HKSAR v. CHAN YAU HEI

Press Summary (English)

Press Summary (Chinese)

FACC No. 3 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2013 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 42 OF 2011)

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J U D G M E N T

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Chief Justice Ma:

1. For the reasons contained in the judgment of Mr Justice Fok PJ, I agree that this appeal should be allowed and the appellant’s conviction quashed.  I only emphasise one point.  The common law offence of outraging public decency, which has a history going back at least 350 years, is not one that comfortably fits into the modern internet age.  Criminal liability in the context of the present case is one that should be determined by legislation.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A.  Introduction

4. The principal and novel question raised in this appeal is whether the common law offence of outraging public decency can be committed by posting a message on an internet discussion forum.  A subsidiary issue is whether a message of the type posted in this case is capable of constituting the offence.  The appeal arises from the following facts.

B.  The facts

5. On 16 June 2010, a reporter from the Oriental Daily newspaper made an inquiry of the police about some allegedly inflammatory messages posted to an internet discussion forum called HKGolden at the URL address http://forum4.hkgolden.com.[1] The messages related to proposals for political reform in Hong Kong, on which the Legislative Council was to vote on 23 June 2010.  The police investigated the matter and discovered one such message, posted in Chinese on 11 June 2010 by a person calling himself “Ghost Valley”, which read as follows:

“我哋要學猶太人炸咗中聯辦 # fire #”.

6. The English translation of this message is:

“We have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government # fire #”.

7. On 19 June 2010, the appellant was arrested at his home in North Point. Under caution, he admitted that he had participated in the discussion and posted the message in the name of Ghost Valley to the discussion forum and said that he had done it for fun only and had no intention to commit any offence.

C.  The procedural history

8. The particulars of the offence with which the appellant was charged were as follows:

“CHAN Yau Hei, you are charged that on the 11^th day of June 2010, at … North Point, Hong Kong, committed an act outraging public decency, by using your home computer to post on a discussion forum of the HKGolden website the following message in Chinese: ‘我哋要學猶太人炸咗中聯辦 # fire #’ (‘We have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government # fire #’).”

9. The appellant appeared in the Eastern Magistracy on 1 November 2010,[2] represented by counsel acting for him under the Duty Lawyer Scheme.  At that hearing, he pleaded guilty to the charge and admitted the facts summarised above.  The appellant was thereupon convicted and the matter was adjourned for various reports to be obtained and for sentencing.

10. On 18 November 2010, at the adjourned hearing for sentence, the appellant was represented by different counsel, Mr Wong Hay Yiu, who continues to represent him in this appeal.  Mr Wong informed the Magistrate that the appellant wished to apply to change his plea to not guilty on the ground that the facts admitted did not support the charge.  It was contended on behalf of the appellant that the posting of the message on the internet discussion forum was not an act done in a place to which the public had access or where what was done was capable of public view and in a way which was capable of being seen by two or more persons who were actually present.  It was also argued that the content of the message posted was not of such a character as to outrage public decency.  After hearing argument, the Magistrate refused the application, confirmed the conviction and sentenced the appellant to 12 months’ probation.

11. The appellant appealed to the Court of First Instance against the Magistrate’s refusal of the application for a reversal of plea.[3] It was contended that the Magistrate had erred in finding that the discussion forum was a place or premises at or in which, at common law, the offence could be committed.  It was also argued that there was no evidential basis to find that the message constituted an act outraging public decency.  By his judgment dated 11 November 2011, the Judge dismissed the appeal and confirmed the conviction.

12. The Judge refused the appellant’s application to certify a question for the determination of this Court pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance (Cap.484)[4] and the appellant renewed that application to the Appeal Committee.

D.   The certified question and issues arising

13. The Appeal Committee granted leave to appeal on the following question of law of great and general importance, namely:

“Whether the posting of such a message on a discussion forum on the internet is capable of amounting to the offence of outraging public decency.”

14. That certified question gives rise to the following issues for determination in this appeal, namely:

(1) Whether the posting of the message on the internet discussion forum satisfies the public element of the offence (the public element issue); and

(2) Whether the message, by its nature and content, is of a type capable of constituting the offence (the nature of the act issue).

15. To put those issues in context, it is helpful next to address the elements of the offence as established by the authorities.

E.  The offence of outraging public decency

16. It is an offence at common law to do in public an act of a lewd, obscene or disgusting nature which outrages public decency.  See, Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435 at pp.492C-493H per Lord Simon of Glaisdale; R v Gibson and Sylveire [1990] 2 QB 619 at pp.622G-623C; and R v Hamilton [2008] QB 224 at §§18-25.

17. There are two elements of the offence.  The first concerns the nature of the act that has to be proved and the second concerns the public element of the offence.  See, R v Hamilton at §21.

