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Computer Crime Law in Hong Kong

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Computer Crime Law in Hong Kong
Why It Matters and What's Next?

April 9 2019
Computer Science
Hong Kong Polytechnic University

Publié dans : Droit
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Computer Crime Law in Hong Kong

  1. 1. Computer crime law in Hong Kong why it matters and what’s next? Charles Mok Legislative Councillor (IT) 2019-4-9 Sharing @ PolyU COMP Legal Aspects And Ethics Of Computing
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  3. 3. 3 The Interception of Communications and Surveillance Ordinance (ICSO) provides a statutory regime for the authorisation and regulation of interception of communications and covert surveillance conducted by law enforcement agencies to prevent or detect serious crime and protect public security. The Commissioner on Interception of Communications and Surveillance is an independent oversight authority, appointed by the CE on the recommendation of the Chief Justice.
  4. 4. 4 Post-Snowden: Concern over government surveillance via user data requests without court warrant
  5. 5. 5Source: Hong Kong Transparency Report, JMSC HKU
  6. 6. 6Source: Hong Kong Transparency Report, JMSC HKU
  7. 7. 7 Personal Data (Privacy) Ordinance
  8. 8. the Crimes Ordinance (Cap. 200) Section 161 access to computer with criminal or dishonest intent 8 What is the s161 created for originally? How is the s161 being used? What are the problems with how it is used? CFA’s ruling: Now what?
  9. 9. 9 https://www.elegislation.gov.hk 161. Access to computer with criminal or dishonest intent (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.
  10. 10. What was the original purpose? After a study began in 1988, s.161 came into operation in 1993 - pre-Internet age - No social media, no smartphone and mobile devices Computer fraud was becoming an emerging area of crime 10
  11. 11. “ ...the new offence of access to a computer with criminal or dishonest intent" aimed at penalising "access to a computer for acts preparatory but falling short of the commission of a fraud. --- then Secretary for Security, during the resumed debate on the Second Reading of the Bill (1992) 11
  12. 12. How about now? 12 Application of s.161 has become much wider, and exceeded the original purpose of the law
  13. 13. S.161 turned into a catch-all for the prosecution More than 100 people were charged every year in the past 5 years by this law. ⊙ Online fraud ⊙ Illegal access to a computer system ⊙ Sending / receiving confidential info ⊙ Taking upskirt photos/videos ⊙ DDoS attack ⊙ Posting threatening messages online or inciting to “siege” LegCo 13
  14. 14. s.161 is applied to charge any case involving a ‘computer’ Usually as an alternative charge 14
  15. 15. 15 What are “computers”?
  16. 16. HKSAR v Tsun Shui Lun [1999] - A technical assistant to a radiologist at QM Hospital released the medical records of the Secretary for Justice to the press without her consent, claiming the public’s right to know - The case sparked public concern over privacy - Tsun was charged with s.161 access to a computer with a dishonest intent, sentenced to 6 months imprisonment after trial in the magistracy - “It is the intent or purpose of the offender at the time of access which must be looked at, not his intent or purpose at some later stage” The application of s.161 in court cases 16
  17. 17. HKSAR v Tsun Shui Lun [1999] - Significance: meaning of ‘gain’ under section 161 - not confined to financial or proprietary benefits - covers intangible benefits and can be transient - Applicable as long as a person anticipates a benefit or advantage even it cannot be used The application of s.161 in court cases 17
  18. 18. Security for Justice v Wong Ka Yip [2013] - Wong was acquitted of s.161, obtaining access to computer with view to dishonest gain (taking videos of a colleague in the ladies’ toilet) - The appeal was held, finding him guilty as charged - The dictionary meaning of “computer” included Wong’s smartphone: definition of “computer” as a device for electronic data storage, processing and retrieval - Significance: established the smartphone could perform all the functions of a computer and was a “computer” in s.161 The application of s.161 in court cases 18
  19. 19. Same behaviour, different consequences? E.g. Taking/sending photo of stolen exam paper using a smartphone = Access to computer with criminal or dishonest intent What if the person used a film camera or copied by hand? 19
  20. 20. Number of cases related to s.161 skyrocketed as law enforcement had to deal with more computer-related crimes 20
  21. 21. S.161 & Online Speech 21 ⊙ Section 161 has a lower standard for prosecution than the more substantial offences such as “illegal gathering,” “criminal intimidation,” or “assaulting police.” ⊙ In recent years, activists had been arrested for online remarks ⊙ Usually sentenced to community service or rehabilitation centre ⊙ Has the s.161 been applied selectively to repress political activists’ speech on the Internet?
  22. 22. Is it fair for the prosecution to apply the law beyond the original purpose and even against online political speech? 22
  23. 23. 23
  24. 24. 24 Example in the Occupy Central movement Tong Wai-leung, 20-year-old defendant, uploading the personal data of a police officer and that of his family onto the internet, then claiming that someone had been directed to assault said family members. - arrested for “criminal intimidation” - Tong pleaded guilty to obtaining access to a computer with criminal intent.
  25. 25. at least 19 people have been arrested for comments made online from June 2014 to August 2016. one could be found guilty merely by having an “intention” of committing a crime while using a computer Thoughtcrime? 25
  26. 26. Requesting the government to disclose details about the use of s.161 in LegCo 26 24 April 2013 5 Nov 2014
  27. 27. Online petition campaign in 2014 calling for the stop of abuse and reviewing the scope of s.161 More than 5000 people supported 27
  28. 28. 28 Civil society groups expressed concerns over the scope of s.161
  29. 29. Government defended the prosecution’s use of s.161 in my motion debate calling for review (2015) - Necessary to address rising computer crimes - There is no inconsistency - Critics misinterpreted the law Taking the easiest charge as catch-all in the prosecution? 29
  30. 30. 30
  31. 31. “ 31 ...The text of the provision, including the words “obtain” and “access”, suggested an unauthorised use of a computer, and did not sit easily with the use by a person of their own device....All in all, the text, context, and purpose in this case pointed towards construing s.161(1)(c) of the CO so that it does not extend to the use of the offender’s own computer. ---Mr Justice French NPJ (Court of Final Appeal) 4 April 2019
  32. 32. The primary school teachers & exam papers case 32
  33. 33. 33
  34. 34. The Court of Final Appeal ruled the existing s.161 did not apply to a person’s own phone or computer. 34
  35. 35. 35
  36. 36. What’s next? 36 More discussion over cyber crime in the coming years Specific offence against upskirt photo/video taking? Citizen’s freedom and rights must be protected
  37. 37. 37
  38. 38. Thanks! Stay in touch: charlesmok@charlesmok.hk Twitter @charlesmok www.charlesmok.hk facebook.com/charlesmokoffice 38

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