XTRNX HKSAR v. YU MEI KING

Approved by the Judge
[English Translation]
HCMA 898/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 898 OF 2002

(ON APPEAL FROM ESCC 547/2002)

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JUDGMENT

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Introduction

1. The Appellant was convicted after trial by the learned Magistrate of 23 charges of Access to Computer with Dishonest Intent, contrary to section 161(1)(c) of the Crimes Ordinance, Cap. 200. The learned Magistrate ordered her to serve a Community Service Order of 80 hours. The Appellant was aggrieved by the convictions, thus this appeal against the convictions.

Summary of facts

2. The prosecution called two witnesses in this case. All the material evidence came from the witnesses' statements and the records of interviews taken by the police from the Appellant. These documents were admitted in evidence pursuant to sections 65B and 65C of the Criminal Procedure Ordinance, Cap. 221. The undisputed facts are as follows:

(1) At all material times of the charges, the Appellant was a Clerical Assistant of Unit Three, 'Departure and Special Due Date Section', Inland Revenue Department ("IRD"), Hong Kong Special Administrative Region Government ("HKSAR Government"). That unit is responsible for handling tax matters concerning persons leaving Hong Kong, bankrupts and companies in liquidation. The Appellant was responsible for opening files for bankrupts and companies in liquidation, retrieving relevant information stored in the database of the computer intranet system and in-putting the information in the files to facilitate tax officers to process the matters.

(2) In order to ensure that the user of the system is the staff member himself, the IRD of the HKSAR GOVERNMENT issues a unique User Identity Number and an initial code to each staff member. The initial code only allows the staff member to obtain access to the home page, but disallows him to search for information. After the staff member has been given an initial code, he has to make up his own code to update the initial code. Only after the initial code has been updated can the staff member then use the search function of the system. Thus, in theory, only the staff member himself knows the code of the User Identity Number.

(3) In May and June of 1997, the Appellant was authorized to use the system through the nomination by her supervisor, and the User Identity Number was L10627.

(4) On 16 October 1997 and 10 December 1999, a Deputy Commissioner of the IRD issued two circulars numbered 64/97 and 28/99 respectively. The Appellant had also signed on the circulation lists. Both circulars contained the following two paragraphs: (exhibits P20A, B)

"Attention is particularly drawn to the proper use of terminals for on-line access to information held in the computer. An on-line user, through nomination by his supervisor / section leader, is authorized to perform on-line processing (enquiry and / or updating) only in the course of discharging his duties. He is accountable for all on-line transactions performed by him.

The opportunity is taken to remind all users that after they have completed the on-line checks, they must log off the on-line system properly (i.e. return to the 'Green R' / 'Red R' screen) before leaving their terminals. In no circumstances should terminals, especially those shared by two or more users, be left unattended after logging on the on-line system. This is to prevent any access to on-line facilities by other person(s) in the absence of the authorized user (who has logged on previously)."

(5) On 31 March 2000, when the Appellant was using a computer to search for information relating to Wong Tze Wah, the computer's surveillance system issued a "logged for review" message which required the user to report to the user's supervisor at once.

(6) After the computer's surveillance system had issued the "logged for review" message, the Appellant then made a report to her immediate supervisor (PW1). She said she wanted to search for and look at her friend Wong Tze Wah's address, and that she did not have any document to prove that the search was for the purpose of official use. On the same day, having been asked by PW1, the Appellant gave a written explanation (exhibit P17A).

(7) Thereafter, PW1 made investigation into the Appellant's computer work records of the period between 1 February 2000 and 31 March 2000. From the Appellant's attendance records (exhibits P17I, J) and the Security Log File Enquiry Report (exhibit P12 or P17D), PW1 discovered that among the searches made by the Appellant, some were repeated searches for information relating to one single person, some were not in any way connected with her duties, some were made by in-putting names of persons. In view of the above findings, PW1 suspected that the Appellant had made searches for information relating to 27 persons in circumstances that were not connected with official use, one of the subject persons was the Appellant herself (exhibits P17F, G, H).

(8) On 28 April 2000, in light of the findings made by PW1 in his investigation, an Investigation Committee of the IRD interviewed the Appellant (exhibit P17B). On 2 May, the Appellant also gave a written explanation (exhibit P17C) to the Investigation Committee.

(9) On 31 October, 7 December 2000 and 4 January 2001, under caution, the Appellant voluntarily attended four interviews conducted by the police (exhibits P13 to P16), and one of the interviews (7 December) was conducted in the presence of the Appellant's lawyer. On 20 November 2000, subsequent to the record of interview made on 31 October, she also gave a written supplemental statement (exhibit P16B).