18. As to the nature of the act, whilst many of the reported decisions relate to convictions for the offence arising from acts such as exposure of the person[5] or other acts of lewdness involving sexual activity[6], the offence has also been held to be constituted by other, non-sexual, acts such as disinterring a corpse for dissection[7], physically abusing and urinating on a dying woman in the street[8] and urinating on a war memorial while drunk.[9]  As Lord Reid stated in Knuller (at p.458):

“Indecent exhibitions in public have been widely interpreted. Indecency is not confined to sexual indecency: indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.”

19. Thus, the offence has also been held to have been constituted by other activity, for example, by the exhibiting of deformed children[10] or of a sculpture consisting of a human head to each earlobe of which was hung an earring made from a freeze-dried human foetus of three to four months’ gestation.[11] 

20. In addition, of particular relevance to the present appeal, the utterance of obscene language has been held to be an indictable offence[12] and the offence has been held to be capable of being committed by the printing of advertisements.[13]  It is not suggested in this case that the offence cannot be constituted by the publication of written words and it is clear that it can.  As Lord Reid stated in Shaw v Director of Public Prosecutions [1962] AC 220 (at p.281):[14]

“I think that [the authorities] establish that it is an indictable offence to say or do or exhibit anything in public which outrages public decency, whether or not it also tends to corrupt and deprave those who see or hear it.”

[Emphasis added]

21. It must also be proved that the act or exhibition or publication is of such a lewd, obscene or disgusting character that it outrages public decency. An obscene act is one which offends against recognised standards of propriety and is at a higher level of impropriety than indecency.  A disgusting act is one which fills the onlooker with loathing or extreme distaste or causes the onlooker extreme annoyance.  Further, it is not enough that the act might shock people; it must be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society.  See, R v Hamilton at §30.

22. As to the public element of the offence – the second element – the offence must be committed in public in the sense of being done in a place to which the public has access or in a place where what is done is capable of public view: see R v Hamilton at §31.  This does not, however, mean that the relevant act must be done on public property.  It is sufficient if members of the public can see the object or act in question whether by going there or by looking in.[15] Thus, there are cases in which it was decided that the offence could be committed in a private home, if others could see through the window,[16] or on a roof of a private house where the act could only be seen from the back windows of other private houses,[17] or while trespassing in fields that were private property but where other trespassers would sometimes come.[18]

23. In addition, the public nature of the offence can only be satisfied if the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it: see R v Hamilton at §31. This is known as the “two person” rule.[19] However, the rule does not require anyone actually to witness the defendant’s act, so long as at least two people are present and capable of seeing the act should they happen to look.  Since the purpose of the requirement that the act be of such a kind that it outrages public decency goes to setting a standard which the jury must judge by reference to contemporary standards, it does not require someone in fact to have seen the act and to have been outraged: see R v Hamilton at §39.

24. The mental element of the offence is satisfied if the defendant intentionally does an act which outrages public decency.  In many cases, the act will have been done in a clandestine manner deliberately so that it cannot be seen by others.  But it is not necessary for the prosecution to prove that the defendant intended to outrage public decency, or even that he was reckless in the sense that he appreciated there was a risk of outrage but determined nevertheless to run it.  See, R v Gibson and Sylveire at pp.627E & 629D-F.  In the present case, no issue as to mens rea is raised and the appellant’s admission that he participated in the discussion forum and posted the message shows clearly that the posting was an intentional and deliberate act.

25. With the elements of the offence in mind, I now turn to address the specific issues arising in this appeal.

F.  The public element issue

26. As noted above, the public element of the offence has two parts.  First, it requires that the act be done in a place to which the public has access or in a place where what is done is capable of public view.  Secondly, the element is not satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (the two person rule).

27. It was the second part of the public element of the offence, namely the two person rule, with which R v Hamilton was concerned.  In that case, the defendant had used a hidden video camera to film up the inside of women’s skirts (a practice known as “up-skirting” which, unfortunately, is also encountered in Hong Kong) in a supermarket.  There was no evidence that anyone had actually seen the defendant filming up the women’s skirts in the supermarket, but there was evidence that others were present when he was filming.  The Court of Appeal held that the two person rule went solely to the necessity that there be a public element in the sense of more than one person being present and capable of being affected by the act and did not require actual sight or sound of the nature of it.  It was therefore held that the question of whether the way the defendant filmed was capable of being seen by those in the supermarket was properly left to the jury to decide.

