Computer Says No – Prosecuting Smartphone Offences

Gabriela Kennedy's Asia Pacific column in the latest issue of Computer Law & Security Review features a Mayer Brown article titled "Computer Says No – Prosecuting Smartphone Offences”. 

In this article, Gabriela takes a look at the recent case of Secretary for Justice v. Cheng Ka-Yee and Ors, whereby the Court of First Instance allowed an appeal concerning the offence of obtaining access to a computer for dishonest gain under Section 161(1) of the Crimes Ordinance (Cap 200). The authors provide a brief background of the case, which involved the prosecution of four primary school teachers who had used their smartphones and a school computer to leak admission interview questions. The teachers were charged under Section 161(1) of the CO with the offence of obtaining access to a computer with a view to dishonest gain for another. At trial, the Magistrate held that the prosecution failed to prove the element of dishonesty for the purposes of establishing an offence under Section 161 of the CO and the defendants were subsequently acquitted. On appeal, a new question was put to the prosecution by the CFI - whether the actus reus for the offence (i.e. obtaining access to a computer) could be proved. The CFI held that the ambit of the actus reus for the offence should be limited to unauthorised extraction and use of information from a computer. The appeal was dismissed.

The author examines the impact of this case, explaining that the outcome has dealt a blow to the ability to prosecute many smartphone-related crimes. Many actions are widely seen as criminal because they involve the use of smartphones or computers, when in fact, they do not squarely fall under an existing offence. The case demonstrates how current legislation may be inadequate to deal with the digital age and that it may be time for a revamp of the legislation.

Gabriela is a member of the editorial board of Computer Law & Security Review and edits the Asia Pacific column, a country-by-country analysis of the latest legal developments, cases and issues relating to IT, media and telecommunications in the Asia Pacific region.