陈乃明一案资料

  本案是香港第一宗引用《版权条例》检控P2P用户的案件、也是全球第一宗以BitTorrent发放侵权档案被刑事定罪的案例。我对这个案子的判决理由相当不同意——注意,我说的是“判决理由”(reasoning),换句话说,我之不同意,不是出于利益平衡、价值选择等等一类“立法上的考虑”(art of legislation),而是在于我认为法官没有正确地进行法律解释或者说法律适用过程出现了错误——时间有限,这里就不具体解释了,只把资料放在这里。
 
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相关文章

  本案是香港第一宗引用《版权条例》检控P2P用户的案件、也是全球第一宗以BitTorrent发放侵权档案被刑事定罪的案例。我对这个案子的判决理由相当不同意——注意,我说的是“判决理由”(reasoning),换句话说,我之不同意,不是出于利益平衡、价值选择等等一类“立法上的考虑”(art of legislation),而是在于我认为法官没有正确地进行法律解释或者说法律适用过程出现了错误——时间有限,这里就不具体解释了,只把资料放在这里。
 
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HK Legislation on the Cyber Crimes

1. Laws against Hacking (Unauthorized Access, Access with Criminal Intent)
There are two offences under the laws of Hong Kong aiming at "Hacking" activities:-
    • Cap.106 S.27a – Unauthorised access to computer by telecommunication
    • Cap.200 S.161- Access to computer with criminal or dishonest intent
 
  • CAP 106 TELECOMMUNICATIONS orDINANCE
    • Section 27A – Unauthorized access to computer by telecommunications – 16/06/2000
Section Num:
27A
Version Date
16/06/2000
Heading
Unauthorized access to computer by telecommunications
 
(1)     Any person who, by telecommunications, knowingly causes a
computer to perform any function to obtain unauthorized access to any
program or data held in a computer commits an offence and is liable on
conviction to a fine of $20000. (Amended 36 of 2000 s. 28)
(2)     For the purposes of subsection (1)-
(a)     the intent of the person need not be directed at-
(i)     any particular program or data;
(ii)    a program or data of a particular kind; or
(iii)   a program or data held in a particular computer;
(b)     access of any kind by a person to any program or data held in a
computer is unauthorized if he is not entitled to control access of the
kind in question to the program or data held in the computer and-
(i)     he has not been authorized to obtain access of the kind in
question to the program or data held in the computer by any person who is
so entitled;
(ii)    he does not believe that he has been so authorized; and
(iii)   he does not believe that he would have been so authorized if
he had applied for the appropriate authority.
(3)     Subsection (1) has effect without prejudice to any law relating
to powers of inspection, search or seizure.
(4)     Notwithstanding section 26 of the Magistrates ordinance (Cap
227), proceedings for an offence under this section may be brought at any
time within 3 years of the commission of the offence or within 6 months of
the discovery of the offence by the prosecutor, whichever period expires
first.
(Added 23 of 1993 s. 2)
 
————–
  • CAP 200 CRIMES orDINANCE
    • Section 161 – Access to computer with criminal or dishonest intent – 30/06/1997
Section Num:
161
Version Date
30/06/1997
Heading
Access to computer with criminal or dishonest intent
 
 
(1)     Any person who obtains access to a computer-
(a)     with intent to commit an offence;
(b)     with a dishonest intent to deceive;
(c)     with a view to dishonest gain for himself or another; or
(d)     with a dishonest intent to cause loss to another,
whether on the same occasion as he obtains such access or on any future
occasion, commits an offence and is liable on conviction upon indictment
to imprisonment for 5 years.
(2)     For the purposes of subsection (1) "gain" (獲益) and "loss" (損失)
are to be construed as extending not only to gain or loss in money or
other property, but as extending to any such gain or loss whether
temporary or permanent; and-
(a)     "gain" (獲益) includes a gain by keeping what one has, as well as
a gain by getting what one has not; and
(b)     "loss" (損失) includes a loss by not getting what one might get,
as well as a loss by parting with what one has.
(Added 23 of 1993 s. 5)
 