28. The issue in the present appeal is primarily concerned with the first part of the public element that requires the act to be done in a place to which the public has access or in a place where what is done is capable of public view.  The question for the Court is whether, as contended by the appellant, this part of the public element of the offence requires that the act must be done in an actual or physical, tangible place.  Otherwise, the appellant contends, there would be no need for the requirement of the two person rule, namely that two or more persons must be present there.  It is accepted by the respondent that the internet is not a physical, tangible place and is instead a “virtual” place but contended that it is sufficient to satisfy the public element of the offence.

F.1   Novel issue not precluded if principled development of offence

29. The appellant’s written case refers to the English Law Commission’s Report on Conspiracy and Criminal Law Reform in March 1976 which highlighted the fact that the House of Lords emphasised in Knuller that the courts had no residual power to widen existing offences to make punishable conduct of a type hitherto not subject to punishment.[20] There is also reference to the Hong Kong Law Reform Commission’s Report on Codification: The Preliminary Offences of Incitement, Conspiracy and Attempt in March 1994 which recommended the abolition of the offence of outraging public decency, due to its “imprecise nature”.[21]

30. Putting to one side the decision in HKSAR v Chan Johnny Sek Ming [2006] 4 HKC 264, to which it will be necessary to return in a moment, there is no previous decision holding that the internet is a public place for the purposes of the offence of outraging public decency.  This is therefore a novel issue and, if it is decided that the public element of the offence is satisfied by way of a posting to an internet discussion forum, it will amount to the recognition of a new category of situation giving rise to the potential for prosecution.

31. The critical question is whether the inclusion of this new factual situation within the offence is simply an example of the operation of the common law and its flexibility in being able to adapt to changing circumstances.

32. As Lord Simon observed in Knuller (at p.492E-H):

“… thecommon law proceeds generally by distilling from a particular case the legal principle on which it is decided, and that legal principle is then generally applied to the circumstances of other cases to which the principle is relevant as they arise before the courts. As Parke B. said, giving the advice of the judges to your Lordships’ House on Mirehouse v. Rennell (1833) 1 Cl. & F. 527, 546 (cited with approval in Shaw v. Director of Public Prosecutions [1962] A.C. 220 by Lord Tucker (p. 289), Viscount Simonds (p. 261) and Lord Morris of Borth-y-Gest (p. 291) concurring, and by Lord Hodson (pp. 292-293)):

‘Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable or inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonableas we ourselves could have devised.’”

33. And, at p.494B-C, Lord Simon added:

“The passage I have cited from Mirehouse v. Rennell, 1 Cl. & F. 527, 546 indicates that the fact that the authorities show no example of the application of the rule of law in circumstances such as the instant does not mean that it is not applicable, provided that there are circumstances, however novel, which fall fairly within the rule.”

34. Further, it is well-established that, in a common law system, the development of the laws by the courts over time, by clarification and modification to meet new circumstances and conditions, is not constitutionally objectionable provided that it does not result in judicially extending the boundaries of criminal liability: see Winnie Lo v HKSAR (2012) 15 HKCFAR 16 per Ribeiro PJ at §77 citing Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 per Sir Anthony Mason NPJ at §98.

F.2   Does the public element of the offence require the act to be committed in a physical, tangible place?

35. Whilst not going so far as to contend that the offence was unconstitutional for lack of legal certainty, Mr Wong submitted that, given the imprecise nature of the offence, it was appropriate for the offence to be confined to cases involving acts of a lewd, obscene and disgusting character that are done in a place (meaning a physical, tangible place) to which the public has access or in such a place where what is done is capable of public view.  It was wrong, Mr Wong submitted, to conflate a virtual public forum on the internet with a public place.  Further, he submitted that the two person rule could not be satisfied in such a virtual public forum.

36. For his part, Mr Martin Hui, Senior Assistant Director of Public Prosecutions, for the respondent, contended that the common law offence should, as a matter of logical development, be held to cover the message posted on the internet discussion forum in question.  He submitted that the public element of the offence is not confined to a public place in its restrictive sense of being a physical place, but rather connotes a broader concept of a location to which the public has access or where what is being done is capable of public view.

37. For the following reasons, I have come to the conclusion that Mr Wong is correct in his submission that the public element of the offence requires the act to be committed in a physical, tangible place.

38. A first and important consideration is that, with the exception of HKSAR v Chan Johnny Sek Ming, all previous cases involving convictions for the offence of outraging public decency involve things said, done or exhibited in a physical, tangible place.  The place has not always been public property or a place of public resort but it has nevertheless been an actual or physical place.  Thus, for example, in Knuller the offence was charged as having been committed in the various newsagents where magazines containing the offending advertisements were sold, not in the magazines themselves, and in R v Hamilton the offence was committed in the supermarket where the up-skirting videos were filmed, not in the video recordings themselves.

