-18attributed to words with more than one meaning. It sometimes suggests a
deficiency in drafting. However, it is not an unusual occurrence that even well
drafted statutes offer choices of construction relevant to their application to a
particular class of facts. That is the present case in relation to the words with
which s 161(1) opens, namely “any person who obtains access to a computer …”.
On one construction, relevant to the present case, a person “obtains access to a
computer”, within the meaning of s 161(1) if he or she uses any computer,
whether their own or somebody else’s. The alternative construction applies the
section only to the use by a person of a computer belonging to somebody else.
38.
The ordinary meaning of the words which open s 161 are indicative
of “unauthorized” use of a computer as suggested in Li Man Wai v Secretary for
Justice.13 The word “obtain” is relevantly defined in the Sixth Edition of the
Shorter Oxford English Dictionary as “come into the possession or enjoyment of;
secure or gain as the result of request or effort, acquire, get.” 14 “Obtain” so
defined, is not a word which sits easily with the use by a person of their own
device. Nor is the word “access” which, used as a noun, ordinarily means
“admittance (to the presence or use of) … [the] action or process of obtaining
stored documents, data etc.”15 As a verb, it includes in its usage “gain access to
(spec. data etc held in a computer-based system, or such a system)”.16 As a matter
of language one always “obtains” access to something to which one did not have
access before.
39.
There is a degree of redundancy in the statutory language to the
extent that the verb “obtain” is a synonym for “access” when used as a verb. That
overlap, however, merely emphasizes the oddness of applying s 161 to the use by
13
14
15
16
(2003) 6 HKCFAR 466.
Shorter Oxford English Dictionary (6th ed, 2007).
Ibid.
Ibid.
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