03/02/2020
HKSAR v. CHAN YAU HEI [2014] HKCFA 18; (2014) 17 HKCFAR 110; [2014] 3 HKC 52; FACC 3/2013 (7 March 2014)
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.
(Geoffrey Ma)
Chief Justice
https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html
(R A V Ribeiro)
Permanent Judge
(Robert Tang)
Permanent Judge
14/17
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