Hkar v. Leung Lai Chung

DCCC 416/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 416 OF 2009

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Reasons for Sentence

1.The defendant faced 11 charges of obtaining access to computer with dishonest intent, contrary to s.161(1)(c) of the Crimes Ordinance, Cap 200. Of the 11 charges, he pleaded guilty to eight of them.

2.The events happened in the second half of the year of 2008. The defendant was a serving police constable with a criminal investigation team of the Mongkok district at the time of the offences.

3.The facts in support of the 8 charges showed the defendant, over a period of 2 months from 20 October 2008 to 22 November 2008, to have accessed the police computer system, whilst off duty, on 64 occasions with the login password of his supervisor. He retrieved the personal data of female victims or arrestees in the crime reports.

4.Over those 2 months, the defendant made use of the computer details, called the girls and arranged to meet them at Mongkok police station under the pretext of carrying out further investigation into their cases. The defendant made use of the occasions to chat the girls up to satisfy his sexual crave. To some of the victims he made sexual remarks about them during their conversations. The 8 complainants in the present case were aged 16 to 22. The defendant was arrested on 26 November 2008 when the victim in the rape case (in the case of HCCC-189/2009) lodged a crime complaint right after her encounter with the defendant.

5.During the same period of time, the defendant also approached 4 other girls, similarly aged 16 to 21, through the same practice of getting access to their contact details from the police computer system. The defendant indecently assaulted 3 of them and had sex with one of them against their will, inside the police station. These 4 incidents were the subjects of 3 indecent assault charges and 1 rape charge in HCCC-189/2009, to which the defendant pleaded guilty in September 2009. The defendant received total consecutive terms of 12 years for all 4 charges.

6.Any person who obtained access to a computer with a view to a dishonest gain is liable to a term of 5 years imprisonment on indictment by virtue of section 161(1)(c) of the Crimes Ordinance, Cap 200.

7.Section 161 of Cap 200 was enacted in 1993 (on 23 April 1993), by Ordinance 23 of 1993.

8.Over the years, computer usage has become an indispensable part of our daily activities. The volume of data stored is huge and the value of those data is enormous.

9.The ease with which one can gain access to the computer information calls for a stringent system of control as well as a firm view by court when access to the computer was abused and information obtained were unlawfully used.

10.Illicit computer access, through hacking or otherwise, is used either for furtherance of illegal acts or for the perpetration of non-prohibited acts. Computer access can also be carried out for alteration, deletion or removal of data for personal gain. The manner with which the offence is committed varies. The damage occasioned or the use with which the information is put to diversifies.

11.One can understand why the Court of Appeal refused to issue sentence guide on computer access offences in 2000 case of Tam Hei Lun [2000] 3 HKC 745. Mr. Justice Rogers, VP indicated the general factors for consideration for sentence are (i) loss and damage done to the victims; (ii) gravity of the offence to the victim; and (iii) purpose of the access.

12.In pitching the starting point for sentence, to me the relevant factors for consideration are:-

(a)  the sophistication of the plot;

(b)  whether the offence was committed in a domestic context or at an international level;

(c)  the scale of participation, including factors such as the duration in which the crime was perpetuated, the number of people involved;

(d)  the level of sensitivity of the information;

(e)  the purpose for which the unlawful access was obtained;

(f)  the use with which the unlawfully obtained information was put to or alternatively the extent of damage done to the victim(s) with the illegal access to the computer;

(g)  the extent of damage done to the victims;

(h)  the extent of personal gain to the defendant; and

(i)  the impact of the defendant’s act on society at large.

13.One of course would not lose sight of the penalty that the defendant received for any ultimate substantive offence perpetrated as a result of the information obtained by the defendant to avoid double penalty for the same sequence of events.

14.After the starting point has been determined, the court would then look into the personal background of the defendant to determine if there are mitigating factors which justify a reduction of the defendant’s penalty, or a deviation of the general custodial approach (custodial term was indicated by Rogers V-P in Tam Hei Lun to be the general approach for sentence of obtaining illegal computer access).

