HKSAR v. KO KAM FAI

CACC 83/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 83 OF 2001

(ON APPEAL FROM DCCC 1163 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 16 February 2001, the Applicant pleaded guilty to two charges of criminal intimidation, contrary to section 24 of the Crimes Ordinance, Cap. 200 (the Ordinance) and to eight charges of criminal damage, contrary to section 60(1) of the Ordinance. On 19 February 2001, Deputy Judge Ma sentenced the Applicant to concurrent terms of twelve months for each offence of criminal intimidation (charges 5 and 6) and four months on each of the criminal damage charges (charges 1 to 4, 8, 10, 12 and 14). These sentences reflected in each case a one-third discount from the selected starting points to take into account the pleas of guilty.

2. The Applicant now seeks leave to appeal against sentence on two grounds, complaining that the sentence was manifestly excessive on the two counts of criminal intimidation.

3. Although the amended summary of facts ran to almost fifteen pages, the background was very straightforward. Two victims were involved by the Applicant through his criminal acts. Both victims were female and it is convenient to refer to them as X and Y. They were undergraduates at the Hong Kong University where they shared the same dormitory. Each of them had an e-mail account with the university computer system. X and the Applicant had been former schoolmates. X had also, shortly before the events in this case, given evidence for the prosecution as the victim of an alleged indecent assault which had been given wide publicity in the press.

4. The Applicant's offences were committed between September 1998 and May 1999. On a number of occasions between those dates, he hacked into X and Y's e-mail accounts at the University. In X's case, some of the data stored in her computer was transferred to the Applicant's computer, including a photograph of herself. In Y's case, the Applicant was able to interfere with the operation of her computer's mouse. In both their cases, data was altered by the Applicant's infiltration of their computers. Their e-mail accounts were overloaded to the point that they became inoperative as a direct result of the number of e-mails the Applicant had sent to them. These e-mails included highly obscene articles and pictures and other sexually explicit material.

5. Amongst the e-mails sent by the Applicant to X and Y was a message which read:

"Don't you believe that I will go to your hall to rape you."

Not unnaturally, they were very frightened by this.

6. The offences contrary to sections 60(1) and 24 of the Ordinance with which the Applicant was charged carry maximum sentences of ten years and five years' imprisonment respectively although, in the circumstances of this case, it was the two offences in the latter category, i.e. the intimidation offences, which were by far the more serious.

7. The judge, in passing sentence, equated the offences committed by the Applicant with offences brought under section 161 of the Crimes Ordinance. It goes without saying that none of the offences in this case was brought under that section of the Ordinance which provides for a maximum sentence of five years' imprisonment for accessing a computer with criminal or dishonest intent. It is in this context that, in his first ground of appeal, Mr Philip Wong, on behalf of the Applicant, contended that the judge erred in principle in drawing support from HKSAR v Tam Hei-lun [2000] 3 HKC 745, for his view that the offences committed by the Applicant should be dealt with by imprisonment unless there were most unusual circumstances making a custodial sentence inappropriate. Tam Hei-lun was concerned with offences brought under section 161 of the Ordinance. This error, he submitted, was compounded by a failure to consider a basic principle of sentencing that a defendant who has pleaded guilty should only be sentenced on the plea he has entered and on the basis which the prosecution has accepted (See: R v Booker [1982] 4 Cr. App R (S) 53.)

8. In such circumstances, Mr Wong complained that, by looking at an inappropriate case, the judge had excluded from his consideration the imposition of, for example, a community service order because he must have felt that only an immediate custodial sentence should be imposed.

9. What the judge had said in the course of passing sentence, amongst other things, was this:

"(The Defendant) committed the series of offences over a protracted period of time. The pictures and stories were obviously tailor-made by the Defendant who had managed to obtain the personal particulars of the victims, seeking to annoy, insult and put the victims in extreme fear. It has demonstrated sheer disrespect for human dignity and disregard of personal feelings of the victims. I do not accept the Defendant simply intended to play (a) joke on the victims. This is one of the most serious cases in its type. I am of the firm view that, taking into account all these facts, a community service order is not appropriate. To mark the abhorrence of society to this kind of acts, a deterrent sentence must be passed and an immediate custodial sentence of some length should be considered.

There is no sentencing guideline for (an) offence under section 60 where criminal damage was done to (the) computer or (its) programme. However Rogers VP had (this) to say in HKSAR v. Tam Hei Lun [2000] 3 HKC 745, 749;

'... where access has been obtained to someone else's computer whether for gain or for some other reason, the act can in many respects be likened to burglary. What has happened is that there has been access to the computer of another, much in the same way as a person who enters a house or an office and goes through a drawer or filing cabinet.'"

10. The judge went on:

"While the Court of Appeal in the case mainly considered sentence for (an) offence under section 161 of the Crimes Ordinance which related to access to (a) computer with criminal intent, the passage quoted does provide some useful reference to the sentence of the present case.

In this case, the Defendant has gained unauthorised access to the computer of the victims where personal information has been lost. Their 2 e-mail accounts were overloaded by the obscene and depraved materials and they became in-operative. In this world of computer and internet, individual users are getting more vulnerable as hackers can easily intrude into their privacy and copy away personal information. For cases of this nature, a deterrent sentence is also called for." (Tr. pp. 32-33)

11. Later the judge went on to say that as the offences were "part and parcel" of a series of acts committed by the Applicant, he would make all the sentences run concurrently.

12. Although Mr Wong criticised the judge for having found the present offences in some respects analogous to those considered in Tam Hei-lun for sentencing purposes, we think that there was a great deal to commend this approach. When Rogers VP, to an extent, likened the act of accessing someone else's computer to an offence of burglary, he was speaking within the context of an offence contrary to section 161 of the Ordinance. It has to be remembered that burglary is not merely confined to those who come into premises as a trespasser with intent to steal. A person is also guilty of burglary if he enters premises as a trespasser with intent to rape or to cause grievous bodily harm.

13. The acts of criminal intimidation, by accessing X and Y's computers, was a serious invasion of their privacy and the consequences of such acts were likely to be not only extremely upsetting but also very alarming to both of them. We find ourselves in full agreement with the sentencing judge's sentiments that a deterrent sentence for this kind of conduct was called for.

14. The lower sentences for the criminal damage charges, although there is no appeal in relation to them, was a reflection by the judge of the short-term nature of the damage done to the computers. Mr Wong had at one stage, which we can say from having had the advantage of his written submissions, intended also to criticise these sentences. However, in relation to them, perhaps we should say that whilst they may seem on the face of it to have been short, in the particular circumstances of this case, the gravamen of the offences lay in the criminal intimidation charges.

15. There is no merit in the grounds which have been put forward by Mr Wong and the application is dismissed.