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) “Indecent exhibitions in public have been widely interpreted. Indecency is not confined to sexual indecency: indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.” 19. Thus, the offence has also been held to have been constituted by other activity, for example, by the exhibiting of deformed children[10] or of a sculpture consisting of a human head to each earlobe of which was hung an earring made from a freeze-dried human foetus of three to four months’ gestation.[11] 20. In addition, of particular relevance to the present appeal, the utterance of obscene language has been held to be an indictable offence[12] and the offence has been held to be capable of being committed by the printing of advertisements.[13] It is not suggested in this case that the offence cannot be constituted by the publication of written words and it is clear that it can. As Lord Reid stated in Shaw v Director of Public Prosecutions [1962] AC 220 (at p.281):[14] “I think that [the authorities] establish that it is an indictable offence to say or do or exhibit anything in public which outrages public decency, whether or not it also tends to corrupt and deprave those who see or hear it.” [Emphasis added] 21. It must also be proved that the act or exhibition or publication is of such a lewd, obscene or disgusting character that it outrages public decency. 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 fills the onlooker with loathing or extreme distaste or causes the onlooker extreme annoyance. Further, it is not enough that the act might shock people; it must be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society. See, R v Hamilton at §30. 22. As to the public element of the offence – the second element – the offence must be committed in public in the sense of being done in a place to which the public has access or in a place where what is done is capable of public view: see R v Hamilton at §31. This does not, however, mean that the relevant act must be done on public property. It is sufficient if members of the public can see the object or act in question whether by going there or by looking in.[15] Thus, there are cases in which it was decided that the offence could be committed in a private home, if others could see through the window,[16] or on a roof of a private house where the act could only be seen from the back windows of other private houses,[17] or while trespassing in fields that were private property but where other trespassers would sometimes come.[18] 23. In addition, the public nature of the offence can only be satisfied if the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it: see R v Hamilton at §31. This is known as the “two person” rule.[19] However, the rule does not require anyone actually to witness the defendant’s act, so long as at least two people are present and capable of seeing the act should they happen to look. Since the purpose of the requirement that the act be of such a kind that it outrages public decency goes to setting a standard which the jury must judge by reference to contemporary standards, it does not require someone in fact to have seen the act and to have been outraged: see R v Hamilton at §39. 24. The mental element of the offence is satisfied if the defendant intentionally does an act which outrages public decency. In many cases, the act will have been done in a clandestine manner deliberately so that it cannot be seen by others. But it is not necessary for the prosecution to prove that the defendant intended to outrage public decency, or even that he was reckless in the sense that he appreciated there was a risk of outrage but determined nevertheless to run it. See, R v Gibson and Sylveire at pp.627E & 629D-F. In the present case, no issue as to mens rea is raised and the appellant’s admission that he participated in the https://www.hklii.hk/eng/hk/cases/hkcfa/2014/18.html 4/17