In 1999, a man named Tsun Shui-lun, a technical assistant at Queen Mary Hospital, retrieved the medical records of the then-Secretary for Justice, Elsie Leung, and proceeded to share them with his friends, family, and the media.
Almost two decades later in 2016, a 22-year-old man was arrested on suspicion of the same charge – for posting erotic writing involving rape, even though the story had been marked as a “work of fiction.”
The Secretary for Security, during the second reading of the bill, said the intent of the offence was “to penalize access to a computer for acts preparatory to but falling short of the commission of a fraud.” Two cases that took place last month – the theft of customer information in a travel agency and the hacking of a school’s computer system – may fit the bill as such.
But in recent years, the offence has gained notoriety for the broad range of cases it was utilised for. The police have invoked the section 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, as well as inciting others on the Internet to engage in illegal acts.”
There also appears to be a gradual broadening of the terms in the offence: following a 2013 case, mobile phones fell under the definition of “computer” in section 161. One of the most controversial areas is the extension to prosecuting under the section for online speech, which has led activists to decry an infringement on freedom of expression.
In 2014, a man surnamed Tam 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. Tam was also arrested under section 161.
Tam’s case is not an isolated incident. According to the Hong Kong Transparency Report, at least 19 people have been arrested for comments made online from June 2014 to August 2016.
The Progressive Lawyers Group’s Choy Ki questioned whether the case was a case of “thoughtcrime,” meaning one could be found guilty merely by having an “intention” of committing a crime while using a computer.
“People rant, and when they talk on the internet, they don’t mean what they say… we should not restrict speech in the online world unless someone takes action to do something, such as when they already have a plan,” he told HKFP. “Most of the time, when people speak online, they’re really just venting… Should even our freedom to vent be restricted?”
Another problem is that the question of whether a person has committed a crime in a particular situation may come down to the device – or lack thereof – used in an act. IT sector lawmaker Charles Mok questioned whether the law now criminalises any behaviour remotely connected to a computer, and not purely the behaviour of using a computer as a tool to commit fraud.
“If I am on the streets and I put up flyers, you can’t charge me because you don’t know who I am – besides, are you going to argue that because I used the computer to print them out, I dishonestly used the printer? And if I wrote it out by hand or screamed on the streets, then you can’t charge me?”
“The problem is when there are offences where you won’t prosecute when a computer is not used, but because… of the fact that a computer is used, it is convenient to use this catch-all law to charge them,” Mok said.
Choy shares similar sentiments. “The most outrageous and ridiculous is its application to cases involving taking upskirt pictures. If I use an iPhone, it could fall under section 161, but if I use a ‘lomography’ film camera then it doesn’t.”
Choy, who is also a former counsel for advocacy group Keyboard Frontline, said that the biggest problem with the deviation from the legislative intent was that the sentencing – currently set at a maximum imprisonment of five years – does not reflect the present application of the law.
Because the original legislation was drafted to deal with problems such as unauthorised access to computer and fraud, the criminality of the present situation is in fact not considered in the current sentence, Choy said. This means that both the premeditated theft of credit card information and online posts made in the state of heightened emotions are both subject to a maximum sentence of five years in jail.
In justifying this deviation from legislative intent, the government has often cited the judge in Tsun Shui Lun, who said that “It is clear from the section that it catches acts preparatory to the commission of a crime or fraud. But I do not agree that it is restricted to such acts.”
Judge Barnabas Fung also said that in construing provisions involving technology, the statute should be “always speaking” – meaning the interpretation of the language should take into account the changing situation, unless it is absurd. As a result, for example, “with rapid development in scientific technology, the definition of “computer” is “broad, evolving and non-exhaustive.”
“The law is indeed not dead, and there are occasions when there will be a deviation from the legislative intent, and [the law] would be broadened in a judgment,” Mok admitted. But Mok said the criticism was not directed towards the judge, but rather the prosecution process.
Another Occupy-related incident saw Tong Wai-leung, 20-year-old defendant, uploading the personal data of a police officer and that of his family onto the internet, then claiming that someone had been directed to assault said family members. While the government said that Tong was arrested for “criminal intimidation,” during trial he pleaded guilty to obtaining access to a computer with criminal intent, SCMP reported.
