Even a fool has right to speak

PUBLISHED : Friday, 24 December, 2010, 12:00am
UPDATED : Friday, 24 December, 2010, 12:00am

Chan Yau-hei, an unemployed 23-year-old man, has been sentenced to 12 months of probation for 'outraging public decency'. Did he commit some lewd act? No, he did not, but last week Chan was found guilty of placing a rather foolish posting on a website forum discussing political reform. This little-publicised case raises alarming questions about freedom of speech in Hong Kong.

Chan's problems started when reporters from one of the left-wing papers asked the police to examine this pro-democracy forum. The police quickly responded and found Chan's posting in which he jokingly suggested that progress on political reform could be achieved by following the example of the Jews in British-controlled Palestine who successfully furthered their aims with a bombing campaign, so he suggested bombing the central government's liaison office in Western.

Chan was charged with outraging public decency and, on poor advice, pleaded guilty. He then tried to change his plea, but this application was rejected by the magistrate who subsequently imposed the sentence.

The magistrate stated that, although the law specified that an offence of this kind had to be committed in public in the physical presence of at least two people, she found that the internet was a place with public access. She also disagreed with the concept that this law was designed to combat lewd or obscene acts, ruling that it covered anything that caused disgust to right-minded or decent people.

This looks very much like an instance of making law as opposed to enforcing it. Maybe the magistrate imagined she was doing a great job of modernising a law that came into force when the internet was not even a glimmer in anybody's eye.

Moreover, she ignored precedent in which this law was only applied in cases of lewd acts, not political discussion, however foolish the level of that discussion. As it happens, the Law Reform Commission also thought the law should be changed and made this recommendation in 1994 but, as readers of this newspaper will know, practically all the commission's recommendations have been put on the shelf.

So, we now have a magistrate making her own interpretation of the law and doing so in a highly politically sensitive matter. The magistrates' sensitivity about protests against mainland offices in Hong Kong is not unique. The police have also proved to be zealous in charging protesters and their enthusiasm appears to be shared by the director of public prosecutions who did not hesitate to pursue these charges. Thankfully, as seen in the courts this week, some parts of the judiciary are maintaining an equal enthusiasm for the rule of law and, not for the first time, knocked back a dubious prosecution for unlawful assembly at the liaison office, leading to the acquittal of six defendants.

This does not seem to deter the police, who are maintaining their vigilance over protests outside the liaison office. This is especially worrying as more protests are making their way to this office, with people concluding that real power no longer resides with the Hong Kong government and that it is better to deliver a message directly to the organ grinder rather than to the monkeys.

Meanwhile, there is the basic question of whether free speech is being undermined, not necessarily by the enactment of new laws but as a result of the way existing laws are being implemented. Who would have thought that a law designed to preserve public decency would be employed to crack down on political internet comment? It may be argued that, in Chan's case, there was a need to deter someone who made a rather stupid reference to bombing.

But where does this end? Are we to expect prosecutions of anyone who maintains that 'the only good journalist is a dead journalist'? Naturally I am not in favour of this sentiment, but I acknowledge the right for it to be expressed.

Upholding free speech means allowing citizens to make stupid and outrageous remarks while reserving appropriate penalties for those who set about damaging the peace. The borderline between an offensive comment and incitement is thin but worth preserving. Laws exist to prevent incitement to violence but they need to be used with caution and most certainly cannot be reserved for selective use in matters relating to central government representatives in Hong Kong.

It is all too easy to slip down a road that leads to cowing freedom of expression by proclaiming the need to punish those who joke about violence even when they have no intention of acting on these suggestions.

Defending people who make unwise comments is a difficult proposition, but it is essential if the principles of liberty are to be upheld. Preserving freedom of speech means preserving a cornerstone of Hong Kong life; it is worth taking the trouble to do so.

Stephen Vines is a Hong Kong-based journalist and entrepreneur