• Sun
  • Oct 26, 2014
  • Updated: 4:19am
My Take
PUBLISHED : Wednesday, 12 March, 2014, 4:27am
UPDATED : Wednesday, 12 March, 2014, 4:27am

Is outraging public decency OK in Hong Kong in the cyberage?

Thanks to the internet, many of us now have difficulties distinguishing the public from the private. That applies to teenagers who place intimate details about themselves online; and to spy agencies who snoop on the webcams of hundreds of thousands of unsuspecting users. It appears even our own top judges have trouble telling what's public and what's not.

In a staggering judgment delivered late last week, the top court unanimously quashed the conviction of Chan Yau-hei, 26, for posting an inflammatory message in an online forum because the internet is a "medium", not a public or physical space. Most of us would beg to differ. Without their fine legal training, we tend to think that like physical space, online forums are public and our own internet accounts and personal restricted web pages are private. "Publicity" is not restricted by physicality. (I will skip the offending message Chan sent and his target so as not to be sidetracked. I am only interested here in the question of what's public in cyberspace.)

According to the judgment, the online act of posting for which Chan was previously convicted for "outraging public decency" is not public. The test of that, write the judges, is that it required the physical presence of at least two other witnesses. Does this mean it's open season to post obscene, inflammatory or threatening messages online, so long as you are alone in your room? It's far from clear from the judgment. There seem to be statutes against those acts, but they are lesser offences than the common law one with which Chan was first charged.

The common law offence of outraging public decency, the judges observe, is hundreds of years old, so it constrains them from extending physical or public space to cyberspace. Say what?!

You would think given the age of the law written at a time when physical and public space had no cyber connotations, it would be up to the judges, given the famed adaptability and contextualising of British common law, to apply them to a context relevant to our cyberage. As it is, the judges gave a literal interpretation of an old law, and passed on their responsibility to government lawyers to update the statutes and public prosecutors to specify what offensive online messages may be prosecuted.


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I wanted to avoid further discussion
but “public” would be an issue
since you’re so interested
1 Para refers to para 79 which refers to the lower courts’ finding
in the exact wordings “it would outrage public decency”
1.1 the standard for determining outraging public decency is
(a) magistrate: “by reference to the reaction of … member of the public” (para 77)
(b) CFA judge: “a departure from the norms acceptable to the public” (para78)
(c) CFA upheld this standard
1.5 It’s a “public” standard by jury “in proxy” in places many of which are definitely public
the question here is about places where the standard was applied before CFA ruling
where the case originator found, discussed and reported the case
where whether or not to prosecute was deliberated
where the proceedings took place in courthouses open to the public
anyone who applied the standard did so as members of public and not professionals
1.6 CFA ruling can’t retroactively reverse the public occurrence and make them non public
1.7 It therefore relied on the “physical tangible” requirement for this common law offence
2 For previously stated reasons which I won’t repeat again here
I disagree with CFA’s position, attitude, and argument in this case