(10) From December 2000 to January 2001, the police interviewed 11 persons whose information had been searched for by the Appellant using the computer. Three of them did not know the Appellant (exhibits P1, P5, P8), whilst six of them knew her (exhibits P2, P3, P4, P6, P7, P9), two of them were in fact members of her family. The Appellant's elder brother had asked her to help him check to see if the IRD had issued tax return to him (exhibit P10), the other ten persons said that they had not entrusted the Appellant, or through any other persons entrusted her, to search for and look at their information held by the IRD.

3. In brief, the Appellant's response (see exhibits P13, P14, P15, P16, P16B, P17A, P17C) to the Investigation Committee of the Inland Revenue Department and the police can be summarized as follows:

(1) She admitted, in circumstances not connected with her duties, she had searched for information of nearly all the persons on the investigation list.

(2) She searched for and looked at the information of those persons:

- Because she was bored, playful or curious.

- Because she wanted to know how their (names) were written in "Chinese and English".

- Because she wanted to know her friends' correct addresses in English.

- Because when she wanted to look up the information of a particular person, she in-putted a wrong name.

- Because her friends or relatives had asked her to assist in dealing with matters relating to business registration or tax.

(3) She denied that she had searched for and looked at the information of the other persons on the list. In brief, her explanations were that she did not know if any persons had used her code, that she might have forgotten to log off the system, or that she had let her colleagues use her terminal for convenience sake to facilitate their work.

(4) She was regretful, compunctious, apologetic and sorry about the incident.

(5) She had not recorded, made copies of or amended the information she had searched for and looked at. Moreover, she had already forgotten the information. Nor had she supplied or sold the information to outsiders for unlawful use. She reiterated that she had not breached the official secrecy requirements, not to mention receiving or soliciting any advantages, or enabling others to receive gain or causing others to suffer loss.

4. The learned Magistrate was of the view that the prosecution's charges and the Appellant's explanations could be classified into three categories:

(a) She did not search for and look at the information of those persons whose names appear on the charge sheet (charge 1: Chan Sui Ping; charge 14: Tang Shuit Fan); (Note: there was evidence to show that someone had used L10627 (namely the Appellant's User Identity Number) to obtain access to the computer)

(b) As she wanted to know how the (names) of those unfamiliar friends were written in "Chinese and English", and as she was playful, she searched for and looked at their information (charge 10: Yu Wing Yi; charge 21: Li Wing Yu Idy);

(c) Because she was bored, playful or curious, so she searched for and looked at the information of those friends whom she was familiar with, and also the information of their family members (charge 2: Keung Wing Yan Jessica; charges 3, 5, 7, 11, 16, 17, 20, 23: Keung Wing Yi; charges 4, 6, 8, 9, 15, 22: Man Yan Yee; charges 12, 18: Keung Wai Wing; charges 13, 19: Chan Sze Yung).

5. The Appellant did not give evidence in the trial.

6. Having considered and analysed the facts and the Appellant's response under investigation, the learned Magistrate was of the view that the Appellant's explanations given in response were just a pack of lies. He found the Appellant's conduct was dishonest. He held that when the Appellant obtained access to the IRD's computer system in the circumstances mentioned in each charge, she did so for the purpose of enabling her to dishonestly obtain the information stored in the computer system, namely the gain as stated in section 161 (2) of the Ordinance. Thus, he convicted the Appellant of the 23 counts of charges.

The grounds of appeal

7. Mr Ma of counsel for the Appellant submitted the following grounds of appeal:

(1) When the learned Magistrate admitted the annexure tendered by the prosecution as part of the particulars of the charges, he wrongly admitted, at the same time, a statement written by the prosecutor in respect of statements by the Appellant made at different times concerning the incident, as part of the particulars of the charges. Those statements were prejudicial to the Appellant. The learned Magistrate had therefore already admitted, at the commencement of the trial, statements that should not have been admitted, resulting in the Appellant being biased against throughout the whole trial.

(2) There was no or no sufficient evidence to prove what "gain" had the Appellant dishonestly obtained.

(3) The Appellant's records of interviews (exhibits P13, P14, P15 and P16) were tendered to the court as exhibits without having been edited. The learned Magistrate had therefore wrongly admitted large number of acts of obtaining access to computer that were not relevant to the charges, and used such evidence as basis in convicting the Appellant. What the learned Magistrate did was, therefore, a breach of the Common Law principle that the prosecution cannot adduce evidence of multiple offences to prove one single specific offence.

(4) In all the circumstances, the Appellant's convictions of the 23 charges are unsafe and unsatisfactory.

8. As the first and fourth grounds are interrelated, I will deal with these two grounds of appeal together.

The 1st & 4th grounds of appeal

9. Mr Ma of counsel pointed out that on the first day of trial the prosecution had attached an annexure to the charge sheet, setting out the particulars of the charges (pages 12-18 and 640Q of the Appeal Bundle). These particulars were part of the charge sheet, and the prosecutor had affixed a chop on the last page of the annexure as confirmation (page 18 of the Appeal Bundle). Apart from setting out the relevant information relating to the subject person and the time when information was being searched for, the prosecutor had also set out the Appellant's answers or explanations in respect of each charge as contained in the 4 records of interviews. This way of particularizing the charges is very unusual, and is also a breach of the Indictment Rules contained in the subsidiary legislation of the Criminal Procedure Ordinance.