Tong’s case is an illustration of situations that worry both Choy and Mok, where the law enforcement uses the section or offence that has the greatest likelihood of fetching a conviction – something then-Secretary for Security Lai Tung-kwok admitted to doing in 2014.
Charging a defendant with multiple offences means that the arrestee or defendant will be scared, Choy said. When there is a plea bargain the heavier charge will be dropped when the defendant confesses to dishonest use of a computer. “They are more inclined to admit that they used the computer, and the prosecution can rely on that admission in charging them,” he added.
Choy said this is especially so in the dishonest use of computer offence, where it is difficult to prove the identity of the perpetrator, because of the ease of hiding the IP address nowadays – meaning that unless there is a confession, there may not always be enough evidence to result in a conviction.
For Mok, the possibility of these scare tactics means that there could be “selective” enforcement of the law. Mok said that many people who are charged become scared and plead guilty, and they won’t appeal even in cases when there may be grounds to do so. “They won’t use the offence to charge someone like Joshua Wong, because he would appeal for sure. They would charge those that don’t – regular people,” Mok said.
For example, with the Occupy cases, Mok said, “You can say that it’s [incitement] of unlawful assembly, but it’s been going on for months, and every night there are individuals who ask others to come out, but you only target one in charging them. The selective nature is wrong.”
But both Mok and Choy said that while they have these concerns, they had no way of confirming whether law enforcement employed these tactics, because of the lack of transparency. “This is how the chilling effect arises,” Mok said.
Meanwhile, the number of people arrested under the offence increases every year. In 2004, there were 30 prosecutions and 23 convictions for the offence; these figures have risen to 93 and 77 respectively in 2016, according to the government.
But details of these cases are not known. For years now, Mok and other pan-democratic lawmakers have pressed the police to provide classifications of cases relating to section 161 – such as how many of them relate to online speech – and they have refused to do so, citing a lack of resources.
While platforms such as Hong Kong Transparency Report and Keyboard Frontline have kept databases dedicated to such categorisation and fill the information gap, “It’s hard for us to prove whether it’s the situation we see now on the surface,” Mok said. This is especially so because the majority of the case are dealt with in Magistrates’ Courts, and go unreported.
Mok said he would like to know the details of arrests, prosecutions and convictions: “The police often use reasons to first arrest you, and then slowly decide, and may not charge you in the end… sometimes they use section 161 to charge you, and it’s like they would just conveniently charge you with another. It’s not clear where they draw the line with regards to whether to charge.”
Choy believes that the debates concerning section 161 involve a broader issue in that there is a need for the government to become more transparent and keep better records. One way of achieving this on the legislative level is with freedom of information and archive laws – both of which are currently being studied by the Law Review Commission. Choy said that there should also be a push for the judiciary to make trial records public on even the magistrate’s court level.
More transparency needed
Although Mok’s motion to review section 161 was voted down in the Legislative Council on February 2015, as of October the government has stated that the Law Reform Commission has plans to review laws in relation to cyber crimes, and it has started the relevant preparatory work.
Mok also called for clearer prosecution guidelines on the matter and more transparency in data in order to prevent abuse and to ascertain a better picture of the present situation.
While Mok acknowledged that a review is much-needed, it may not necessarily work to the benefit of Hong Kong people. Mok said that while he agreed the law in Hong Kong has some catching up to do, one issue that would definitely come up is surveillance, and where one draws the line. ‘To a large extent it goes back to the old question: if we don’t trust the government, then what can we do?”
“I don’t know if this is a philosophical or practical issue, but when we’re pushing the government to review section 161, don’t be too happy if they really propose changes. Even if it was found that the government and law enforcement had abused section 161, they might come up with something that’s even more comprehensive and gives the police or the government even more power in a more defined way,” Mok said.
“Nine out of ten times, the problem arises due to a distrust in the government – even when the issue itself isn’t problematic, you worry that there will be abuse.”
Article originally published in Hong Kong Free Press on 17 December 2017