Govt Loses Fight Over 'catch-all' Computer Offence

Hong Kong's top court has dealt a blow to prosecutors as it ruled that a formal accusation they have been using to put people on trial over a range of criminal behaviour, from fraud to upskirt photography, can't be allowed to be a "catch-all" charge.

A five-judge Court of Final Appeal panel dismissed a challenge by the Secretary for Justice after a lower court had ruled that the charge of "obtaining access to a computer with a view to dishonest gain" can't be applied in cases where a crime suspect had used their own device.

Director of Public Prosecutions David Leung had revealed last year that at least 15 trials were being held up because of confusion surrounding the use of the charge.

The Court of Final Appeal judgement delivered on Thursday says as a matter of language, people only "obtain" access to something that they did not have access to before.

It notes that Legco papers from 1993, when the law was drafted, spell out that the term "gaining access" refers to the conduct involving an offender's use of somebody else's computer.

During the appeal hearing, the Department of Justice had argued that a wider interpretation would secure a beneficial public policy.

But the judges said this is not the function of the court, which can only ascertain the legislative intent and purpose of a law, not identify a purpose which it thinks would be beneficial and then interpret the law in a way to make it fit.

The case which led to the ruling involved four primary school teachers who were accused of using their smartphones to take photos of entrance exam papers for their school and then sharing them with parents.

They were found not guilty in a magistrates' court in 2016, before the High Court upheld the ruling in 2018.