39. The relevance of the place in which the offence of outraging public decency is committed was explained by Lord Simon in Knuller where he contrasted the offence of conspiracy to corrupt public morals.  At pp.494F-495A, he held:

“It was argued for the Crown that it was immaterial whether or not the alleged outrage todecency took place in public, provided that the sense of decency of the public or a substantial section of the public was outraged. But this seems to me to be contrary to many of the authorities which the Crown itself relied on to establish the generic offence. The authorities establish that the word ‘public’ has a different connotation in the respective offences of conspiracy to corrupt public morals and conduct calculated to, or conspiracy to, outrage public decency. In the first it refers to certain fundamental rules regarded as essential social control which yet lack the force of law: when applicable to individuals, in other words, ‘public’ refers to persons in society. In the latter offences, however, ‘public’ refers to the place in which the offence is committed. This is borne out by the way the rule was framed by my noble and learned friend, Lord Reid, in Shaw v. Director of Public Prosecutions [1962] A.C. 220 in the passage which I have just cited. It is also borne out by what is presumably the purpose of the legal rule – namely, that reasonable people may venture out in public without the risk of outrage to certain minimum accepted standards of decency.”

[Emphasis added]

40. It is important to note the context in which Lord Simon made those remarks, namely the submission by the prosecution that “it was immaterial whether or not the alleged outrage to decency took place in public, provided that the sense of decency of the public or a substantial section of the public was outraged.”  Lord Simon clearly rejected such a broad formulation of the public element of the offence.  That formulation is, in substance, the same as the respondent’s submission summarised above.

41. The significance of the first part of the public element of the offence was also emphasised in R v Walker (Steven) [1996] 1 Cr. App. R. 111.  There, the defendant had exposed himself and committed obscene acts in the living room of his house in the presence of two young girls.  His conviction was quashed on the basis that the private premises where the acts were committed were not a place where there existed a real possibility that members of the general public might witness what happened.  Laws J (as he then was), giving the judgment for the Court of Appeal, said (at p.114C-E):

“In our judgment Mayling establishes, for present purposes, no more than this: that it is a necessary condition for guilt of the offence that at least two people must have been able to witness what happened. It does not establish that that is a sufficient condition. In our judgment there is a further requirement. It is dictated by the very purpose for which the offence exists, namely, as Lord Simon said, that reasonable people might venture out in public without the risk of outrage to certain minimum standards of decency. The requirement is that the offence be committed in a place where there exists a real possibility that members of the general public might witness what happens. It does not mean that the very spot where the act is done must itself be a place of public resort, though that, no doubt, is the paradigm case. But it must be a place where the public are able to see what takes place there.”

42. As noted in Rook & Ward on Sexual Offences Law and Practice (4th Ed., 2010) at §14.49, in R v Walker (Steven) the requirement of publicity (i.e. the first part of the public element of the offence) is given a content of its own quite distinct from the two person rule.

43. There is nothing in R v Hamilton which suggests that R v Walker (Steven) did not have this effect although, as I have said, that case did not concern the first part of the public element of the offence since the place where the offence was committed, a supermarket, was plainly a place to which the public had access and a place where what was done was capable of being seen.  But if the first part of the public element is given a content of its own distinct from the two person rule, it must require more than that the sense of decency of at least two persons is capable of being outraged.  The additional requirement relates to the public nature of the place where the offence is committed.

44. It would appear that the law in New South Wales and in South Africa may have developed in a different direction to that in R v Walker (Steven)[22] in that the offence may be committed in those jurisdictions by acts in private premises seen by others in those same private premises[23] or from other private premises.[24]  This divergence of view as to whether the place where the offence is committed must be public or private does not, however, strictly arise in the present appeal where the question is whether the internet is a place at all.

45. It is a fiction to describe the internet as a place in any physical or actual sense.  The fiction arises because material uploaded to the internet, which might include a message posted to an internet discussion forum, is simply computer code and not humanly intelligible until accessed or downloaded in comprehensible form to a computer or mobile platform connected to the internet. For this reason, material placed on the internet is commonly described as being in “cyberspace” or in a “virtual” place or forum.  As Ribeiro PJ explained in Oriental Press Group Limited and Ors v Fevaworks Solutions Limited & Anor, unrep., FACV 15/2012 (4 July 2013) at §68:

“… A person wishing to view on his computer the webpage containing the relevant material, sends a request to the URL address of the website on which that material is stored and, in response, the webpage is transmitted to the requesting computer. When it is received and accessed or downloaded in a form comprehensible to the person making the request, the material is ‘published’ for the purposes of libel law.”

46. In the same way, for the purposes of this offence, a message posted to an internet discussion forum can only be seen by other people when accessed or downloaded in a comprehensible form and it is only then that their sense of decency may be outraged.  The readers of that message may be in various different places when they access or download the relevant webpage and, because they may be using mobile internet devices, those places may be private or public.  But it is in those actual places that their sense of decency may be outraged, not in some virtual place.  In short, for the purposes of the offence, the internet is properly to be regarded as a medium and not a place.

