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) 83. That the incitement is to bomb an office of the State is, in my view, an aggravating feature. This is not because the intended target is a State institution and deserving of any greater protection than any other person or institution in Hong Kong but because, in the context of a debate on political reform, an attack on an office of the State or Hong Kong Government as opposed to a commercial office or some other premises could have a potentially greater impact on the maintenance of law and order in, and the governance of, Hong Kong. All this would be likely to contribute to the impact and reception of the message by an ordinary, rightthinking member of the public. 84. In addition, there is another highly troubling aspect of the message potentially capable of causing or exacerbating a sense of outrage, namely the juxtaposition of an extremely offensive racist slur, suggesting that all Jews are terrorists and in the habit of perpetrating acts of terrorism in order to promote political objectives. The further suggestion in the message, on the misguided assumption that racist slur is correct, that Hong Kong people have something to learn from such behaviour is another feature that would add to the sense of loathing, extreme distaste or extreme annoyance caused by the message. G.2 Consistency with freedom of expression 85. Finally, although it is not suggested in the present case that the offence is inconsistent with the constitutional right to freedom of expression, this question may, in other cases, be raised. [33] There is a balance to be struck between the protection of the public and its sense of decency from being outraged by things said, done or exhibited on the one hand and the right to freedom of expression on the other. In this regard, the discussion in Section N (§§104-112) of Ribeiro PJ’s judgment in Oriental Press Group Limited and Ors v Fevaworks Solutions Limited & Anor, unrep., FACV 15/2012 (4 July 2013) is relevant with the difference that, here, instead of damage to reputation by the publication of defamatory material being at stake, the competing interest is the protection of the rights of others whose sense of decency may be outraged by the offending words or images or, possibly, the protection of public morals. 86. The message in the present case was posted as part of a discussion forum concerning proposals for political reform in Hong Kong to be debated by the Legislative Council. That is a subject on which there will obviously be a plurality of views. Those views are likely to be felt and expressed strongly. The offence of outraging public decency is clearly not intended to be used to prosecute those who simply express trenchant views in strong terms. As Lord Judge CJ observed in Chambers v Director of Public Prosecutions [2013] 1 Cr. App. R. 1 at §28, by reference to the effect of the Communications Act 2003 (but in terms which apply equally to the common law offence): “Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.” 87. The threshold of outraging public decency is a high one. Not every rude, abusive or low grade statement in the course of spirited debate on a topical matter of public interest will cross that threshold. The message posted by the appellant in the present case, however, does. H. A matter for statutory criminalisation? 88. For a number of reasons, there would seem to be a strong case for introducing statutory provisions to criminalise the posting on the internet of certain material like that in the present case. 89. An important feature of the internet is its effectiveness in providing a platform for both oneto-many communications (akin to traditional forms of publications such as newspapers, radio and television) and also, more significantly, “widespread, democratized, access to media” [34] characterised by open, interactive, “many-to-many” communications (for example, by way of online social networking and microblogging sites or online photo and video messaging https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 13/17