@eLaw.com.hk by yip tse & tang, solicitors + notaries 葉謝鄧律師行

What is spamming

Spamming is the act of sending unsolicited electronic messages in bulk, whether for commercial or non-commercial purpose. Sending unsolicited messages does not confine to emails. It happens with postal junk mails and junk fax. Pure spamming is not an offence in Hong Kong. The Office for Telecommunications Authority released a consultation paper to the public on 25th June 2004 with the wish to making spamming an offence.

Spam by emails is the most often seen form of spamming on the Internet. Emails are delivered with contents or messages for commercial advertising. Because of the little cost on sending email emails in massive scale, Non-commercial junk emails are also found.

It must be noted that sending unsolicited emails is not the only medium of spamming. Other media includes: instant messaging (such as ICQ or Yahoo Messaging), Usenet newsgroups and forum (message borads. Responsible service providers on Internet service has a set of rules or know-how to monitor and regulate the use of the Internet as a spamming tool. The examples are Yahoo!, ICQ a hotmail.

Hong Kong Judiciary: Judgments and Legal Reference

Judgments from the following courts delivered between 1946 and 1948, and from 1968 onwards are available on this web site :

Court of Final Appeal (since its establishment in 1997)

Court of Appeal of the High Court

Court of First Instance of the High Court

District Court

Family Court

Lands Tribunal

In the normal course of event, a judgment will be available on this web site within 72 hours of its handing down. Cases of great importance or public interest will be put under "New Judgments" on the same day of their delivery.

Visit: Hong Kong Judiciary: Judgments and Legal Reference

The Laws of Hong Kong: BLIS

This has been the Bilingual Laws Information System (BLIS) on the Internet prepared and hosted by the Department of Justice of Hong Kong for free public access since November 9, 1997. BLIS contains the Laws of Hong Kong in both Chinese and English.

Users can search and retrieve the Ordinances and Sub-Legislation from BLIS. This service is free of charge. 

Visit BLIS

The Basic Law of the Hong Kong SAR, China

A site set up by the Government of the Hong Kong SAR consisting of the Basic Law full-text, video clips for Government's propagation, judgements by the Courts.

Visit the site.

Hong Kong Legal Information Institute (HKLII)

Hong Kong Legal Information Institute (HKLII)

The Hong Kong Legal Information Institute (HKLII - pronounced 'H K Lee') is a free access legal information system developed and jointly operated by the University of Hong Kong Department of Computer Science and Information Systems (CSIS) and Faculty of Law, with the kind assistance of the Australasian Legal Information Institute (AustLII).

HKLII's mission is to provide free access to primary legal materials from Hong Kong (and some publicly available secondary materials) by use of technology that is both easy to use and powerful in the diversity of materials that it covers.

The system is based on data obtained from sources in Hong Kong and the region. Mark-up, processing, database structure, search engine facilities, and some other aspects of technical infrastructure are adapted from software provided by AustLII. The Hong Kong, China and Taiwan pages (and some subject pages) of the World Law index are jointly prepared by HKU Faculty of Law and AustLII. The day to day operation of HKLII is carried out by HKU CSIS Department. The overall facility is managed jointly by HKU CSIS Department and Faculty of Law.

Telephone message in grossly offensive or of an indecent, obscene or menacing character

A stalker may harass the victim by making persistent telephone calls. Such conduct amounts to harassment regardless of the content of the calls. If the content is obscene, threatening or objectionable, the harassment is all the greater. Harassment by oral or written communications may be caught by the following statutory offences:

a) sending any telephone message which is “grossly offensive or of an indecent, obscene or menacing character”(section 20 of the Summary Offences Ordinance (Cap 228);

b) sending any telephone message, which he knows to be false, for the purpose of “causing annoyance, inconvenience or needless anxiety to any other person”(section 20 of the Summary Offences Ordinance (Cap 228);

c) persistently making telephone calls without reasonable cause and for the purpose of “causing annoyance, inconvenience or needless anxiety to any other person”(section 20 of the Summary Offences Ordinance (Cap 228);

d) transmitting a “false distress, urgency, safety or identification signal” knowing it to be false or with intent to deceive(Telecommunication Ordinance (Cap 106), section 28);

Comments by the Law Reform Commission

These provisions are of assistance to a stalking victim because the stalker may not threaten him or her but may merely be obscene or vulgar, or merely cause him or her annoyance or inconvenience. Prosecuting under such provisions may deter non-violent stalkers from future harassing behaviour or defuse a stalking situation because the stalker now knows that his behaviour is illegal and the police are aware of his existence.

However, the penalty under the telephone statutes is inadequate to reflect the culpability of a persistent offender where his conduct has impaired the victim's health. All three offences in (a) to (c) above are summary offences carrying a maximum custodial sentence of only 2 months’ imprisonment.

