助 理 評 稅 主 任 李 聞 偉 不 誠 實 意 圖 取 用 電 腦 資 料

香港法律第200章《刑事罪行條例》

第161條 - 有犯罪或不誠實意圖而取用電腦

(1) 任何人有下述意圖或目的而取用電腦─

(a) 意圖犯罪(不論是在取用電腦的同時或在日後任何時間)；

(b) 不誠實地意圖欺騙(不論是在取用電腦的同時或在日後任何時間)；

(c) 目的在於使其本人或他人不誠實地獲益(不論是在取用電腦的同時或在日後任何時間)；或

(d) 不誠實地意圖導致他人蒙受損失(不論是在取用電腦的同時或在日後任何時間)，

即屬犯罪，一經循公訴程序定罪，可處監禁5年。 (2) 就第(1)款而言，“獲益”(gain) 及“損失”(loss) 的適用範圍須解釋作不單擴及金錢或其他財產上的獲益或損失，亦擴及屬暫時性或永久性的任何該等獲益或損失；而且─

(a) “獲益”(gain) 包括保有已有之物的獲益，以及取得未有之物的獲益；及

(b) “損失”(loss) 包括沒有取得可得之物的損失，以及失去已有之物的損失。

s160(1)(c) the test as the same test laid down in R v Ghosh 1982 see HKSAR v Tsun Shui Lun 1999 2 HK547

【本報訊】二十七歲助理評稅主任涉嫌非法進入稅務局的電腦系統，套取一名女同事的個人資料，私下替她填寫世界自然保護基金（ WWF）的申請表成為會員，但二百一十元的申請費則由他以信用卡支付，而有關的申請則可用作扣稅之用。被告否認控罪，由於裁判官認為案件的不誠實程度不算嚴重，案件押後待控方獲取進一步的律政指示。

 程度不算嚴重

被告李聞偉（二十七歲），於稅局任職助理評稅主任。被控於○○年七月十一日向稅務局以不誠實意圖查閱電腦資料，被告否認控罪，昨於東區裁判法院審訊。因裁判官李慧思認為案件整體不誠實程度不算嚴重，將案件押後至四月十八日以便控方進一步獲律政指示。

控方昨開案指，被告於事發當日下午，在未授權下，以密碼進入稅局的電腦系統取閱一名女同事的個人資料，然後以她的資料填寫一張世界自然保護基金的會員申請表，其後該名女同事收到該基金的收據，由於她從未向該基金提出有關申請，遂向基金查證而揭發事件。

案件編號： ESCC526/02

裁判官公開不認同上訴庭判決

案件被要求再判刑 李慧思﹕我仍認為不應判罪成

【 明 報 專 訊 】 助 理 評 稅 主 任 私 下 為 女 同 事 申 請 成 為 世 界 自 然 （ 香 港 ） 基 金 會 會 員 ， 不 惜 進 入 稅 務 局 電 腦 系 統 擅 取 其 個 人 資 料 ， 首 次 聆 訊 時 脫 罪 。

但 上 訴 庭 認 為 原 審 裁 判 官 忽 略 被 告 不 誠 實 地 取 得 事 主 的 機 密 資 料 ， 要 求 案 件 發 還 再 判 。 原 審 時 認 為 被 告 無 罪 、 最 多 只 應 接 受 稅 局 內 部 處 分 的 裁 判 官 李 慧 思原審裁判官認為李出於好意， 輕 判 罰 款 1000 元 後 ， 公 開 表 示 「 我 仍 認 為 不 應 判 處 罪 成 」 。 進 入 電 腦 系 統 獲 取 資 料 作 非 個 人 利 益 用 途 是 否 有 罪 ， 頓 成 爭 議 。

有 關 爭 議 已 非 首 次 。 1998 年 ， 瑪 麗 醫 院 前 職 員 秦 瑞 麟 因 泄 漏 律 政 司 長 梁 愛 詩 病 歷 ， 當 時 上 訴 庭 認 為 被 告 犯 事 動 機 是 要 糾 正 政 府 的 「 不 正 確 消 息 」 ， 故 最 後 將 刑 期 大 大 減 輕 。