2. Laws against Criminal Damage
    • Section 59 – Interpretation – 30/06/1997
Section Num:
59
Version Date
30/06/1997
Heading
Interpretation
 
PART VIII
 
CRIMINAL DAMAGE TO PROPERTY
 
(1)     In this Part, "property" (財產) means
(a)     property of a tangible nature, whether real or personal,
including money and-
(i)     including wild creatures which have been tamed or are
ordinarily kept in captivity, and any other wild creatures or their
carcasses if, but only if, they have been reduced into possession which
has not been lost or abandoned or are in the course of being reduced into
possession; but
(ii)    not including mushrooms growing wild on any land or flowers,
fruit or foliage of a plant growing wild on any land; or
(b)     any program, or data, held in a computer or in a computer
storage medium, whether or not the program or data is property of a
tangible nature.
In this subsection, "mushroom" (菌類植物) includes any fungus and "plant" (植物) includes any shrub or tree. (Replaced 23 of 1993 s. 3)
(1A)    In this Part, "to destroy or damage any property" (摧毀或損壞財產) in
relation to a computer includes the misuse of a computer.
In this subsection, "misuse of a computer" (誤用電腦) means-
(a) to cause a computer to function other than as it has been established to function by or on behalf of its owner, notwithstanding that the misuse may not impair the operation of the computer or a program held in the computer or the reliability of data held in the computer;
(b) to alter or erase any program or data held in a computer or in
a computer storage medium;
(c) to add any program or data to the contents of a computer or of
a computer storage medium, and any act which contributes towards causing the misuse of a kind referred to in paragraph (a), (b) or (c) shall be regarded as causing it. (Added 23 of 1993 s. 3)
(2) Property shall be treated for the purposes of this Part as belonging to any person-
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an
equitable interest arising only from an agreement to transfer or grant an
interest); or
(c)     having a charge on it.
(3)     Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust.
(4)     Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 10 U.K.]
 
————
    • Section 60 – Destroying or damaging property – 30/06/1997
Section Num:
60
Version Date
30/06/1997
Heading
Destroying or damaging property
 
(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 1 U.K.]
1. Laws against Hacking (Unauthorized Access, Access with Criminal Intent)
There are two offences under the laws of Hong Kong aiming at "Hacking" activities:-
    • Cap.106 S.27a – Unauthorised access to computer by telecommunication
    • Cap.200 S.161- Access to computer with criminal or dishonest intent
 
  • CAP 106 TELECOMMUNICATIONS orDINANCE
    • Section 27A – Unauthorized access to computer by telecommunications – 16/06/2000
Section Num:
27A
Version Date
16/06/2000
Heading
Unauthorized access to computer by telecommunications
 
(1)     Any person who, by telecommunications, knowingly causes a
computer to perform any function to obtain unauthorized access to any
program or data held in a computer commits an offence and is liable on
conviction to a fine of $20000. (Amended 36 of 2000 s. 28)
(2)     For the purposes of subsection (1)-
(a)     the intent of the person need not be directed at-
(i)     any particular program or data;
(ii)    a program or data of a particular kind; or
(iii)   a program or data held in a particular computer;
(b)     access of any kind by a person to any program or data held in a
computer is unauthorized if he is not entitled to control access of the
kind in question to the program or data held in the computer and-
(i)     he has not been authorized to obtain access of the kind in
question to the program or data held in the computer by any person who is
so entitled;
(ii)    he does not believe that he has been so authorized; and
(iii)   he does not believe that he would have been so authorized if
he had applied for the appropriate authority.
(3)     Subsection (1) has effect without prejudice to any law relating
to powers of inspection, search or seizure.
(4)     Notwithstanding section 26 of the Magistrates ordinance (Cap
227), proceedings for an offence under this section may be brought at any
time within 3 years of the commission of the offence or within 6 months of
the discovery of the offence by the prosecutor, whichever period expires
first.
(Added 23 of 1993 s. 2)
 