10. Mr Ma criticized the learned Magistrate for failing to invite the defence to make submissions regarding the contents of these particulars. The learned Magistrate had also failed to remind himself that these statements should not have been set out in these particulars and given consideration. As the learned Magistrate was biased in the trial, injustice had been done to the Appellant.

11. Mr Ma also pointed out that the learned Magistrate had held different views at different times regarding these particulars. On page 57 of the Appeal Bundle, the learned Magistrate in his Statement of Findings dated 11 September 2002 stated:

"I note that on the first day of the trial, the prosecution had attached an annexure to the charge sheet to set out clearly the particulars of the charges, for instance: charge 9 alleges that on 10 March 2002 (sic) at 14:53:35, the defendant was using the computer search function TC17 to search for the name and address of Man Yan Yee..."

12. The learned Magistrate clearly pointed out the existence of such an annexure at the time of writing the Statement of Findings, he was also aware of the particulars of the charges including the names of the persons whose information had been searched for and looked at, and also the times of the searches.

13. However, on 17 June 2002, when he orally delivered his verdict, he said (page 656 D-I of the Appeal Bundle):

"Regarding the first issue, the Court has noted that during the period mentioned in these charges, there were twenty-six persons in total (excepting the defendant herself) whose information had been checked by the defendant. On certain dates the defendant even repeatedly checked information relating to a particular person, and at times when she checked the information of a particular person, she checked for a variety of information. In such circumstances, I can understand the particular difficulties encountered by the prosecution in particularizing the charges. But the issue is very simple. The prosecution's allegations are that the defendant did obtain access to the computer and make searches with dishonest intent. The defence is fully aware of these allegations. Well before the trial of this case, the defence had already been supplied with all the materials by the prosecution. Thus, in such circumstances, I do not think that because there is no mention of times and persons in the charge sheet it would prejudice the defendant's case in any way. The Court would also like to add that before the defendant was prosecuted, and when the IRD and the police were investigating her case, the police had already asked her about these twenty-six persons (excepting the defendant herself) during the investigation. She had also made replies. Thus, in conclusion, in light of all the circumstances, the Court does not consider that the way in which the charge sheet is particularized would prejudice the defendant in any way."

14. Mr Ma submitted that the learned Magistrate in the above passage made no mention of the annexure at all. He did not have the slightest recollection of the annexure (pages 12-18 of the Appeal Bundle) of the charge sheet in this case, otherwise, he would not have said "I do not think that because there is no mention of times and persons in the charge sheet it would prejudice the defendant's case in any way". This quotation contradicts with what he said in his Statement of Findings prepared three months later.

15. Mr Ma submitted that if on the day when the learned Magistrate convicted the defendant he did not even know clearly the particulars of the charges (namely, persons and times) and only came to know the existence of these particulars three months later; and the learned Magistrate had not explained clearly whether he convicted the Appellant for the reason that the Appellant had searched for and looked at information of the 26 persons, or of the 9 persons mentioned in the annexure, the convictions of these 23 charges are thus unsafe and unsatisfactory.

Respondent's Response

16. Mr Tse for the Respondent submitted in reply that counsel for the Appellant in this appeal did not represent the Appellant in the original trial, the first ground of appeal came as the result of a misunderstanding based on an interpretation of the Appeal Bundle. The list was not part of the charge sheet. Before the prosecution called the first witness, the Respondent had tendered a list to the court for reference only (page 695, line Q of the Appeal Bundle), to explain the prosecution's allegations to support the particulars of the charges. The Respondent had also made it clear that the list was not evidence, but rather like an opening speech. Moreover, on that day the defence also agreed to such an approach. In his closing submission (on the second day of the trial), the defence lawyer did not consider what the prosecution had done was unfair to the defence. He even expressed the view (line H of page 649 of the Appeal Bundle):

"Now, Mr Tse has been very helpful in compiling a table to assist the court. He had made it clear that the list should not be regarded as evidence and was prepared for the court as a summary."

17. Mr Tse submitted that one of the arguments that the Appellant's solicitor submitted in his closing speech was: The charge sheet does not set out the times and persons. The learned trial Magistrate also pointed out in his judgment that the lack of particulars of times and persons in the charge sheet did not cause any unfairness to the Appellant. The basis of the learned Magistrate's judgment was: The defence had already known the prosecution's allegations from the discovery of materials well in advance. Furthermore, the Appellant had also stated her excuses in the records of interviews regarding each computer search. Plainly, the form was not an annexure to the charge sheet. This also explains, as regards ground 4 of the appeal, why the learned Magistrate did not mention the existence of the annexure of the particulars of charges in the charge sheet when he orally delivered his judgment.

