HKSAR v. KO KAM FAI - [2001] HKCA 204; CACC000083/2001, 20 June 2001

This is a Court of Appeal judgment.

On 16 February 2001, the Applicant pleaded guilty in the District Court to:-

two charges of criminal intimidation, contrary to section 24 of the Crimes Ordinance, Cap. 200 (the Ordinance) and

eight charges of criminal damage, contrary to section 60(1) of the Ordinance.

On 19 February 2001, Deputy Judge Ma sentenced the Applicant to concurrent terms of twelve months for each offence of criminal intimidation (charges 5 and 6) and four months on each of the criminal damage charges (charges 1 to 4, 8, 10, 12 and 14).

The Applicant sought leave to appeal against sentence on two grounds, complaining that the sentence was manifestly excessive on the two counts of criminal intimidation.

Facts

Two victims were involved by the Applicant through his criminal acts. Both victims were female(X and Y). They were undergraduates at the Hong Kong University where they shared the same dormitory. Each of them had an e-mail account with the university computer system.

The offences were committed between September 1998 and May 1999. On a number of occasions between those dates, the Applicant hacked into X and Y's e-mail accounts at the University. In X's case, some of the data stored in her computer was transferred to the Applicant's computer, including a photograph of herself. In Y's case, the Applicant was able to interfere with the operation of her computer's mouse. In both their cases, data was altered by the Applicant's infiltration of their computers. Their e-mail accounts were overloaded to the point that they became inoperative as a direct result of the number of e-mails the Applicant had sent to them. These e-mails included highly obscene articles and pictures and other sexually explicit material.

Amongst the e-mails sent by the Applicant to X and Y was a message which read:

"Don't you believe that I will go to your hall to rape you."

X and Y were very frightened by this.

The offences contrary to sections 60(1) and 24 of the Ordinance with which the Applicant was charged carry maximum sentences of ten years and five years' imprisonment respectively although, in the circumstances of this case, it was the two offences in the latter category, i.e. the intimidation offences, which were by far the more serious.

The judge, in passing sentence, equated the offences committed by the Applicant with offences brought under section 161 of the Crimes Ordinance. It goes without saying that none of the offences in this case was brought under that section of the Ordinance which provides for a maximum sentence of five years' imprisonment for accessing a computer with criminal or dishonest intent. It is in this context that, in his first ground of appeal, Mr Philip Wong, on behalf of the Applicant, contended that the judge erred in principle in drawing support from HKSAR v Tam Hei-lun [2000] 3 HKC 745, for his view that the offences committed by the Applicant should be dealt with by imprisonment unless there were most unusual circumstances making a custodial sentence inappropriate. Tam Hei-lun was concerned with offences brought under section 161 of the Ordinance. This error, he submitted, was compounded by a failure to consider a basic principle of sentencing that a defendant who has pleaded guilty should only be sentenced on the plea he has entered and on the basis which the prosecution has accepted (See: R v Booker [1982] 4 Cr. App R (S) 53.)

The acts of criminal intimidation, by accessing X and Y's computers, was a serious invasion of their privacy and the consequences of such acts were likely to be not only extremely upsetting but also very alarming to both of them. We find ourselves in full agreement with the sentencing judge's sentiments that a deterrent sentence for this kind of conduct was called for.

The lower sentences for the criminal damage charges, although there is no appeal in relation to them, was a reflection by the judge of the short-term nature of the damage done to the computers. The gravamen of the offences lay in the criminal intimidation charges.

The application was dismissed.

Coram: Hon Stuart-Moore VP and Stock JA
Date of Hearing: 20 June 2001
Date of Judgment: 20 June 2001