————–
  • CAP 200 CRIMES orDINANCE
    • Section 161 – Access to computer with criminal or dishonest intent – 30/06/1997
Section Num:
161
Version Date
30/06/1997
Heading
Access to computer with criminal or dishonest intent
 
 
(1)     Any person who obtains access to a computer-
(a)     with intent to commit an offence;
(b)     with a dishonest intent to deceive;
(c)     with a view to dishonest gain for himself or another; or
(d)     with a dishonest intent to cause loss to another,
whether on the same occasion as he obtains such access or on any future
occasion, commits an offence and is liable on conviction upon indictment
to imprisonment for 5 years.
(2)     For the purposes of subsection (1) "gain" (獲益) and "loss" (損失)
are to be construed as extending not only to gain or loss in money or
other property, but as extending to any such gain or loss whether
temporary or permanent; and-
(a)     "gain" (獲益) includes a gain by keeping what one has, as well as
a gain by getting what one has not; and
(b)     "loss" (損失) includes a loss by not getting what one might get,
as well as a loss by parting with what one has.
(Added 23 of 1993 s. 5)
 
2. Laws against Criminal Damage
    • Section 59 – Interpretation – 30/06/1997
Section Num:
59
Version Date
30/06/1997
Heading
Interpretation
 
PART VIII
 
CRIMINAL DAMAGE TO PROPERTY
 
(1)     In this Part, "property" (財產) means
(a)     property of a tangible nature, whether real or personal,
including money and-
(i)     including wild creatures which have been tamed or are
ordinarily kept in captivity, and any other wild creatures or their
carcasses if, but only if, they have been reduced into possession which
has not been lost or abandoned or are in the course of being reduced into
possession; but
(ii)    not including mushrooms growing wild on any land or flowers,
fruit or foliage of a plant growing wild on any land; or
(b)     any program, or data, held in a computer or in a computer
storage medium, whether or not the program or data is property of a
tangible nature.
In this subsection, "mushroom" (菌類植物) includes any fungus and "plant" (植物) includes any shrub or tree. (Replaced 23 of 1993 s. 3)
(1A)    In this Part, "to destroy or damage any property" (摧毀或損壞財產) in
relation to a computer includes the misuse of a computer.
In this subsection, "misuse of a computer" (誤用電腦) means-
(a) to cause a computer to function other than as it has been established to function by or on behalf of its owner, notwithstanding that the misuse may not impair the operation of the computer or a program held in the computer or the reliability of data held in the computer;
(b) to alter or erase any program or data held in a computer or in
a computer storage medium;
(c) to add any program or data to the contents of a computer or of
a computer storage medium, and any act which contributes towards causing the misuse of a kind referred to in paragraph (a), (b) or (c) shall be regarded as causing it. (Added 23 of 1993 s. 3)
(2) Property shall be treated for the purposes of this Part as belonging to any person-
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an
equitable interest arising only from an agreement to transfer or grant an
interest); or
(c)     having a charge on it.
(3)     Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust.
(4)     Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 10 U.K.]
 
————
    • Section 60 – Destroying or damaging property – 30/06/1997
Section Num:
60
Version Date
30/06/1997
Heading
Destroying or damaging property
 
(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
(Added 48 of 1972 s. 3)
[cf. 1971 c. 48 s. 1 U.K.]

