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) discussion forum and posted the message shows clearly that the posting was an intentional and deliberate act. 25. With the elements of the offence in mind, I now turn to address the specific issues arising in this appeal. F. The public element issue 26. As noted above, the public element of the offence has two parts. First, it requires that the act be done in a place to which the public has access or in a place where what is done is capable of public view. Secondly, the element is not satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it (the two person rule). 27. It was the second part of the public element of the offence, namely the two person rule, with which R v Hamilton was concerned. In that case, the defendant had used a hidden video camera to film up the inside of women’s skirts (a practice known as “up-skirting” which, unfortunately, is also encountered in Hong Kong) in a supermarket. There was no evidence that anyone had actually seen the defendant filming up the women’s skirts in the supermarket, but there was evidence that others were present when he was filming. The Court of Appeal held that the two person rule went solely to the necessity that there be a public element in the sense of more than one person being present and capable of being affected by the act and did not require actual sight or sound of the nature of it. It was therefore held that the question of whether the way the defendant filmed was capable of being seen by those in the supermarket was properly left to the jury to decide. 28. The issue in the present appeal is primarily concerned with the first part of the public element that requires the act to be done in a place to which the public has access or in a place where what is done is capable of public view. The question for the Court is whether, as contended by the appellant, this part of the public element of the offence requires that the act must be done in an actual or physical, tangible place. Otherwise, the appellant contends, there would be no need for the requirement of the two person rule, namely that two or more persons must be present there. It is accepted by the respondent that the internet is not a physical, tangible place and is instead a “virtual” place but contended that it is sufficient to satisfy the public element of the offence. F.1 Novel issue not precluded if principled development of offence 29. The appellant’s written case refers to the English Law Commission’s Report on Conspiracy and Criminal Law Reform in March 1976 which highlighted the fact that the House of Lords emphasised in Knuller that the courts had no residual power to widen existing offences to make punishable conduct of a type hitherto not subject to punishment.[20] There is also reference to the Hong Kong Law Reform Commission’s Report on Codification: The Preliminary Offences of Incitement, Conspiracy and Attempt in March 1994 which recommended the abolition of the offence of outraging public decency, due to its “imprecise nature”.[21] 30. Putting to one side the decision in HKSAR v Chan Johnny Sek Ming [2006] 4 HKC 264, to which it will be necessary to return in a moment, there is no previous decision holding that the internet is a public place for the purposes of the offence of outraging public decency. This is therefore a novel issue and, if it is decided that the public element of the offence is satisfied by way of a posting to an internet discussion forum, it will amount to the recognition of a new category of situation giving rise to the potential for prosecution. 31. The critical question is whether the inclusion of this new factual situation within the offence is simply an example of the operation of the common law and its flexibility in being able to adapt to changing circumstances. 32. As Lord Simon observed in Knuller (at p.492E-H): https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 5/17