Hong Kong prosecutors were on Friday forced to adjourn for four months the case against a celebrity tutor involved in leaking public exam questions, after an appeal court ruling in a separate case brought to a halt all proceedings against smartphone-related crimes.
Chinese language teacher Weslie Siao Chi-yung, 42, of cram school Modern Education, and three co-defendants, did not make a plea at West Kowloon Court on Friday as scheduled. The co-defendants are Siao’s wife, Tsai Ying-ying, 33, also a Chinese language tutor at the school, and teachers Cheung Kwok-kuen, 43, and Ng Wang-leung, 43.
Hong Kong’s Independent Commission Against Corruption alleges Siao received via phone message confidential questions for the 2016 and 2017 Diploma of Secondary Education Chinese language examinations. The messages were said to have come from Cheung and Tsai, and arrived with confidential information about a briefing session on the 2017 exam, forwarded from Ng.
Tsai was an invigilator for the Hong Kong Examinations and Assessment Authority during the 2017 oral exams. Cheung and Ng worked as oral examiners in the 2016 and 2017 exams, respectively.
However, prosecutors on Friday said they would have to wait for the Court of Final Appeal to clarify the possible criminal element being cited in Siao’s case – accessing a computer with dishonest intent under Section 161 of the Crimes Ordinance.
“Due to the judgment earlier handed down by Justice Pang Chung-ping, the definition of ‘accessing a computer with dishonest intent’ has a bit of a problem,” senior prosecutor Peggy Leung Po-kei said.
Acting Principal Magistrate Ada Yim Shun-yee agreed to adjourn the case for four months until January 4. She also lifted the requirement for the four defendants to report weekly to a police station. The group have been granted cash bail of HK$2,000 (US$255).
Other cases have also been placed on hold because of the ruling. At least two prosecutions for taking upskirt photos were adjourned for four months, and in a third case the charge was dropped.
The state of legal limbo was prompted by the High Court’s refusal earlier this month to convict four teachers from CCC Heep Woh Primary School who were accused of leaking school exams by using smartphones to take and send images of the papers.
Pang explained in his ruling that prosecutors needed to prove “unauthorised extraction and use of information from the computer” in bringing a case under Section 161, as opposed to the traditional understanding of the offence whereby a computer is “used” at some stage in advancing the crime.
The judgment has forced Hong Kong’s Department of Justice to review all pending cases involving smartphone crimes where charges have been brought under Section 161. The section is commonly used in upskirting cases.
The justice department has filed an appeal against Pang’s ruling, and the appeal court has scheduled a hearing for September 6. It could however take until early next year for the Court of Final Appeal to hand down a ruling on the Heep Woh case.
Prosecutor Leung said her team had no plans to amend the charge against Siao.
But one of Siao’s defence lawyers, who did not wish to be named, expected the prosecution to pursue other offences against Siao and his co-defendants if they lost the final appeal over Section 161.
Lawmakers and civil rights groups have called on the government to review Section 161 to make sure it reflects the original intention to curb computer-related crime.
But in a recent letter, Hong Kong Director of Public Prosecutions David Leung Cheuk-yin turned down a meeting requested by lawmakers Dennis Kwok and Charles Mok to discuss a review, citing the ongoing proceedings.
Kwok, who represents the legal sector in the city’s legislature, said he and Mok planned to draft a private member’s bill to update the law. One future direction could be to follow Britain by specifying that a charge can only be brought for the “unauthorised use of a computer” in advancing a criminal act.
This article Exam leak case against Hong Kong celebrity Chinese tutor Weslie Siao on hold over legal uncertainty first appeared on South China Morning Post