'Dishonest Use Covers All Computer-related Crimes'

The Department of Justice has defended its use of “access to computer with criminal or dishonest intent” charge before the top court, saying it should be applicable to any crimes related to the use of computers, including traditional crimes committed with the help of the technology.

The Director of Public Prosecutions, David Leung, made this submission as he urged the Court of Final Appeal to convict four primary school teachers charged with leaking interview questions via their smartphones.

They were found not guilty by a magistrate in 2016, and the acquittal was upheld by a High Court judge last year, who also said the defendants cannot be charged with this offence, since they were using their own smartphones.

The judge also said the scope of the charge is too wide, and “could not have been the intention of the legislature”.

In light of that High Court ruling, at least 15 criminal trials were held up, including “upskirt” photo cases, and one of a taxi driver accused of secretly taking a picture of a breastfeeding passenger.

But arguing in the top court, Leung said the offences should cover anybody’s phones, including the defendants’ own devices, as the objective is to prevent the improper use of a computer that could lead to a crime.

For example, Leung said, if a person plans to rob a bank, and he uses a computer to find an escape route, then he’d have committed a crime. He said using a computer, instead of a map, would make it more difficult for others to find out about such acts.

But permanent CFA judge Joseph Fok questioned the proposition, and asked whether the actual crime the person would have committed was robbery. Chief Justice Geoffrey Ma also said that in this scenario, the person would merely have happened to use a computer.

Defence lawyers, meanwhile, maintained that the charge should not cover cases where a defendant is accused of making use of their own phone.

The five-judge panel reserved its ruling to a later date.