HKSAR v. Au Yeung Ka Man Yuniko

FAMC No. 62 of 2017

[2018] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 599 OF 2015)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.We dismissed this application for leave to appeal at the hearing for reasons which we now provide.

2.The applicant was employed as a clerical assistant at the Social Welfare Department (“SWD”) and, using her password, was able to logon to its computerised Client Information System (“CIS”) which contained the records, including personal data, of SWD clients.  She was authorised to access those records only on a “need-to-know” basis.

3.She was convicted after trial before the magistrate[1] on ten charges of obtaining access to a computer with a view to dishonest gain contrary to section 161(1)(c) of the Crimes Ordinance[2] and sentenced to probation for 15 months.  Her appeal to the Court of First Instance[3] was dismissed. 

4.The applicant had previously been in an intimate relationship with Wong Dik-man (“Wong”) while Wong was simultaneously in a relationship with Chung Wai-ying (“Chung”) whom he later married.  It was described by the Judge as a “tangled love relationship” which ended in a falling out between Wong and the applicant.  On 7 March 2013, there was a heated altercation between Wong and the applicant at the SWD where the applicant worked and, beginning on the next day, the applicant made a number of searches on the CIS database and succeeded in accessing the case-file of Chung who had previously signed on as a SWD client.  The applicant also searched for records relating to Wong, but without result, as no SWD file had been opened for him. 

5.On 25 March 2013, she instructed solicitors to send a letter to Wong at his work address, copied to Chung at her home address, complaining that Wong had defamed and harassed her at her place of work.  Chung was shocked that the applicant knew her home address and complained to the SWD, leading to an investigation and the charges.

6.The applicant admitted that she had searched the CIS for data on Wong and Chung on 10 occasions during March 2013.  After detailed consideration, the magistrate rejected the applicant’s evidence that, treating him as a SWD client, she had made the searches at Wong’s request.  She was found to have accessed the computerised records for reasons unconnected with her employment, acting instead for the unauthorised purpose of obtaining personal data including the home addresses of Wong and Chung respectively.  She had successfully obtained that information in Chung’s case.

7.Section 161 materially provides as follows:

“161. Access to computer with criminal or dishonest intent

(1) Any person who obtains access to a computer—

(c) with a view to dishonest gain for himself or another; ...

whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1) gain and loss are to be construed as extending not only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and—

(a) gain includes a gain by keeping what one has, as well as a gain by getting what one has not; ...”

8.The magistrate and the Judge held that the applicant’s conduct amounted to obtaining access to a computer with a view to dishonest gain for herself contrary to section 161(1)(c).

9.The applicant now seeks leave to appeal out of time on two questions of law and also on the substantial and grave injustice basis.  However, the questions put forward are not properly formulated, being couched tendentiously rather than as questions neutrally expressed for the Court’s determination.

10.The first question relates to “gain” and the nature of the offence created by section 161(1)(c).  By way of clarification, Ms Kennis Tai,[4] submitted that the intended question is reflected in the following propositions in the application for leave to appeal, namely:

“... that section 161 of the CO aims at tackling acts preparatory but falling short of the commission of a fraud. It would therefore be inappropriate to prosecute any computer-related conduct on the basis of that section if the conduct in question does not fall within the legislative aim.

Under this interpretation, if the Applicant accessed the computer with a view to ‘gain’, the ‘gain’ was not for the purpose of the commission of fraud. Hence the Applicant should not have been found guilty of the section 161 offences.”[5]

11.The question so expressed is not reasonably arguable.  There may be room for debate as to the scope and limits of the alternative forms of the offence created by section 161(1), but it is not reasonably arguable that the offence under section 161(1)(c) is restricted in the manner suggested.  There is no basis for thinking that it only covers obtaining access to a computer as a prelude to committing fraud.   The same restrictive argument was rejected by Chan CJHC (as he then was) in HKSAR v Tsun Shui Lun[6] and we do not accept the applicant’s submission that his Lordship was wrong to do so. On its face, the act of accessing a computer, if done by someone with a view to dishonest gain for himself or another, constitutes the section 161(1)(c) offence. The defendant may intend to go on to commit some separately identifiable offence, but such an intention is not required.  Section 161(1) expressly provides that the intent may relate to gain “on the same occasion as he obtains such access or on any future occasion”.  

12.Section 161(2) provides that the intended gain does not have to involve “a gain or loss in money or other property”, but extends “to any such gain or loss”.  As Chan CJHC held in HKSAR v Tsun Shui Lun,[7] the subject-matter of such gain includes “information which the person obtaining access to the computer did not have before the access”.  In the Court of Final Appeal in Li Man Wai v Secretary for Justice,[8] Chan PJ noted that it was accepted that the information extracted constituted the intended gain, a proposition that was unchallenged.  The same approach was taken by the Appeal Committee when dismissing the leave application in Alistair Charles Currie v HKSAR,[9] where a police computer system was accessed to obtain a person’s address for the applicant’s own purposes.

13.The second question put forward by the applicant suggests that there is uncertainty which the Court ought to dispel as to whether motive is relevant to dishonesty.  In the present case, the applicant, knowing that she was not authorised to do so, accessed the database to acquire private personal data of Chung and Wong for her own purposes and without their consent.  Her attempts at explaining away her conduct were disbelieved and she was found to have been dishonest, the Ghosh[10] test having been applied without difficulty.   No issue concerning motive as an element of the offence arises.

14.The application on the substantial and grave injustice basis boils down to an impermissible attempt to re-argue the evidence and factual findings. 

15.For the aforesaid reasons, the application was dismissed.

Ms Kennis C.K. Tai, Mr Lee Hui Jen Michael and Ms Mavis C.H. Lam, assigned by the Bar Free Legal Service Scheme, of the Hong Kong Bar Association, for the Applicant

Mr Raymond Cheng ADPP and Ms Winnie Mok SPP, of the Department of Justice, for the Respondent