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| Cybercrime is not sufficiently covered by existing laws in Hong Kong |
The Law Reform Commission has proposed the enactment of a law that will deal specifically with cybercrime, or criminal activities that involve the computer, the internet and the rest of the information technology.
In a consultation paper it published today, the LRC said the new law
should protect the public’s interest and right not to be disturbed or attacked
when using or operating their computer system.
The LRC proposed five kinds of cybercrime:
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- Illegal access to program or data.
- Illegal interception of computer data.
- Illegal interference of computer data.
- Illegal interference of computer system.
- Making available or possessing a device or data for committing a crime.
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These crimes are not sufficiently covered by the two Hong
Kong laws that are relevant to these types of crime -- the Crimes Ordinance and
the Telecommunications Ordinance.
"We felt that it's time to update our whole cybercrime
approach, to be consistent with other jurisdictions to put it into a specific
set of ordinance to cover five categories of cybercrime," said senior
counsel Derek Chan, a member of the commission's cybercrime sub-committee.
The LRC made the proposals based on studies it made on the
laws of Australia, Canada, England and Wales, Mainland China, New Zealand,
Singapore and the United States.
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“A comparative study reveals that these jurisdictions have
all provided for the five cyber-dependent crimes and their related
jurisdictional issues either by enacting bespoke cybercrime legislation, or
dedicating a part of their codified law to cybercrime,” the LRC said in its
consultation paper.
The paper also proposed that the cybercrime law include a
new offense of “unauthorized access to program or data, subject to a statutory
defense of reasonable excuse.”
“We have recommended specifically that any unauthorized
access for the public interest necessarily amounts to reasonable excuse. The
whole point about using reasonable excuse is to let the courts have some
flexibility and the defendants to have
some flexibility in arguing what may be reasonable or what may be unreasonable
by reference to our own societal standards,” Chan explained.
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In addition, it proposed that the law have extra-territorial
application, so that Hong Kong courts would have jurisdiction in a case where
connections with Hong Kong exist, wherever the perpetrator is located when
committing the crime.
LRC also said cybercrime should also have two penalties; in
summary convictions, the maximum should be two years’ imprisonment while
convictions on indictment should have a maximum of 14 years’ imprisonment.
The consultation period will end on Oct. 19.
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