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Hksar v Chan Yau Hei

Judgment Cited authorities 18 Cited in Precedent Map Related
Vincent
Judgment Date07 March 2014
Year2014
Citation(2014) 17 HKCFAR 110
Judgement NumberFACC3/2013
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC3/2013 HKSAR v. CHAN YAU HEI

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)

____________________

BETWEEN

HKSAR Respondent
- and -
CHAN YAU HEI (陳宥羲) Appellant

____________________
Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Walker of Gestingthorpe NPJ
Date of Hearing: 21 February 2014
Date of Judgment: 7 March 2014

____________________

J U D G M E N T

____________________

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 11th 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...

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