THE QUEEN v. TONG KA KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1031 OF 1995

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J U D G M E N T

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1. This was an appeal against convictions for three offences of accessing a computer with a criminal or dishonest intent, contrary to s.161 of the Crimes Ordinance, Cap.200 and the sentences which included an order for costs of $15,000.

2. The appellant also known as Tony Tong worked as a Customer Services Officer for the Hutchison Telephone Company. At his normal working station he had a computer which he could use to gain access to the details of the customer's accounts including the ESN or Electronic Serial Numbers of mobile telephones.

3. On 22nd June 1994, conversations from the telephone at his normal work station were secretly recorded on tape. During these conversations, a voice alleged to have been his was heard to give out the ESNs of five different mobile telephones to persons, not the original telephone owners, who called in seeking the information. The ESN is a part of the security programmed into the mobile telephone. Its purpose is to ensure that only calls made from that telephone are billed to the account holder of that telephone. If the ESN number is programmed into another mobile telephone, that telephone can masquerade as the original phone for all purposes, including billing. The effect, therefore, of giving the information about ESNs to other parties is to risk that the original phone owners will be wrongly billed for local calls (the evidence was that these telephones involved could not be used for IDD calls), or that the service charges payable to the Hutchison Telephone Co. for the transfer of ESN from one telephone to another, when changing telephones or acquiring extra telephones, will be avoided.

4. Mr Tolliday-Wright who appeared both in the court below and in the appeal argued that the learned Magistrate erred in law in finding that the appellant had the necessary dishonest intent to "cause loss to another". He argued in other words that there was no evidence that there was any loss to anyone as a result of what the appellant was doing. The simple answer to that argument was that the Crown only had to establish potential loss to subscribers or to the Company itself, and the evidence was clearly that either the subscribers or the Company might lose if the ESNs got into the wrong hands.

5. The learned Magistrate, in dealing with the question of dishonesty, concluded his judgment as follows:

"There is no evidence that the defendant was to gain by what he did. Motive is unexplained. But if there was no legitimate reason for giving out the numbers the only non-fanciful explanation was that someone was going to lose - either Hutchison losing a reprogramming fee or one subscriber paying another for the charges of another. On the evidence it would be entirely fanciful to suggest that the defendant might not have been aware of that. Doing something while aware of the consequences must, in the absence of any explanation on the evidence, mean that it would be entirely fanciful to suggest that he could not have had the intention of causing loss.

Anyone who gives out such information in such circumstances who is aware of the consequences is acting dishonestly by any normal person's standards. On the evidence I am quite unable to come to any other conclusion than that the defendant was aware of that. In accessing the computer for those purposes I am satisfied that the defendant committed the offences alleged in charges 1, 2 and 3. He is convicted on those charges. He is acquitted on charges 4 and 5."

I could find no fault with the learned Magistrate's reasoning. It seemed to me, therefore, that there was evidence from which he could draw the inference that the appellant's actions were dishonest in accordance with the principles laid out in R. v. Ghosh [1982] QB 1053.

6. Mr Tolliday-Wright's second major ground of appeal was that the learned Magistrate was wrong to have accepted the evidence of Ms Sita Cheng Man Fung, who was at the time the Branch Operations Manager in the Customers Service Centre of Hutchison Phone Company, and who gave evidence purporting to identify the voice of the appellant in the taped telephone conversations. He submitted that as she had been shown transcripts of the telephone conversations before listening to the tape recordings, there was not a proper identification. In relation to this, the learned Magistrate said the following:

"In court I took certain steps to take out some of the clues to identify the alleged voice that appeared on the transcript. In retrospect I could have gone further by insisting on the playing back of very short passages the content of which provided no clues as to the identity of the speaker before allowing any identification to be made.

The evidence of PW2 did not stand on its own.

There was no other evidence that was conclusive as to the identity of the speaker, but there was evidence that was indicative and loosely supported the evidence of PW2. The extension that was taped was the one generally used by the defendant albeit other people had access to it. In some of the conversations the person speaking identified themselves as Tony, the English forename of the defendant (a double-edged point this). In admissible parts of the cautioned interview the defendant agreed he had given out ESN numbers to Hung Hin (whose voice in the second interview he identified as probably that of such information in the 2 phone calls then considered.) In other words the content of the call is within the range of possible calls the defendant might have made and the identity of the recipient may well fit in with such calls.