47. The fiction of regarding the internet as a place may be illustrated by assuming different facts in R v Walker (Steven), so that the defendant had, in his living room, posted an obscene or disgusting message on an internet discussion forum which the two girls had then seen in that room by accessing the relevant website and downloading the offending content on their mobile phones.  It would be highly artificial, and in my view a materially different basis of criminal liability, if, absent evidence that anyone else could have seen the relevant message on the internet, it were to be suggested that his conviction should instead have been upheld because the internet is a public place.  The persons outraged by his behaviour would still have been the two young girls and the place where their sense of decency was outraged would have remained the living room of the defendant’s house, not some virtual place.

48. It is similarly a fiction to regard persons who access an internet discussion forum as being in the same position as reasonable people who venture out physically in public and who are entitled to protection against having their sense of decency outraged.  Notwithstanding that they may be physically outdoors at the time, those who surf the internet are not in fact venturing out anywhere and are instead only virtually visiting a place when accessing a particular website or discussion forum.

49. Finally, as Mr Wong rightly pointed out, the offence is in effect one of strict liability, and this is a further reason to reject the respondent’s invitation to develop the common law by holding that the offence can be committed in a virtual place.

50. Therefore, in my opinion, the first part of the public element of the offence does require that the actus reus (whether it be something said, done or exhibited) be committed in a physical, tangible place and not virtually in cyberspace by way of the internet.  To hold that the internet is a public place for the purposes of the offence would involve either dispensing with the first part of the public element of the offence or substantially extending its meaning and would therefore amount, impermissibly, to judicially extending the boundaries of criminal liability.

51. I turn to address the arguments advanced by the respondent and to the only other case concerning this particular issue.

52. In the respondent’s written case, Webster v Dominick [2005] JC 65 is relied on to support the submission by analogy that the offence of outraging public decency could be committed by acts done on the internet.

53. Webster v Dominick is a Scottish case concerning a charge of the offence of shameless indecency.  The High Court of Justiciary held that shameless indecency was not a relevant charge in the law of Scotland and that indecent conduct could be criminal where, as against an individual victim, it constituted “lewd, indecent and libidinous practices” and where, as a crime against public morals, it “causes … public offence” (§48).  In respect of the former, the Lord Justice-Clerk observed that it might be committed “by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chat-room” (§49, emphasis added).

54. I do not think this case supports the respondent’s submission.  It is significant that the first form of indecent conduct is criminal “whether committed in public or in private” and there is no place element in the offence.  The reference to the possibility of the offence being committed “by means of a lewd conversation … through an internet chat-room” is not therefore to be seen as indicating any location of the conversation but is merely a reference to the chat-room being a medium through which the offence is committed.

55. There is also reliance, in the respondent’s written case, on a passage in Rook & Ward at §14.45, commenting on Rose v Director of Public Prosecutions [2006] 1 WLR 2626.  In that case, a conviction for outraging public decency was quashed where the act (being sexual activity carried out in the foyer of a bank in the early hours of the morning) was only proved to have been seen by one other person other than the participants, namely a bank employee who later observed the act on a CCTV recording.  Stanley Burnton J (as he then was) applied the proposition that, if in fact only one person saw the act or could have seen the act complained of there was no offence (§25), and held that there was not a sufficient public element for the offence to be established (§28). That was sufficient to dispose of the appeal.  Although therefore not having to decide the issue, Stanley Burnton J considered there was “considerable force in [counsel’s] submission that the viewing privately of a private recording of an act which had not previously been seen by any person is insufficient to constitute the offence” (§29).

56. Rook & Ward suggest the court in Rose was right to doubt that the offence could be committed by the replaying of a CCTV recording.  However, they go on to state that “viewing of the product of a camera ought to be sufficient where the viewing takes place in real-time, e.g. where the product is broadcast over the internet or on live-feed CCTV.”

57. I do not regard that reference to the viewing of product broadcast over the internet as supporting the proposition that the internet is a place for the purposes of the offence.  Instead, I understand the statement in Rook & Ward to be describing different means by which an outrageous act may be perceived by members of the public.

58. To support his conclusion that the internet was a public place, the Judge below gave an example of a person projecting an image of his doing a disgusting act in private onto a television set placed on his balcony.[25] I do not think this example supports the conclusion in question.  Projecting a live image of an outrageous act onto a screen visible to the public is the means or medium by which a person may outrage public decency in the place where the image is seen.  It does not turn the medium itself into a place.

