Lim Siong Khee v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 09 April 2001
• Neutral Citation: [2001] SGHC 69
• Docket Number: Magistrate's Appeal No 256 of 2000
• Date: 09 April 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Heikel Bafana and Isreal Louis Ismail (Alexander Charles Louis)
• Citation: [2001] SGHC 69
• Defendant Counsel: David Khoo and April Phang (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Offences,s 2(5) Computer Misuse Act (cap 50A, 1998Ed),Criminal Law,"Without authority",Whether consent of email account holder or system provider is determinative,Access to free web-based email account without authority,Computer Misuse,Words and Phrases,ss 2(2), (5), 3(1), 8(1) Whether authorisation to relate to kind of access in question to data-Computer Misuse Act (Cap 50A, 1998 Ed)

: This was an appeal against the decision of District Judge Siva Shanmugam, where he convicted the appellant, Mr Lim Siong Khee (`Mr Lim`), on the following charge:

You, Lim Siong Khee are charged that you, in the month of May 1999, in Singapore did knowingly cause Mailcity`s e-mail server to perform a function for the purpose of securing access without authority to the electronic mailbox of a Mailcity account holder with the user name `chongyc`, via remote dial-up access to the said server using the said user name and password without the consent of the account holder and you have committed an offence under section 3(1) of the Computer Misuse Act, Chapter 50A (Revised Edition 1998).

The facts

Ms Chong Yan Cheng (`Ms Chong`) first met Mr Lim in December 1998. They went on a trip to Europe sometime in April 1999. Upon their return to Singapore, Ms Chong ended the relationship as she felt that they were incompatible. From April 1999 onwards, she started having problems logging into her email account, `chongyc[commat]mailcity.com` (`the email account`). She suspected that someone was tampering with her account. During this period, Mr Lim knew her movements and he made this known to her. He knew, for example, that she had stayed at Mariott Hotel with two of her friends on 8 and 9 May 1999.

On 9 May 1999, an email was sent out from the email account to three of Ms Chong`s friends. The email was titled `Special Relation`. The contents in the email were addressed to Ms Chong and they contained lurid details of her purported intimate relations with Mr Lim during their European trip. Ms Chong testified that when she confronted Mr Lim, he admitted that he had accessed the email account by guessing correctly that her password was her birthdate. He was also able to find out the new password even after she changed it by answering the hint question correctly. The answer to the hint question was also Ms Chong`s birthdate.

In his defence, Mr Lim admitted that he did access the email account, but claimed that he had Ms Chong`s consent to do so, as she had given him the password while they were in Europe.

Decision of the judge

The judge found that, on the forensic evidence, Mr Lim had accessed the email account on at least two occasions: when he sent the email titled `Special Relation` on 9 May 1999 and subsequently when he retrieved an email from one Ms Iris Tang to Ms Chong dated 10 May 1999, wherein she offered consolation and advice.

The judge found Mr Lim to be an unreliable witness. His explanations were inconsistent and far from satisfactory. In contrast, Ms Chong withstood the cross-examination and established herself as a truthful witness. Mr Lim`s claim that Ms Chong had given him the password was rejected. He was convicted and sentenced to five months` imprisonment.

The appeal

The offence involves s 3(1) of the Computer Misuse Act (Cap 50A, 1998 Ed) (`the Act`), which states:

Subject to subsection (2), any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both. [Emphasis is added.]

Mr Bafana, who appears for Mr Lim, makes two main submissions. First, he submits that the legislative intent of the Act is that in determining whether access is `without authority`, it is the authorisation of the computer system owner or provider that is material. On the facts, Mailcity.com would be the party to determine whether access was authorised. There was no evidence at the trial that Mailcity.com did not authorise the appellant`s access. Instead, the focus was on the lack of consent from the email account holder, Ms Chong. Consequently, a key requirement of s 3(1) had not been proved.

The phrase `without authority` receives legislative attention at s 2(5) of the Act:

For the purposes of this Act, access of any kind by any person to any program or data held in a computer is unauthorised or done without authority if -

(a) he is not himself entitled to control access of the kind in question to the program or data; and

(b) he does not have consent to access by him of the kind in question to the program or data from any person who is so entitled . [Emphasis is added.]

Thus, the consent must come from a person who is entitled to access the data in...