原 判 無 罪 高 院 發 還 再 判

27 歲 稅 務 局 助 理 評 稅 主 任 李 聞 偉 ， 早 前 獲 判 不 誠 實 意 圖 取 用 電 腦 資 料 罪 名 不 成 立 ， 但 律 政 司 向 高 院 提 出 上 訴 。

高 院 法 官 指 原 審 裁 判 官 只 集 中 李 在 事 件 中 出 於 善 意 ， 忽 略 了 他 未 經 對 方 同 意 而 擅 自 取 得 對 方 資 料 ， 具 不 誠 實 意 圖 ， 故 將 案 發 還 並 頒 布 判 刑 。

原 審 時 判 被 告 無 罪 的 裁 判 官 李 慧 思 ， 昨 日 依 上 訴 庭 指 示 再 作 判 刑 ， 但 裁 決 則 不 能 更 改 。 最 後 李 慧 思 判 被 告 罰 款 1000 元 後 ， 在 庭 上 公 開 說 ， 仍 然 認 為 被 告 進 入 電 腦 取 資 料 ， 為 同 事 申 請 為 世 界 自 然 基 金 會 會 員 ， 應 判 處 無 罪 。

助 理 評 稅 主 任 擅 取 資 料 罰 千 元

辯 方 事 務 律 師 梁 永 鏗 在 庭 外 稱 ， 李 聞 偉 將 向 終 審 法 院 提 出 上 訴 。

裁 判 官 去 年 4 月 對 該 案 裁 決 時 指 出 ， 整 件 案 件 未 涉 及 得 益 ， 不 誠 實 程 度 低 ， 與 一 般 不 誠 實 的 刑 事 案 件 不 相 類 ﹔ 被 告 進 入 電 腦 系 統 實 屬 違 規 行 為 ， 故 或 會 被 稅 局 內 部 處 分 ， 但 不 屬 刑 事 罪 ， 故 裁 定 罪 名 不 成 立 。

1998 年 瑪 麗 前 職 員 秦 瑞 麟 因 泄 漏 梁 愛 詩 病 歷 ， 同 被 判 不 誠 實 意 圖 取 用 電 腦 資 料 罪 成 ， 裁 判 官 指 他 違 反 誠 信 ， 令 市 民 對 醫 院 失 去 信 心 ， 秦 明 知 除 了 工 作 外 ， 不 能 以 密 碼 進 入 電 腦 系 統 ， 因 此 其 行 為 「 不 誠 實 」 ﹔ 而 梁 愛 詩 的 病 歷 就 是 他 的 「 得 益 」 ， 遂 判 囚 半 年 。

Gain : in the context of computer crime the word 'gain' includes obtaining information that one did not have prior to accessing the computer. It was to be construed inclusively, as constrasted to 'gain' in s. 8 of the Theft Act cap 210 . thus in sub-sect (c) what was anticipated by' gain' was a benefit or advantage. It did not have to be something that was used. see Tsun Shui Lun 1999 2 HKC 547

Meaning of gain

23. Counsel argues that gain must be a benefit or an advantage which is useful or which can be used. Making a printout of the information is not a use of the information. Hence, the appellant did not have any gain by looking at the computer and making a printout. He was merely using the computer and not using the information. Hence, there was no gain.

24. It can be seen that the definition of "gain" in s.161 of the Crimes Ordinance is similar in wording to that used in s.8 of the Theft Ordinance but with one vital difference. A number of observations can be made. First, it is not confined to financial or proprietary benefits, but is wide enough to cover intangible benefits. Second, it can be a transient as opposed to permanent benefit. Third, the keeping of what one has or the getting of what one has not is also regarded as a gain. Fourth, while "gain" under s.8 of the Theft Ordinance is to be construed as extending only to a monetary or proprietary benefit, the meaning of "gain" in s.161 is to be construed as extending not only to monetary and proprietary benefits. In other words, the definition under s.8 is restrictive, but that under s.161 is inclusive and casts an open net. This, in my view, is understandable since computer technology may in future be so advanced that it is difficult to envisage now, let alone in 1993, what one can obtain from a computer in say a few years time.