The offences in (b) and (c) require the prosecution to prove that the accused made the calls “for the purpose of causing annoyance, inconvenience or needless anxiety” to any other person. Obsessional stalkers who harass their victims by making telephone calls may lack the requisite purpose; they may simply seek to negotiate with the victim or to force the victim to recommence a prior relationship. In any event, the offences fail to catch stalkers who harass their victims by sending a large volume of unwanted faxes and e-mail. Likewise, a stalker, who harasses his victim by sending messages to one or more Internet newsgroups revealing the victim's telephone numbers and residential address and at the same time soliciting sexual service in the name of the victim, would not be caught by these offences.

HKSAR v. KO KAM FAI - [2001] HKCA 204; CACC000083/2001, 20 June 2001

This is a Court of Appeal judgment.

On 16 February 2001, the Applicant pleaded guilty in the District Court to:-

two charges of criminal intimidation, contrary to section 24 of the Crimes Ordinance, Cap. 200 (the Ordinance) and

eight charges of criminal damage, contrary to section 60(1) of the Ordinance.

On 19 February 2001, Deputy Judge Ma sentenced the Applicant to concurrent terms of twelve months for each offence of criminal intimidation (charges 5 and 6) and four months on each of the criminal damage charges (charges 1 to 4, 8, 10, 12 and 14).

The Applicant sought leave to appeal against sentence on two grounds, complaining that the sentence was manifestly excessive on the two counts of criminal intimidation.

Facts

Two victims were involved by the Applicant through his criminal acts. Both victims were female(X and Y). They were undergraduates at the Hong Kong University where they shared the same dormitory. Each of them had an e-mail account with the university computer system.

The offences were committed between September 1998 and May 1999. On a number of occasions between those dates, the Applicant hacked into X and Y's e-mail accounts at the University. In X's case, some of the data stored in her computer was transferred to the Applicant's computer, including a photograph of herself. In Y's case, the Applicant was able to interfere with the operation of her computer's mouse. In both their cases, data was altered by the Applicant's infiltration of their computers. Their e-mail accounts were overloaded to the point that they became inoperative as a direct result of the number of e-mails the Applicant had sent to them. These e-mails included highly obscene articles and pictures and other sexually explicit material.

Amongst the e-mails sent by the Applicant to X and Y was a message which read:

"Don't you believe that I will go to your hall to rape you."

X and Y were very frightened by this.

The offences contrary to sections 60(1) and 24 of the Ordinance with which the Applicant was charged carry maximum sentences of ten years and five years' imprisonment respectively although, in the circumstances of this case, it was the two offences in the latter category, i.e. the intimidation offences, which were by far the more serious.

The judge, in passing sentence, equated the offences committed by the Applicant with offences brought under section 161 of the Crimes Ordinance. It goes without saying that none of the offences in this case was brought under that section of the Ordinance which provides for a maximum sentence of five years' imprisonment for accessing a computer with criminal or dishonest intent. It is in this context that, in his first ground of appeal, Mr Philip Wong, on behalf of the Applicant, contended that the judge erred in principle in drawing support from HKSAR v Tam Hei-lun [2000] 3 HKC 745, for his view that the offences committed by the Applicant should be dealt with by imprisonment unless there were most unusual circumstances making a custodial sentence inappropriate. Tam Hei-lun was concerned with offences brought under section 161 of the Ordinance. This error, he submitted, was compounded by a failure to consider a basic principle of sentencing that a defendant who has pleaded guilty should only be sentenced on the plea he has entered and on the basis which the prosecution has accepted (See: R v Booker [1982] 4 Cr. App R (S) 53.)

The acts of criminal intimidation, by accessing X and Y's computers, was a serious invasion of their privacy and the consequences of such acts were likely to be not only extremely upsetting but also very alarming to both of them. We find ourselves in full agreement with the sentencing judge's sentiments that a deterrent sentence for this kind of conduct was called for.

The lower sentences for the criminal damage charges, although there is no appeal in relation to them, was a reflection by the judge of the short-term nature of the damage done to the computers. The gravamen of the offences lay in the criminal intimidation charges.

The application was dismissed.

Coram: Hon Stuart-Moore VP and Stock JA
Date of Hearing: 20 June 2001
Date of Judgment: 20 June 2001

R. v. HUNG HAK SING and Another - [1995] HKCA 321; CACC000642/1994, 4 August 1995

This is a Court of Appeal decision.

The prosecution arose out of an earlier conspiracy in which customs officers had arranged for illegal immigrants to enter Hong Kong from China for transit abroad. These two applicants were charged with other offences related to that original conspiracy.

On 11 November 1994 after trial Judge Eccleton in the District Court convicted the 1st applicant (Hung) of one offence of obtaining access to a computer with a view to dishonest gain contrary to s. 161 of the Crimes Ordinance, Cap. 200.