Judgment

18. Though the learned Magistrate's statement in his Statement of Findings (page 57 of the Appeal Bundle):

".... the prosecution had attached an annexure to the charge sheet to set out clearly the particulars of the charges...."

would indeed give others an impression that "the annexure was part of the charge sheet", in fact, as can be seen from the transcript, the prosecution had not listed the annexure as part of the particulars of the charges. There had never been any misunderstanding on the part of the defence. On the contrary, as submitted by Mr Tse, the defence knew full well the use of the list. On a reading of the oral findings of the learned Magistrate, though he had not mentioned that annexure, the suggestion that at that time the learned Magistrate had forgotten the existence of the annexure is unfounded. The fact that the learned Magistrate did not repeatedly mention that list does not mean that he had forgotten it. At that time he was required to make rulings regarding the issues arising from the particulars of the charges, which he did do. Thereafter the learned Magistrate did not again state in his Statement of Findings in detail the findings he had made in open court. However, if the learned Magistrate had stated in the Statement of Findings, "regarding the charge sheet, the prosecution had at a later stage attached an annexure to particularize the charges", then it would not have caused such misunderstanding. I note that when the learned Magistrate wrote the Statement of Findings, he had referred to the relevant transcript of the audio recording (page 57 of the Appeal Bundle). Thus, it would seem unjustified to suggest that the learned Magistrate had mistakenly thought that the list was part of the particulars of the charges when he prepared the Statement of Findings. It appears that the learned Magistrate had made a slip. Taking it to the highest, even if the learned Magistrate was indeed mistaken at the time of preparing the Statement of Findings, namely, mistaking the list as part of the particulars of the charges, the learned Magistrate did not misunderstand the use of that list during the trial. He delivered his oral decision after having heard the submissions. I find that the Appellant has failed, by either 1st ground or 4th ground to show that the convictions are unsafe or unsatisfactory.

19. I have to point out specifically that the incumbent solicitors' firm for the Appellant was the same firm of solicitors acting for the Appellant at the trial. Mr Tang of that solicitors' firm knew full well, during the trial, that the list was not part of the particulars of the charges. After Mr Ma had drafted the grounds of the appeal, that solicitors' firm had a duty to point out to Mr Ma the mistake, and not to let Mr Ma continue to rely on such ground of appeal.

3rd ground of appeal

20. I will now deal with the 3rd ground of appeal: Mr Ma submitted that the 23 charges Appellant faced involved the information of 9 persons. The prosecution alleges in the charge sheet and the annexure that the Appellant dishonestly obtained access to the files of these 9 persons. Whether she had indeed obtained access to the files of other persons, such fact bears no relevance to the 23 charges that the Appellant faces as the police have not instituted any prosecution against the Appellant in that regard. Thus, the prosecution should not have adduced this evidence as part of the prosecution's case, as the prejudicial effect of this evidence far outweighs its probative value. If the Appellant had mentioned in the records of interviews that she had committed other offences not relevant to those 23 charges, the prosecution should have deleted those irrelevant parts before tendering them to the court as evidence, but the prosecution had failed to do so.

21. In the Appellant's records of interviews ( P13, P14, P15, P16 ) she admitted that she had obtained access to the files of other persons not connected to the 23 charges.

22. In the Statement of Findings ( page 59 of the Appeal Bundle ) the learned Magistrate referred to the incidents of Tang Shuit Fan and Lee Lai Ha (namely, the files of other persons not relevant to the 23 charges) in his findings that the Appellant was inconsistent in giving her statements. He also referred to the fact that the purpose of her searching for and looking at the information of unfamiliar friends was that she wanted to know how their (names) were written in Chinese and English. Those unfamiliar friends referred to by the learned Magistrate came from questions and answers of (24) (25) (26) (27) (28) in the record of interview P15. The above 5 persons whose information had been searched for and looked at were all unconnected with the 23 charges. The learned Magistrate referred to the above fact of searching for and looking at the information as the basis of proving that the Appellant's version was in essence not credible.

23. Thus, the learned Magistrate found that the Appellant was dishonest on the basis that she was inconsistent in her statements, and her version of the case is in essence not credible.

24. The learned Magistrate used offences not relevant to the charges as the basis of finding the Appellant guilty. What he did breaches the Common Law principle that multiple offences cannot be used to prove a specific charge. In the case of HKSAR v Kwok Kau Kan [2000] HKC 789, the court explained the issue of that danger (page 790, lines F-H). At line F of page 798 of that case, the Court of Appeal was of the view that where a professional judge tries a case without a jury, and if the judge deals with the evidence with caution and disregards the prejudicial effect of the evidence, this would avoid an unfair trial. The learned Magistrate had, however, chosen to act otherwise and had admitted a large amount of irrelevant evidence and of prejudicial effect as the basis of convicting the Appellant, thus doing injustice to the Appellant so far as convictions are concerned.

