Secretary for Justice v. Wong Ka Yip, Ken

[English Translation – 英譯本]

HCMA 77/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 77 OF 2013

(ON APPEAL FROM KTCC 1122/2012)

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J U D G M E N T

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1.The Respondent WONG Ka-yip, Ken was acquitted after trial before Principal Magistrate Kwok Wai Kin Esq (as His Honour then was) of a charge of “obtaining access to a computer with a view to dishonest gain for himself or another”, contrary to section 161(1)(c) of the Crimes Ordinance, Cap. 200. The Secretary for Justice appealed by way of case stated against the acquittal, and sought to have the Respondent convicted.

2.The Respondent was represented by the Duty Lawyer at trial, where he pleaded guilty and admitted the brief facts of the case.  As the Magistrate was not sure if the facts supported the charge, he refused to accept the plea and adjourned the case for trial.  At the trial, the Respondent maintained his plea of guilty.

3.The Respondent was not legally represented on appeal.  He was not able to afford a private lawyer and was not willing to pay contribution towards legal aid costs. He considered the charge to be correct and would submit to the Court’s decision.

Prosecution case

4.According to the admitted facts, on the day in question, the Respondent placed a mobile phone (Exhibit P1) in the office ladies’ room, and set it to recording mode to film the toilet bowl area.  A female colleague (PW1) discovered the phone, removed the battery and stopped the recording.  The Respondent was seen adjusting the position of the phone in the restroom in a video clip in the phone.  PW1 made a report to the police.  Under caution, the Respondent admitted that he intended to secretly film PW1 in the office ladies’ room with the mobile phone.

5.The police retrieved the relevant video clip from Exhibit P1 and saved it on an optical disc (Exhibit P3).

6.The prosecution tendered a statement of the expert witness pursuant to section 65B of the Criminal Procedures Ordinance, Cap. 221.  The expert witness gave evidence on three areas:

(1) the meaning of “computer” under Hong Kong law;

(2) the opinion as to whether a mobile phone comes within the definition of a computer under Hong Kong law; and

(3) how an image/video taken by a mobile phone is processed as a digital file.

7.Exhibit P1 is a Sony Ericsson MT15i Xperia Neo mobile phone.  According to the User Guide (Exhibit P6), the functions of Exhibit P1 include:-

(a) Making and receiving phone calls;

(b) Browsing the Internet and downloading programmes and files;

(c) Photo taking and video recording;

(d) Sending and receiving electronic mails;

(e) Music player;

(f) Radio;

(g) Transferring data and files with connection to computer;

(h) Calculator.

8.According to the User Guide, Exhibit P1 is “an Android phone which can perform many functions similar to a computer.  Data (such as images, videos, text files, contacts and messages) can be stored in digital form on the internal phone memory or external memory card”.  Additionally, Exhibit P1 can process and retrieve information such as sending and receiving SMS and emails, record and edit images in still or video format, browse the Internet, play music and execute application programmes.

9.According to the expert witness, mobile phone cameras work in much the same way as digital cameras. Light from the photographed subject enters the mobile phone’s optical lens and is focused upon an image sensor made up of a grid of light-sensitive cells.  These cells record information of millions of individual data points (known as pixels).  The information is then stored in binary form in digital file format.  The digital file may be saved on the mobile phone’s internal memory or an external media card.  The process is controlled by the mobile phone’s operating system, which manages the interaction between the hardware, software and the user.

10.The expert witness cited the definition of the term “computer” from the Report of the Inter-Departmental Working Group on Computer Related Crime dated September 2000 (Pages 10-12) and pointed out that a computer had already been understood to include electronic communication devices and mobile phones.

11.The expert witness also relied on the definition of “computer” in section 22A of the Evidence Ordinance (Cap.8), section 26A of the Inland Revenue Ordinance (Cap.112) and section 19 of the Business Registration Ordinance (Cap. 310), i.e. “any device for storing, processing or retrieving information.”