BBS Invitation of group rape fund guilty in HK

DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
Parties: HKSAR v. CHAN SEK MING JOHNNY
Citation: [2006] 1589 HKCU 1
JUDGMENTBY: HH Judge Lok 
DECIDED-DATE: 20 September 2006

DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION
Parties: HKSAR v. CHAN SEK MING JOHNNY
Citation: [2006] 1589 HKCU 1
JUDGMENTBY: HH Judge Lok
DECIDED-DATE: 20 September 2006
…the evidence of Madam Wong, the previous good character of the Defendant and the response made by him when he was arrested all support the fact that the Defendant had no real intention to commit the gang rape or to incite others to do so. I therefore so find. As the alternative Charges 2 and 4 require the proof of a specific intent to commit an offence whilst the Defendant gained access to the computer, the Defendant cannot possibly be convicted for the offence under these charges
…person of a decent mind, whether in the past, at present or in the future, whether in Hong Kong or elsewhere in the world, would tolerate the commission of a crime such as rape, let alone a horrible gang rape in the manner suggested by the Defendant in the Messages. In my judgment, ordinary right thinking members of the public who read the Messages would not merely feel shocked or disgusted but would feel outraged by their contents…
…internet would provide a good forum to group together people with common interest, and there might be a possibility that the invitation would group together such kind of people, with or without the Defendant himself, to plan for the gang rape, and what Defendant says to be a fanciful creation might materialize into a horrible crime…
…the Defendant’s Messages were no private communications. The Message Board was a public forum and any persons could gain access to its contents. There might be a lot of viewers who just participated in the discussion for the first time or who might not be familiar with the so-called ‘culture’ of the Website. In such case,the court should base on the standard of ordinary right thinking members of the public, as suggested by Roch LJ in R v Ching Choi, ibid. , in deciding whether the Defendant’s act was one which outrages public decency….
…It is also not the court’s role to create new offences, as it is a matter for the legislature. On the other hand, committing an act outraging public decency is a long-established offence in common law. Although the values of society may change from time to time, the object of the offence in preventing the corruption of mind and the destruction or erosion of values of decency is still valid in modern world. Further, like other media such as newspapers and books, internet is a public forum and so there is no reason why the offence is not applicable to messages published on the internet…
…Based on the aforesaid analysis, it is certainly not unreasonable or inconvenient to apply the established legal principles to the facts of the present case. In doing so,I find that the Defendant’s conduct was one which outrages public decency. I am therefore satisfied beyond all reasonable doubt that the Prosecution has proved all the elements of the offence under Charges 1 and 3, and I convict the Defendant accordingly…

Comments to Legislative Proposals on UEMs of HK

Note to the readers:
1. Only a part of the paper is published here.
2. Please do not copy and/or transmit any paragraph of this paper without the author’s permission.
3. Any one who interested in the topic, please contact me.

Comments and Suggestions to the Consultation Paper on
Legislative Proposals to Contain the Problem of Unsolicited Electronic Messages  (Introduction, draft)

I. Introduction

Note to the readers:
1. Only a part of the paper is published here.
2. Please do not copy and/or transmit any paragraph of this paper without the author’s permission.
3. Any one who interested in the topic, please contact me.

Comments and Suggestions to the Consultation Paper on
Legislative Proposals to Contain the Problem of Unsolicited Electronic Messages  (Introduction, draft)

I. Introduction

On 20 January 2006, the Commerce, Industry and Technology Bureau of Hong Kong SAR (Abbr. as CITB hereinafter) published its Consultation Paper on Legislative Proposals to Contain the Problem of Unsolicited Electronic Messages (Abbr. as CPLP hereinafter, available at: http://www.citb.gov.hk/ctb/) and called for comments from the public…

Anti-Spam and relevant issues are among focused topics in the arena of cyberspace law. As has mentioned in CPLP, many jurisdictions have promulgated legislations on them. To prevent Hong Kong from becoming a safe haven for illicit spamming activities, and to guarantee Hong Kong continuously standing as an economic center in the information era, there must be a suitable legislation with efficient implementation as soon as possible.

This paper is drafted after a detailed reading of both Chinese and English versions of the CPLP …… The core, if it should have one, of my dispersive opinions on the respective parts of the CPLP is that a combination of “opt-out”, “extra-territorial”, “technical neutral”, “interests balancing” and “authority empowered” regimes should be reviewed carefully to prevent the possible defects in its implementation….