OVERVIEW
The offence of criminal damage is found in section 60(1) of the Crimes Ordinance (Cap. 200). While criminal damage is an indictable offence carrying a statutory maximum penalty of 10 years' imprisonment under section 63, the vast majority of standard, non-aggravated cases are brought before and resolved in the Magistrates' Courts. If the damage is minor and it is a first offence, it may be possible to ask the prosecution to consider a bind over.
Please see our Bind Over page for more information.
Section 60 can also apply where a person is alleged to have altered or erased data on a computer.
STATUTORY PROVISIONS
Section 60 of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
“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.”
ELEMENTS OF THE OFFENCE
Property Belonging to Another
The item, structure or system targeted must fit the statutory definition of "property" and belong to someone other than the defendant. Under Hong Kong law, this includes tangible assets as well as electronic data or computer programs.
Destruction or Damage
The property must have been physically impaired or destroyed. The courts interpret "damage" broadly; it includes permanent destruction, temporary impairment of a function, or any physical change that requires expense, time or effort to clean, repair or restore to its original state.
Absence of Lawful Excuse
The physical acts must have been committed without a legally recognised justification, such as the owner's express consent or an immediate necessity to prevent greater harm.
Mens Rea (The Mental Element)
The prosecution must prove either intention or recklessness:
- Intention: The defendant carried out the act with the deliberate goal, desire or purpose of destroying or damaging the specific property.
- Recklessness: The defendant did not necessarily intend to cause damage but was aware that the actions created a clear and unjustifiable risk of property damage, yet chose to take that risk.
Maximum Penalty
1. Standard Criminal Damage: For a conviction under section 60(1) of the Crimes Ordinance (Cap. 200), including standard physical property damage, vandalism and the unauthorised alteration or deletion of computer data, the statutory maximum penalty on indictment is 10 years' imprisonment.
2. Aggravated Criminal Damage: Where the offence falls under section 60(2), involving destruction or damage committed with the specific intent to endanger another person's life, or recklessness as to whether life would be endangered, the statutory maximum penalty is life imprisonment. This may include physical destruction or cyber-tampering with critical infrastructure systems where the statutory requirements are proved.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.