12.The expert witness was of the view that “computer” was just a name, Exhibit P1 could perform all of the functions of a computer, and that it met the definition of “computer”.

Defence case

13.The expert evidence was not disputed by the defence.

Case stated

14.Section 161 of the Crimes Ordinance provides that:

“(1) Any person who obtains access to a computer –

(a) with intent to commit an offence;

(b) with a dishonest intent to deceive;

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

(d) with a dishonest intent to cause loss to 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’ (獲益) and ‘loss’ (損失) 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’ (獲益) includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(b) ‘loss’ (損失) includes a loss by not getting what one might get, as well as a loss by parting with what one has.”

15.The Magistrate stated the following elements of offence that the Prosecution had to prove:

(1) the Respondent’s mobile phone was a “computer” referred to in Section 161;

(2) his act constituted “obtaining access” to a computer; and

(3) he had a view to dishonest gain for himself or another at the material time.

16.The Magistrate was of the view that the prosecution had only proved the second and the third elements, and that Exhibit P1 was not a “computer” referred to in section 161.  His analysis was as follows.

17.The prosecution pointed out that the term “computer” was not defined in either the Crimes Ordinance or the Interpretation and General Clauses Ordinance (Cap 1).  When the Legislative Council passed the Computer Crimes Bill 1992 and added section 161 of the Crimes Ordinance, the term “computer” was deliberately left undefined so as to avoid any definition becoming outdated with the new and rapid development in science and technology and constituting unnecessary constraints.  The Court could decide whether a particular device was a computer or not in the circumstances of each case.[1]

18.The prosecution submitted that Exhibit P1 satisfied the dictionary meaning of “computer”, and also the definitions under the statutes in Hong Kong and other countries. 

19.According to the Online Oxford Dictionary (oxforddictionaries.com), “computer” is “an electronic device, which is capable of receiving information (data) in a particular form and of performing a sequence of operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals.”

20.According to section 22A(12) of the Evidence Ordinance, “computer” means “any device for storing, processing or retrieving information”, which is also the definition of “computer” in section 26A of the Inland Revenue Ordinance and section 19 of the Business Registration Ordinance.  As regards the Chinese definitions, under section 26A of the Inland Revenue Ordinance, “電腦 (computer)” means “儲存、處理或重新取得資料的任何裝置”; whereas under section 19 of the Business Registration Ordinance, “電腦 (computer)” means “任何用作儲存、處理或檢索資料的器材”.

21.The Magistrate pointed out that the differences in wordings in the Chinese definitions of the terms “device” (be it “裝置” [zhuangzhi] or “器材” [“xicai”]), and “retrieving information” (be it “重新取得資料” [congxin qude ziliao] or “檢索資料” [jiansuo ziliao]) were immaterial, and the three Ordinances were regarded as having given “computer” the same definition.

22.As regards the definition of “information” in the three Ordinances mentioned above, reference can be made to the interpretation under ssection 2 of the Electronic Transactions Ordinance (Cap 553), namely “information includes data, text, images, sound codes, computer programmes, software and databases.”

23.The expert witness also referred to the definitions of “computer” in other countries and areas cited in the Report of the Inter-Departmental Working Group on Computer Related Crime.

24.In the Draft Convention on Cybercrime of the Council of Europe, “computer system” means “any device or a group of interconnected or related devices, one or more of which, pursuant to a program, performs automatic processing of data.”

25.In US Code Title 18 Section 1030, Fraud and Related Activity in connection with Computers, the term “computer” means “an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.”

26.Under the Canadian Criminal Code Part IX, Offences Against Rights of Property – Offences Resembling Theft,  “computer system” means a device that, or a group of interconnected or related devices one or more of which, (a) contains computer programs or other data, and (b) pursuant to computer programs, (i) perform logic and control, and (ii) may perform any other function; and a “computer program” means “data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function.”

27.The prosecution submitted that as seen from the definitions referred to above, apart from ordinary desktop computers and portable computers, other devices could also be a “computer”, as the determining factor was the functions of the device.

