HKC 52; FACC 3/2013 (7 March 2014) ) gHKSAR v. CHAN YAU HEI [2014] HKCFA q 18; (2014) 17 HKCFAR 110; [2014] 3 p 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. 03/02/2020 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. https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 8/17