25. What can be obtained, in this day and age, by gaining access to a computer is normally information and images. Looking at the definition of gain in the context of a computer crime, it is clear, in my view, that the subject matter of a gain as defined in s.161 would include information which the person obtaining access to the computer did not have before the access. It is clear that the section is intended to cover the acquisition of information which is in itself (i) neither a monetary nor proprietary benefit; but is (ii) something that is capable of retaining at least temporarily if not permanently and (iii) something that is capable of keeping when one has already got it and capable of getting when one has not. What is anticipated by "gain" in s.161(1)(c) is a benefit or an advantage. However, I do not agree that it must be something which can be utilized or used. That is not expressed nor can it be implied in the section.

26. For these reasons, I take the view that s.161(1)(c), when it is construed in the context of a computer crime and the rest of the section, permits the construction of the word "gain" to include obtaining information which one did not have prior to his access to a computer. The information may be transient if it is read on the screen or permanent if it is printed out or copied onto another diskette. In the present case, it was a gain to obtain the information from the CT scan report which was stored in the RIS of the Hospital's computer.

Dishonesty

27. There is no assistance which can be derived from the Computer Crimes Ordinance with regard to the meaning of dishonesty in relation to the offence created in s.161. The parties, however, accepted, and in my view quite rightly so, that the test which is to be applied in this case to the requirement of a dishonest gain, is the test of dishonesty as laid down by the Court of Appeal in the case of Ghosh. Having regard to the test to be applied to dishonesty in the context of the Theft Ordinance, I do not think any other meaning of dishonesty or test regarding such concept should be adopted or applied in relation to an offence under s.161 of the Crimes Ordinance. After all, dishonesty is a common concept and it would seem that a common sense approach must be adopted.

28. The classic test of dishonesty was laid down by the Lord Chief Justice in Ghosh at page 1064D:

" In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did."

29. It is a two-stage test. First, it must be decided whether what was done in a particular case will be regarded as dishonest according to the ordinary standards of reasonable and honest people. Secondly, it is necessary to decide whether the defendant knew or must have realised that what he was doing was dishonest by such standards. It must also be noted that it would still be dishonest even if an accused genuinely believed that he was morally justified to act in the way he did.

30. Leading counsel for the appellant submits that there was no dishonesty in the present case. He argues that the appellant thought that what he did was for a legitimate purpose. He had a subjective and genuine belief that what he was doing was a right thing to do, although such belief might be based on unreasonable grounds. He submits that the trial magistrate's finding of dishonesty was against the weight of evidence. The conduct of the appellant may be discreditable, dishonourable or inappropriate, but did not amount to dishonest conduct. Counsel says that it may well be a civil trespass into the computer because that is an unauthorized use of the computer. This only attracts civil consequences but is not a criminal offence. He argues that the appellant's intention was to rectify the misleading press releases from the Government's spokesman. He genuinely and honestly believed on reasonable grounds that the Government was suppressing or distorting the truth. Counsel draws analogy to a secretary who uses a typewriter after office hours for her own unauthorised purpose. She may also have used the office paper and typewriter ribbon. That may be improper but is certainly not criminal. Counsel further says that a breach of a contractual arrangement is again a civil wrong but it does not necessarily follow that what is done is dishonest.

31. On the other hand, Mr Marash SC for the prosecution submits that there was ample evidence upon which the magistrate could find that the appellant was dishonest. He says that according to the evidence in this case, ordinary, reasonable and honest people would regard the appellant's conduct as dishonest and that the appellant knew that it was dishonest. It is also submitted that the magistrate has made a finding upon an assessment of the facts and evidence before him. An appellate court should be slow to interfere with such finding of dishonesty.