28.The prosecution emphasized that the Respondent’s mobile phone was an electronic instrument, it could receive and store information (including images), input instructions (such as photo-taking and video-recording), could perform mathematical calculation, produce data in the form of information or signals, to be stored in the mobile phone, which could be searched and retrieved from the mobile phone when necessary.  Therefore, the mobile phone came within the dictionary meaning and the various statutory definitions of “computer” referred to above.

29.The prosecution referred to paragraphs 3.7 to 3.9 of Chapter 3 of the Report of the Inter-Departmental Working Group on Computer Related Crime, and submitted that the definition of “computer” should not be too narrow.  By reason of development in the Internet, electronic personal data assistants and technologies such as Wireless Application Protocol, the term should be increasingly broad, covering various instruments such as networked computer systems and many mobile electronic communication and information devices.

30.The prosecution submitted that in construing the term “computer” under section 161, the Court should adopt the dictionary meaning and the relevant provisions referred to above, and give the term “computer” a broad interpretation.

31.The prosecution submitted that the Computer Crimes Bill 1992 sought to make certain forms of computer misuse criminal offences[2]. In order to give effect to such legislative intent, the Court should adopt the purposive interpretation approach laid down by the Court of Final Appeal in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, i.e., the context of a statutory provision was to be taken in its widest sense and included the other statutory provisions and the general law; and the statutory words are, having regard to their context and purpose, to be given their natural and ordinary meaning, and to give the term “computer” in section 161 a broad definition.

32.The prosecution referred to two sentencing cases in the District Courton the taking of indecent images with mobile phones[3].  In both cases, the defendant pleaded guilty to charges contrary to section 161.  Although the two judges considered that the prosecution had charged the defendants with the offences technically, they nevertheless accepted the pleas of guilty, which showed the charges to be correct.

33.The Magistrate accepted that the prosecution expert was an expert in computers and mobile phones, who was qualified to comment on the third area of his evidence, and that the dictionary meaning of “computer” was sufficiently broad to encompass the Respondent’s mobile phone.  However, the Magistrate found that the prosecution expert witness was not a legal expert, and was not qualified to give expert opinion on the first and the second areas, which involved the statutory interpretation of “computer”.

34.The Magistrate pointed out both the prosecution and the defence were unable to find any binding authorities in deciding whether the Respondent’s mobile phone was a “computer” under section 161.  The District Court cases were pleas of guilty, and although the court had accepted the pleas, the parties did not take issue with the definition of “computer”, and the court did not rule on such issue after hearing arguments.  They were only decisions at first instance, and were merely of reference value without any binding authority.

35.The Magistrate agreed that in construing the term “computer”, the court should give it a broad definition.  Apart from machines with a monitor, keyboard and the central processing unit, “computer” may also encompass other types of devices and equipment.  The question is when giving “computer” a broad definition, how wide the perimeter is to be set.

36.The Magistrate was of the view that the dictionary meaning of “computer” was broad enough to include the Respondent’s phone.  However, as the Respondent was charged with contravention of section 161(1)(c), the Court must consider, in light of the legislative intent, whether the dictionary meaning should be narrowed down in deciding whether guilt was proven.

37.The Magistrate took judicial notice that ordinary people would not call a mobile phone a computer, and a customer would not ask a shop attendant for a computer when he was buying a mobile phone.  The Respondent in his cautioned statement called his phone a “mobile phone” instead of a “computer”, and the police had arrested the Respondent for loitering instead of obtaining access to a computer.  What was stated in the User Guide of Exhibit P1 was only that “an Android phone which can perform many functions same as a computer”.  Hence, it showed the manufacturer would not call its mobile phone a “computer”.  Furthermore, when the manufacturer described such phone could perform many functions similar to a computer, the phone itself was not a computer, because in terms of logic and grammar, what a computer can perform is of course the functions of a computer, and not “the similar functions as a computer”.

