IV. Intellectual property offences and crimes on the Internet

A. Unauthorized access to a computer by telecommunications

Unauthorized access to a computer by telecommunications is an offence contrary to section 27A of the Telecommunications Ordinance ( Chapter 106 ).

Unauthorized access occurs, where the person accessing the computer is not the person entitled to control access to the computer, has no authorization to access the computer, does not believe either that he or she has that authority or that authority would have been given had it been applied for.

The intent of the person need not be directed at any particular or particular kind of programme or data, or a programme or data held in a particular computer.

B. Criminal damage

Criminal damage (“misuse of a computer” by altering data held in a computer) is an offence contrary to sections 59(1A) and 60(1) of the Crimes Ordinance ( Chapter 200 ).

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.

C. Access to a computer with criminal or dishonest intent

“Access to a computer with criminal or dishonest intent” is an offence contrary to section 161 of the Crimes Ordinance ( Chapter 200 ).

Section 161(1) of the Crimes Ordinance ( Chapter 200 ) provides:
Any person who obtains access to a computer-

  1. with intent to commit an offence;
  2. with a dishonest intent to deceive;
  3. with a view to dishonest gain for himself or another; or
  4. with a dishonest intent to cause loss to another,

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.

D. Offences in relation to making or dealing with infringing articles, etc.

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:

  1. making infringing copies for sale or hire ( section 118(1)(a) );
  2. importing infringing copies into Hong Kong or exporting infringing copies from Hong Kong, for purposes other than private and domestic use ( section 118(1)(b), (c) );
  3. selling, hiring, offering or exposing for sale or hire infringing copies ( section 118(1)(d) );
  4. exhibiting in public or distributing infringing copies for the purpose of commercial dealings ( section 118(1)(e) );
  5. possessing infringing copies for the purpose of commercial dealings ( section 118(1)(f) );
  6. distributing infringing copies not for the purpose of commercial dealings but to such an extent as to affect prejudicially the economic interest of the copyright owner ( section 118(1)(g) ).

The maximum sentence for an offence under section 118(1) is a fine of $50,000 for each infringing copy and imprisonment for four years upon conviction on indictment .

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 [2007] ), 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.