-19a person of their own computer. The section could have been framed with the
opening words “[a]ny person who uses a computer …” on which wording a
constructional choice limiting the provision to the use of somebody else’s
computer would be unlikely.
40.
As noted above, the Bill as presented to the Legislative Council was
amended to delete an interpretive provision in the proposed s 161(2)(a) which
would have provided:
“A person obtains access to a computer if (and only if) he causes a
computer to perform any function.”
This was evidently made on the suggestion of the Legislative Council
Subcommittee that it would have a limiting effect as it would not cover
communications between computers to obtain or tap data in transit. It may be
observed that had that provision remained, there might have been a stronger
textual case for a construction extending s 161 to the use of the offender’s own
computer. That would have flowed from the generality of the phrase “causes a
computer to perform any function”. It would have accorded textually with the
reference in the Secretary’s Speech to the section applying “irrespective of
whether the access was authorized or not” which was relied upon by the appellant.
But that generality is not reflected in the text of the provision as enacted. As a
matter of background the Working Group referred to earlier had produced an
interim report which recommended the creation of the offence of “dishonest
accessing” under the Theft Ordinance (Cap 210) which began with the words:
“Any person who dishonestly accesses a computer, with or without due
authority with intent to deceive or with a view to gain for himself or
another…”
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