The trial judge convicted Hung on his interpretation of s.161 of the Crimes Ordinance in the following terms:

"However Section 161 of the Crimes Ordinance specifically extends the meaning of "gain" beyond that of monetary terms.

When sensitive or classified information is given to an unauthorised person whether money changes hands or not and regardless of the use to which that person intends to put such information there has been a dishonest gain in that the otherwise unobtainable information or knowledge has been gained by that unauthorised person."

Hung appealed to the Court of Appeal.

Facts of Hung's Case

The facts of Hung's offence were that on 14 May 1993 he obtained access to the Immigration Dept computer containing the Travel Record and Immigration Control Enforcement system to discover whether certain people were on the watch list.

The indictment alleged that he obtained access to the computer with a view to dishonest gain for himself and /or another. The prosecution case was that Hung obtained access at the request of Lee Kang Sun, a senior customs officer who was the main participant in the original conspiracy, and that the access was with the view to dishonest gain because Hung performed the service in the expectation that he would be paid for it.

The Laws

The relevant part of s.161 of the Crimes Ordinance Cap. 200 provides

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

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

.... commits an offence and is liable to conviction upon indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1) "gain" and "loss" are to be construed as extending not only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent, and -

(a) "gain" includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(b) "loss" includes a loss but not getting what one might get, as well as a loss by parting with what one has".

Held by the Court of Appeal Mortimer JA (giving the judgment of the Court):

The act is complete once access is obtained. It is then for the prosecution to prove that the person had the requisite intent - in this case a view to dishonest gain for himself or another. Once the judge had decided that the applicant obtained the access to the computer in this case as an act of friendship, that he was unaware of the underlying illegal purpose, and that he was not expecting any monetary payment or other reward, evidence relevant to proof that any gain was dishonest called for very careful consideration.

Assuming that obtaining information may be sufficient gain within the meaning of the section the judge decided that as the access to the computer was unauthorised, it was therefore dishonest - without further examination of his other findings apparently inconsistent with dishonesty. This finding we cannot accept. Looking at the judge's reasons in the round, it was not open to him to find that the access to the computer was shown by the prosecution to be with a view to dishonest gain.

The Court of Appeal allowed the appeal and quashed the conviction.

Coram: Litton, V.-P., Mortimer and Ching, JJ.A.
Date of Judgment: 4 August 1995; 8 September 1995

Disclosure Records of Recognized Certification Authorities

In accordance with section 31(1) of the Electronic Transactions Ordinance (Cap. 553) (the Ordinance), the Director of Information Technology Services must maintain for each recognized certification authority (CA) an on-line and publicly accessible record.

As at today, the following disclosure recrords are found on the following links:

1. Disclosure Record for Digi-Sign Certification Services Limited

2. Disclosure Record for HiTRUST.COM (HK) Incorporated Limited

3. Disclosure Record for the Postmaster General

Disclosure Record for Other Recognized CA

Currently, there is no other CA who is recognized under the Ordinance. Therefore, the above 3 CAs are the only recognised CA as at 23rd June 2004.

Archive of Disclosure Record for CA Whose Recognition Has Been Revoked

1. Disclosure Record for Joint Electronic Teller Services Limited

Offences on Hacking: Criminal Damage

Virus is a computer program and is the result of someone developing a mischievous program that is self-replicating. Computer program is digitized information easily transmisable on the Internet. Virus can therefore likewise be transmitted on the Internet easily not bound by territory. Because it is self-replicating, computers can be infected in large scale and in very short period of time.

Hong Kong does not have a specific legislation on hacking. People sending virus can be subject to the criminal charge of criminal damage. The offence reads as follows:-

Destroying or damaging property

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another:

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,

shall be guilty of an offence.

Threats to destroy or damage property

A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out:

(a) to destroy or damage any property belonging to that other or a third person; or

(b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person,

shall be guilty of an offence.

Before its amendment, 'property' does not include computer program and 'damage' can only be done to physical objects. Section 59, Crimes Ordinance has now covered these situations:

>"property" (財產) means inter alia property of a tangible nature, whether real or personal, including money and any program, or data, held in a computer or in a computer storage medium, whether or not the program or data is property of a tangible nature.

"to destroy or damage any property" (摧毀或損壞財產) in relation to a computer includes the misuse of a computer. In this subsection, "misuse of a computer" (誤用電腦) means:

(a) to cause a computer to function other than as it has been established to function by or on behalf of its owner, notwithstanding that the misuse may not impair the operation of the computer or a program held in the computer or the reliability of data held in the computer;

(b) to alter or erase any program or data held in a computer or in a computer storage medium;

(c) to add any program or data to the contents of a computer or of a computer storage medium, and any act which contributes towards causing the misuse of a kind referred to in paragraph (a), (b) or (c) shall be regarded as causing it.