32. The first question to decide is: would ordinary, reasonable and honest people regard what was done in the present case as dishonest? A number of matters have to be considered.

33. The appellant was given a password to access the computer for a particular purpose, i.e. to assist in Dr Ooi's research. Dr Ooi said that she had told the appellant about the restriction as to the access to the RIS using the password, but the appellant denied that she had done so. However, I should think that even if Dr Ooi had not informed the appellant of the restriction, it would be clear to any ordinary and reasonable person who has use of a computer that the need to have a password to gain access to a computer would necessarily indicate that there must be a certain amount of confidentiality in the information contained in the computer and that such information should not be disclosed to others. The appellant admitted in evidence that he knew this.

34. Second, any ordinary and reasonable person would realise the importance of privacy. He would know that no one would like his private affairs to be made known to other persons, let alone the public.

35. Third, it would be clear to any ordinary and reasonable person working in a hospital environment, whether he is employed by a hospital or not, and whether he is provided with a set of hospital rules or not, that it is important to maintain confidentiality between a patient and the hospital. That is the right of a patient. The appellant denied that he had been provided with the hospital rules. That, in my view, is neither here nor there.

36. Then, there is the undisputed conversation at around 1:30 pm on 2 April between Dr Ooi and the appellant in the presence of the two secretaries. It is not denied that Dr Ooi had concluded the conversation by saying that the matter was confidential and that they should not discuss the matter further. To any ordinary and reasonable person, that was clearly a reminder of the importance of keeping confidential the identity and/or information of the person described as the VIP lady. Those data should not be disclosed. This was particularly so when that VIP was not Dr Ooi's patient.

37. Next, the access to the computer on 3 April was not the first unauthorised access. It was not to satisfy one's curiosity. It was done with the specific purpose of leaking whatever information which could be obtained to the press. The probable consequence of this is that such information would be made known to the public.

38. Finally, before he faxed the copy report to the newspapers, the sender's identity and fax number had been concealed. Whatever was the reason for this, it must be clear that the sender knew it was wrong to do what he was doing and that it could bring unpleasant consequences to him.

39. It may be that out of curiosity, a person entrusted with a password to a computer containing confidential information may like to have a look at it. Human nature being what it is, he may be tempted to look at the information even though his employer or superior has expressly told him not to do so. This may be a breach of the contract between himself and the employer as this is a clear disobedience of instruction. This may be improper conduct, i.e. conduct which ordinary and reasonable people will not normally do but which some people out of curiosity may be tempted to do. I am not approving such conduct. However, that is not the case here. There was no reason for the appellant to look at the report again in the morning of 3 April except for the purpose of leaking it to the press.

40. While an employer or superior may tolerate or even forgive an employee for being nosy for looking at his private papers in breach of instruction, he would certainly find it unacceptable if the employee takes out those papers and shows copies of them to other people. It is a deliberate access for the purpose of leakage. It is not only a breach of instruction and hence a breach of contract, it is also a breach of trust and a gross abuse of that trust. If an employee requests his employer to let him have his confidential papers in order to show them to other people, it would be too much to expect that the employer would accede to that request. I do not think counsel's analogy to an office secretary is appropriate.

41. It is important to note that in this case, it was to be a leak to newspapers which is tantamount to leaking it to the public. Such a leak would be in direct contradiction to the obligation of confidentiality. It is a deliberate attempt to make public what those concerned and the person who is the subject matter of the confidential information have tried very hard to keep confidential.

42. I am satisfied that any ordinary and reasonable person would have considered such conduct as not only discreditable, dishonourable or inappropriate, but also dishonest and reprehensible . It is not only conduct which people would dislike or detest but conduct which they would regard as wrong and totally unacceptable.

