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) appeal. Mr Wong informed the Magistrate that the appellant wished to apply to change his plea to not guilty on the ground that the facts admitted did not support the charge. It was contended on behalf of the appellant that the posting of the message on the internet discussion forum was not an act done in a place to which the public had access or where what was done was capable of public view and in a way which was capable of being seen by two or more persons who were actually present. It was also argued that the content of the message posted was not of such a character as to outrage public decency. After hearing argument, the Magistrate refused the application, confirmed the conviction and sentenced the appellant to 12 months’ probation. 11. The appellant appealed to the Court of First Instance against the Magistrate’s refusal of the application for a reversal of plea.[3] It was contended that the Magistrate had erred in finding that the discussion forum was a place or premises at or in which, at common law, the offence could be committed. It was also argued that there was no evidential basis to find that the message constituted an act outraging public decency. By his judgment dated 11 November 2011, the Judge dismissed the appeal and confirmed the conviction. 12. The Judge refused the appellant’s application to certify a question for the determination of this Court pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance (Cap.484) [4] and the appellant renewed that application to the Appeal Committee. D. The certified question and issues arising 13. The Appeal Committee granted leave to appeal on the following question of law of great and general importance, namely: “Whether the posting of such a message on a discussion forum on the internet is capable of amounting to the offence of outraging public decency.” 14. That certified question gives rise to the following issues for determination in this appeal, namely: (1) Whether the posting of the message on the internet discussion forum satisfies the public element of the offence (the public element issue); and (2) Whether the message, by its nature and content, is of a type capable of constituting the offence (the nature of the act issue). 15. To put those issues in context, it is helpful next to address the elements of the offence as established by the authorities. E. The offence of outraging public decency 16. It is an offence at common law to do in public an act of a lewd, obscene or disgusting nature which outrages public decency. See, Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435 at pp.492C-493H per Lord Simon of Glaisdale; R v Gibson and Sylveire [1990] 2 QB 619 at pp.622G-623C; and R v Hamilton [2008] QB 224 at §§18-25. 17. There are two elements of the offence. The first concerns the nature of the act that has to be proved and the second concerns the public element of the offence. See, R v Hamilton at §21. 18. As to the nature of the act, whilst many of the reported decisions relate to convictions for the offence arising from acts such as exposure of the person[5] or other acts of lewdness involving sexual activity[6], the offence has also been held to be constituted by other, nonsexual, acts such as disinterring a corpse for dissection[7], physically abusing and urinating on a dying woman in the street[8] and urinating on a war memorial while drunk.[9] As Lord Reid stated in Knuller (at p.458): https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 3/17