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 7/17