43. The second question is : whether the appellant knew or must have realised that what he did was dishonest in the eyes of ordinary, reasonable and honest people. He is an intelligent and educated person. He had a first degree and was doing a master degree in business administration and a diploma in law. He knew the information was confidential and was reminded by Dr Ooi that it was confidential. He took the precaution to conceal his identity. He must be aware of the importance of privacy, particularly in a hospital setting. What was his reason for doing what he did?

44. In his interview with the police, he said that he did it because he thought the public have the right to know the truth since the Government had lied. In evidence, he confirmed what he said in his statement to the police but added that he felt that the Government should not give false information in order to conceal from the public what really happened and to cheat them. He also expressed his anger with the Government. The learned magistrate entertained some doubt as to his explanation. Having examined the evidence, I too share that view. The Government's press release was clearly inaccurate. There might be some reasons for that but they were not made known. It may be that the Government may not find it easy to explain the inaccuracy and it would be interesting to know what they may say. But it is not for the court in this case to find out why the press release was inaccurate. Nor is it necessary in this case for the court to rule whether the public have the right to know the truth. The court is concerned with whether the appellant was dishonest when he accessed the computer with a view to leak the CT scan report to the press. What is clear from the evidence is that the appellant did not raise the matter of correcting the Government with Dr Ooi or indeed any person. He did not say whether he had raised it with Mr Cheung or Mr Ho to whom he had shown a copy. Mr Cheung could not recall whether he did or not. However in his statement to the police, he admitted that after having faxed the report to the newspapers, he began to regret because he felt he should not have done what he had done. When he was cross-examined, he further accepted that the public do not have a right to know exactly what is wrong with a patient in the hospital unless the patient chooses to release that information. The learned magistrate came to the conclusion that the appellant did it for the thrill and excitement of showing that the Government was wrong rather than because he thought the public had a right to know the truth. It may be that in the process, that had also come to his mind. Having examined all the evidence, I have no reason to disagree with the learned magistrate's views. In any event, even if the appellant had genuinely believed that he was morally justified to do what he did, it would still, on the authority of Ghosh, be dishonesty.

瑪 麗 職 員 泄 梁 愛 詩 病 歷 獲 減 刑

但 秦 向 高 院 提 出 上 訴 ， 高 院 首 席 法 官 陳 兆 愷 認 為 判 監 半 年 是 過 重 ， 原 審 裁 判 官 在 判 刑 時 犯 錯 。 秦 犯 事 的 動 機 是 要 糾 正 政 府 的 「 不 正 確 消 息 」 ， 應 獲 減 刑 ， 秦 終 被 改 判 100 小 時 社 會 服 務 令 。

（ 明 報 記 者 陳 美 莉 報 道 ）

李上訴終院，終院判李上訴得直撤銷罪名

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

__________________

J U D G M E N T

__________________

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 of the Inland Revenue Department.

(2) This was a serious breach. However there was no dishonest intent or gain in this matter. I was satisfied that there was no dishonesty. Accordingly, I dismissed the charge and acquitted the (appellant).

(3) I found that it was not a criminal matter as there was no evidence of dishonest intent or dishonest gain.

(4) The (appellant) was still employed by the Inland Revenue Department."

The judge's decision

12. In the Stated Case, the magistrate posed the following question of law for the opinion of the Court of First Instance :

"Did I err in law in finding that it was a mere unauthorized access to the IRD computer, and it could not be regarded as dishonest when applying the principle in R v. Ghosh."

13. In answering that question, the judge applied the two-stage test as stated by Lord Lane CJ in R v. Ghosh [1982] 1 QB 1053, to the facts of this case and came to the following conclusion: "I am satisfied that there was dishonesty established according to both limbs of the Ghosh test and am satisfied that the question posed by the Magistrate must be answered in the affirmative." As mentioned earlier, the judge remitted the case to the magistrate with a direction that she convict the appellant and impose such sentence as appears appropriate given all the circumstances.

