Hksar v Au Yeung Ka Man Yuniko

CourtCourt of Final Appeal (Hong Kong)
Judgment Date16 May 2018
Neutral Citation[2018] HKCFA 23
Judgement NumberFAMC62/2017
SubjectMiscellaneous Proceedings (Criminal)
FAMC62/2017 HKSAR v. AU YEUNG KA MAN YUNIKO

FAMC No. 62 of 2017

[2018] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 599 OF 2015)

_____________________

BETWEEN

HKSAR
Respondent
and
AU YEUNG KA MAN YUNIKO (歐陽家敏) Applicant

_____________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ
Date of Hearing and Determination: 14 May 2018
Date of Reasons for Determination: 16 May 2018

_______________________________

REASONS FOR DETERMINATION

_______________________________

Mr Justice Ribeiro PJ:

1. We dismissed this application for leave to appeal at the hearing for reasons which we now provide.

2. The applicant was employed as a clerical assistant at the Social Welfare Department (“SWD”) and, using her password, was able to logon to its computerised Client Information System (“CIS”) which contained the records, including personal data, of SWD clients. She was authorised to access those records only on a “need-to-know” basis.

3. She was convicted after trial before the magistrate[1] on ten charges of obtaining access to a computer with a view to dishonest gain contrary to section 161(1)(c) of the Crimes Ordinance[2] and sentenced to probation for 15 months. Her appeal to the Court of First Instance[3] was dismissed.

4. The applicant had previously been in an intimate relationship with Wong Dik-man (“Wong”) while Wong was simultaneously in a relationship with Chung Wai-ying (“Chung”) whom he later married. It was described by the Judge as a “tangled love relationship” which ended in a falling out between Wong and the applicant. On 7 March 2013, there was a heated altercation between Wong and the applicant at the SWD where the applicant worked and, beginning on the next day, the applicant made a number of searches on the CIS database and succeeded in accessing the case-file of Chung who had previously signed on as a SWD client. The applicant also searched for records relating to Wong, but without result, as no SWD file had been opened for him.

5. On 25 March 2013, she instructed solicitors to send a letter to Wong at his work address, copied to Chung at her home address, complaining that Wong had defamed and harassed her at her place of work. Chung was shocked that the applicant knew her home address and complained to the SWD, leading to an investigation and the charges.

6. The applicant admitted that she had searched the CIS for data on Wong and Chung on 10 occasions during March 2013. After detailed consideration, the magistrate rejected the applicant’s evidence that, treating him as a SWD client, she had made the searches at Wong’s request. She was found to have accessed the computerised records for reasons unconnected with her...

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