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)
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.
https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html
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