Additional submissions

25. These evidence was adduced to the learned Magistrate pursuant to sections 65B and 65C. As to whether the learned Magistrate should have excluded the s.65B witnesses' statements and the 65C agreed facts, Mr Ma tendered a written submission to this Court.

26. Mr Ma pointed out that on the day of the trial the prosecution applied to the court to have the 11 witnesses' statements admitted as evidence under section 65B of the Criminal Procedure Ordinance (690K of the Appeal Bundle), whereas the Appellant's 4 records of interviews were to be admitted as evidence under section 65C of the Criminal Procedure Ordinance (693C of the Appeal Bundle). Section 65C of the Criminal Procedure Ordinance states:

"Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant...."

27. Mr Ma submitted that according to the wording of the Ordinance it is not the case that any facts which have been agreed by both parties can be admitted as evidence under section 65C. Such evidence must comply with the provision that any fact of which oral evidence may be given in any criminal proceedings. Thus, evidence such as hearsay evidence, previous consistent statements, being inadmissible in criminal proceedings, cannot become admissible evidence simply because section 65C has been invoked.

28. In Cheng Chiu v R [1980] HKLR 50, the appellant's lawyer raised the issue that the trial judge should have invoked section 65C to admit the appellant's self-serving statement or exculpatory statement for the consideration of the jury. Roberts, C.J. said in the judgment that:

"(paragraph 3 of page 59 of the cited case)

This section does not enable either party to criminal proceedings to adduce in evidence matter which is not otherwise admissible. So, before the section can be used, it is necessary for the party wishing to take advantage of it to show that oral evidence to the same effect as the admission proposed to be made under the section could be given. The section is intended merely to facilitate proof, not to affect the law governing the admissibility of evidence.

......

(paragraph 6 of page 59 of the cited case)

Even if the appellant had sought to introduce the statement, by way of admission, by formally invoking the provisions of section 65C, the judge would have been right to reject it, since it was a self-serving statement of which oral evidence could not have been and thus was not admissible under section 65C anyway."

29. Mr Ma submitted that according to Cheng Chiu, the learned Magistrate should not have admitted the agreed facts under section 65C as evidence without giving the matter any thought. He should have considered whether the evidence is admissible if given orally. The learned Magistrate should only have admitted evidence that was relevant to the charges, and should have excluded irrelevant evidence. In admitting the irrelevant evidence he had admitted inadmissible evidence, as the confession statements contain names of persons not stated in the charge sheet or the annexed list. Whatever the Appellant might have done to those persons not mentioned in the charge sheet has nothing to do with this trial. Normally, when a witness in the witness box gives oral evidence about facts that are irrelevant to the case, such evidence will not be admitted by the court. Hence, when the learned Magistrate indiscriminately admitted all 4 confession statements of the Appellant and the 11 witnesses' statements (section 65B also contains provisions regarding oral evidence as those contained in section 65C), he was not complying with the basic requirement provided for in sections 65B and 65C; moreover, the prejudicial effect of such evidence far outweighs its probative value and amounts to bias against the Appellant.

Respondent's Response

30. Mr Tse argued that the prosecution had originally planned to call 3 witnesses. The statements of those three witnesses were to be admitted under section 65B of the Criminal Procedure Ordinance. Examinations-in-chief and cross-examinations would be conducted by both the prosecution and defence on those 3 witnesses. As to other documents including the Appellant's cautioned statements (excepting the computer certificate), they would be tendered to the court by agreement. The defence confirmed the above arrangements before the learned Magistrate.

31. The learned Magistrate commended the pragmatic approach adopted by the defence in accepting the tendering of the prosecution's evidence to the court under sections 65B and 65C. The defence also confirmed that it would adopt such a pragmatic approach (line B of page 689 of the Appeal Bundle). Finally, the defence also agreed that the prosecution's computer certificate could be admitted as evidence as well.

32. Mr Tse submitted that the Appellant's defence consists of: (1) The prosecution did not provide sufficient particulars of the charges; (2) The Appellant only looked at the names, but not the whole file of a particular taxpayer, hence no actual "gain"; (3) The Appellant was not dishonest; (4) Regarding access to the computer to search for information of persons who were not the Appellant's relatives and friends, it is possible that the Appellant had allowed other colleagues to use her code to make the searches (lines F, G of page 677 of the Appeal Bundle) .