38.The Magistrate considered the definition of “computer” in section 22A(12) of the Evidence Ordinance could be of reference.  But even if digital cameras do fall within the definition of section 22A(12), it should not be applied directly to section 161 for the following reasons.

39.Firstly, when the Legislative Council enacted section 161, the definition of “computer” in section 22A(12) was already in existence, but such definition was not adopted by the Legislative Council.  That showed it was a deliberate decision in order to allow the Court to give its judgment based on the circumstances of each case.  Therefore, it would not be appropriate to simply adopt the definition of “computer” in section 22A(12) as the definition of  “computer” in section 161.

40.Secondly, the definition of “computer” in section 22A(12) is very wide, stating a computer is any device for storing, processing or retrieving information.  As the conjunction “or” is used in this provision, any device which has only the single function of storing, processing or retrieving information could be defined as a “computer”.

41.In comparison with the dictionary meaning of “computer” and the statutory provisions in other countries and areas, the definition given in section 22A(12) is much more extensive.  Other definitions would at least require a “computer” to be a device that can process data in accordance with programmes, but such element is not required to be included under the definition in section 22A(12).

42.The Magistrate found it understandable that the term “computer” was loosely defined when the Legislative Council enacted section 22A of the Evidence Ordinance, section 26A of the Inland Revenue Ordinance and section 19 of the Business Registration Ordinance, because the purpose of those statutory provisions was to allow certain information already stored, processed or retrievable to be accessed and used under certain specified circumstances.

43.However, the same thinking is not applicable to “computer” under section 161, because section 161 prescribes criminal liability and includes the penalty of imprisonment, and an excessively loose definition would render a person unwittingly fall foul of the law.

44.Besides, according to the definition of “computer” in section 22A(12), a computer is a device that does not require any form of energy to operate.  However, according to the dictionary meaning and legal  definitions in other countries and areas, a computer is an electronic device, or it can process data automatically.  For example, under US Code Section 1030, it is “an electronic, magnetic, optical, electrochemical, or other high speed data processing device”.  Supposing the definition in section 22A(12) is simply applied, a piece of string or an abacus might also be a computer, because tying knots is for keeping record, and calculating with an abacus might be a form of data processing.  If that analysis be correct, a burglar equipped with a rope could be charged with “obtaining access to computer with intent to commit an offence”.  An excessively loose definition of “computer” would bring about an absurd result.

45.Thirdly, if the definition of “computer” in section 161 were the same as section 22A(12), certain acts which were not regarded as criminal would become an offence against section 161.  In HKSAR v Tsun Shui Lun [1999] 3 HKLRD 215, Chan, CJHC (as he then was) pointed out that if an offender had accesed the computer, and at the material time he had one of the four intents or purposes set out in section 161, he would have contravened the section.  The Court also said that section 161 covered acts preparatory to a crime or fraud notwithstanding the acts of the offender did not constitute preparatory acts of such crime or fraud, or he did not have the intent to commit the crime or fraud, so long as he obtained access to a computer with a view to dishonest gain to himself or another at the time of access, he would still have committed the offence under Section 161(1)(c).

46.Therefore, under such legal principles, if the court would still give “computer” a broad and unrestricted definition, acts which would not constitute an offence under traditional legal principles could nevertheless become an offence.

47.The Magistrate elaborated his points with following examples:

(1) John Doe wrote a letter with pen and paper with intent to blackmail.  But he changed his mind and did not send out the letter.  He did not commit the offence of blackmail.  However, if John Doe wrote the letter with a computer word processor, and he also gave up the plan and did not send out the letter.  Although he did not commit blackmail or attempted blackmail, he would have committed an offence under section 161, because he wrote the letter by obtaining access to a computer with intent to blackmail at the material time.

(2) John Doe used a camera to secretly take pictures of an artiste at home without clothes on engaging in intimate acts with the opposite sex, for the purpose of selling more newspapers and earning a reward.  He well knew the artiste would not give consent.  If he had used a traditional film camera, he did not commit any offence.  But if he had used a digital camera, which according to the Prosecution’s submission was a computer, John Doe had dishonestly obtained access to a computer, and had contravened section 161(1)(c).