59. There is only one previous decision in this jurisdiction addressing this issue and none in any other jurisdiction was identified by the parties.[26] The previous decision is that of HH Judge Lok in HKSAR v Chan Johnny Sek Ming [2006] 4 HKC 264.  That case involved two messages posted by the defendant on a message board called “Gossip” on the website www.she.com. 

60. Having cited (at §25(ii)) R v Walker (Steven) [1996] 1 Cr App R 111 for the proposition that it must be proved that the act complained of was committed in public, which means that it must be committed in a place, public or private, where there exists a real possibility that members of the general public might witness it, Lok DJ held:

“26. Although the defendant posted the Messages in his private home using his computer, other members of the public could view their contents through the internet. Hence, according to the proposition established in R v Walker (S), ibid (see para 25(ii) above), the defendant’s act of posting the Messages should be regarded as an act committed in public. Further, the defendant had the intention to publish the Messages, and so there is no dispute that the defendant had the necessary mens rea for the offence. The remaining main issue is, therefore, whether the defendant’s act was of such a lewd, obscene or disgusting character as constitutes an outrage on public decency.”

61. It does not appear that the specific argument that the internet was not a public place for the purposes of the offence was raised and there is no detailed analysis or reasoning in support of the conclusion that it was.  I do not therefore regard the decision as providing any support for the respondent’s case on this issue.

F.3   Public decency may nevertheless be outraged via the internet

62. This judgment should not be understood as deciding that the offence of outraging public decency can never be constituted by a message posted on an internet discussion board.

63. If, as I think it should, the internet is properly to be regarded as a medium and not a place for the purposes of the offence, it remains a possibility that a message posted to an internet discussion forum will be seen in a physical place to which the public has access or where what is done is capable of public view.  To take an example, a computer hacker might interfere with a large public computer display (for example, the flight information display at the airport) in order to project an outrageous message, image or video in that public place.  Equally, it might be possible by the means of a mobile internet device such as a tablet computer or smart phone to access outrageous material in a physical place (such as a public park, MTR carriage or bus) to which the public has access or where what is done is capable of public view.

64. It is neither necessary nor appropriate in the context of this appeal to express a concluded view as to whether the offence may be committed when outrageous material is posted to the internet and then accessed from the internet at a place where the public has access or where what is done is capable of public view.  For the reasons given in the next section of this judgment, there is simply no sufficient evidence to support the conclusion that this occurred in the present case.  By the same token, however, the effect of holding that the internet is not a place for the purposes of the offence does not mean that the offence can never be committed by a message posted to an internet discussion forum.

F.4   Absence of sufficient evidence in the present case

65. In the present case, the Magistrate refused to permit the appellant to change his plea to not guilty.  In doing so, she applied HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 which listed, at p.135E-I, the circumstances in which an unequivocal guilty plea can be rendered a nullity.  The first type of case listed, namely that the facts admitted by the defendant do not amount to the offence with which he is charged, is relevant here.  Applying the conclusion reached in Section F.2 above, the Magistrate should have permitted the change of plea.  Absent further evidence from the prosecution, she should then have held that the appellant had no case to answer on the charge of outraging public decency.

66. Had there been a change of plea, the trial might have proceeded with further evidence being adduced by the prosecution.  However, because the appellant pleaded guilty and admitted the particular facts put to him for admission, there is simply no evidence of where and by whom the message posted by the appellant was read.

67. The charge is framed on the basis that the appellant committed the offence by posting the message at his home.  That place was not, of course, the place where the message was published.  The admitted facts do not, however, disclose where and by whom the message was seen.  It is reasonable to infer that it was read by a reporter from the Oriental Daily but no inferences can be drawn as to where the reporter might have done this.  It is also reasonable to infer that the police investigating the complaint read the message but, again, no inferences can be drawn as to where that was done.  That being the case, one cannot reach any conclusions as to whether the places where the reporter and the police accessed the message were places to which the public had access or where what was done was capable of public view.  The inside of a newsroom or police station would not naturally be considered to be such places.  Nor can one conclude that the two person rule would be satisfied in respect of the place or places where the offending message was accessed.

68. It is, of course, entirely possible that there might have been evidence to show that the reporter or police accessed the message in a place satisfying the first part of the public element of the offence.  There might have been evidence that it was accessed on a computer which was in plain sight of many members of the public had they chosen to look.  But, in the absence of direct evidence, this would be a matter of pure speculation.

69. The conclusion in Section F.2 above means that Lok DJ was wrong to have regarded the posting of the offending messages in HKSAR v Chan Johnny Sek Ming as an act committed in public sufficient to satisfy the public element of the offence.  However, unlike the present case where the facts are limited to the charge and the admitted facts, there was considerably more evidence in that case as regards the discussion thread and the reactions provoked by the offending messages: see §§8 to 11, 15 and 34.

