% t. Q8 S D8 }' A/ |( G! ltvb now,tvbnow,bttvb社會上亦有聲音質疑第161條是否對付此類風化案的合適控罪，因為儘管第161條可用作檢控利用手機犯罪的案件，但只會給人「用第161條檢控是因為就手」之感。www2.tvboxnow.com/ u3 U9 g3 r9 z: G' C
公仔箱論壇" S$ O1 K* N. Y( j) n/ F p 有必要檢討條例的適用範圍& f( T( F) i- B5 t1 T- N
以上所見，保安局應立即檢討「有犯罪或不誠實意圖而取用電腦」的適用範圍，避免因該條文的適用範圍過於廣泛而被濫用，更不應以「邊條容易告邊條」[5]為由，以第161條「告住先」。 3 p0 ]& `+ F0 z( v: T/ mTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。www2.tvboxnow.com1 a; Y% c% o4 k
法政匯思tvb now,tvbnow,bttvb2 ~/ P/ v! c1 W( z2 m
2015年6月9日, k7 Z' F; |0 L G; G
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[1] http://www.legco.gov.hk/yr14-15/chinese/panels/se/papers/se20150602cb2-1560-3-c.pdf 2 S5 h1 E6 |; jwww2.tvboxnow.com[2] HCMA723/1998tvb now,tvbnow,bttvb5 [9 _; s9 A/ ^
[3] HCMA77/2013( m. b: m2 e! @. r1 Q
[4] 判詞第50 段中提到: “There is a very wide range of criminal and dishonest activities which fall within the ambit of s.161. In this day and age, very serious crimes or frauds can be committed by gaining access to other people's computers and uplifting information contained therein. Examples include meddling bank records, transferring large sums of money from one account to another, and stealing secret programmes and data such as customers lists and business records. Such activities can be very serious and obtaining access into computers with such intention or for such purposes is no less grave.”tvb now,tvbnow,bttvb5 @8 I( D2 w' N' o/ y- Q: T* V
[5] 蘋果日報2014年12月8日報導：議員質疑只捕不控如恐嚇: http://hk.apple.nextmedia.com/news/art/20141208/18961819 % i, x1 |: j% i. k. { ATVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。www2.tvboxnow.com; b% J6 x6 [: V8 l9 C# |7 f( ^
1 \ [* m3 N( c4 i# b; ~www2.tvboxnow.comIn the meeting on 2 June 2015 of Legislative Council Panel on Security, Councilor Charles Mok raised inquiries on the scope of applicability of section 161 of Crimes Ordinance (Cap. 200), access to computer with criminal or dishonest intent (“Section 161”).; ~+ K8 P$ o$ p3 K
5 [; C# e j# K5 j$ o1 ^* ?8 _) pAccording to LegCo Paper Number (LC Paper No. CB(2)1560/14-15(03))[1], Security Bureau relied on the following two cases to establish that Section 161 aims at combating any acts of using computer with criminal or dishonest intent.www2.tvboxnow.com/ V1 P% C2 Z6 k2 C
) g$ q* N& N) k3 \2 N# d/ ] s公仔箱論壇- HKSAR v Tsun Shui Lun[2] 3 V; v# D# M$ U' M( W% f x1 m; U* J- Secretary for Justice v Wong Ka Yip, Ken[3]0 M( e. h/ H( k- l
For the reasons below, the statement made by the Security Bureau is simply a sweeping generalisation.: p, j/ L/ t# P& u$ X' D" |
, ?6 i v3 k5 y9 R7 i' x+ j; ~/ r(I) The first case referred to does not state Section 161 applies to online statements `" X1 B- c4 {& c8 bTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。In HKSAR v Tsun Shui Lun, the defendant was charged with an offence under section 161(c) for his unauthorized access into another person’s computer. The Security Bureau quoted paragraph 20 of the judgment which apparently only focuses on authorised access into another person’s computer, rather than online statements. / q& B) b) ^, `) T- G; e, p4 swww2.tvboxnow.comIn fact, the Security Bureau only partially quoted paragraph 20 of Hon Chan CJHC’s judgment. In the remaining part of paragraph 20, the judge named a few acts of unauthorised access into another person’s computer, which includes: * |4 x# z5 G% z' @- A businessman wants to acquire information about his competitors in order to enable himself to have an advantage over them.tvb now,tvbnow,bttvb4 d9 ? O- Q# j: u- }. r
- A disgruntled employee wants to ruin his employer’s business by revealing his employer’s trade secrets to others. * n6 A! W3 }" G* ?4 D( X* jwww2.tvboxnow.com- An ex-employee wants to obtain a list of his former employer’s customers in order to solicit business from them./ U) C% u% M( O7 n* f& C
