HKSAR v. CHU TSUN WAI

FAMC No.35 of 2018

[2018] HKCFA 40

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA NO. 454 OF 2016)

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DETERMINATION

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Chief Justice Ma:

1.  We are satisfied that leave to appeal should be granted in respect of the following questions of law, namely:

Question 1

Whether requests to access a website server at a level that does not affect or slow down the function of the website, are sufficient to satisfy the definition of “misuse of computer” under section 59(1A)(a) of the Crimes Ordinance (Cap 200), namely “to cause a computer to function other than as it has been established to function by or on behalf of its owner”.

Question 2

Whether a request to access a website server which generates a server log of the request constitutes “misuse of computer” under section 59(1A)(c) of the Crimes Ordinance, as coming within the definition “to add any program or data to the contents of a computer or of a computer storage medium”.

2.  We also consider it reasonably arguable that leave to appeal should be granted on the substantial and grave injustice basis on the footing that a conviction on the basis of section 59(1A)(c) was in the circumstances procedurally unfair and deprived the applicant of a fair trial.

3.  The appeal will be heard on 8 January 2019.