33. Mr Tse cited some examples as found in the submissions made by the Appellant's lawyer:

"Now, be that as it may, my criticism of the prosecution's failure to particularize the charge, I do, with respect, move on to talk about two other matter of this particular case, about actus reus and the mens rea." (line H of page 650 of the Appeal Bundle)

"But I have to take into consideration on the admissions made by the defendant herself in all her statements and have to concede that for herself, her family members and friends, most probably she had exceeded her authority to have access into the computer to look at the records of those relatives and friends that she named. But I do invite the court to dismiss those charges, if any - because I don't know which one related to those persons - in relation to Chan Sui Ping and Tang Suet Fun whom the defendant had repeatedly claimed that she did not know them and had not make any unauthorized search." (line Q supra)

"... She was just acting out of curiosity or being nosy.

Now, in the circumstances, if the court, after looking the whole case, have come to the conclusion that no matter it is arising out of the first limb or the second limb, that the defendant had not acted dishonestly, then, of course, there is no need for further argument about the particulars and the defendant should be acquitted of all the charges." (line C of page 654 of the Appeal Bundle)

34. Mr Tse also argued that the defence's solicitor had employed a considered defence, and had no dispute about the evidence, as the so called irrelevant part was to the Appellant's benefit. Now the Appellant's counsel is criticising the solicitor's approach as being an improper one. Such criticism is unfair to the solicitor and also unjustified. He quoted a passage from R v Beckes; R v Montague May 7 1988:

"Both the trial judge and counsel in the case were very experienced. No complaint was made to the judge during the trial. This while not decisive, is, given the level of experience of all concerned, significant."

35. Mr Tse submitted that the crux of the matter is: had the learned Magistrate assessed the testimony and the evidence; had he assessed irrelevant matters; had he given sufficient assessment to the testimony and the evidence; had he been careless in assessing the testimony and the evidence; or had he erred in a material way in deciding the purpose and intent of the Appellant's obtaining access to the computer. The learned Magistrate knew full well the relevant information relating to each charge. The learned Magistrate had considered the various arguments submitted by the defendant in her defence, and had considered all the documents and evidence tendered to the court in support of the defence. After the Appellant was convicted she now changed her stance and alleged that alleged unfairness.

36. The repeated acts of the Appellant in obtaining access to the computer, Mr Tse pointed out, can explain the Appellant's defence, or support the prosecution's allegations, and can also explain inculpatory or exculpatory purpose or intent.

37. Mr Tse submitted that in a nutshell, the learned Magistrate had adequately and painstakingly assessed the testimony and the evidence. He did not assess irrelevant matter nor did he err in law.

38. As regards the case Cheng Chiu, Mr Tse noted that the point in issue is: whether in proving its case, the defence could in law in 1979/1980 adduce in evidence through a police constable a self-serving statement before the court. There in the appeal, counsel for the Appellant took the view that under section 65C of the Criminal Procedure Ordinance, the defence could do so in proving its case (but the defendant had not done so in the trial), that means, the prosecution agreed this to be done when the defence was giving evidence. The judgment of the Court of Appeal reads: "It is thus not open to a defendant to adduce evidence of a number of denials made by him...to permit this would be to invite the presence in the witness box of large numbers of witnesses, prepared to testify that an accused person denied his guilt of the offence charged." This concerns the defence in tendering evidence. Could the prosecution adduce in evidence the self-serving statement made by the defendant when proving the prosecution's case? To this question, the Court of Appeal had this to say: "Nevertheless, it has long been the practice of the Crown to tender such statements in Hong Kong and we commend it as being fair to the accused."

39. Mr Tse pointed out that in the present case, the Appellant chose not to give evidence in the trial, but requested to have her self-serving statements and their annexure produced in court as evidence (65C), and also to have other documents and testimony produced in court as evidence (65B). The defence did not dispute any part in them. If the learned Magistrate had accepted the defence contained in them; or such defence that would be inferred from them; or any point that renders the prosecution evidence suspect; or the defence's legal interpretation regarding "honesty", then the learned Magistrate would have found the Appellant not guilty as charged.

40. In a nutshell, neither the defence's lawyer nor the prosecution had in their approaches adduced evidence which is irrelevant or biased. The learned Magistrate had adequately and painstakingly assessed the testimony and the evidence. He did not assess irrelevant matter nor did he err in law. It was someone else who has gone back from his/her words.

Judgment

41. As I have mentioned earlier, the solicitors' firm acting for the Appellant in this appeal is the same one acting for the Appellant in the trial. Mr Ma, counsel for the Appellant, made no mention of the 'strategy', 'argument' or 'assertion' adopted by the lawyer assigned by the said firm to represent the Appellant at the time of the trial. Having read the transcripts, I can clearly and distinctly see that the arguments of the defence were as follows:-

(a) she did not search for and look at the information about the persons referred to in the charge sheet;

(b) as she wanted to know how the Chinese and English (names) of those unfamiliar friends were written, and being playful, she searched for and looked at their information;

(c) she was bored, playful or curious so she searched for and looked at the information of those friends she was familiar with and also that of their family members.