70. It is neither necessary nor appropriate to decide whether the conviction in HKSAR v Chan Johnny Sek Ming was wrongly entered or might nevertheless have been supported by the evidence adduced.  However, that case usefully illustrates the fact that there might have been considerably more evidence in the present case as regards where and by whom the offending message was accessed.

G.   The nature of the act issue

G.1   Is the message, by its nature and content, of a type capable of constituting the offence?

71. The offence can be constituted by the publication of written words and so the nature of the publication is clearly one capable of constituting the offence.

72. The content of the message is not sexual and it is therefore not a lewd publication.  The issue in the present case is therefore whether a message of the type posted by the appellant is capable of being judged to be obscene or disgusting.

73. As noted above, an obscene act is one which offends against recognised standards of propriety and is at a higher level of impropriety than indecency. A disgusting act is one which fills the onlooker with loathing or extreme distaste or which causes the onlooker extreme annoyance.  Further, it must outrage minimum standards of public decency as judged by the jury in contemporary society.  The test is an objective one and eminently suitable for a jury, or magistrate or judge as the tribunal of fact, representing the current standards of ordinary, right-thinking people.

74. The argument for the appellant on this issue is that, to constitute the offence, the act complained of must be of a lewd, obscene and disgusting nature and that, as Lord Simon put it in Knuller at p.495C-D:

“It should be emphasised that ‘outrage,’ like ‘corrupt,’ is a very strong word. ‘Outraging public decency’ goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people. Moreover the offence is, in my view, concerned with recognised minimum standards of decency, which are likely to vary from time to time. Finally, notwithstanding that ‘public’ in the offence is used in a locative sense, public decency must be viewed as a whole; and I think the jury should be invited, where appropriate, to remember that they live in a plural society, with a tradition of tolerance towards minorities, and that this atmosphere of toleration is itself part of public decency.”

[Emphasis added]

75. Mr Wong’s short submission is that the message itself is not of the kind of “lewd, obscene and disgusting nature” covered by the offence.

76. I do not accept that submission.

77. The Magistrate cited the passage from Knuller relied on by the appellant and correctly reminded herself that the test was an objective one.[27] The standard she applied to the meaning of “obscene” and “disgusting” was consistent with the authorities[28] and her conclusion was reached by reference to the reaction of an ordinary and right thinking member of the public in modern society.[29]

78. For his part, the Judge rejected the appellant’s argument that the message required to be seen in context in order to determine if it was capable of constituting an act outraging public decency.[30] He was satisfied that the message constituted a departure from the norms acceptable to the public but also something very disgusting which went beyond normal repulsiveness.[31]  He agreed with the analysis of the Magistrate in §22 of her Statement of Findings.[32]

79. It cannot, in my judgment, be said that it was not open to the Magistrate to find that the message was obscene and disgusting or such that it would outrage public decency.  Accordingly, there is no basis for interfering with the conclusions reached by the Magistrate and Judge below as regards the content of the message.

80. I would, in any event, have reached the same conclusion.

81. As to context, some written messages will require to be placed in their proper context in order to determine their proper meaning and whether that meaning is of a lewd, obscene or disgusting character such as to constitute the offence.

82. The content of the message in this case is clear and requires no context to inform the natural and ordinary meaning of the words used.  It is a straightforward and unambiguous incitement to carry out an act of terrorism, namely to bomb the Liaison Office of the Central People’s Government.  An incitement to bomb any premises would be potentially obscene and disgusting because of the brazen disregard for the potential loss of life, personal injuries and damage to property as well as the public trauma caused by an act of terrorism.

83. That the incitement is to bomb an office of the State is, in my view, an aggravating feature.  This is not because the intended target is a State institution and deserving of any greater protection than any other person or institution in Hong Kong but because, in the context of a debate on political reform, an attack on an office of the State or Hong Kong Government as opposed to a commercial office or some other premises could have a potentially greater impact on the maintenance of law and order in, and the governance of, Hong Kong.  All this would be likely to contribute to the impact and reception of the message by an ordinary, right-thinking member of the public.

84. In addition, there is another highly troubling aspect of the message potentially capable of causing or exacerbating a sense of outrage, namely the juxtaposition of an extremely offensive racist slur, suggesting that all Jews are terrorists and in the habit of perpetrating acts of terrorism in order to promote political objectives.  The further suggestion in the message, on the misguided assumption that racist slur is correct, that Hong Kong people have something to learn from such behaviour is another feature that would add to the sense of loathing, extreme distaste or extreme annoyance caused by the message.

