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) fills the onlooker with loathing or extreme distaste or which causes the onlooker extreme annoyance. Further, it must outrage minimum standards of public decency as judged by the jury in contemporary society. The test is an objective one and eminently suitable for a jury, or magistrate or judge as the tribunal of fact, representing the current standards of ordinary, rightthinking people. 74. The argument for the appellant on this issue is that, to constitute the offence, the act complained of must be of a lewd, obscene and disgusting nature and that, as Lord Simon put it in Knuller at p.495C-D: “It should be emphasised that ‘outrage,’ like ‘corrupt,’ is a very strong word. ‘Outraging public decency’ goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people. Moreover the offence is, in my view, concerned with recognised minimum standards of decency, which are likely to vary from time to time. Finally, notwithstanding that ‘public’ in the offence is used in a locative sense, public decency must be viewed as a whole; and I think the jury should be invited, where appropriate, to remember that they live in a plural society, with a tradition of tolerance towards minorities, and that this atmosphere of toleration is itself part of public decency.” [Emphasis added] 75. Mr Wong’s short submission is that the message itself is not of the kind of “lewd, obscene and disgusting nature” covered by the offence. 76. I do not accept that submission. 77. The Magistrate cited the passage from Knuller relied on by the appellant and correctly reminded herself that the test was an objective one.[27] The standard she applied to the meaning of “obscene” and “disgusting” was consistent with the authorities[28] and her conclusion was reached by reference to the reaction of an ordinary and right thinking member of the public in modern society.[29] 78. For his part, the Judge rejected the appellant’s argument that the message required to be seen in context in order to determine if it was capable of constituting an act outraging public decency.[30] He was satisfied that the message constituted a departure from the norms acceptable to the public but also something very disgusting which went beyond normal repulsiveness.[31] He agreed with the analysis of the Magistrate in §22 of her Statement of Findings.[32] 79. It cannot, in my judgment, be said that it was not open to the Magistrate to find that the message was obscene and disgusting or such that it would outrage public decency. Accordingly, there is no basis for interfering with the conclusions reached by the Magistrate and Judge below as regards the content of the message. 80. I would, in any event, have reached the same conclusion. 81. As to context, some written messages will require to be placed in their proper context in order to determine their proper meaning and whether that meaning is of a lewd, obscene or disgusting character such as to constitute the offence. 82. The content of the message in this case is clear and requires no context to inform the natural and ordinary meaning of the words used. It is a straightforward and unambiguous incitement to carry out an act of terrorism, namely to bomb the Liaison Office of the Central People’s Government. An incitement to bomb any premises would be potentially obscene and disgusting because of the brazen disregard for the potential loss of life, personal injuries and damage to property as well as the public trauma caused by an act of terrorism. https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 12/17