On the face of it, as the police have not brought any charges against the Appellant for obtaining access to files other than those 9 persons mentioned in the charges, this part of evidence should not, generally speaking, be part of the prosecution's case. However, what is peculiar in this case is that the defence did rely on the fact that the Appellant had obtained access to files other than those described in the charges to support her defence.

42. As this was the defence's 'strategy', the defence did not raise any objection during the trial. On the contrary, the defence solicitor relied heavily on the evidence adduced under sections 65B and 65C. The present case is indeed different from the case of Cheng Chiu. Here, the statements in which the Appellant admitted having looked at the information could be described as 'mixed statements': on the one hand she admitted obtaining access to the computer and looking at the information; while on the other hand she denied she had been dishonest - she did so simply because she was playful and bored, etc. The other statements in which she denied she had looked at the information could be regarded as 'self-serving statements'. In this case, it was with the consent of the defence that all the defendant's cautioned statements were adduced in court as evidence in the prosecution's case. They were not produced at the request of the defence as part of the defence case. The defence did not object to evidence being adduced under 65B of the fact that the Appellant had obtained access to the computer on occasions other than those mentioned in the charges. Further, the defence agreed to the production in court as evidence facts relating to all access obtained by the Appellant to the computer (including those mentioned in the 23 charges). This was the strategy employed by the defence. The defence requested the learned Magistrate not only to look at the 23 charges, but rather at the whole case ("after looking the whole case" - line C of page 654 of the Appeal Bundle). The defence deliberately adopted such a strategy. It can be seen that to the defence, evidence other than that of the 23 charges did have probative value. In my judgment, it cannot be said, under the circumstances, that the prejudicial effect of the factual evidence other than that of the 23 charges far outweighs its probative value.

43. When such a strategy failed, the Appellant turned round to challenge the learned Magistrate's reliance on evidence other than that of the 23 charges. The Appellant did go back on her words. The Appellant wanted to have "two bites of the cherry" - as the learned Magistrate did not accept the arguments put forward by the Appellant regarding all the computer accesses she made to acquit her, she then challenged the learned Magistrate's reliance on those admitted facts to which the defence had raised no objection (65B) and agreed to (65C), and made it a ground of her appeal. I find no substance on this ground of appeal.

The Second Ground of Appeal

44. Now I deal with the second ground of appeal. Mr Ma submitted that P. Chan CHCJ (as he then was) had explained what was meant by 'gain' in HKSAR v Tsun Shui Lun [1999] 2 HKC 547. At p.556A, it reads: "'Gain' includes obtaining information which one did not have prior to his access to a computer. The information may be transient if it is read on the screen or permanent if it is printed out or copied onto another diskette. By the same analogy, if the screen displays information which is readable, the person who has obtained access to the computer will have a gain in obtaining such information. If such information is not there in the files in the computer, then even though the person who has obtained access to the computer could have access to the files, the person will attain no gain from obtaining access to the computer, because such information never exists there either transiently or permanently."

45. In his submission, Mr Ma submitted that under section 161(2)(a) of the Crimes Ordinance, 'gain' includes a gain by keeping what one has, as well as a gain by getting what one has not. On the basis of the aforesaid definition, the thing must be in existence before it could be retained or obtained. If the thing is non-existent, then it cannot be said that there is a gain obtained. Since the prosecution failed to prove what information would appear on the screen when the Appellant opened the file, it follows that the prosecution also failed to prove the said information had ever existed. Therefore, the prosecution failed to prove beyond reasonable doubt that the Appellant had obtained any gain.

Respondent's Response

46. Mr Tse submitted that the criminal elements of the offence under section 161 (c) are: (1) to obtain access to a computer, rather than to obtain the computer information; (2) in obtaining access, there is an intent or with a view. The said offence is similar to the offence of "burglary" as laid down in section 11(1)(a) of the Theft Ordinance (Cap. 210):

"(1) A person commits burglary if -

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2)."

For the offence of burglary, the prosecution is not required to prove that the suspect actually stole some particular property. What the prosecution is required to prove is 'the purpose or intent of the entry'.

47. Likewise, for the offence under section 161(c), the prosecution is required to prove that the offender, when obtaining access to a computer, has an intent or with a view, and not that he has obtained some computer information. As regards having an intent or with a view, it is: 'with a view to dishonest gain for himself or another'. The prosecution is not required to prove there is actual gain; or that there is actual obtaining of information; or that the information has been disseminated to outsiders or used in any way. They are merely aggravating factors.

