-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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