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.