tim's experiment

I see that a gentleman has been charged with accessing a computer with dishonest intent because he posted messages urging people to resist police attempts to clear Mong Kok. There is no suggestion that he was not entitled to access the computer, which was his own. And so a legal abuse continues.

The relevant part of the Crimes Ordinance goes like this:

“(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.”

Now the clear intent of this amendment, which was drafted carelessly and apparently not perused by any awake legislator) was to criminalise gaining access to a computer which you were not entitled to access. And for some years after it was passed (in 1993) it was interpreted in this way. The change came when someone in the Department of Justice (as it had become) was looking round for some way of getting at a hospital employee who had revealed that the department’s bulletins on the health of the then Secretary were lies. Generally it is not a criminal offence to reveal to the public that officials are deceiving them, so some legal creativity was called for.

The offence of dishonest access was wheeled out for the purpose, and there was perhaps some faint justification for this. After all the hospital employee concerned, though he had legitimate access to the computer for his work, was arguably acting outside his duties when he used his access to expose official mendacity. Since then, though, the offence has suffered from galloping mission creep, and is now routinely charged if anyone has done anything illegal involving a computer. A judge recently ruled that a mobile phone had enough microchips in it to qualify as a computer, thereby adding the possibility that this charge can be used for any offence involving use of your phone.

I maintain, and will continue to do so until contradicted by the Court of Final Appeal, which will no doubt have to settle the matter eventually, that this interpretation is absurd. After all there are many offences for which the maximum penalty is much less than imprisonment for five years. Are we to suppose that the legislature intended, and the ordinance means, that such an offence is trivial if committed with your pen, but a serious matter deserving of extended incarceration if you use your computer? It’s crazy. Why were the couple who recently lost a spectacular libel case involving emails not charged with this offence? It doesn’t require criminality – only a dishonest intent to deceive.

Logically the results of this could be scary. Your car has more microchips in it than your mobile phone. So when you switched it on you “accessed a computer”. So the policeman who catches you speeding has two choices. He can give you the usual ticket or he can charge you with accessing a computer with intent to commit an offence, to wit, speeding. There is no requirement that the offence should be serious. Go directly to jail, do not pass Go, do not collect 200… What of a man who texts a message to his wife saying he is in the office when he is actually in his mistress’s flat. Clearly a dishonest deception. Is this now criminal?

Let me in closing answer before it is made the point that I should ask the Department’s prosecutors to comment before criticising them like this. I have tried asking them what they were up to about other matters and was told in reply that the Department of Justice does not give free legal advice.  Why any sane person would want legal advice from that source was not explained.