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Dominic WAI - When would using a computer be a crime?
An analysis of section 161 of the Crimes Ordinance and sharing of case law on this offence.
http://www.onc.hk/wp-content/uploads/2018/09/1809_Criminal_EN.pdf
Published in: Law
1. When would using a computer be a crime? CFA narrowed the scope of application of the offence of accessing a computer with dishonest intent 2 16 May 2019
2. Section 161 (1) (c) of Crimes Ordinance (Cap. 200) • 161 Access to computer with criminal or dishonest intent • (1) Any person who obtains access to a computer— • (a) … • (b) ... • (c) with a view to dishonest gain for himself or another; or • (d) … • 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 3
3. Elements • "obtain access" to • a "computer" • with a view to "dishonest gain" for himself or another 4
4. Definition of "Computer" - Secretary for Justice v Wong Ka Yip Ken [2013] 4 HKLRD 604 ("Wong Ka Yip Ken case") • No definition in the Crimes Ordinance (Cap 200) • 2014: a man set his smartphone to record a video in the ladies' washroom of his office • found guilty of the section 161 offence • Court of First Instance considered the definition of "computer" • held that the dictionary meaning of "computer" as "a device for electronic data storage, processing and retrieval" included smartphone • Definition of "obtain access" not discussed 5
5. Excessive usage of the offence • Police have invoked section 161 for: • online fraud • illegal intrusion into computer systems • clandestine photo-taking using smartphones in such non-public places as toilets or changing rooms • online publication of obscene or threatening information • inciting others on the Internet to engage in illegal acts 6
6. Excessive usage of the offence (Cont'd) • 1999: a technical assistant at Queen Mary Hospital, retrieved the medical records of the then-Secretary for Justice, Elsie Leung, and share them with his friends, family, and the media, • found guilty of the section 161 offence • 2014: a man posted on the popular HKGolden forum, calling for protesters to "paralyse the railway system by gathering on railway platforms in an attempt to create chaos" during the pro-democracy Occupy protests • arrested under the section 161 charge • 2016: a 22-year-old man posted erotic writing involving rape • arrested on suspicion of the section 161 charge 7
7. Definition of "obtain access" - Secretary for Justice v Cheng Ka-Yee and others ("Cheng Ka Yee case") • Three teachers in a primary school (the "Primary School") and a teacher in another primary school (the "Four") • used mobile smartphones and a school's computer to leak pictures and copies of the questions of the admission interview of the Primary School • charged with s.161(1)(c) of the Crimes Ordinance: "obtain access to a computer with dishonest or criminal intent" 8
8. Cheng Ka-Yee case– Magistrates' Court's ruling • 2016: acquitted by Kowloon City Magistrates' Court: • Element: with a view to "dishonest gain" • not sure if the three who worked in the Primary School were warned of the confidentiality obligations with respect to the questions of the admission interview • prosecution failed to prove the objective limb of the Ghosh test on "honesty" against the Four • review application by the prosecution: Magistrate confirmed decision to acquit 9
9. Cheng Ka-Yee case– Court of First Instance [2018] HKCFI 1809 • Element: "obtain access" • Deputy High Court Judge Pang Chung-ping: • Considered the definition of "obtain access" • Refused to convict the Four 10
10. Cheng Ka-Yee case– Court of First Instance [2018] HKCFI 1809 • Deputy High Court Judge Pang Chung-ping (Cont'd): • Prosecution's legal position that whether or not a person should be punished depends on the type of devices that the person used to communicate cannot be reasonably explained • The use of communication device was only peripheral to the criminal or dishonest plan, which could be achieved with or without the communication device • using a person's own mobile smartphones, or use of computer which is not unauthorized, to leak questions did not amount to "obtaining access to computer" 11
11. Cheng Ka-Yee case – Court of First Instance [2018] HKCFI 1809 (Cont'd) • Deputy High Court Judge Pang Chung-ping (Cont'd): • drew a difference between "obtaining access to a computer" and "using a computer" • does not support the contention that "obtaining access to computer" includes using a person's own smartphone to communicate, to take photographs or to send messages • To prove actus reus (the criminal act), the prosecution must prove "the unauthorized extraction and use of information" from a computer 12