48. According to PW1's statement and testimony and also the documentary evidence, a computer user has to key in his user identity number and password before he can log on the computer. Having logged on the computer, the user can choose the subject person's name or identity card number to make enquiries, and with the Function Key to find out the information allowed by that Function Key: For example, TC18 is a Function Key not required for use by the Appellant in her work. The said Function Key prompts the screen to show the name, sex, spouse's name and other information. The computer certificate records the user's identity, the date and time of logging on the computer, the information keyed in for the purpose of making enquiries, e.g. identity card numbers, names and etc, and the Function Key used.

49. For the term 'gain', the Respondent also relied on the above case of Tsun Shui Lun.

50. Mr Tse submitted the Appellant obtained access to the computer of the IRD with a view to gain for herself, because the Appellant could then know, and become aware of the information of some taxpayers (including companies). The prosecution is not required to prove that the Appellant did look at the information. In any event, one of the arguments put forward by the defence during the trial was that she was "nosy", and from this the only reasonable inference to be drawn is that the Appellant did look at the screen.

Judgment

51. Section 161 of the Crimes Ordinance (Cap. 200) provides:

"(1) Any person who obtains access to a computer -

(a) with intent to commit an offence;

(b) with a dishonest intent to deceive;

(c) with a view to dishonest gain for himself or another; or

(d) with a dishonest intent to cause loss to another, whether on the same occasion as he obtains such access or any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1) "gain" and "loss" are to be construed as extending not only to loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and -

(a) "gain" includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(b) "loss" includes a loss by not getting what one might get, as well as a loss by parting with what one has."

52. In the present case, the Appellant was charged and convicted under the aforesaid section 161(1)(c).

53. The prosecution is required to prove that the Appellant 'with a view' obtained access to the computer, and the 'view' is 'to dishonest gain for herself or another' (whether on the same occasion as she obtained such access or on any future occasion). I share the view of Mr Tse that the prosecution was not required to prove that the Appellant 'actually' obtain any 'gain'. It suffices for the prosecution to prove that the Appellant, when 'obtaining access to a computer', did so 'with a view to dishonest gain' for herself.

54. I entirely agree with the observation of P. Chan CHCJ (as he then was) as to the meaning of 'gain' expounded in Tsun Shui Lun's case. As far as obtaining access to a computer is concerned, 'gain' can include 'obtaining information which one did not have prior to his access to a computer'. Further, in the case of The Secretary for Justice v Li Man Wai, HCMA723/2002, Beeson J. also adopted P. Chan CHCJ's (as he then was) view on 'gain' in Tsun Shui Lun.

55. In the present case, although the prosecution had not adduced substantive evidence to show whether any information appeared on the screen when the Appellant obtained access to a computer under the circumstances as set out in the 23 charges or if it did, what information was shown, according to the Appellant's cautioned statements which were not disputed, the Appellant admitted that for charges 2, 3, 4, 5, 7, 10, 11, 12, 16, 17, 18, 20, 21, and 23, she had searched for and looked at the information in relation thereto. She had stressed that she had only looked at the information, she did not copy or amend the information, and she had forgotten the information already. Obviously, the Appellant did search for and look at the 'information'.

56. Therefore, even if I were wrong to find that the prosecution was not required to prove that the Appellant had 'actually' got some 'gain', and that it suffices for the prosecution to prove that the Appellant, in obtaining access to a computer, did so 'with a view' to 'dishonest gain', in the present case, there is definitely ample evidence to prove that the Appellant had searched for and looked at the 'information'.

57. In the present case, the learned Magistrate had given due regard to all the evidence before him when he found 'the defendant was well aware that she was entitled to access the intranet in the course of her work only when she was discharging her official duties, and that at times when she was not discharging her official duties, for her own gain, she availed herself of the opportunities in the course of her work to search for and look at the information of other people, be they her familiar friends or not. In so doing, she not only breached the trust which the IRD placed in her, but also intruded into the privacy of other people' (page 60 of the Appeal Bundle). The learned Magistrate held that according to the standards adopted by ordinary reasonable and honest people, the Appellant's acts were dishonest. The learned Magistrate also held that what the Appellant had said in reply was a pack of lies. 'The reason' she 'told a pack of lies is that she knew or must have realized what she was doing was dishonest according to the standards adopted by ordinary reasonable and honest people' (page 60 of the Appeal Bundle). The learned Magistrate in fact applied the test of 'dishonesty' as laid down in R v Ghosh [1982] 1 QB 1053. The Appellant did not dispute the finding of the learned Magistrate on the elements of 'dishonesty'.

58. In the present case, the learned Magistrate held that the Appellant had obtained access to the computer system of the IRD under the circumstances as described in each and every charge, with a view to obtain dishonestly the information stored in the computer system, namely, a "gain" as stated in section 161(2) of the Crimes Ordinance, and convicted the Appellant of all the charges.

59. I see no basis to say that the learned Magistrate has erred, or that the convictions are unsafe or unsatisfactory. This appeal must therefore be dismissed and the convictions upheld.