In addition there were the defendant's own admissions that in part she was correct.

Of these, apart from the extent of the admission, the extension number is the most important albeit not conclusive. It is supporting evidence of a kind. As the defence argued the 'Tony' was capable of tainting PW2's evidence. The last two points do not provide supporting evidence for the identification - they merely amount to the defendant not saying that such calls definitely did not happen.

But having seen and heard PW2 in evidence I do not believe for one moment she consciously allowed extraneous factors to influence her. I am satisfied she genuinely considered the voice alone. It was a voice she had known well, a voice she had been in frequent telephone contact with.

Her evidence was the only direct evidence I heard as to the maker of those calls, and I am satisfied that she reliably identified the defendant in those calls."

7. That, in my view was a comprehensive and careful analysis of the evidence involved, and I could not fault the learned Magistrate in his finding. He did make one error of fact in relation to the Third Charge when he said that the interview given by the defendant to the ICAC had in part corroborated the identifying witness in relation to the Third Charge. This was an error conceded by the Crown to be such, as the evidence did not relate to the Third Charge. However, I did not feel this affected the learned Magistrate's findings in relation to that charge as he was prepared to rely on the evidence of Ms Sita Cheng Man Fung, without corroboration. I could not say he was wrong to do so.

8. Finally, Mr Tolliday-Wright argued that the learned Magistrate ought not to have relied in any way on the interviews given by the appellant to the ICAC. In the course of the trial, the learned Magistrate excised substantial parts of the interviews, and it was Mr Tolliday-Wright's submission that having felt it necessary to do so, the learned Magistrate ought to have gone on to say that he could not rely on any part of them. I do not agree. In his Statement of Findings, he said this about these interviews:

"The complaint was not of oppression in the normal sense. The complaint went to such things as the form of questions and the cutting off of answers. The matters complained of are fully set out in defence counsel's submissions.... Noone watching the video tape could say the appellant was oppressed during the interviews. Even though some of the questioning would have been criticised in court it was clear, on all the evidence, that it did not go so far as to constitute words or conduct that sapped the will of the appellant. In so far as certain parts of the questioning could be criticised they had the flaws of questioning of a normal conversation in which, despite those flaws, the appellant was a willing participant. I was satisfied beyond reasonable doubt he answered the questions voluntarily.

However I did think that at certain points the appellant did not get sufficient opportunity to deal with certain alleged facts or to give his answers to what was said. In some cases also he was asked to deal with 2 questions at once. In doing so the interviewer stepped beyond the realms of fairness or the meaning of answers was ambiguous. I considered it would be forensically unfair to admit those parts of the interviews where this happened. I also considered that where answers obtained in this way formed part of the ingredients of further questions and answers those further questions and answers were tainted by what had happened before.

But although in parts this interview was in my judgment inadmissible, later parts of the interview were not tainted by what had happened before. Where the defendant continued to answer questions put fairly which he was allowed to answer fully I did not consider they should be excluded because to admit earlier answers would be forensically unfair provided their content was not tainted by the earlier unfair questioning.

I therefore excluded parts of the first interview on the basis that parts of it were conducted sufficiently unfairly for it to be wrong to admit those parts. I also excluded the latter part of the interview which related to explanations of alleged payments made into the appellant's bank accounts at times not associated with the charges on the basis that they were irrelevant and entirely prejudicial without being probative. The parts I have excluded are set out at pp 103-4 & 112 of transcript."

9. This, once again, was a careful and fair analysis of the contents of the interviews and a clear statement of the Learned Magistrate's reasons for editing them and placing reliance on what was left. I could find no reason to criticise or interfere.

10. All in all, I was satisfied that this conviction could stand and dismissed the appeal.

11. So far as sentence was concerned the only complaint was in relation to the award of costs. A total of $15,000 was award and this is outwith the learned Magistrate's jurisdiction as defined in s.69 of the Magistrate's Ordinance Cap.227. The award of costs, therefore, is reduced to $5000.