(3) John Doe took up-skirt shots of a lady in a public place.  He might have committed the offence of disorderly conduct in public[4], or committing an act outraging public decency[5]. However, the photography itself does not constitute an offence,   as the Prosecution must prove the act of photography was likely to cause a breach of the peace[6], or two or more persons were present and had witnessed the behaviour[7]. If John Doe took the photos with a digital camera, and it amounted to a “computer”, he would have contravened section 161(1)(c).

48.The Magistrate was of the view that if “computer” in section 161 were given the same definition in section 22A(12), it would be excessively wide.  Hence, it was necessary to narrow it down.  

49.The Magistrate considered it necessary in any prosecution under section 161(1)(c) to determine, in light of the legislative intent, if the dictionary meaning of “computer” had to be narrowed down.  The core issue was whether the Legislative Council when creating the offence had intended to treat certain acts which were not regarded as criminal before to become criminal by reason of the use of a “computer”.

50.The Magistrate stated that having carefully considered the debate at the Second and Third Readings of section 161, and the Report of the Inter-departmental Working Group on Computer Related Crime[8], he did not see the legislative intent to change certain acts, which were immoral, objectionable but non-criminal, to be criminal by reason that they were done with the use of computer.  Neither could such a legislative intent be seen in the Draft Convention on Cybercrime by the Council of Europe.

51.The Respondent’s behaviour of video-recording was certainly immoral and objectionable, but leaving aside section 161(1)(c), the video-recording itself was not a criminal offence.  The ladies’ room was not a public place and the Respondent could not have committed the offence of disorderly conduct in public, and could not have committed an act outraging public decency, as there were no two or more persons present witnessing the act inside the restroom.  If the Respondent had only used tools not operated by computer programmes such as a traditional film camera or videotape camera, the Prosecution could not say what charge could be laid against him.  Under these circumstances, if the Respondent was deemed to have committed a crime under section 161(1)(c) merely because of the recording tool rather than the recording act, that would definitely not be the legislative intent.

52.The Magistrate pointed out that the narrowing down of the definition of “computer” was not unsupported by precedents.  The US Code Title 18 Section 1030 provides that the term “computer” does not include “an automated typewriter or typesetter, a portable hand held calculator, or other similar device.”  The Computer Misuse Act of Singapore also has a similar provision.[9]  The Magistrate acknowledged that he did not have the legislative power to narrow down the definition of “computer”, and that he did not have the power or evidence to define what devices should not be regarded as “computers”.  Notwithstanding that, the Magistrate said that in any event he would not apply the definition of “computer” in section 22A(12) to section 161(1)(c).

53.For the reasons stated above, in considering whether the Respondent’s mobile phone was a “computer” under section 161(1)(c), the Magistrate would narrow down the dictionary meaning of “computer”, excluding the Respondent’s mobile phone from the definition of “computer”, so that he would not be found guilty of a criminal offence.

54.The Magistrate found that the prosecution could only prove the 2^nd and the 3^rd elements of offence, and that the Respondent’s mobile phone (Exhibit P1) was not a “computer” under section 161(1) (c).

55.The Magistrate found that the Prosecution had failed to prove a prima facie case that the Respondent had obtained access to a “computer”.  The charge was therefore dismissed.

