SECRETARY FOR JUSTICE v. CHENG KA-YEE AND OTHERS

HCMA 466/2017

[2018] HKCFI 2249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 466 OF 2017

(ON APPEAL FROM KCCC NO 2932 OF 2015)

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D E C I S I O N

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1.  By a judgment handed down on 6 August 2018, I dismissed the applicant’s appeal by way of Case Stated under section 105 of the Magistrates Ordinance, Cap 227, in respect of the acquittals of the four respondents.

2.  The applicant now applies for a certificate, under section 32 of the Hong Kong Court of Final Appeal Ordinance, that a point of law of great and general importance is involved in my judgment, to enable the applicant to appeal to the Court of Final Appeal.

3.  The revised question that the applicant asks me to certify is this:  “Is the actus reus of the offence under section 161(1)(c) of the Crimes Ordinance, Cap 200 restricted to the unauthorised extraction and use of information from a computer?”

4.  All the respondents oppose the application on grounds that the result of the appeal is academic insofar as they are concerned, because the acquittals will unlikely be affected and that the applicant’s contention is not reasonably arguable.

5.  While the result of this application probably might not affect theacquittals of the respondents, I agree with the applicant that a determinationas to the meaning of the actus reus (obtaining access to a computer) will not only affect the offence created under section 161(1)(c), but also other offences under section 161 of the Crimes Ordinance.  It would be in the interests of the public that there should be a final resolution of the proper construction of the controversial offences under section 161 of the Crimes Ordinance.

6.  I am satisfied that the question that I am asked to certify is of great and general importance and reasonably arguable.  I therefore allow the application and grant the certificate sought.