Cyber & Technology Crime: Access to Computer with Criminal or Dishonest Intent

Access to Computer with Criminal or Dishonest Intent

Under section 161 of the Crimes Ordinance (Cap. 200), laws of Hong Kong, anyone who obtains access to a computer:

(i) with the intent to commit an offence; or

(ii) with a dishonest intent to deceive; or

(iii) with a view to making a dishonest gain, either directly or for another; or

(iv) with a dishonest intent to cause loss to another, whether at the time of obtaining such access or on any future occasion, commits an offence.

The word ‘computer’ is not defined under the Crimes Ordinance (Cap. 200). However, reference can be made to section 22A of the Evidence Ordinance (Cap. 8) which defines computer as any device for storing, processing or retrieving information.

 

For the test for dishonesty, the Court would consider :

1. whether the Defendant's conduct would be regarded as dishonest by the ordinary standards of reasonable and honest people; and if the answer is "yes", then
2. whether the Defendant knew that his conduct was so regarded. If this answer is also "yes", then the Defendant's conduct would be regarded as dishonest, regardless of whether the Defendant considered his conduct as dishonest or not.

One should note that gain or loss referred to under section 161(2) of the Crimes Ordinance (Cap. 200) extends beyond the gain or loss of money or other property, and on a temporary or permanent basis.

 

Common application of this offence :

(i) Hacking into computers (whether through a telecommunications system, the Internet or otherwise); or

(ii) Taking indecent photos or videos with smartphones.

The maximum penalty for this offence upon conviction on indictment is 5 years’ imprisonment.

 

For legal advice or services on Cyber & Technology Crime, please contact CHOW & CHEUNG, Hong Kong Solicitors & Notary Public. [Tel: +852 2856 3799   Email: cac@ccsn.hk]

www.ccsn.hk

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