12. Cheng Ka-Yee case – Court of Final Appeal [2019] HKCFA 9 • Department of Justice appealed CFI's decision • CFA unanimously dismissed the appeal • upheld the CFI's decision that the s.161(1)(c) Charge should not apply to a person's own computer when it did not involve access to another's computer 13
13. Cheng Ka-Yee case – Court of Final Appeal [2019] HKCFA 9 (Cont'd) • Mr. Justice French NPJ decided (agreed by CJ Ma, Ribeiro PJ, Fok PJ, Cheung PJ), inter alia: • as a matter of language, one always "obtain" access to something to which one did not have access before • the statutory language is a bit redundant as the verb "obtain" is a synonym for "access" when used as a verb • the overlap emphasizes the oddness of applying the s.161(1)(c) Charge to the use by a person of their own computer 14
14. Cheng Ka-Yee case – Court of Final Appeal [2019] HKCFA 9 (Cont'd) • Mr. Justice French NPJ decided (agreed by CJ Ma, Ribeiro PJ, Fok PJ, Cheung PJ), inter alia (Cont'd): • during the legislative history, the interpretive provision "a person obtains access to a computer if (and only if) he causes a computer to perform any function" was deleted; • the words "(obtaining access) with or without authority" did not appear in the bill either; • s.161(1)(c) Charge does not apply to the use by a person of his or her own computer, not involving access to another's computer 15
15. Cheng Ka-Yee case – Court of Final Appeal [2019] HKCFA 9 (Cont'd) • Mr. Justice French NPJ (agreed by CJ Ma, Ribeiro PJ, Fok PJ, Cheung PJ): • it is not the function of the Court to adopt a construction of a statute that advance a desirable public policy; • the Court seeks to ascertain the purpose of the statute to inform its construction; • the Court does not identify a purpose which it thinks would be beneficial and then construe the statute to fit it 16
16. What if Wong Ka Yip Ken case is decided after CFA judgment in Cheng Ka Yee case? • Facts: A man set his own smartphone to record a video in the ladies' washroom of his office • Analysis: using his own smartphone device to record the video • using own device, and it did not involve access to another's computer •  would not satisfy the definition of "obtaining access" • Cannot prosecute under s.161 of Crimes Ordinance (Cap. 200) 17
17. What if Wong Ka Yip Ken case is decided after CFA judgment in Cheng Ka Yee case? (Cont'd) • Possible alternative charges? • (1) Outraging public decency? (common law offence) • may not apply • Elements: • "capable of being seen by two or more persons who are actually present" AND • "in a place where there was a real possibility that members of the general public might witness it" • difficult to prove 18
18. What if Wong Ka Yip Ken case is decided after CFA judgment in Cheng Ka Yee case? (Cont'd) • Possible alternative charges? (Cont'd) • (2) Disorder in public places? (s.17B, Public Order Ordinance, Cap. 245) • may not apply • Elements: • act was done in public place • the victim is put in fear of being so harmed through the disturbance, and • an average Hong Kong citizen is likely to be outraged by such conduct • female toilet of the company is unlikely a "public place" 19
19. What if Wong Ka Yip Ken case is decided after CFA judgment in Cheng Ka Yee case? (Cont'd) • Possible alternative charges? (Cont'd) • (3) Loitering causing concern ? (s. 160 Crimes Ordinance, Cap. 200) • may or may not apply • Elements: • offender has been idling, hanging about or remaining • in or about the vicinity of the common parts of a building (entrance hall, lobby, toilet, compound, car park, etc.) • causes any person reasonably to be concerned for his/her safety or well-being • depends on whether the female toilet of the company is considered as a "common part of a building" • E.g.: whether the toilet is in common use by occupiers of building 20
20. What if Wong Ka Yip Ken case is decided after CFA judgment in Cheng Ka Yee case? (Cont'd) • May 2018: Law Reform Commission's Review of Sexual Offences Subcommittee • proposed the creation of a new offence of "voyeurism" to criminalise acts of non-consensual observation or visual recording of another person done for a sexual purpose • forms of visual recording would include photography, video recording and the taking of digital images • The prosecution in Wong Ka Yip Ken case may have to rely on the proposed new offence of "voyeurism" 21
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Robert DiCristino @ F This Movie!
