-510.
Against this background, one can see that the extension of the
concept of criminal damage in the Crimes Ordinance to misuse of computers was
particularly important for the protection of websites. The definition of the offence
does not require access as such to have been unauthorised. So it applies to
computers which, through their websites, offer open access to the world. If the
access was with dishonest intent, that is covered by section 161. The offence
under section 60 is committed when, having obtained access to the computer
through the website, one causes it to “function other than as it has been
established to function by or on behalf of its owner”. The question therefore is
how one describes the way in which it has relevantly been established to function
by its owner. Mr Randy Shek, for the appellant, says it was established to, among
other things, receive and respond to requests. Mr Ned Lai, for the prosecution,
says it was established to provide banking services.
Proceedings in the lower courts
11.
The principal issues before the magistrate (Mr Raymond Wong) and
on appeal to the judge (Deputy High Court Judge Stanley Chan) were whether
the appellant was the user of the computer at the time, and whether the appellant
had participated in the attack intentionally or by accident. Both tribunals found
that he was the user of the computer and had done so intentionally. These findings
are not challenged.
The magistrate dealt briefly with the construction of
section 59(1A). He said (paragraph 70) that the appellant had added information
to the bank’s computer within the meaning of paragraph (c). As to the question
of intent, he said (paragraph 72) that the appellant had the intent to damage the
bank’s computer, and also held (paragraph 73) that the appellant was at least
“reckless” as to whether the bank’s computer would be damaged.