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15 July 2019 | by LexisNexis Hong Kong

In Secretary for Justice v Cheng Ka Yee (鄭嘉儀) & Ors [2019] 2 HKC 521, the Court of Final Appeal unanimously confirms that section 161(1)(c) of the Crimes Ordinance (Cap. 200), concerning the offence of obtaining access to a computer with a view to dishonest gain, does not apply to the use by a person of his or her own computer. The respondents to this case were primary school teachers who used their mobile phones and a school computer to transmit the questions and marking schemes for an admissions assessment for their school to third parties.

In determining the proper construction of section 161(1)(c), the Court of Final Appeal identified several constructional questions arising from this case but decided that the ultimate question to be determined to dispose of the case was whether a person’s use of their own computer with the requisite intent is covered by the provision.

Adopting the approach in Town Planning Board v Town Planning Appeal Board [2017] 2 HKC 372, the Court held that they must take a holistic approach when embarking on statutory construction. After assessing various factors including the ordinary meaning of the words used in section 161(1)(c) as well as various preparatory documents that illuminate the legislative history and purpose behind the enactment of section 161(1)(c), the Court concluded that the provision does not extend to the use by a person of his or her  own computer and dismissed the appeal against the respondents.

The Court further addressed the appellant’s arguments for a wider construction of section 161(1)(c) for the purposes of public policy. Referring to the content of and legislative purpose behind the offence, it was held that a wider construction would go beyond the original purpose of the provision which was to create preparatory offences instead of substantive offences. Finally, despite the intentions to advance a beneficial public policy to better combat computer-related crime, the Court’s role is to give effect to the intended purpose of the provision, not to identify a purpose which it thinks would be beneficial and then construe the statute to fit it.

For more information on criminal law, please see:

Butterworths Hong Kong Criminal Law and Procedure Handbook – Second Edition

Butterworths Hong Kong Police Force Handbook – Second Edition

Sentencing in Hong Kong – Eighth Edition

The Annotated Ordinances of Hong Kong

  • Evidence Ordinance (Cap. 8)
  • Crimes Ordinance (Cap. 200)
  • Criminal Procedure Ordinance (Cap. 221)

Criminal Evidence in Hong Kong

Criminal Procedure: Trial on Indictment

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