Internet falls outside scope of 'public place', judges of top court say

Judges overturn conviction of 26-year-old whose online post called for liaison office to be bombed

PUBLISHED : Friday, 07 March, 2014, 5:56pm
UPDATED : Saturday, 08 March, 2014, 4:20am

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.

The court quashed the conviction of web user Chan Yau-hei, almost four years after he posted a message about bombing the central government's liaison office.

But there was a strong case for statutory provisions that would criminalise the posting of materials with the potential of defaming others or outraging public decency, the Court of Final Appeal judges said yesterday.

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.

Chief Justice Geoffrey Ma Tao-li, Mr Justice Roberto Ribeiro, Mr Justice Robert Tang Ching, Mr Justice Joseph Fok and Lord Justice Walker unanimously quashed his conviction.

In June 2010, Chan posted the message "We have to learn from the Jewish and bomb the Liaison Office of the Central People's Government #fire"# on discussion forum

He pleaded guilty in November 2010, but sought to reverse his plea at the sentencing hearing a few weeks later and was refused by the magistrate. He appealed against his conviction in the High Court and failed. He then took the case to the top court last year.

Yesterday, the judges said the internet had become a common platform that allowed individuals to spread potentially offensive content to a vast audience.

They suggested the director of public prosecutions make clear to the public which cases involving web-based communications would be prosecuted.

The offence of outraging public decency did not apply to people who simply expressed trenchant views in strong terms, the judges said. "The threshold of outraging public decency is a high one. Not every rude, abusive or low-grade statement in the course of spirited debate on a topical matter of public interest will cross the threshold. The message posted by the appellant in the present case, however, does."

The charge also required the act to be seen by at least two people. Chan posted the message at his home in North Point - where no viewers were present.

The Department of Justice said: "As the [court] has pointed out, the appeal involved a novel question, namely whether the internet was a public place for the purposes of the offence of outraging public decency."