- A dissatisfied bank officer wants to erase the bank’s records form the computer in order to cause confusion or to irritate the bank’s customers. 7 d6 ]+ v3 b. ]; c3 k Utvb now,tvbnow,bttvbHon Chan CJHC when considering sentencing in paragraph 50 of the same judgment also listed some examples of criminal and dishonest activities which fall within the ambit of Section 161. All the examples are related to commercial crimes. [4] However, these examples do not include online statements, which have been frequently prosecuted, and are of an entirely different nature.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。0 g' y) i. R) `4 J- k/ A) T
Therefore, the statement made by Security Bureau (ie the Judge has clearly indicated that Section 161 aims at combating any acts of using computer with criminal or dishonest intent) is over-generalised, even entirely wrong.) {" R0 m% j# J" b) W# [
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(II) The second case referred to does not reach an conclusion as the Security Bureau claimed $ ]% ]4 _( v/ tThe Security Bureau also referred to Security for Justice v Wong Ka Yip, Ken to support the statement that, according to Section 161, once an offender had accessed the computer, and at the material time he had one of the four intents or purposes set out in section 161, he would have contravened the section.TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。( O5 T* i. M m0 [3 U
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In fact, this case only confirmed that Section 161 covered acts using smart phone or any other electronic devices to commit the offence. This means that if the device used is not an electronic one, Section 161 will be inapplicable. The Security Bureau cannot (and absolutely should not) extend the judgment limitlessly so as to achieve the conclusion that it wishes to see.公仔箱論壇% J) r# H% S: U1 {) R
' P l- N/ {1 m2 @0 ~公仔箱論壇There are also doubts as to whether it is appropriate to engage Section 161 to deal with this type of indecency cases. Although it is established that Section 161 could be used to prosecute crimes using mobile phones as device, it gives an impression that engaging Section 161 to prosecute is just done out of convenience.www2.tvboxnow.com% q0 V7 f+ ^: h( q# M' H
Calling for Review of Applicability of Section 161TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。6 V0 {7 t5 v1 J) n
On the aforesaid, the Security Bureau should review the applicability “access to computer with criminal or dishonest intent” as soon as possible, in order to avoid ill-use of Section 161 in prosecution. Section 161 should not be engaged for the sole reason of “cherry picking the charge which appears easier to secure a conviction”.[5]公仔箱論壇/ X: ?, J& u" u1 G& s
: O' w3 J# C, b( mwww2.tvboxnow.comProgressive Lawyers Group公仔箱論壇! G! j& q7 w$ G; d4 b: Z* H
9 June 2015 0 T" |! W* P- Owww2.tvboxnow.com & a4 G2 M* b9 k7 j[1] http://www.legco.gov.hk/yr14-15/chinese/panels/se/papers/se20150602cb2-1560-3-c.pdf9 k$ s+ d8 r2 B m Q' @% f2 H5 m
[2] HCMA723/19987 L3 [& Y0 @% v2 x4 H- |0 D
[3] HCMA77/201 R4 v* Q# o8 K- u0 z% }[4] Paragraph 50 of the judgment states: "There is a very wide range of criminal and dishonest activities which fall within the ambit of s.161. In this day and age, very serious crimes or frauds can be committed by gaining access to other people's computers and uplifting information contained therein. Examples include meddling bank records, transferring large sums of money from one account to another, and stealing secret programmes and data such as customers lists and business records. Such activities can be very serious and obtaining access into computers with such intention or for such purposes is no less grave." ( z; H ^9 |) \: C& ~2 [公仔箱論壇[5] Apple Daily, 8 December 2014, Councilor questioned: arresting but not prosecuting are no different from blackmail: http://hk.apple.nextmedia.com/news/art/20141208/18961819
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