• Wed
  • Dec 24, 2014
  • Updated: 11:36pm
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.


For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive



This article is now closed to comments

Dai Muff
There is a difference between making a conscious decision to go to an internet forum and walking through Causeway Bay and seeing someone pull their pants down.
The internet is closed to you unless you make a conscious decision to engage it. Complaining about a forum is a bit like going to a porno cinema and complaining that people are having sex there.
However, the bigger evasion in your commentary, as always, is removing the specific details.
I did not hear a SINGLE complaint from you about internet threats to Alpais Lam. Rather, much tacit support. But when the "victim" is the Liaison Office, suddenly it becomes important to you.
To dienw, again:
In an exchange of ideas your arrogance in language requirement, you have gone beyond its usefulness. Your criticalness has much to do with content and the poster’s last name in my case.
I will not do what you do to be slaved to a language in expressing oneself which in my case when English isn’t my mother-tongue. Posting my ideas is more important than shutting up my mind because of someone out there creating a psychological warfare against me.
For your benefit you should know language is a living tool and dogmatic adherence to its structure is a battle you can’t win even if you think yourself being a linguist or a mother-tongue English speaker. In the posting world we don’t need a linguist to judge postings – not in the least NYTimes or Wall Street Journal.
So stop your psychological warfare for some unspeakable reason perhaps. i will keep an eye on your postings.
I realize some people simply lack the capacity for precision in language. Sometimes that prevents them from understanding what they're reading...precisely. And when it comes to legal opinions, imprecise understanding is akin to misunderstanding.
"The offence of committing an act outraging public decency does not apply to the internet as the cyber world is a "medium", not a "public place", judges of the top court have found."
"They noted Chan, 26, had sent his message on the web as a "medium". But the charge laid on him required the act to be done in a "physical, tangible place", which did not encompass cyberspace."
""Although the message posted by the appellant is deserving of condemnation, the public element of the offence is not satisfied," the judgment says."
It's not even all that complicated. In order for the conviction to stand, all facets must be satisfied. In other words, the act had to be indecent, and public. The appellate judges found that the act was not public. So there was nothing to do but reverse the conviction. Whether it was indecent or not doesn't even factor into it, although the judges did find it "deserving of condemnation".
So as far as the judges are concerned, there is no such thing as "outraging public decency" in cyberspace, since cyberspace isn't considered "public" in their eyes. I'll leave it for the truly challenged to decide whether a non-existent entity can be "OK", or "not OK".
Are you now referring to yourself in the third person? The ridiculous attempt to effect an air of self-importance is rather amusing, and thus your obligation to provide comedic relief is again admirably and ably fulfilled. For this you are remarkably dependable.
If "public" is a prerequisite for the charge, then the point hardly seems moot. It's even less moot when "public" is the aspect upon which the charge was dismissed. The judge agreed the act was "indecent", but since it was deemed not to have been "public", he had no choice but to vacate a conviction for "public indecency". It was a point of law, not some "exit".
And once again, you'll note that "connection to the internet" is not the same as the "internet" itself, just as any "connection" to any object/entity is not equivalent to that object/entity but merely a conduit thereto.
It's that precision in language thing again, which is particularly vital in areas like law (which is not my thing) and science (which is).
Your 'theories' about judicial.....motives (??) are amusing enough, I guess. So is the self-aggrandizing supposition that you would be qualified to provide judicial oversight.
If public indecency is the charge, but the guy wasn't doing it in public, then by definition it's the wrong charge.
Wireless telephony refers to a network. That's not the same as the internet. Based on your misunderstanding, I wonder if you still use a flip phone.
Sometimes it's amazing how many times something has to be explained to you, and it still doesn't "take". You can certainly disagree with the appellate court. You have the "right" and the "opportunity" to review a point of law (in your case though, I wouldn't use "ability"). But what gives you the standing and capacity to say the court was wrong in point of law? A guy has to know his limitations, and that's another one of the long litany of lessons you have yet to learn.
"court of public opinion"? LOL. So in that case, why have judges, or courts. You CCP apologist types like to decry tyranny of the majority, but you're ok with the court of public opinion in deciding criminal verdicts. On the other hand, the court of public opinion is fine and good, but that same public is apparently not to be trusted with democratic rights. The irony and level of self-contradiction is truly staggering indeed.
Sorry but this is yet another incoherent (whilst at the same time extraordinarily pretentious) comment. pslhk does not do himself a service writing such nonsense as he clearly thinks himself very clever. I understand that pslhk doesn't think English deserves its position as an official language of Hong Kong. Perhaps this is because he can't write it properly. In any event, I suggest he start writing his comments in Chinese - at least they then may make some sense.
My point, Mr johnyuan, is not that you must write perfect grammatical English - just that you write something that makes sense and can be readily understood by your readers. I said that I skipped your posts because, basically, I couldn't understand what you were trying to say. I'm sure your comments have real substance (and aren't mere platitudes) it's just that they weren't communicated in a coherent, intelligible way. (My reference to the WSJ style guide was an allusion to your own reference to the very same thing.)
As for your last paragraph, what psychological warfare is this? "Unspeakable reason" - sorry, but we're back to incoherence again. Are you accusing me of some kind of evil intent? Haha!
You are most welcome to "keep an eye" on my postings in future, but so what? To what purpose? If you don't "like" them what will you do? Can I detect some kind of sinister meaning from these words, or are you just being incoherent again?
where and which?
it’s most likely your comprehension problem
given my gce and matric english results
if deficiency could justify opposition to english as an official language
then hk has every reason not to have it as an official language
please focus on arguments and not on the opinionator
whose ideas you fail to appreciate
It's not a comprehension problem or failure to appreciate your "ideas", I can assure you. It's a question of writing coherently so that your "ideas" are properly communicated. I don't want to waste everyone's time by a critique of everything you write. However, here are a few comments: (1) Whilst "opinionator" is a word, it is one that is rarely used (not to say archaic) and simply shows that you are very pretentious. If you continue to use the English language in your postings here, may I suggest "commentator" or "correspondent" as better conveying your meaning.
(2) In the original post I commented on, I was pointing at the pretentious, pseudo-poetic styling of your wafflings. Sections which were particularly impenetrable included the following:
"it’s embarrassed with feet-in-mouth routine as its only defense" (in what way did the "respected Ma court" have "foot in mouth" routine and in what way was it defending itself?)

"down to the level of ignorance for debris clearance ("debris clearance"? I suspect this is a Cantonese colloquialism but it has no corresponding relevance in English. Anyway, what does "down to the level of ignorance for debris clearance" actually mean?)
to shut up the clown, arrest the forum’s plummet into a farce
and return the discussion to arguments of substance and not persons". (Presumably, you mean that the "friends" of the court (amici curiae) sit in judgment on the judgments of the court of FINAL appeal. Haha, very funny!)




SCMP.com Account