Draft Criminal Jurisdiction Ordinance (Amendment of Section 2 (2) Order 2002

20th November 2003

Mrs. Percy Ma

Clerk to Panel

Legislative Council Building

8 Jackson Road, Central

Hong Kong

Dear Mrs. Ma,

Subcommittee on the draft Criminal Jurisdiction Ordinance

(Amendment of Section 2(2)) Order 2002

Thank you for your letter dated 14th October, 2003.

The Hong Kong Bar Association has no objection in principle
to the proposed amendment to the Order. However, what this proposal exposes
is the somewhat inadequate collection of legislation which criminalises
misuse of computers in Hong Kong. This inadequacy is powerfully demonstrated
by the legislation from other jurisdictions that you very kindly supplied
with your letter. We believe that there is an urgent need to undertake
a fundamental review of the Hong Kong legislation in this field.

We understand that there was an inter-departmental working
party charged with the task of reviewing the legislation. We can find
no record of any consultation of or participation in this process by the
Hong Kong Bar Association.

It is very difficult to justify the disparate legislation that we have
at present. There appears to be no unifying or underlying policy behind
our legislation. One provision (section 27 A of the Telecommunications
Ordinance) is merely a summary offence penalising a breach of that section
with a fine only. For a region which prides itself in a high degree of
computer use this is hardly acceptable. The current legislation is clearly
inadequate to fight the scourge of spam e-mail.

If had there is to be such a review of the legislation
penalising misuse of computers, there would be great merit including extra
territorial provisions specifically tailored legislation rather than trying
to shoe-horn these provisions into the Criminal Jurisdiction Ordinance.

Yours sincerely,

Edward Chan, SC


Hong Kong Bar Association