The CFA's agreed-to facts extend only so far as the indecency aspect. Para 80 only voices agreement with the magistrates finding of indecency. There was never any agreement on the public aspect. Think about it. If the judge agreed that both elements of the charge were met, the appeal would have failed. The entire point here is that the public element was NOT met, hence the conviction was overturned.
In a society with rule of law, conviction should require that a high bar be met. It is the job of the prosecution to meet it. It gives society confidence that those convicted are truly deserving of their punishment. Contrast this with the kangaroo system of the ccp. It does require compromise, such that some who might be guilty will go free, so as to hopefully ensure that those who are innocent aren't wrongfully convicted. This is preferable for most people in democratic society, as opposed to the alternative whereby innocent people are wrongfully incarcerated. Personally, I am quite comfortable with this system. I suspect most hkers are too. That is one of the things they stand to lose if they aren't careful.
Conclusion 1 /2
Thank you for joining the discussion
I very appreciate your good efforts
in explicating your understanding of the opinion
not an unusual perspective I’d readily recognize
probably a view shard by many professionals too
We’ve both said enough and more
Tons of arguments have been in my mental warehouse so long
they have become stale to me
I’m no longer interest to offer them for sale
although some readers may find them fresh and probably exciting
as regards points stated and not yet appreciated
further splitting would be tiresome
I’m sure we have other fresh interests to pursue
I wish to part with some general comment
Conclusion 2/2
This ruling exemplifies a vital characteristic
of copycat common law in HKSAR
exhibiting its blind and perverse addiction
to adversarial rigidity and outlandish shibboleths
such that it readily allows “errors” in prosecution
to exonerate criminality
from "errors" as minor as typos
to "error" due to after-the-event legal innovation
such as the unnecessary and unrealistic declaration
in this case for the act of enraging public decency
that it must occur in a physical tangible place to be punishable
law for law’s sake
begets overrule of overlaw in HKSAR
a profession dominated by cultural orphans
hiding its subliminal doubt of legitimacy
behind pretentious paraphernalia and dated practices
lacking the moral, practical and intellectual courage
for local law’s obligatory development
Where did the defendant or judge affirm these "facts"? This is a legal judgement, and there is no role for ordinary life , everyday use, or some other euphemism for layman understanding. The legal construct is that the components of the charge were not met, which means it was the wrong charge.
There was no creative anything. The judge merely applied the definition of public as it had been applied previously, and no more. One can agree or disagree with his refusal to expand the law, but there is certainly nothing legally wrong with it. He legitimately feels that any expansion of law should be a legislative act.
Judicial oversight in the way I used it ( and in the only reasonable way as applies to this discussion) is in reference to affecting the current decision in question. As you even acknowledge, a retention election has nothing to do with that. And it's not even feasible in hk, which again is the point of this discussion. You are of course welcome to use retention election in some generic discussion about judicial oversight in the US, but one wonders why you've brought it up here.
Is saying something indecent on the internet potentially ok in hk? Perhaps, if there is in fact no other more appropriate statute prohibiting it. Is outraging public decency ok on the internet? Well, mr Lo should read the judgement, after which he'd realize the internet is not public in the eyes of current hk law, and he is asking the wrong question.
“Where did the defendant or judge affirm these "facts"?”
the appeal was on the ground that
“the facts admitted did not support the charge” (summary para 2)
the admitted facts as ascertained by the magistrate and upheld in CFI and CFA
are that what the appellant did amounted to enraging public decency
“it was open to the Magistrate to find that it was obscene or disgusting
and such that it would outrage public decency” (summary para 5)
CFA affirms its support of this finding of fact in its own opinion
“I would, in any event, have reached the same conclusion” (para 80)
For sanity and for the learnt judges’ sensibilities
let’s move on expediently
Factual and legal consensus
All parties - defendant, prosecutor, and judges - unanimously affirmed
the facts about the defendant that what he did amounted to
what in ordinary language and in everyday life is undoubtedly
“outraging public decency” 「作出有違公德行爲」
In law that is a strict liability,
the act was an offence regardless of motive and consequence
Judicial activism
CFA allowed the appellant’s argument
that “the facts admitted did not support the charge”
by a creative manifestation that delimits its jurisdiction
over the common law offence of “outraging public decency”
to the physical tangible realm
excluding the internet which it rules a medium
out of the jurisdiction for this common law offence
and stressing the irrelevance
about spatiotemporal mismatch
of act and consequence
AL rightly asked:
“Is outraging public decency OK in Hong Kong in the cyberage”?
CFA wrongly answered:
Retention election as an institution requires no qualification
It requires judicial oversight which involves supervision
and not directly overruling (repealing) judicial decisions
I'm no lawyer. The judge is likening the case to the legal concept of "strict liability", the definition of which ( on wiki at least, to a layman) doesn't seem consistent with the case. Clearly I've missed something. However, in the context of para 49, it seems clear the judge is resisting judicial activism, and choosing to interpret the law without expanding it. He chooses to see "public" as it's been seen in the HK legal context in the past, and that does not include the Internet.
Para 80 says he accepts the magistrates opinion that the statement met the threshold Of indecency, and agrees with it
In isolation, I'm not sure why you're harping on these 2 passages. It doesn't change the logic of the entire opinion. The statement did not meet the "public" aspect of the charge, rendering the charge invalid, leaving the court no choice but to vacate the conviction. The defendant was indicted on the wrong charge to begin with, and the magistrate erred in allowing it to proceed.
Retention election is not judicial oversight in the way you're attempting. People can vote out a judge, but they can't affect an individual decision. Not to mention the process doesn't exist in HK. So it has absolutely no relevance here.
Different opinions have been sufficiently discussed
for the debate to stop here and move elsewhere
but one can’t be too serious always
this being truly good fun
not a masochistic “I enjoy it”
like that seen so often here
no sarcasm
what follows isn’t for the irrisible
Thank you for Charles Kingsfield’s pleasure
I’m of course not a Socratic pretender
so I’d leave blanks here _ _ _ _ _ _
for the irascible to express displeasure
For those who don’t mind to keep the funflow:
Doing the reading is a starter assignment
Next, one has to learn various ways to appreciate what one reads
An agnostic can learn what “god is great” may mean
to an atheist, Muslim, Buddhist, Mormon, Protestant, ….
In a mosque it’s futile to apply a sociologist mind set
to challenge the Quran as if it were written in ordinary language
For this discussion, we may try to discuss the legal opinion like a believer
It shouldn’t too difficult and I’ve already provided study aid
To speed up the pace, two exercises instead of one assignment
what’s the significance of the learnt pj’s opinion
(1) that “the offence is in effect one of strict liability” (para 49)?
(2) as that expressed in the concise one-sentence para no 80?
I read the opinion twice, actually it is very well written
that the public would read it like the scripture
the pj deserves feeling flattered
other pj’s would wish they had written the opinion
Wow, brevity has never been your strong-suit, so well done here.
But sorry to burst your bubble. The legal foundation is para 29,30, and 38, as I've already indicated.
Para 50 is his interpretation in culmination of the relevant case law. You might cotton on to that part when he starts with "Therefore, in my opinion...".
Bottom line is unchanged. Chan's actions do not fulfill the requisite components of the charge. That's why the learned judge felt that Chan had no case to answer. In other words, he was charged with the wrong thing. Which has been my point all along. Listen. The light comes on at different speeds for different people. Put your mind to it, and you'll get there...
BTW, "retention election" is irrelevant here. We're not talking about you voting to keep a judge on the bench or not...although that is completely irrelevant also when it comes to HK. We're talking about you second-guessing an appellate court judge in point of law on one particular case. That's comical on so many levels.




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