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Excerpt: Can't quite manage to continue the first film's smart, unsentimental examination of male emotion and men's relationships. At best achieves a draw with a genre path that is already extremely well worn.
Excerpt: The franchise wheel keeps on turning. Creed II holds up its end of the recycled Rocky IV bargain with an insecure Michael B. Jordon, engaging boxing matches, and iconic training montages, but nobody will blame you if you sit this one out knowing you already saw a perfectly adequate version back in '85.
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Clyde William Greer
Published 3:18 pm Monday, September 14, 2020
Clyde William Greer, age 80, of Montevallo, passed away peacefully Monday, Sept. 14, following a lengthy battle with dementia.
His funeral service will be held Wednesday, Sept. 16 at 2 p.m. at Montevallo First Baptist Church, lying in-state beginning at 1 p.m. A private committal service will follow at Shelby Memory Gardens.
Mr. Greer spent his time investing in friends and family on memorable camping adventures and mission trips to Oneida Baptist Institute, Kentucky and Spain. Known for his friendly chatter during his walks around town, his wit, beautiful singing voice, and genuine love for others, Mr. Greer was also named Montevallo's Citizen of the Year.
Mr. Greer's career included decades as a Minister of Education, Music and Youth at Alabama Southern Baptist churches in Montevallo, Hamilton, Bessemer (Concord), Elba and Mt. Pleasant as well as in Ellisville, Mississippi. He earned a degree in Church Music from William Carey College in Hattiesburg, Mississippi and a Master's in Religious Education from the New Orleans Baptist Theological Seminary.
Brother Clyde retired from Montevallo First Baptist Church after 19 years there and a total of more 40 years in the ministry. He continued to minister to others as Interim Associational Director at Shelby Baptist Association (SBA) and as a volunteer there and at Owens House – The Shelby County Children's Advocacy Center.
Mr. Greer is survived by his wife of 58 years, Margie Harris Greer; sons, David Greer (Ruth), James Greer (Cindy), and Phillip Greer; grandchildren, Kayci Greer, Clark Greer, Anna Greer Smith (Austin), Andrew Liam Greer (Cheyenne), and Phillip Greer; one great-grandchild, Caleb; brother, Larry Greer (Peggy); sisters-in-law, Jane Greer, Kathleen Burnett-Chaffin and Donis Gomillion; brother-in-law, John Jones; and a host of nieces and nephews.
He is preceded in death by his parents, Herman and Dorothy Greer; brother, Bobby Greer; sister, Annette Jones; and brothers-in-law, Donald Gomillion, George Burnett, and Brooks Chaffin.
In lieu of flowers, memorials may be made to the two charities where Clyde volunteered: Owens House Advocacy Center, PO Box 1145, Columbiana, AL 35051 or Shelby Baptist Association, PO Box 888, Columbiana, AL 35051.
Elvis E. Walton
Elvis E. Walton Columbiana Elvis E. Walton, age 96, of Columbiana, passed away Friday, Sept. 11. The visitation will be... read more

redpajama_set_name: RedPajamaCommonCrawl


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It's all about bouncebackability - Spudangles
A Team Report: Berks 21 - 23 London
Berkshire A 21 - 23 London A
Reading, 19th August 2012
Set scores: 7 - 5 - 4 - 7
The day didn't start too well, with a lot of players missing from the squad including some letting us down on the day. Unfortunately, a lot of these were players who would have been playing in the A's, which inevitably has quite a knock-on effect on the B's, C's, and in the case (there being no Juniors at Berks) the Ladies team too.