Appellant’s Grounds

56.The Appellant submitted that the Magistrate erred in law in construing the term “computer” in section 161 of the Crimes Ordinance by erroneously finding that the term “computer” in section 161(1)(c) did not include the Respondent’s mobile phone, by reason that:

(1) The Respondent’s mobile phone fully satisfy the definition of “computer” in other statutes in Hong Kong, the dictionary meaning, and legal definitions in other countries and areas;

(2) Section 161 of the Crimes Ordinance does not restrict the term “computer” in such a way that it should not include the mobile phone in the present case;

(3) There is not any legislative document showing that the legislative intent of section 161 was not to include the Respondent’s act;

(4) In SJ v CHONG Yao-long Kevin (鍾曜隆)CAAR 2/2012 (4 September 2012), the Court of Appeal when dealing with the application for review of sentence where prosecution was brought against similar criminal acts did not interfere with the conviction;

(5) The Magistrate arrived at a perverse finding by wrongly failing to fully consider or to give proper weight to the evidence of the Prosecution’s expert witness.

Discussion

57.The Magistrate agreed that if the Respondent’s mobile phone were a “computer”, then he would have obtained access to it and have gained dishonestly.

58.The Magistrate basically agreed with the factual evidence of the Prosecution’s expert witness.  What he disagreed with was the expert opinion was applicable to the interpretation of “computer” in section 161 of the Crimes Ordinance. Therefore he narrowed down that interpretation.

59.In my judgment, in construing a statutory provision, the purposive interpretation approach enunciated by the Court of Final Appeal in Cheung Kwun Yin should be adopted so as to give it a broad interpretation.

60.In HKSAR v Wong Yuk ManFACC 10/2011 (13 November 2012), the Court of Final Appeal cited the English case of AG v The Edison Telephone Co of London (1880-81) LR 6 QBD 244 in saying that the court will construe statutory provisions to take into account changes, in particular technological changes, that have taken place subsequent to the passing of the statute.  In other words, a statute is taken to be “always speaking”.

61.The principle of “always speaking” means to apply the natural meaning of the statutory language to new situations that have arisen, so as to give effect to the true spirit, intent and meaning of the statute.

62.In B v Commissioner of ICAC (2010) 13 HKCFAR 1, Bokhary PJ (as he then was) pointed out that：

“…But as Lord Bingham of Cornhill explained in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, 695E-G, there is no inconsistency between the rule that the language of the statute retains the meaning it had when enacted and the rule that a statute always speaking…I see no basis for saying that such a possibility was unforeseen at the time of enactment. But in any event, as Lord Jowitt LC pointed out in Joyce v Director of Public Prosecutions [1946] AC 347, 366, ‘[i]t is not an extension of a penal law to apply its principle to circumstances unforeseen at the time of its enactment, so long as the case is fairly brought within its language.’ ”

63.In the Tsun Shui Lun case, Chan, CJHC (as he then was) in discussing the elements of offence in section 161 of the Crimes Ordinance, pointed out section 161 originated from the Computer Crimes Ordinance, where the preamble of the Bill stated that it sought to “Clarify and amend the criminal law relating to the misuse of computers and related matters.”  That Ordinance created two new offences relating to access to computer.  The first one is section 27A of the Telecommunications Ordinance, Cap 106, which penalizes any person who knowingly obtains unauthorized access to a computer by telecommunications. The second one is section 161 of the Crimes Ordinance.  In one respect, section 161 has a wider application than section 27A because an offence under section 161 can be committed without access to the computer via telecommunications.  On the other hand, section 161 requires proof of a specific criminal intent or dishonesty and is a more serious offence.  Not every kind of access to a computer constitutes an offence as section 161 stipulates four situations constituting the crime.

64.The Appellant submitted additional authorities not handed up at the trial.  In the Chong Yao Long Kevin case, the Respondent took up-skirt images of females with a mobile phone, and he was convicted of multiple counts of obtaining access to a computer with a view to dishonest gain, contrary to section 161 of the Crimes Ordinance.  Yeung VP pointed out in his judgment on the review of sentence that:

“39. Looking at it superficially, it appears to be somewhat strange that the wrongful conduct of the respondent was dealt with by the charges of obtaining access to a computer with a view to dishonest gain. However, this matter had been discussed thoroughly before the Magistrate and both parties had agreed that in the special circumstances of this case it was proper and reasonable to charge the respondent with this offence. We do not think that we should dwell on this matter anymore, save and except that we would like to point out that the sentencing guideline usually applicable to obtaining access to a computer with a view to dishonest gain (see HKSAR v Tam Hei Lun & Others [2000] 3 HKC 745) is not applicable to the present case.”

