LI MAN WAI v. SECRETARY FOR JUSTICE - [2003] HKCFA 34; FACC000006/2003, 6 November 2003

The is a Court of Final Appeal decision.

The appellant was charged with obtaining access to a computer, namely, the Inland Revenue Department's (IRD) computer system, with a view to dishonest gain for himself or another, contrary to s.161(1)(c) of the Crimes Ordinance, Cap 200. He was acquitted after trial before a magistrate, Ms J M Livesey. Section 161(1)(c) of the Crimes Ordinance with which the appellant was charged provides:

"(1) Any person who obtains access to a computer -

(c) with a view to dishonest gain for himself or another;

whether on the same occasion as he obtains such access or on any future occasion, commits an offence ..."

Upon an application by the prosecution pursuant to s.105 of the Magistrates Ordinance, Cap 227, the magistrate stated a case for the opinion of a judge of the Court of First Instance. Beeson J, having heard submissions from the parties, ordered the case to be remitted to the magistrate with a direction that she convict the appellant and pass sentence accordingly.

As directed by the judge, the magistrate subsequently convicted the appellant and fined him $1,000. The appellant appeals to this Court on the ground of substantial and grave injustice.

The Facts

The facts are not in dispute. Since the end of 1996, the appellant has been employed as an Assistant Assessor of the IRD. As required for the discharge of his duties, he made an Affirmation of Secrecy under s.4(2) of the Inland Revenue Ordinance, Cap 112, stating, among other things, that he would at all times preserve and aid in preserving secrecy with respect to all matters that may come to his knowledge in the performance of his duties under that Ordinance.

For the purpose of gaining access to the IRD's computer system, the appellant was assigned a user identity and a password which he used in the performance of his duties. All staff of the IRD, including the appellant, received regular reminders of the importance of observing the official secrecy provisions.

On 11 July 2000, using his user identity and password, the appellant gained access to the IRD computer system and obtained the identity card number and address of the complainant who was one of his colleagues and whose record as a taxpayer was kept in that system. He had no business in handling the complainant's tax matters and he obtained such information without the authority of the IRD or the complainant's consent.

The appellant then made use of such information in applying for membership of the World Wide Fund for Nature Hong Kong on behalf of the complainant. In the application form, he also included his own name and credit card number to enable payment of the entrance fee and he signed to authorize payment through his credit card. The complainant had not requested the appellant to make the application on her behalf.

Held:

It is accepted that there was an unauthorised access by the appellant to IRD's computer system. It is further accepted (although the appellant argued to the contrary in the courts below) that he had obtained a gain within the meaning of s.161(2) from the system by extracting the relevant information relating to the complainant. The remaining issue is whether there was dishonesty on the part of the appellant. It is common ground that this issue is to be determined by the application of the Ghosh test to the facts.

Evidence of Dishonesty:Any ordinary reasonable person would be aware that members of the public, particularly taxpayers, expect that their personal information kept by the IRD is protected and not released without their permission. Any public officer would be aware of the need and importance of maintaining such confidentiality. It was precisely for this purpose that the appellant was provided with a user identity and password for gaining access to the computer and was required to and did make an Affirmation of Secrecy under s.4(2) of the Inland Revenue Ordinance. IRD staff including the appellant were reminded of the importance of this obligation by the IRD's regular circulars. The appellant must have known that his access to the computer was unauthorized and that the IRD would not have given approval. He must be aware that this would be a breach of the trust which the IRD had placed in him as an employee and which the public had placed in him as a public officer. He must be aware that this would seriously affect the integrity of the IRD computer system and was an abuse of his position.

On the other hand, it is not disputed that the appellant did not intend to obtain and had not obtained any personal financial gain. On the contrary, he paid the entrance fee to join the WWF and he did what he did for purely personal or benevolent reasons. What is more significant is that in the application form for membership, he had put down his own name and credit card number. It is thus clear that he never intended to conceal his own identity or involvement in it. He did not try to cover his tracks. Indeed it might well be that he wanted the complainant (and possibly other people as well) to know that it was he who had done it. This is a conduct which could reasonably be regarded as inconsistent with dishonesty.

In the present case, it cannot, in my view, be said that the only reasonable conclusion which could have been open to a tribunal of fact was that the appellant was dishonest. It cannot be said that the magistrate's verdict is perverse.

There has been a departure from the accepted norm: the judge was not entitled to intervene. The Court therefore allowed the appeal and set aside the conviction and sentence.

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice Litton NPJ
Date of Hearing: 27 October 2003
Date of Judgment: 6 November 2003