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) 49. Finally, as Mr Wong rightly pointed out, the offence is in effect one of strict liability, and this is a further reason to reject the respondent’s invitation to develop the common law by holding that the offence can be committed in a virtual place. 50. Therefore, in my opinion, the first part of the public element of the offence does require that the actus reus (whether it be something said, done or exhibited) be committed in a physical, tangible place and not virtually in cyberspace by way of the internet. To hold that the internet is a public place for the purposes of the offence would involve either dispensing with the first part of the public element of the offence or substantially extending its meaning and would therefore amount, impermissibly, to judicially extending the boundaries of criminal liability. 51. I turn to address the arguments advanced by the respondent and to the only other case concerning this particular issue. 52. In the respondent’s written case, Webster v Dominick [2005] JC 65 is relied on to support the submission by analogy that the offence of outraging public decency could be committed by acts done on the internet. 53. Webster v Dominick is a Scottish case concerning a charge of the offence of shameless indecency. The High Court of Justiciary held that shameless indecency was not a relevant charge in the law of Scotland and that indecent conduct could be criminal where, as against an individual victim, it constituted “lewd, indecent and libidinous practices” and where, as a crime against public morals, it “causes … public offence” (§48). In respect of the former, the Lord Justice-Clerk observed that it might be committed “by means of a lewd conversation with the victim, whether face to face or by a telephone call or through an internet chat-room” (§49, emphasis added). 54. I do not think this case supports the respondent’s submission. It is significant that the first form of indecent conduct is criminal “whether committed in public or in private” and there is no place element in the offence. The reference to the possibility of the offence being committed “by means of a lewd conversation … through an internet chat-room” is not therefore to be seen as indicating any location of the conversation but is merely a reference to the chat-room being a medium through which the offence is committed. 55. There is also reliance, in the respondent’s written case, on a passage in Rook & Ward at §14.45, commenting on Rose v Director of Public Prosecutions [2006] 1 WLR 2626. In that case, a conviction for outraging public decency was quashed where the act (being sexual activity carried out in the foyer of a bank in the early hours of the morning) was only proved to have been seen by one other person other than the participants, namely a bank employee who later observed the act on a CCTV recording. Stanley Burnton J (as he then was) applied the proposition that, if in fact only one person saw the act or could have seen the act complained of there was no offence (§25), and held that there was not a sufficient public element for the offence to be established (§28). That was sufficient to dispose of the appeal. Although therefore not having to decide the issue, Stanley Burnton J considered there was “considerable force in [counsel’s] submission that the viewing privately of a private recording of an act which had not previously been seen by any person is insufficient to constitute the offence” (§29). 56. Rook & Ward suggest the court in Rose was right to doubt that the offence could be committed by the replaying of a CCTV recording. However, they go on to state that “viewing of the product of a camera ought to be sufficient where the viewing takes place in real-time, e.g. where the product is broadcast over the internet or on live-feed CCTV.” 57. I do not regard that reference to the viewing of product broadcast over the internet as supporting the proposition that the internet is a place for the purposes of the offence. Instead, I understand the statement in Rook & Ward to be describing different means by which an outrageous act may be perceived by members of the public. https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 9/17