65.The Appellant pointed out that the Magistrate’s decision predated the judgment by the Court of Appeal in Chong Yao Long Kevin.  The Court of Appeal did not consider anything improper in bringing a charge under section 161 for secret up-skirt filming by a mobile phone.

66.In the American case of USA v Kramer USCA (8^th Circuit) No. 10-1983 (8 February 2011), the appellant pleaded guilty to transporting a minor in interstate commerce with intent to engage in criminal sexual activity in violation of US Code Title 18 section 2423(a).  He admitted using a mobile phone to make voice calls and sending text messages to the girl.  The prosecution contended that a mobile phone fall within the definition of “computer” in US Code Title 18 section 1030(e)(1) and asked for enhancement of sentence from 140 months to 168 months imprisonment by reason that a computer was used to commit the crime.  The US Court of Appeal for the 8th Circuit held that “The language in 18 USC §1030(e)(1) is extremely broad.  If a device is an electronic or other high speed data processing device performing logical, arithmetic, or storage function, it is a computer.  This definition captures any device that makes use of an electronic data processor… These functions are the essence of its operation.”  Apart from traditional laptop or desktop computers, it also included household items that involve microchips and electronic storage devices.  “Furthermore, there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet.  To be sure, the term computer does not include an automatic typewriter or typesetter, a portable hand held calculator, or other similar devices.”

67.In R v John Carlos Rocha (13 February 2012) in the Alberta Provincial Court, Canada, the defendant secretly took an up-skirt photo of a female with an iPhone and pleaded guilty to one count of voyeuristic act.  As the case was a summary conviction, the court had no power to forfeit the mobile phone, but ordered the images be deleted from a computer system.  The question was whether a mobile phone was a computer.  The court  pointed out that under section 342.1(2) of the Criminal Code, “‘computer system’ means a device that, or a group of interconnected or related devices one or more of which, contains computer programs or other data, and pursuant to computer programs, performs logic and control, and may perform any other function”; and “‘data’ means representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer system”; and “function” includes “logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system.” The Court held that that given the extremely broad definition of “computer system”, “a cell phone is a device that ... contains data, and ... may perform any other function includ[ing] ...storage and retrieval and communication or telecommunication to, from or within a computer system”. Therefore, the court ordered that the images be deleted.

68.In the English case of R v Hilda Shephard (1991) 93 Cr App R 139, the appellant was charged with shoplifting.  The evidence at trial included dockets retrieved from a cash register connected to a computer.  Counsel for the appellant argued that under section 69(1) of the Police and Criminal Evidence Act 1984 (PACE), documents produced by a computer shall not be admissible in evidence unless it was shown that at the material time the computer was operating properly.  The Court of Appeal pointed out there was no definition of “computer” in PACE. For other reasons the court did not have to decide on the point, but observed that Parliament might have deliberately left it undefined in enacting PACE.  On the other hand, the Civil Evidence Act defined “computer” broadly as “any device for storing and processing information.”  The Court of Appeal was hesitant in indirectly applying the definition of “computer” in the Civil Evidence Act to PACE, as it would make the traditional cash register a computer, and subject to the requirements of section 69(1) in order to be admissible.

69.In my judgment, the reason why the Legislative Council had left the term “computer” undefined in section 161 of the Crimes Ordinance was because, with rapid development in scientific technology, the definition of “computer” is broad, evolving and non-exhaustive.  The Court should consider the expert opinion and decide whether a device is a computer.

70.The Magistrate pointed out on the one hand the definition of “computer” should be broad, but not too broad.  He agreed the dictionary meaning of “computer” would include the Respondent’s mobile phone, but considered that the legislative intent did not include acts that used to be regarded as non-criminal, such as secretly taking photos in public.  Hence, he narrowed down the definition of “computer” in section 161.

