Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
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The Hong Kong District Court held that posts on a message board inviting participants on a public forum to join in a gang-rape amounted to an act outraging public decency. The defendant, Chan Johnny Sek Ming, had posted messages from his private computer on an internet website in which he had described in detail his plan to organise a gang-rape. When he was faced with criticism from several members of the forum, he reaffirmed his intention to organize the rape and taunted the police to come and get him – which they did. Based on the testimony of one witness who vouched for his good character and claimed the post was likely a “joke” as per the “culture of the website,” the Court found there was insufficient evidence to prove intent. However, the Court held that the messages “went beyond the promotion of such a horrible crime or a free expression of opinion, the messages were in substance a pubic invitation to others to indulge in such sexual perversion with the defendant.” Applying the relevant legal test, the Court determined that messages took place “in public,” were “obscene and disgusting,” and moreover the nature of the internet as a public forum made it possible for the message to incite others to commit such an act, with or without the defendant. The court concluded that the message proved all the elements of an outrage to public decency.
On August 13, 2005 at 10:48 a.m., the defendant, Chan Johnny Sek Ming, calling himself “MasterMind” posted a message on “GOSSIP” (“the message board”) at an internet website known as “www.she.com” (“the Website”). The message board could be widely accessed by everyone, however, if one wished to post a message on the message board he or she was required to register first. The registration was free.
The message stated that he wanted to organise a ‘flash mob’ rape. A flash mob rape or “Jack Rolling” was defined by him as a group of 5-6 boys, who would intercept and attack a female walking alone. The message was graphic and detailed how the flash mob would work. He also mentioned his e-mail address “gigolo sar @yahoo.com” for members of the website to e-mail him if interested in the flash mob rape.
There were a total of 76 responses to this message on the message board. Half of the responses expressed anger towards the defendant and suggested organizing a “flash Jur (penis) cutting gang” in retaliation and invited “men of justice” to join. Whereas the other half of the responses expressed interest in possibly joining the “flash mob rape.”
In response to the post suggesting a “flash Jur”, the defendant, on the same date at 6:34 p.m. reiterated that he would successfully organise the flash mob.
Some of the respondents posted that they had alerted the police to his plans, to which the defendant replied at 11:40pm on 13 August 2005, “Hum……reported to the police huh? CATCH ME…..IF YOU CAN!”
On August 13 2005 at 11:39 a.m. and on August 14, 2005 at 4:42 p.m. a person whose name was identified as William Wong sent 2 e-mails to the defendant’s e-mail address. The first email read “really going to rape?” And the second one read “Anybody here?.” The defendant did not respond to these e-mails.
On August 15, 2005, when the Defendant found out that the First Message has been deleted, he posted another message which had the same subject matter as the previous message posted on August 13 at 10:48 a.m. There were 26 responses to the Second Message in which two respondents with code-name “Ss” and “Whiteboy” expressed interest to join the gang rape and other respondents “Ah Hey” and “EEG” admired this idea.
On August 24, 2005, after tracing the IP address the police arrested the defendant, who was at home with his wife. Upon arrest, and again in a video-recorded interview, he claimed to the police that he had posted the messages as a joke.
The ruling of the District Court of Hong Kong was given by HH Judge Lok.
The Court had to determine two main issues. First, whether the defendant had the intention to commit the gang rape or to incite others to commit such crime and Second, whether the defendant’s act was one outraging public decency.
With regards to the first issue, the Court held that an offence had not been committed by the defendant contrary to Section 161 (1)(a) of the Crimes Ordinance, Cap. 200 by posting the First and Second messages. The Court relied on evidence given my Madam Wong, who had testified that the participants of the message board often post controversial topics as a joke, to hold that it was probable that the defendant only wanted to provoke discussion and had no malicious intention. The Court considered that these messages were merely “worthless creations” which aroused “fanciful discussions” on the internet. [para. 22] As there was insufficient evidence to prove any intent to commit the proposed offense, those charges were dropped.
