Li Man Wai v Secretary For Justice

CourtCourt of Final Appeal (Hong Kong)
Judgment Date06 Nov 2003
Citation[2003] 3 HKLRD 1037; (2003) 6 HKCFAR 466
Judgement NumberFACC6/2003
FACC000006/2003 LI MAN WAI v. SECRETARY FOR JUSTICE

FACC No. 6 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2003 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 723 OF 2002)

_____________________

Between:
LI MAN WAI Appellant
AND
SECRETARY FOR JUSTICE Respondent

_____________________

Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice Litton NPJ

Date of Hearing: 27 October 2003

Date of Judgment: 6 November 2003

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

3. The appellant was charged with obtaining access to a computer, namely, the Inland Revenue Department's (IRD) computer system, with a view to dishonest gain for himself or another, contrary to s.161(1)(c) of the Crimes Ordinance, Cap 200. He was acquitted after trial before a magistrate, Ms J M Livesey.

4. Upon an application by the prosecution pursuant to s.105 of the Magistrates Ordinance, Cap 227, the magistrate stated a case for the opinion of a judge of the Court of First Instance. Beeson J, having heard submissions from the parties, ordered the case to be remitted to the magistrate with a direction that she convict the appellant and pass sentence accordingly.

5. As directed by the judge, the magistrate subsequently convicted the appellant and fined him $1,000. The appellant appeals to this Court on the ground of substantial and grave injustice.

The facts

6. The facts are not in dispute. Since the end of 1996, the appellant has been employed as an Assistant Assessor of the IRD. As required for the discharge of his duties, he made an Affirmation of Secrecy under s.4(2) of the Inland Revenue Ordinance, Cap 112, stating, among other things, that he would at all times preserve and aid in preserving secrecy with respect to all matters that may come to his knowledge in the performance of his duties under that Ordinance.

7. For the purpose of gaining access to the IRD's computer system, the appellant was assigned a user identity and a password which he used in the performance of his duties. All staff of the IRD, including the appellant, received regular reminders of the importance of observing the official secrecy provisions.

8. On 11 July 2000, using his user identity and password, the appellant gained access to the IRD computer system and obtained the identity card number and address of the complainant who was one of his colleagues and whose record as a taxpayer was kept in that system. He had no business in handling the complainant's tax matters and he obtained such information without the authority of the IRD or the complainant's consent.

9. The appellant then made use of such information in applying for membership of the World Wide Fund for Nature Hong Kong on behalf of the complainant. In the application form, he also included his own name and credit card number to enable payment of the entrance fee and he signed to authorize payment through his credit card. The complainant had not requested the appellant to make the application on her behalf.

The magistrate's decision

10. At the end of the prosecution case, the defence did not make any submission of no case to answer. But after an exchange with counsel for the parties on what was to be considered the dishonest gain in this case, the magistrate ruled there was a case to answer. Thereafter the appellant decided not to give or call any evidence. After hearing final submissions from the parties, the magistrate dismissed the charge and acquitted the appellant.

11. The magistrate's reasons for acquitting the appellant were set out in the Stated Case as follows:

"I found

(1) The (appellant) did obtain access to the computer system...

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