71.The Magistrate pointed out that ordinary people would not call a mobile phone a computer.  But what it is commonly called is not material. “Father of the computer” Charles Babbage’s analytical engine was called the first computer, but it would hardly be regarded as a computer according to common sense and recognition.  Nor would a piece of string or an abacus.

72.Whereas a film camera does not constitute a “computer” under section 161 of the Crimes Ordinance, what about a viewcam connected to a desktop or portable computer?  Would the exemption of film cameras be applicable as well?  After all, the Respondent’s mobile phone has the same or similar data processing function as a traditional computer.

73.In my judgment, the starting point in statutory interpretation should be the language of the statute, not a retrospective view as to whether a particular act did previously constitute an offence or not.  In construing provisions involving science and technology, a statute should be taken to be “always speaking”, and a broad interpretation should be given according to its language, applying to changing situation subsequent to the enactment, unless it goes beyond the natural meaning of the statutory language, or the result is absurd or manifestly unjust.

74.Having regard to the fact that the Legislative Council did not apply the definition of “computer” in the Evidence Ordinance and other relevant statutes to section 161 of the Crimes Ordinance, and the comments in the Shephard case that the term should be left undefined, I agree with the Magistrate’s decision in not adopting the definition of “computer” under the Evidence Ordinance.

75.However, I consider that the dictionary meaning of “computer” referred to above, i.e. “an electronic device, which is capable of receiving information (data) in a particular form and of performing a sequence of operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals” should be the definition of the term “computer” in section 161 of the Crimes Ordinance.  That is in line with the definition of “computer” as a device for electronic data storage, processing and retrieval adopted internationally, and is consistent with the statutory provisions and judgments in other countries.  This interpretation will not bring about any absurdity or manifestly unjust result.

76.As rightly pointed out in the Tsun Shui Lun case, section 161 has prescribed four situations where access to a computer becomes a crime, and not every kind of access into a computer will constitute an offence.  Section 161(1)(c) in prescribing access to a computer with dishonest gain has set the offence within reasonable perimeter.

77.As the Magistrate has found the Respondent’s acts to be dishonest and disgusting, I do not see the purpose or need to narrow down the definition of “computer” in section 161.

Questions of law for the opinion of this court

78.The Appellant referred the following questions of law for the opinion of the Court of First Instance in the stated case, namely:

Question (1) :  Section 22A of the Evidence Ordinance, section 26A of the Inland Revenue Ordinance and section 19 of the Business Registration Ordinance defined “computer” as “any device for storing, processing or retrieving information.” Did the Magistrate err in failing to adopt such definition in construing the term “computer” in section 161(1) of the Crimes Ordinance?

Answer (1) : No.

Question (2) :  Did the Magistrate err in narrowing down the dictionary meaning of “computer” in construing the term “computer” in section 161(1) of the Crimes Ordinance?

Answer (2) : Yes.

Question (3) :  Did the Magistrate err in finding the term “computer” in section 161(1) of the Crimes Ordinance does not include the Respondent’s mobile phone in the present case?

Answer (3) : Yes

Question (1) :   

Question (2) :   

Question (3) :   

Question (4) :  Did the Magistrate err in failing to consider, fully or at all, the evidence of the expert witness for the Prosecution, or to give proper weight to it, thereby arriving at a perverse conclusion or finding?

Answer (4) : Not applicable.

Question (5) :  Did the Magistrate wrongly find that the Prosecution failed to produce any prima facie evidence in support of the first charge that the Respondent had obtained access to a “computer”?

Answer (5) : Yes.

79.For the reasons stated above, I reverse the Magistrate’s verdict and find the Respondent guilty as charged. The sentence will be dealt with separately.

80.Lastly, I would like to thank Mr. Chau for his submissions.

Mr CHAU Tin Hang, Anthony, Senior Public Prosecutor of the Department of Justice, for the Appellant

The Respondent, in person