More will be said elsewhere about attendance, I'm sure. All I'll say for now is that it's the first time in my long memory that the A's have been forced to call up this many from the B team, despite the fact that it's something which is bound to happen on occasion, so we should be careful not to be too concerned about it. And all the more so since the day ended up proving what a great squad we have... what with the Bs winning so well too, and the squad pulling together without complaint... on the day, at least,
Five were called up from the B team in all: Tony Bailey (a former national champion with the A's), Danny Moffat (who gave us an excellent 3 out of 4 when he turned out for As before, coincidentally in the same fixture last year), Pat McLoughlin and Jordan O'Connor (both of whom have been performing consistently well for London over a period of time and both of whom have been in good form this year including winning GLCPA singles events), and Tony Gear (who has only played 16 frames for the Bs this season but had won 15 of them - stats which simply cannot be ignored). They all acquitted themselves very well. Pat, Dan, and Jordan can consider themselves unlucky not to get more than 1 win each, Tony Bailey won 2 including a crucial one at the end. And Tony Gear was a little lucky to scrape through his first... but it's not often someone wins 4/4 without getting a little lucky in one of them. It has to be one of the most assured A team debuts I've ever seen, with an impressive combination of taking the finish when it was clearly there, but also of developing and holding shots when it wasn't. Composed and intelligent pool, nice to see.
So anyway, the first set featured 4 nice break-and-dishes, and all of them for Berkshire (against Jordan, Danny, Jon, and myself). But we won it 7-4 and you can't do a lot more than win all the frames that you get a shot in.
Berkshire nicked the second set 6-5 putting us 12-10 up at the halfway stage. At this point there was quite a long break for food. It's a policy which I don't think any of us like. But I think it's something you have to accept if that's the best way for a particular venue to do it. Hopefully they'll work out how to get the timings a bit better, in time. It didn't seem to help us, anyway, and we suffered a 7-4 reverse in the 3rd set. Joe's only loss of the day came at this point... he had to play a tricky slow shot the length of the table which was always nudging the black ball towards the pocket and ended up nudging it a bit too much. The tables were nice enough, I thought, but the corner pockets were very generous to slow-moving balls (but bouncing out quite a bit in the middles). Dan lost to a cracking double on the black.
So, we went into the last set 17-16 down, and lost the next 3 to go 20-16 down (including another break-and-dish, against Jerry). Chris was unlusky, for the 2nd frame in a row pulling off tricky shots only to get unlucky and snooker himself, or leave a ball he'd tried to pot (out of one of those snookers) tantalisingly on the lip of the pocket. On a day when we've won the match it's nice to be able to say that a few of our players deserved a bit more individually.
From 20-16 we had to win 7 of the next 8, and so we did. At 21-20 down, Tony Bailey and myself both managed to win at around the same time, leaving Jon Runghen to play the last frame, for the match, with the rest of the squad (the B team had finished their match by now) gathered round to support us. It was a typically accomplished frame, but he'd probably have preferred not to leave himself in a nasty chinese snooker on the black - having to play away from a ball near a corner pocket to pot it into the middle at a bit of an angle. Really tricky shot especially in the circumstances, but Jon nailed it to complete a fantastic come-back.
Individual scores:
Chris 2
Pat 1
Jon 3
Tony B 2
Rupe 3
Tony G 4
Joe's 3/4 means that he's joint 4th in the regional rankings, which is all the more impressive when you see that he's just a frame behind the 3 in front of him, but Joe's played 4 fewer frames.
· Rupe on August 28 2012 23:24:18 · 0 Comments · 13233 Reads ·