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) “… thecommon law proceeds generally by distilling from a particular case the legal principle on which it is decided, and that legal principle is then generally applied to the circumstances of other cases to which the principle is relevant as they arise before the courts. As Parke B. said, giving the advice of the judges to your Lordships’ House on Mirehouse v. Rennell (1833) 1 Cl. & F. 527, 546 (cited with approval in Shaw v. Director of Public Prosecutions [1962] A.C. 220 by Lord Tucker (p. 289), Viscount Simonds (p. 261) and Lord Morris of Borth-y-Gest (p. 291) concurring, and by Lord Hodson (pp. 292-293)): ‘Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable or inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonableas we ourselves could have devised.’” 33. And, at p.494B-C, Lord Simon added: “The passage I have cited from Mirehouse v. Rennell, 1 Cl. & F. 527, 546 indicates that the fact that the authorities show no example of the application of the rule of law in circumstances such as the instant does not mean that it is not applicable, provided that there are circumstances, however novel, which fall fairly within the rule.” 34. Further, it is well-established that, in a common law system, the development of the laws by the courts over time, by clarification and modification to meet new circumstances and conditions, is not constitutionally objectionable provided that it does not result in judicially extending the boundaries of criminal liability: see Winnie Lo v HKSAR (2012) 15 HKCFAR 16 per Ribeiro PJ at §77 citing Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 per Sir Anthony Mason NPJ at §98. F.2 Does the public element of the offence require the act to be committed in a physical, tangible place? 35. Whilst not going so far as to contend that the offence was unconstitutional for lack of legal certainty, Mr Wong submitted that, given the imprecise nature of the offence, it was appropriate for the offence to be confined to cases involving acts of a lewd, obscene and disgusting character that are done in a place (meaning a physical, tangible place) to which the public has access or in such a place where what is done is capable of public view. It was wrong, Mr Wong submitted, to conflate a virtual public forum on the internet with a public place. Further, he submitted that the two person rule could not be satisfied in such a virtual public forum. 36. For his part, Mr Martin Hui, Senior Assistant Director of Public Prosecutions, for the respondent, contended that the common law offence should, as a matter of logical development, be held to cover the message posted on the internet discussion forum in question. He submitted that the public element of the offence is not confined to a public place in its restrictive sense of being a physical place, but rather connotes a broader concept of a location to which the public has access or where what is being done is capable of public view. 37. For the following reasons, I have come to the conclusion that Mr Wong is correct in his submission that the public element of the offence requires the act to be committed in a physical, tangible place. 38. A first and important consideration is that, with the exception of HKSAR v Chan Johnny Sek Ming, all previous cases involving convictions for the offence of outraging public decency involve things said, done or exhibited in a physical, tangible place. The place has not always been public property or a place of public resort but it has nevertheless been an actual or https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 6/17