-20It does not appear from the available record what became of that draft or the
reason that the words “with or without due authority” did not appear in the Bill.
Their inclusion might have strengthened the appellant’s argument. Their
omission is neutral as the primary point of reference is the text as it was enacted.
41.
The statutory context in which s 161 was enacted is suggestive but
not determinative of its appropriate construction. For the most part the other
provisions enacted by the Computer Crimes Ordinance 1993 appear to define
offences by reference to access to or misuse of a computer other than the
offender’s own computer. The “hacking” offence created by s 27A of the
Telecommunications Ordinance (Cap 106) was directed to a person who “by
telecommunications, knowingly causes a computer to perform any function to
obtain unauthorized access to any program or data held in a computer”17. Not
only is the section clearly directed at a computer other than the offender’s own,
but it uses the term “access”. The word “unauthorized” is comprehensively
defined in s 27A(2). It does not appear in s 161(1). The appellant pointed to that
difference in support of a submission that s 161(1) covered the use of one’s own
computer, which could not be described as ‘unauthorized’. The difference does
not overcome the inference to be drawn from the use of the words “obtain” and
“access” in s 161 and the removal of the definition of “access” during the Second
Reading Debate.
42.
The purpose of s 161 emerges with reasonable clarity from the
Legislative Council Brief. As the law stood prior to the amendment, a computer
might be accessed by way of preparation for the commission of a substantive
offence where the access of itself would not constitute an offence. The stated
17
HKSAR v Chu Tsun Wai [2019] HKCFA 3 at [8].
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