The arguments before this Court

14. Section 161(1)(c) of the Crimes Ordinance with which the appellant was charged provides:

"(1) Any person who obtains access to a computer -

(c) with a view to dishonest gain for himself or another;

whether on the same occasion as he obtains such access or on any future occasion, commits an offence ..."

15. It is accepted that there was an unauthorised access by the appellant to IRD's computer system. It is further accepted (although the appellant argued to the contrary in the courts below) that he had obtained a gain within the meaning of s.161(2) from the system by extracting the relevant information relating to the complainant. The remaining issue is whether there was dishonesty on the part of the appellant. It is common ground that this issue is to be determined by the application of the Ghosh test to the facts.

16. In this appeal, Mr Clifford Smith SC for the appellant makes a short point: Apart from any question of jurisdiction (which is not in issue), an appeal by way of case stated under s.105 of the Magistrates Ordinance can only be lodged, and was lodged in the present case, on the ground that the magistrate's decision was erroneous in point of law. There is no legal definition of dishonesty and whether there is dishonesty in a particular case is essentially a matter of fact for the jury. The magistrate sitting as both judge and jury had made a finding on the facts concluding that there was no dishonesty on the part of the appellant. What the judge did, it is submitted, was effectively to reverse the verdict of the magistrate on the facts. The judge was not entitled to do that unless it can be said that there can be no other conclusion except that the appellant was dishonest but this is not the case here.

17. The argument of the Director of Public Prosecution, Mr I G Cross SC, leading Mr Cheung Wai-sun and Mr Eddie Sean for the prosecution, is equally short. It is accepted that the issue of dishonesty is a matter for the jury. But where a decision on the facts is one which no reasonable tribunal could have come to an appellate court is entitled to intervene. The conclusion of the magistrate in the present case is such a decision. The magistrate had erred in suggesting that while what the appellant did was wrong, it was not criminal dishonesty, that she was distracted by the appellant's motivation and that she was wrong to say there was no evidence of dishonesty.

When would court intervene in appeal by way of case stated

18. An appeal by way of case stated under s.105 of the Magistrates Ordinance is not an appeal by way of rehearing. (See Lord Widgery CJ in Harris Simon & Co. Ltd v. Manchester City Council [1975] 1 All ER 412, 417b dealing with a similar provision in England.) It is a review by the appellate court on the limited ground that there is an error of law or an excess of jurisdiction.

19. Where a magistrate has come to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to, this would be regarded as an error of law. Such a conclusion or finding is often described as "perverse" (See Lord Goddard CJ in Bracegirdle v. Oxley [1947] 1 KB 349 at 353; Lord Widgery CJ in Harris Simon & Co. Ltd v. Manchester City Council at 417d; and Lord Bingham of Cornhill CJ in R v. Mildenhall Magistrates' Court, ex parte Forest Heath District Council (161) JP 401 at 410 E-F.) This is the case where the court is satisfied that the magistrate, in reaching his conclusion or finding, has misdirected himself on the facts or misunderstood them, or has taken into account irrelevant considerations or has overlooked relevant considerations. (See Lord Denning MR in Re D J M S (a minor) [1977] 3 All ER 582 at 589c-e.) In such a case, the court is entitled to intervene and the magistrate's conclusion or finding would not be allowed to stand.

20. The judge in the present case, being aware of course that this was an appeal by way of case stated, said at paragraph 31 of her judgment:

"It is for the tribunal of fact to decide whether the accused was dishonest and an appellate court does not lightly interfere with decisions of fact, but it is also the case that an erroneous decision by such tribunal may be reversed if the conclusions drawn from the determination of the facts are unreasonable."

21. It is said by counsel for the appellant that the judge had applied the wrong test. It would seem that by "unreasonable" conclusion, the judge must be referring to a conclusion which no reasonable tribunal applying the proper considerations and given the proper directions, would have come to. Whether she had correctly applied this to the facts in this case is of course another matter.

