Secretary for Justice v Wong Ka Yip Ken
Court of First Instance
Magistracy Appeal No 77 of 2013
Barnabas Fung J
Criminal
12, 29 April 2013

Obtaining access to computer with view to dishonest gain — meaning of “computer” included “smartphone” mobile phone

The defendant (“D”) was acquitted of obtaining access to a computer with a view to dishonest gain for himself or another. D set his smartphone at a vantage point to record via video a toilet in the ladies’ washroom of his office. The phone was discovered and D admitted that he had intended to film a female colleague secretly with it. The term “computer” is not defined in the Crimes Ordinance (Cap. 200) (the “CO”). The prosecution tendered expert evidence that the smartphone could perform all the functions of a computer and was a “computer” pursuant to the CO as defined under Section 22A(12) of the Evidence Ordinance (Cap. 8) (the “EO”), Section 26A of the Inland Revenue Ordinance (Cap. 112) (the “IRO”) and Section 19 of the Business Registration Ordinance (Cap. 310) (the “BRO”). The Magistrate held in his findings, including a dictionary consideration of the word “computer”, that D’s smartphone was not proven as such under CO Section 161(1)(c). The Secretary for Justice appealed against the acquittal.

Held, finding D guilty as charged, that:

The Legislative Council left the term “computer” undefined in Section 161 of the CO because, with rapid developments in scientific technology, the definition of “computer” was broad, evolving and non-exhaustive. The court should consider expert opinion and decide whether a device in question was a computer.

On a proper interpretation, the dictionary meaning of “computer” applied to Section 161 of the CO and included D’s smartphone. This was in line with the definition of “computer” as a device for electronic data storage, processing and retrieval adopted internationally, and was consistent with the statutory provisions and judgments in other jurisdictions. This interpretation would not result in any absurdity or manifest injustice.

Jurisdictions: 

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