-21purpose of the new section set out as quoted in Legislative Council Memorandum
was to create:
“[a] new offence of ‘dishonest accessing’ … to make it unlawful to gain
access to computers with intent to deceive, cause loss to another or gain
for the offender.”18
43.
The language of the Memorandum itself, using as it did the term
“gaining access”, indicates a purpose directed at conduct by an offender involving
access to somebody else’s computer. That limitation is explicable as a matter of
policy. The definition of inchoate offences presents challenges particularly in
relation to their mens rea elements which are necessarily directed to the
commission of a future offence.
The practical difficulty of establishing a
preparatory mens rea may be lessened where it is connected to an actus reus
involving the wrongful use of somebody else’s computer.
44.
All in all, text, context and purpose in this case point in the direction
of a construction of s 161 that does not extend to the use of the offender’s own
computer, unless that use involves getting access to another computer in which
case the conduct is also likely to be covered by one of the other offences created
or extended by the Computer Crimes Ordinance 1993. It was not suggested that
the present case involved any of the respondents using their own devices to access
another’s device.
45.
The appellant argued for the wider construction of s 161 and did so
largely on the ground that such a construction secured a beneficial public policy.
The appellant pointed out that technology had moved on considerably since the
enactment of the Computer Crimes Ordinance 1993. He gave as examples the
18
Security Branch, Legislative Council Brief (25 March 1992) para 3(b), enclosed in
Memorandum for Legislative Council (26 March 1992).
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