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) 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 https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 10/17