is no need to get access.

As a result, the justice department will have to rethink 13 cases now on hold and may face appeals against past convictions. Owing to doubts over whether other available charges will be sufficient to plug the loopholes created by the ruling, new legislation will almost certainly be needed. The government has no time to lose, given that smartphones and personal computers have become a way of life. Lawmakers have rightly urged officials to fast track the drafting of laws against voyeuristic crimes.

In this case, officials can draw a salutary lesson about the need to keep up with changes in society. The law found by the Court of Final Appeal not to apply to a person’s own phone or computer was only introduced in 1993, amid growing concerns about cybercrime. Laws do not usually become outdated that quickly.

The ruling by the top court arose from the 2016 prosecution of four schoolteachers accused of leaking entrance exam questions to parents via their smartphones. Although the judge described their actions as disgraceful, they did not amount to “accessing” someone’s computer. Between 2008 and 2014, 252 out of an array of 293 cases prosecuted under the “access to computer” law resulted in convictions, giving rise to concerns about a law covering potentially wide-ranging circumstances being used arbitrarily as a catch-all tool.

At the same time, the police need to be empowered to enforce the law against increasingly sophisticated crime. That is why it is important to keep up with social change. Hong Kong is often slow to update laws and needs to be more proactive.