HKSAR v. Chan Yau Hei

HCMA42/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 42 OF 2011

(ON APPEAL FROM ESCC 3628 OF 2010)

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BETWEEN

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Before : Hon Tong J in Court

Date of Hearing : 28 November 2011

Date of Judgment : 28 November 2011

Date of Reasons for Judgment : 8 December 2011

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REASONS FOR JUDGMENT

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1.The applicant had pleaded guilty before a magistrate for the common law offence of outraging public decency, he also admitted the facts. His Counsel later sought to apply to the magistrate for a reversal of plea, but the application was refused. He then lodged an appeal to the Court of First Instance against the decision. Having heard the submissions, this court dismissed the appeal.

2.By a Notice of Motion filed on 17 November 2011, the applicant moved this court to certify a question for the determination of the Court of Final Appeal, pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

3.The proposed point of law was : What is the definition of “public place” for the purpose of the common law offence of outraging public decency, in particular, whether the internet is a public place that falls within the scope and ambit of the common law offence of outraging public decency?

4.Having considered the submissions from both sides, I was not convinced that the question should be certified.

5.The original trial and the appeal were conducted in Chinese, but both counsel had, in order to avoid the inconvenience of translation, made their submissions in English.  I shall also write this judgment in English.

6.In support of his application, Mr Wong, for the applicant, contended that (Skeleton, paras 3, 4) :

“3. Up to the present appeal, in Hong Kong the only authority which held that the internet is a public place for the purpose of the common law offence of ‘outraging public decency’ was the District Court case of Chan Johnny Shek Ming, DCCC-196/2006 which was of course held to be correct by this Honourable Court in dismissing this appeal. Hitherto, there is no authorities (in England in the Court of Appeal level or above) and the Hong Kong Final Appeal have had no opportunity to consider this issue.

4.    With the growing use of the internet, and given the issue impinges upon the freedom of speech, the present decision would have far reaching ramification.”

7.Mr Hui, for the respondent, took a different view.  He submitted that (Skeleton, paras 9, 11) :

“9. As the Court said at para.32(a) of the Judgment, in addressing the question as to the public element in the offence, the Court is ‘not applying a statutory provision but a rule of law derived from legal principles and judicial precedents’ (cf. para.38 of judgment in Hamilton). To appropriately serve its purpose in this modern age, the common law offence should evolve to encompass acts that outrage decency which are done in or through cyber-space such as the internet to which the public has access or where the public can view what are being said or done there. One may also argue that such acts done in the cyber space can reach a much wider range of audience or spectators than acts done in a physical place; and hence the need for a wider application of the common law offence to situations such as the present.

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11.   In respect of the Applicant’s contention that the issue impinges upon the freedom of speech and has far-reaching ramification (para.4 of the Applicant’s submission), it is submitted that the point (namely, whether the right to freedom of speech is engaged or not, and whether the application of the offence to the present facts would constitute any unjustified infringement of such right) was never raised in the appeal and hence never addressed in the Judgment.  As such, it is not ‘involved in the decision’ and provides no basis for a certification to be made.  See Lau Hon Keung v SJ, CACC156/2009 [Tab 3] per Lunn J at para.6.”

8.Mr Hui’s conclusion was that the principles governing the definition and elements of the offence were settled law.  The present case was only concerned with the application of the known principles to a different factual situation.  There was no real controversy on any point of law of great and general importance, nor was it a point that was reasonably arguable.

9.I took the view that, although all the authorities regarding the offence had occurred in physical locations, it could not mean that the principles only apply to a physical location.  In relation to the matter raised, I would agree with the respondent’s analysis and conclusion.  Hence, I had refused the application.

Mr Hui Siu Ting, Martin, SADPP of Department of Justice, for HKSAR

Mr Wong Hay Yiu, instructed by Messrs Tang & Lee, assigned by Director of Legal Aid, for the Applicant