15.The defendant is a police constable, entrusted with the task of law enforcement. Outrageously rather than upholding the law, he engaged in criminal activities by obtaining illicit access to computer data with the password of his senior officers. He preyed upon the minds of the arrested one(s) under the pretext that he was investigating further into the crime complaint against her (or them). He abused the trust reposed on him by his senior when disclosing his computer password. He blemished the respect that members of public have over the integrity of the police force as a whole. He ruined the image of the Hong Kong police as an internationally acclaimed upright law enforcement agent.

16.I accept the defendant is only 29 years of age, and is relatively young. He is confirmed to be mentally sound. Sexual crave alone seems to be the root of his psychological problem. His father’s extramarital affairs in the past could have cast a negative impact on his upbringing. I certainly hope his development into a promiscuous soul is only the exception rather than the norm in society. He gave the explanation that some of those females whom he felt sexually aroused in the incidents were themselves open and keen on sexual verbal exchanges themselves. This possibly raises a note of concern to parents about the standard of conversation and level of gestural exchanges amongst the younger generation in the current society. Police may also wish to explore into the feasibility or the need of psychological checking at recruitment or as a regular random health check-up exercise after recruitment.

17.I have looked up a few past cases, such as Tsun Shui Lun [1993] 3 HKLRD 215; Tam Hei Lun [2000] 3 HKC 745; KO Kim Fai [2001] 3 HKC 181; TSE Yat Hoi MA-427/2006 and AY Yeung Chuen MA-458/2006. No one case is alike. Offences proceeded by way of indictment differ from offences proceeded by way of summary trial.

18.In light of all the aggravating features, the duration and the regularity with which the access was obtained, the number of girls (8 in total) the defendant had approached, the young age of the girls, I consider the sentence should be an overall duration of 2 years to 2 ½ years imprisonment after trial, depending upon whether there was actual sexual harassment practiced on the victims. As the matter did not proceed to a trial, this court ought to assume for the benefit of the defendant that no sexual harassment had been practiced on the 8 girls in question. I accept an overall starting point of 2 years imprisonment to be appropriate after trial.

19.I adopt a starting point of 18 month for each of the individual 8 charges. The strongest mitigating factor is the defendant’s plea of guilty indicating his remorse. Coupled with his positive response to the psychological counselling he is receiving at the moment, I accord him 1/3 discount and sentence him to a term of 12 months for each of the 8 charges. I am minded to order the terms for his October charges to be served concurrently amongst each other; i..e for charges (2), (3) & (4) to be served concurrently; and for the terms for his November charges to be served concurrently amongst each other, i.e. charges (5), (6), (7), (10) & (11). Of the 2^nd batch of concurrent term of 12 months for charges (5), (6), (7), (10) & (11), I am also minded to order 4 of the 12 months terms be served consecutively to the concurrent term of 12 months for charges (2), (3) & (4); making a cumulative term of 16 months.

20.The 2 batches of offences were committed round about the same time but involved 8 other victims on top of the 4 victims in the High Court case. Had the defendant been indicted together with his indecent assault and rape charges, for the fact that the offences were committed at the same time, I am sure Mr. Justice Saw in the High Court trial would have taken totality into consideration and grant partial remission. Hence the order I am making is as follows:-

(i)  charges (2), (3) & (4): a term of 12 months for each of the 3 charges, to be served concurrently amongst each other; of which 3 months of each of the concurrent terms of the 12 months to be served concurrently with his High court sentences in HCCC-189/2009 with the balance to be served consecutively; and

(ii)  charges (5), (6), (7), (10) & (11): a term of 12 months for each of the 5 charges, to be served concurrently amongst each other; of which 3 months of the currently terms of these 5 charges be served consecutive to charges (2), (3) & (4) of his case and his terms in HCCC-189/2009;  the balance to be served concurrently.

21.The overall result is there would be an additional term of 12 months to his High court sentences.