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) years, is not one that comfortably fits into the modern internet age. Criminal liability in the context of the present case is one that should be determined by legislation. Mr Justice Ribeiro PJ: 2. I agree with the judgment of Mr Justice Fok PJ. Mr Justice Tang PJ: 3. I agree with the judgment of Mr Justice Fok PJ. Mr Justice Fok PJ: A. Introduction 4. The principal and novel question raised in this appeal is whether the common law offence of outraging public decency can be committed by posting a message on an internet discussion forum. A subsidiary issue is whether a message of the type posted in this case is capable of constituting the offence. The appeal arises from the following facts. B. The facts 5. On 16 June 2010, a reporter from the Oriental Daily newspaper made an inquiry of the police about some allegedly inflammatory messages posted to an internet discussion forum called HKGolden at the URL address http://forum4.hkgolden.com.[1] The messages related to proposals for political reform in Hong Kong, on which the Legislative Council was to vote on 23 June 2010. The police investigated the matter and discovered one such message, posted in Chinese on 11 June 2010 by a person calling himself “Ghost Valley”, which read as follows: “ 我哋要學猶太⼈炸咗中聯辦 # fire #”. 6. The English translation of this message is: “We have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government # fire #”. 7. On 19 June 2010, the appellant was arrested at his home in North Point. Under caution, he admitted that he had participated in the discussion and posted the message in the name of Ghost Valley to the discussion forum and said that he had done it for fun only and had no intention to commit any offence. C. The procedural history 8. The particulars of the offence with which the appellant was charged were as follows: “CHAN Yau Hei, you are charged that on the 11th day of June 2010, at … North Point, Hong Kong, committed an act outraging public decency, by using your home computer to post on a discussion forum of the HKGolden website the following message in Chinese: ‘ # fire #’ (‘We have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government # fire #’).” 我哋要學猶太⼈炸咗中聯辦 9. The appellant appeared in the Eastern Magistracy on 1 November 2010,[2] represented by counsel acting for him under the Duty Lawyer Scheme. At that hearing, he pleaded guilty to the charge and admitted the facts summarised above. The appellant was thereupon convicted and the matter was adjourned for various reports to be obtained and for sentencing. 10. On 18 November 2010, at the adjourned hearing for sentence, the appellant was represented by different counsel, Mr Wong Hay Yiu, who continues to represent him in this https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 2/17