Prosecution of at least 15 HK smartphone cases on hold for months, court document shows

07-Sep-2018 Intellasia | South China Morning Post | 6:00 AM Print This Post

Court proceedings for at least 15 smartphone-related cases in Hong Kong must be adjourned for months after a judge ruled that prosecutors erred in pressing a commonly used charge, it was disclosed on Thursday.

The scope of the ruling’s impact was revealed for the first time since it forced the Department of Justice to review all pending cases involving the charge of accessing a computer with dishonest intent under Section 161 of the Crimes Ordinance. The section is often invoked to prosecute upskirting cases.

While director of public prosecutions David Leung Cheuk-yin noted the court proceedings of 15 smartphone-related cases at trial had been suspended, he remained tight-lipped on how many new prosecutions his department would be forced to put on hold.

“We just can’t guess how many [new cases] are affected,” Leung said on Thursday. “Because of the latest ruling we cannot bring charges under this offence.”

He was referring to the appeal court’s refusal to overturn the acquittal of three teachers from CCC Heep Woh Primary School and a fourth teacher from another school, who were accused of leaking school entry questions by using their own smartphones.

Leung was speaking after a procedural hearing on Thursday, when judge Pang Chung-ping backed the department’s appeal against his ruling to be brought to the Court of Final Appeal after agreeing the matter was of public interest.

Because of the latest ruling we cannot bring charges under this offence

David Leung Cheuk-yin, director of public prosecutions

Pang said in his judgment in August that the justice department had wrongly applied the offence under Section 161 and it must prove there was “unauthorised extraction and use of information”, instead of mere “use” of a computer or smartphone.

At the hearing on Thursday, the prosecution argued such an interpretation was never the law drafters’ intention.

“When the Secretary of Security moved the bill for a second reading [in the Legislative Council in 1993] to create the new offence, it was irrespective of whether access is unauthorised or not,” Leung said.

A separate new offence requiring that unauthorised access to a computer be proved was instead added to the Telecommunications Ordinance in the same Legco session.

Leung claimed the public interest warranted the appeal, and warned of a slippery slope in that some computer mischief might not be caught if the court’s latest interpretation of Section 161 were adopted.

He said, for example, phishing scammers who send messages with their own computer to a large number of recipients to induce them to reveal personal information could escape legal sanction. This might eventually lead to recipients suffering financial losses, he added.

In the real world [as compared to online]… one has to get the real [physical] address and mail it, hoping the recipient would respond. This is not comparable to sending an email.”

But the defence countered that the earlier ruling on Section 161 had been sufficiently clear, rendering the prosecution’s claims academic.

“Continuously applying the offence wrongly throughout the years would not make the alleged point of law become one of great and general [public] importance,” wrote James Tze, lawyer for one of the defendants, Wong Pui-man, in a court submission.

“Any loophole in the offence should be amended by the legislative authority.”

Pang said any appeal would unlikely affect the four defendants’ acquittal. But he said it would be in the public interest to clarify the scope of the “controversial” offence, and handed the matter to the Court of Final Appeal.

The top court would still need to commence a separate hearing to decide whether to take the appeal. No date for that has been fixed.

Some of the defendants tried to bargain with prosecutors, asking them not to bring future charges over their case and to pay for the costs of the hearings. Prosecutors declined.


Category: Hong Kong

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