Hong Kong Case Law

香港特別行政區 訴 馮建雄

Court

Court of First Instance

Case number

HCMA358/2022

Admissions and computer logs were admissible and established that the appellant intentionally elevated his account, reset other users' passwords and used multiple accounts to access and download targeted proposals; the psychiatric evidence did not establish lack of dishonest intent or incapacity to foresee consequences; the RGC system and its server constituted a "computer" under s161 and "gain" encompassed the information obtained; therefore appellant possessed the requisite dishonest purpose under s161(1)(c) and convictions are upheld.

Source excerpt

• Unauthorized access to computer
• Dishonest intent under s161(1)(c)
• Definition of gain
• Admissibility of computer records (s22a)
• Expert psychiatric evidence and weight
• Application of ghosh test

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HKSAR v. CHU TSUN WAI

Court

Court of Final Appeal

Case number

FACC20/2018

The Court of Final Appeal held that a DDoS attack could amount to criminal damage by misuse of a computer under s 59(1A)(a). The appeal was dismissed.

• Ddos attacks
• Misuse of computer (s59(1a))
• Criminal damage (s60)
• Consent and lawful excuse
• Evidential/pleading fairness
• Ddos-attacks

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SECRETARY FOR JUSTICE v. CHENG KA YEE AND OTHERS

Court

Court of Final Appeal

Case number

FAMC51/2018

The Court of Final Appeal granted leave to appeal on the scope of the actus reus under section 161(1)(c) of the Crimes Ordinance and on alleged perverse findings on dishonesty.

• Actus reus
• Unauthorised extraction and use of computer information
• Dishonesty
• Scope of offence under s161(1)(c) crimes ordinance
• Leave to appeal
• Leave-to-appeal

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SECRETARY FOR JUSTICE v. CHENG KA-YEE AND OTHERS

Court

Court of First Instance

Case number

HCMA466/2017

The court held that the statutory meaning of “obtaining access to a computer” should be determined even if the respondents’ acquittals might remain unaffected.

• Actus reus
• Obtaining access to a computer
• Acquittal
• Academic appeal
• Criminal-law
• Computer-crime

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HKSAR v. TSE MAN LAI

Court

Court of Appeal

Case number

CACC455/2012

Court of Appeal refused leave to appeal against conviction under Crimes Ordinance s 161 for using a computer to launch denial-of-service attacks and obtain images for commercial promotion.

• Unauthorized access to computer
• Denial of service attack
• Dishonesty
• Section 161 crimes ordinance
• Ghosh test
• Computer-crime

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HKSAR v. LEUNG PING NAM

Court

Court of First Instance

Case number

HCMA432/2007

Appeal against convictions for forgery, using a false instrument, and unauthorised computer access was dismissed, but the custodial sentences were replaced with suspended terms.

• Forgery
• Using a false instrument
• Unauthorised computer access
• Credibility and evaluation of witnesses
• Admissibility of interview statements
• Appeal by way of rehearing

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HKSAR v. ALISTAIR CHARLES CURRIE

Court

Court of First Instance

Case number

HCMA795/2004

The High Court dismissed a magistracy appeal against conviction under s.161(1)(c) of the Crimes Ordinance, holding that “gain” can include information and motive need not be proved.

• Unauthorized computer access
• Dishonesty
• Mens rea
• Definition of gain under statute
• Section 161(1)(c) crimes ordinance
• Computer-crime

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LIU WAI SHUN v. HKSAR

Court

Court of Final Appeal

Case number

FAMC30/2004

Leave to appeal was refused in a criminal case involving computer access with criminal intent and criminal damage, where the Court found ample evidence and no arguable basis for a remote-access theory.

• Computer misuse
• Criminal damage
• Burden of proof
• Standard of proof (beyond reasonable doubt vs fanciful possibility)
• Remote access/spyware as alternative hypothesis
• Appellate review of findings of fact

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HKSAR v. MOHAMMAD SHAZAD NASEEM

Court

Court of First Instance

Case number

HCMA243/2004

A magistracy appeal in which the High Court set aside a conviction after finding the magistrate failed to consider prejudice before reopening the prosecution case and recalling a witness.

• Unauthorised computer access
• Retrial
• Admission of computer records
• Recall of witness
• No-case submission
• Trial court discretion to reopen prosecution case

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HKSAR v. LAI MEI YUK CANDY

Court

Court of Appeal

Case number

CACC427/2003

The Court of Appeal granted leave and allowed the sentence appeal in part, holding that full restitution after sentencing was material mitigation warranting a further six-month discount.

• Restitution
• Mitigation
• Credit card fraud
• Plea of guilty
• Sentencing guidelines
• Concurrency vs consecutiveness

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