Evidence of dishonesty

22. Counsel for the prosecution submits that the magistrate was wrong to say there was no evidence of dishonesty. On the contrary, he says, the evidence was overwhelming and that the only conclusion open to the magistrate was that the appellant was dishonest in obtaining access to the IRD's computer and extracting the relevant information therefrom; and he did this knowingly, having been reminded by the IRD's circulars of the importance of confidentiality in the department.

23. Any ordinary reasonable person would be aware that members of the public, particularly taxpayers, expect that their personal information kept by the IRD is protected and not released without their permission. Any public officer would be aware of the need and importance of maintaining such confidentiality. It was precisely for this purpose that the appellant was provided with a user identity and password for gaining access to the computer and was required to and did make an Affirmation of Secrecy under s.4(2) of the Inland Revenue Ordinance. IRD staff including the appellant were reminded of the importance of this obligation by the IRD's regular circulars. The appellant must have known that his access to the computer was unauthorized and that the IRD would not have given approval. He must be aware that this would be a breach of the trust which the IRD had placed in him as an employee and which the public had placed in him as a public officer. He must be aware that this would seriously affect the integrity of the IRD computer system and was an abuse of his position.

24. On the other hand, it is not disputed that the appellant did not intend to obtain and had not obtained any personal financial gain. On the contrary, he paid the entrance fee to join the WWF and he did what he did for purely personal or benevolent reasons. What is more significant is that in the application form for membership, he had put down his own name and credit card number. It is thus clear that he never intended to conceal his own identity or involvement in it. He did not try to cover his tracks. Indeed it might well be that he wanted the complainant (and possibly other people as well) to know that it was he who had done it. This is a conduct which could reasonably be regarded as inconsistent with dishonesty.

Correctness of judge's intervention

25. Considering the evidence as a whole, I would accept that a reasonable tribunal of fact, bearing in mind the proper considerations and the proper directions, could have concluded that the prosecution have proved that the appellant was dishonest. On the other hand, such a tribunal could easily have come to the opposite conclusion as the magistrate did in this case. Where it is sought to draw a conclusion or make a finding which is different from that of the tribunal of fact, particularly a conclusion of guilt, the appellate court would have to be satisfied that the conclusion which the court is invited to draw is the only reasonable conclusion in the circumstances. In the present case, it cannot, in my view, be said that the only reasonable conclusion which could have been open to a tribunal of fact was that the appellant was dishonest. It cannot be said that the magistrate's verdict is perverse.

26. The type of offence punishable under s.161 of the Crimes Ordinance is no doubt very serious - it could be viewed as a kind of theft, very often with serious consequences but without the victim ever knowing what has happened and why. With the widespread use of computers and the advancement of technology, this valuable equipment has become part of our daily life. It is therefore all the more important to protect the integrity of computers, particularly the integrity of the IRD computer system. But the law as it now stands does not punish all kinds of unauthorized access to computers, it only prohibits the unauthorized and dishonest extraction and use of information. And it is essentially a question of fact for the jury to decide whether there is dishonesty in each case.

Conclusion

27. For these reasons, I take the view that there has been a departure from the accepted norm: the judge was not entitled to intervene. I would therefore allow the appeal and set aside the conviction and sentence.

Mr Justice Ribeiro PJ:

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

Mr Justice Litton NPJ:

29. I agree with Mr Justice Chan PJ's judgment.

Chief Justice Li:

30. The Court unanimously allows the appeal and sets aside the conviction and sentence.

(Andrew Li) Chief Justice

(Kemal Bokhary) Permanent Judge

(Patrick Chan) Permanent Judge

(R A V Ribeiro) Permanent Judge

(Henry Litton) Non-Permanent Judge

Representation:

Mr Clifford Smith, SC (instructed by Messrs Yip, Tse & Tang and assigned by the Legal Aid Department) for the appellant

Mr I. Grenville Cross, SC, Mr Cheung Wai-sun and Mr Eddie Sean (of the Department of Justice) for the respondent