No place for bad jokes in Hong Kong
Stephen Vines contrasts two free-speech cases here and in London
When is a joke not a joke? One possible answer is that a joke, albeit one in rather bad taste, may be a joke in Britain but an offence in Hong Kong. Both jurisdictions share a common legal system, but a case now awaiting a decision as to whether it can be heard in Hong Kong's Court of Final Appeal seems to show that jokes are rather dangerous in these parts. This case raises challenging questions over freedom of speech and use of the internet.
Two years ago, in a case that received minimal media coverage, Chan Yau-hei, then an unemployed 23-year-old man, was put on probation for 12 months for using an internet forum to suggest that a more effective way of protesting against the central government's role in the constitutional reform row would be to cease demonstrations and "learn from the Jewish people and bomb the central government's liaison office".
Chan was presumably referring to the anti-British activities of the Irgun movement before the establishment of the State of Israel.
Meanwhile, in July, the High Court in London overturned a conviction against Paul Chambers. Chambers had sent a tweet expressing his frustration over the closure of the Robin Hood airport in South Yorkshire owing to snow on the runway. His girlfriend's flight had been delayed and he wrote that unless the airport authorities got their act together, he was planning to blow "the airport sky high".
Initially convicted of sending a public electronic message of a "clearly menacing" character, Chambers successfully appealed and there was celebration among civil liberties campaigners.
Both cases are remarkably similar. They relate to intemperate language and less than intelligent expressions of frustration but were not followed up by these men or anyone else. Both wrote their ill-advised comments as a joke and expected them to be regarded as such.
However, the similarity ends there because Chambers left the High Court without a black mark against his name. Moreover, the British media paid some attention to his case and its ramifications for freedom of speech.
Chan's case is more complex. First, he pleaded guilty to the charge of outraging public decency by placing his post on an internet forum. He did so after being advised that he had no defence. However, his case was subsequently taken up by another barrister, Wong Hay-yiu, who believed he had an arguable defence. Wong then unsuccessfully petitioned the High Court for Chan to be allowed to change his plea.
It is important to appreciate that because Chan pleaded guilty, his case was never presented to the court, because an admission of guilt does not require the provision of evidence or argument over the nature of the offence.
In passing judgment, Magistrate Adriana Tse said Chan had committed an offence fitting into the realm of activity by terrorists and that anyone seeing his post would have been shocked and offended.
Lamentably, for those who are concerned by the civil liberties aspects of this case, the current application for review by the Court of Final Appeal has to be limited to a relatively confined question - namely that of whether it is possible to convict a person of this offence when the law specifically states that at least two people are required to be present when the act is committed. The interpretation of this matter has important ramifications for internet use.
Meanwhile, outside the courts, citizens who believe that a vibrant society can never be too vigilant in the defence of civil liberties understand that it is most unwise to shirk the duty of defending the right of people to say and do things that are objectionable or plain stupid.
In this instance, a joke about bombing a government office is neither clever nor amusing but it is a joke, and it is hard to believe that anyone would have taken it seriously besides, perhaps, the central and the Hong Kong governments, and a very serious magistrate.
Liberty is rarely tested without ambiguity, yet it needs to be defended where it is most vulnerable. And liberty only thrives when even people like journalists remain alert to instances where it is undermined.