The Court then proceeded to examine whether the defendant’s posts could be considered and act outraging public decency. The Court noted that although there had been numerous cases relating to public decency in Hong Kong, this was the first one relating to an internet post and therefore there was no precedent to follow. Hence, it relied on Archbold Hong Kong 2005 to summarise the relevant legal principles for such determining such an offence.
These principles are as follows:
Applying the principle as enunciated in the case of R v. Walker to the present case, the Court observed that the defendant’s act of posting the message should be regarded as an act committed in public. Further, it was undisputed that he had the necessary mens rea for the offence as he had intended to post the message in the public forum. [para. 26]
The next issue which had to be determined was whether the defendant’s act was of such disgusting or lewd nature as to constitute an outrage on public decency.
The Court decided that the act of inviting others to join the defendant in gang rape qualified as an act outraging public decency. It primarily relied on the observations made in the English cases of Knuller (Publishing, Printing and Promotions) Ltd. v. DPP and R v. Ching Choi to decide this issue.
In the Knuller case, Lord Simon clarifying the terms “decency” and “outrage” observed that “outraging public decency goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people.” It was further observed that “public decency must be viewed as a whole,” taking into consideration the diversity of society and the associated norms. [para. 28]
In the Ching Choi case, Roch LJ had stated in his judgement that “disgusting conduct is conduct which fills the onlooker with loathing or extreme distaste or causes the onlooker extreme annoyance.” [para. 29]
Based on these observations, the Court concluded that no decent person, whether in Hong Kong or elsewhere in the world, would tolerate the commission of a horrible gang rape as suggested by the defendant. An ordinary person would be shocked and disgusted by the nature of these messages. [para. 31]
It was argued by the defendant that the message should only be regarded as a “joke” as per the “culture” of the website. Thus, the question before the Court was whether the contents of the messages were sufficiently disgusting in character for it to be an outrage of public decency. [para. 31]
Court decided that the contents of the message were “disgusting and obscene.” Further, they were in the form of a public invitation to others to indulge in sexual perversion. All these activities suggested that the defendant was serious with regards to committing the crime. The situation was exacerbated by the use of the internet as it allowed for like-minded members to pool together their ideas and plot to undertake the horrible crime. [para. 32]
It was further argued by the defendant that the Court should consider the “culture” of the website.
The Court observed that the message board was a public forum and any person could gain access to its content. Therefore, it should base its decision on the standard of ordinary right thinking members of the public in deciding whether Defendant’s act outraged public decency. [para. 33]
Alternatively, even if the Court adopts the standard of “culture” it can be inferred that the message of the defendant was not regarded as a “joke” by the members. Many viewers showed their disgust and outrage about the defendant’s invitation as was evident from their suggestion of organizing the “flash Jur” in retaliation. One viewer even attempted to further this discussion by messaging the defendant privately. [para. 34]
The last argument on the part of the defendant was that the prosecution had not called these persons to testify to the defendant’s conduct. The Court decided that the prosecution is not required to do so as established by the Knuller case.
Conclusively, the Court held that the defendant’s act outraged public decency and accordingly he was convicted.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the decision of the Hong Kong District Court contracts freedom of expression as it restricted the posting of messages which the defendant claimed were a “joke,” the Court had to balance the defendants freedom of expression against public decency and public order. The Court observed that a publicly accessible website, similar to traditional media, constitute a public forum on the ground that it was accessible to public at large. The subsequent response to the messages, both positive and negative, proved that they offended public morality. The Court’s decision was in consonance with the object of the offence under common law i.e. to prevent the “corruption of mind” and “erosion of values” which still remain “valid in the modern world.” [para. 36]
The Court seemed to struggle with the questions of intent and incitement to commit a crime. While the Court found there was insufficient evidence to prove he intended to go through with the crime or incite others to do so, the Court still observed that the defendant “was serious about his plan,” “indicated that he would be enjoying committing the crime,” and the Court was “alarmed” that Madam Wong suggested the messages could incite others to commit such a crime. [para. 32] Ultimately, the judge stated that he had to remind himself “not to pass moral judgment on the Defendant’s conduct” as he was not “sitting as a judge of taste, and doing something disgraceful or immoral per se is not a criminal offense.” [para.36]
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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