G.2   Consistency with freedom of expression

85. Finally, although it is not suggested in the present case that the offence is inconsistent with the constitutional right to freedom of expression, this question may, in other cases, be raised.[33] There is a balance to be struck between the protection of the public and its sense of decency from being outraged by things said, done or exhibited on the one hand and the right to freedom of expression on the other.  In this regard, the discussion in Section N (§§104-112) of Ribeiro PJ’s judgment in Oriental Press Group Limited and Ors v Fevaworks Solutions Limited & Anor, unrep., FACV 15/2012 (4 July 2013) is relevant with the difference that, here, instead of damage to reputation by the publication of defamatory material being at stake, the competing interest is the protection of the rights of others whose sense of decency may be outraged by the offending words or images or, possibly, the protection of public morals.

86. The message in the present case was posted as part of a discussion forum concerning proposals for political reform in Hong Kong to be debated by the Legislative Council.  That is a subject on which there will obviously be a plurality of views.  Those views are likely to be felt and expressed strongly. The offence of outraging public decency is clearly not intended to be used to prosecute those who simply express trenchant views in strong terms.  As Lord Judge CJ observed in Chambers v Director of Public Prosecutions [2013] 1 Cr. App. R. 1 at §28, by reference to the effect of the Communications Act 2003 (but in terms which apply equally to the common law offence):

“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.”

87. The threshold of outraging public decency is a high one.  Not every rude, abusive or low grade statement in the course of spirited debate on a topical matter of public interest will cross that threshold.  The message posted by the appellant in the present case, however, does.

H.   A matter for statutory criminalisation?

88. For a number of reasons, there would seem to be a strong case for introducing statutory provisions to criminalise the posting on the internet of certain material like that in the present case.

89. An important feature of the internet is its effectiveness in providing a platform for both one-to-many communications (akin to traditional forms of publications such as newspapers, radio and television) and also, more significantly, “widespread, democratized, access to media” [34] characterised by open, interactive, “many-to-many” communications (for example, by way of online social networking and microblogging sites or online photo and video messaging applications).  These online platforms or conduits allow individuals the ability to communicate messages and other content, which may be of great social utility, to a vast audience.[35]  Correspondingly, an individual’s power to defame others or outrage public decency is potentially increased exponentially by the power of the internet.

90. The consequence of this judgment is that a message posted to the internet might constitute the means by which public decency is outraged but that the posting of a message to an internet discussion forum in itself does not satisfy the public element of the offence.  Whilst the offence may be committed where the internet content is accessed if that place satisfies the public element of the offence, it is unsatisfactory that there is room for arbitrariness between some internet content that will be open to prosecution for the offence and other content that will not simply because of where it is seen.

91. Although there are statutory offences under Hong Kong law which address the sending and exhibition of, amongst other things, lewd, obscene and disgusting material, those offences do not apply to material posted on the internet and the statutory provisions have not been updated or extended to reflect the fact that the mischief addressed by those offences can arise by means of activity conducted via the internet.  By way of example, the following two offences may be considered:

(1) Section 12A of the Summary Offences Ordinance (Cap.228) makes it an offence to take part in, provide or manage any public live performance of an indecent, obscene, revolting or offensive nature, but, by virtue of the definition of “public live performance” (see section 12A(9)), a video of such a performance exhibited via the internet would not constitute the offence.

(2) Section 20 of the Summary Offences Ordinance makes it an offence to send any message “by telegraph, telephone, wireless telegraphy or wireless telephony which is grossly offensive or of an indecent, obscene or menacing character”, but the medium of the internet is not addressed by that provision.[36]

92. Addressing the mischief of lewd, obscene and disgusting material posted on or communicated via the internet by way of statute would also have the benefit of enabling the Legislature to consider the appropriate mental element to be attached to any relevant criminal offence[37] and the different types of criminal conduct that may be involved in the posting or sending of offending material.[38]  In addition, additional clarity could be achieved by the issuance by the Director of Public Prosecutions of guidelines regarding the circumstances in which cases involving communications sent via the internet would be prosecuted.[39]

I.  Conclusion

93. For the above reasons, although the message posted by the appellant is deserving of condemnation, the public element of the offence is not satisfied. I would therefore allow the appeal and quash the appellant’s conviction.  I would also direct that any submissions as to costs be lodged with the Registrar in writing within 14 days from the date of this judgment.

Lord Walker of Gestingthorpe NPJ:

94. I agree with the judgment of Mr Justice Fok PJ.

Chief Justice Ma:

95. For the reasons contained in the judgment of Mr Justice Fok PJ, this appeal is unanimously allowed and the appellant’s conviction is quashed.  Costs should be dealt with as stated in para. 93 above.

MrMartin Hui SADPP, of the Department of Justice, for the Respondent

Mr Wong Hay Yiu, instructed by Tang & Lee, assigned by the Director of Legal Aid, for the Appellant