Criminal damage occurs when a person without lawful excuse damages or destroys property belonging to someone else, intending to damage or destroy that property or being reckless whether that property is damaged or destroyed. Under Section 59(1A) of the Crimes Ordinance (Chapter 200), criminal damage includes “the misuse of a computer”.
Misuse of a computer means interfering with the function of a computer, altering or erasing any programme or data stored in the computer, or adding any programme or data to the contents of a computer.
Any person who obtains access to a computer-
whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable upon conviction on indictment to imprisonment for 5 years.
The test for dishonesty is applied by the court in the form of two questions: (1) whether the defendant's conduct would be regarded as dishonest by the ordinary standards of reasonable and honest people; and if the answer to (1) is "yes", then (2) whether the defendant knew that his conduct was so regarded. If the answer to (2) is also "yes", then the defendant's conduct would be regarded as dishonest under the law; whether or not the defendant himself considered his conduct as dishonest is irrelevant.
A gain or loss does not have to be economic. Section 161(2) of the Crimes Ordinance (Chapter 200) states that "gain" and "loss" are to be construed as extending not only to a gain or loss of money or other property, but as extending to any sort of temporary or permanent gain or loss.
Offences relating to making or dealing with infringing articles are set out in Section 118 of the Copyright Ordinance (Chapter 528). The more common offences can be found in Section 118(1) which include, among other things, the following criminal activities:
These offences are targeted mainly at commercial dealings with infringing copies. However, it must be noted that any potentially large scale non-commercial distribution of copyright products (such as films and hit songs) is also a crime under Section 118(1)(g). In the "Big Crook" case (Chan Nai Ming v HKSAR ), the Court of Final Appeal ruled that "distribution of copies" includes transmission of electronic copies on the Internet. Based on this ruling and the fact that the Internet enables unlimited number of copies to be made by downloaders, any unauthorised sharing of copyright products on the Internet is a crime in Hong Kong, whether or not the sharing is for monetary gain.
"Personal data" means any data relating directly or indirectly to a living individual, such that it is possible and practical to ascertain the identity of the individual from the said data. The data must be represented in a recorded form (e.g. a document or a video) and be capable of being reproduced.
The legal definition of personal data can be found in Section 2 of the Personal Data (Privacy) Ordinance (Chapter 486). Common daily examples of personal data include name and address (in combination), information appearing on Hong Kong identity card, and medical records.
Data protection principles
Any person or organization collecting, holding, processing or using personal data must comply with the six data protection principles laid down in Section 4 and Schedule 1 of the Personal Data (Privacy) Ordinance (Chapter 486). Please click here for details.
Defamation is the publishing of false information which adversely affects the reputation of the person to whom the false information refers. Putting information on the Internet is publishing as the information is available to persons who access the Internet.
Defamation is not a criminal offence. But the person aggrieved (who is being insulted or made fun of) may bring a civil action for defamation against the wrongdoers and seek remedies from them.
Under Section 33B(1) of the Offences Against the Person Ordinance (Chapter 212), a person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, commits a crime.
“Counselling” means encouraging or persuading someone to do something. Whilst suicide is not a criminal offence in Hong Kong, it is an offence to encourage, persuade or help someone else to take their own life.
“Appropriation of property” means taking or using property without authority or right. “Property belonging to another” means that the property belongs to someone other than the person who takes it.
“Property" includes money and all other property, real and personal, including things in action and other intangible property.
“Intangible” property is something which someone can own and transfer to someone else but which has no physical substance. A credit balance in a bank account is a good example of intangible property. It can be withdrawn or transferred to someone else but it does not have any physical substance.
In ”The Invisible Thief”, by using the credit cards to purchase the online points, Andy has caused the clients’ accounts to be debited. By reducing the credit balances in clients' accounts, Andy dishonestly appropriated property belonging to those clients. When he did that he intended permanently to deprive those clients of the amounts by which their accounts were reduced. This is theft.
Fraud is a crime under Section 16A of the Theft Ordinance (Chapter 210). The crime is typically committed when a person (the fraudster) by deceit and with intent to defraud induces another person to act in such a way that results either in prejudice to that person or in benefit to the fraudster. The crime carries a maximum sentence of imprisonment for 14 years upon conviction on indictment.
A key element of fraud is deceit, which distinguishes the crime from theft. “Deceit” necessarily implies an element of dishonesty. “Inducing another person” means that there must be a causal link between the deceit and the subsequent action of the victim. The crime is not established if there is no inducement. Thus it would be a defence to show that the victim's act was not caused by the deceit or that the victim knew the falsity of the deceit and was not affected by it.
All these offences involve the use of a “false trade description”, which broadly means a trade description that is false or misleading to a material degree (see Section 2 of the Trade Descriptions Ordinance). "Trade description" means a direct or indirect indication of the characteristics of the goods such as their dimension, method of manufacture, composition, fitness for purpose, test results, approval by any person, place or date of manufacture, manufacturer, warranty etc.
By virtue of these provisions, any commercial dealing with goods using a false trade description, forged trade mark or deceptive mark is a crime in Hong Kong.
The maximum penalty for an offence under Section 7 or 9 is a fine of $500,000 and imprisonment for 5 years on conviction on indictment, and a fine of $100,000 and imprisonment for 2 years on summary conviction.
The offence of "obtaining property by deception" is defined in Section 17 of the Theft Ordinance (Chapter 210). The offence is committed when a person by deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of the property.
A key element of the offence is deception, which distinguishes the offence from mere theft. "Deception" in this context means any deception by words or conduct and includes a deception as to fact or as to law, a deception relating to the past, the present or the future, and a deception as to the intention of any person (Section 17(4)).
The offence is punishable by a maximum sentence of imprisonment for 10 years upon conviction on indictment.