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) 65. In the present case, the Magistrate refused to permit the appellant to change his plea to not guilty. In doing so, she applied HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 which listed, at p.135E-I, the circumstances in which an unequivocal guilty plea can be rendered a nullity. The first type of case listed, namely that the facts admitted by the defendant do not amount to the offence with which he is charged, is relevant here. Applying the conclusion reached in Section F.2 above, the Magistrate should have permitted the change of plea. Absent further evidence from the prosecution, she should then have held that the appellant had no case to answer on the charge of outraging public decency. 66. Had there been a change of plea, the trial might have proceeded with further evidence being adduced by the prosecution. However, because the appellant pleaded guilty and admitted the particular facts put to him for admission, there is simply no evidence of where and by whom the message posted by the appellant was read. 67. The charge is framed on the basis that the appellant committed the offence by posting the message at his home. That place was not, of course, the place where the message was published. The admitted facts do not, however, disclose where and by whom the message was seen. It is reasonable to infer that it was read by a reporter from the Oriental Daily but no inferences can be drawn as to where the reporter might have done this. It is also reasonable to infer that the police investigating the complaint read the message but, again, no inferences can be drawn as to where that was done. That being the case, one cannot reach any conclusions as to whether the places where the reporter and the police accessed the message were places to which the public had access or where what was done was capable of public view. The inside of a newsroom or police station would not naturally be considered to be such places. Nor can one conclude that the two person rule would be satisfied in respect of the place or places where the offending message was accessed. 68. It is, of course, entirely possible that there might have been evidence to show that the reporter or police accessed the message in a place satisfying the first part of the public element of the offence. There might have been evidence that it was accessed on a computer which was in plain sight of many members of the public had they chosen to look. But, in the absence of direct evidence, this would be a matter of pure speculation. 69. The conclusion in Section F.2 above means that Lok DJ was wrong to have regarded the posting of the offending messages in HKSAR v Chan Johnny Sek Ming as an act committed in public sufficient to satisfy the public element of the offence. However, unlike the present case where the facts are limited to the charge and the admitted facts, there was considerably more evidence in that case as regards the discussion thread and the reactions provoked by the offending messages: see §§8 to 11, 15 and 34. 70. It is neither necessary nor appropriate to decide whether the conviction in HKSAR v Chan Johnny Sek Ming was wrongly entered or might nevertheless have been supported by the evidence adduced. However, that case usefully illustrates the fact that there might have been considerably more evidence in the present case as regards where and by whom the offending message was accessed. G. The nature of the act issue G.1 Is the message, by its nature and content, of a type capable of constituting the offence? 71. The offence can be constituted by the publication of written words and so the nature of the publication is clearly one capable of constituting the offence. 72. The content of the message is not sexual and it is therefore not a lewd publication. The issue in the present case is therefore whether a message of the type posted by the appellant is capable of being judged to be obscene or disgusting. 73. As noted above, an obscene act is one which offends against recognised standards of propriety and is at a higher level of impropriety than indecency. A disgusting act is one which https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 11/17