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) applications). These online platforms or conduits allow individuals the ability to communicate messages and other content, which may be of great social utility, to a vast audience.[35] Correspondingly, an individual’s power to defame others or outrage public decency is potentially increased exponentially by the power of the internet. 90. The consequence of this judgment is that a message posted to the internet might constitute the means by which public decency is outraged but that the posting of a message to an internet discussion forum in itself does not satisfy the public element of the offence. Whilst the offence may be committed where the internet content is accessed if that place satisfies the public element of the offence, it is unsatisfactory that there is room for arbitrariness between some internet content that will be open to prosecution for the offence and other content that will not simply because of where it is seen. 91. Although there are statutory offences under Hong Kong law which address the sending and exhibition of, amongst other things, lewd, obscene and disgusting material, those offences do not apply to material posted on the internet and the statutory provisions have not been updated or extended to reflect the fact that the mischief addressed by those offences can arise by means of activity conducted via the internet. By way of example, the following two offences may be considered: (1) Section 12A of the Summary Offences Ordinance (Cap.228) makes it an offence to take part in, provide or manage any public live performance of an indecent, obscene, revolting or offensive nature, but, by virtue of the definition of “public live performance” (see section 12A(9)), a video of such a performance exhibited via the internet would not constitute the offence. (2) Section 20 of the Summary Offences Ordinance makes it an offence to send any message “by telegraph, telephone, wireless telegraphy or wireless telephony which is grossly offensive or of an indecent, obscene or menacing character”, but the medium of the internet is not addressed by that provision.[36] 92. Addressing the mischief of lewd, obscene and disgusting material posted on or communicated via the internet by way of statute would also have the benefit of enabling the Legislature to consider the appropriate mental element to be attached to any relevant criminal offence[37] and the different types of criminal conduct that may be involved in the posting or sending of offending material.[38] In addition, additional clarity could be achieved by the issuance by the Director of Public Prosecutions of guidelines regarding the circumstances in which cases involving communications sent via the internet would be prosecuted.[39] I. Conclusion 93. For the above reasons, although the message posted by the appellant is deserving of condemnation, the public element of the offence is not satisfied. I would therefore allow the appeal and quash the appellant’s conviction. I would also direct that any submissions as to costs be lodged with the Registrar in writing within 14 days from the date of this judgment. Lord Walker of Gestingthorpe NPJ: 94. I agree with the judgment of Mr Justice Fok PJ. Chief Justice Ma: 95. For the reasons contained in the judgment of Mr Justice Fok PJ, this appeal is unanimously allowed and the appellant’s conviction is quashed. Costs should be dealt with as stated in para. 93 above. (Geoffrey Ma) Chief Justice https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html (R A V Ribeiro) Permanent Judge (Robert Tang) Permanent Judge 14/17