Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Mixed Outcome
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The Hong Kong Court of Final Appeal quashed Chan Yau Hei’s conviction for outraging public decency. He was earlier convicted for posting a message on an internet discussion forum suggesting bombing of the Liaison office as part of political reform. The issue before the Court of Final Appeal was whether the internet is a public place for the purpose of the offence of outraging public decency. Although the defendant was guilty of “committing an act outraging public decency” by posting a derogatory message on an online message board it was found that the internet was not a tangible, physical “public” place but only a medium for the purposes of the offence.
The defendant, Chan Yau Hei, posted allegedly “inflammatory” messages on HKGolden, an internet discussion forum. The message was posted in June 2010 and pertained to proposals for political reform in Hong Kong. It stated “[w]e have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government [English translation]. [para. 6]
After investigation by the Police, the defendant was arrested on June 19th, 2010. He admitted that he had participated in the discussion and posted the message. He also said that “he had done it for fun only”. Thus, he had “no intention to commit any offence.” However, he was charged with with “committing an act outraging public decency.”
At the sentencing hearing in November 2010, the defendant obtained alternate counsel and asked to change his plea to not guilty as the facts did not support the charge. It was contended by the defendant that the act was not done in public as it was done on the internet where it was not possible for two or more people to see. The Magistrate rejected this contention, confirmed the conviction and sentenced the defendant to twelve months of probation. The defendant appealed to the Court of First Instance in November 2011, but his appeal was dismissed.
The defendant subsequently appealed to the Appeal Committee.
Mr. Justice Fok PJ gave the ruling of the Court.
Before the Appeal Committee, there were two issues for determination:
In order to determine the two issues, the Court proceeded to address the elements of the offence of outraging public decency by examining the authorities.
Relying on the observations made by Lord Simon in Knuller Ltd. v. Director of Public Prosecutions,  AC 435, the Court stated that outraging public decency refers to an “act of lewd, obscene or disgusting nature which outrages public decency.” [para. 16]
Then the Court identified the two elements of the offence based on the judgment of R v. Hamilton. With regards to the first element pertaining to the nature of the act the Court relied on a broad interpretation of ‘indecency’ and ‘obscenity’ because Lord Reid had observed in the Knuller case that indecency can be both sexual and non-sexual and it would include anything which “an ordinary man or woman finds shocking, disgusting and revolting.” [para. 18]
Following its analysis the Court said that “utterance of an obscene language is also an indictable offence”. It went on to say that this finding had been affirmed by Lord Reid in Shaw v. Director of Public Prosecutions where he said it was an indictable offence to “say or exhibit anything in public which outrages public decency, whether or not it also tends to corrupt and deprave those who see or hear it.” [para. 20]
In the present case the act was not a lewd publication as the contents of the message was not sexual so the Court had to determine whether the publication was obscene or disgusting. It laid down an objective test to determine this by relying on Lord Simon’s observation in the Knuller case that ‘outraging public decency’ goes “considerably beyond offending the susceptibilities of, or even shocking, reasonable people.” [para. 74]
The message which was posted by the defendant was an incitement to the act of terrorism as it called for bombing the Liaison office of the Central People’s office. It was obscene because an “incitement to bomb premises was a brazen disregard for potential loss of life, personal injuries and damage to property.”
The Court then analysed the second element of the offence i.e. the public element. In order to satisfy this element, the offence must be committed in public i.e. in a place where the “public has access or in a place where what is done is capable of public view.” [para. 22]
According to the “two-person” rule, the public nature of the offence “can only be satisfied if the act is capable of being seen by two or more persons who are actually present, even if they do not actually see it.” [para. 23]
The two-person rule led to the question whether the public element required the act to take place in “actual or physical, tangible place”. [para. 28] Further, in the Knuller case, Lord Simon had observed that ‘public’ refers to the place in which the offence is committed. [para. 39]
In this regard the Court determined that the internet website does not fall within the meaning of a physical, tangible place. It gave the reasoning that material uploaded on the internet in the form of a message posted on an internet discussion forum is not “humanly intelligible until accessed or downloaded in comprehensible form” to a computer or mobile platform connected to the internet. Thus, cyberspace is a “virtual” place or forum. [para. 45]
The Court further relied on Justice Ribeiro’s ruling in the case of Oriental Press Group Ltd. v. Fevaworks Solutions Limited and Anr., FACV 15/2012 in which it was stated that only when the online content is received and accessed or downloaded in a comprehensible form to the person making the request, is the material ‘published’ for the purpose of libel law. [para. 45]
The Court reasoned further by referring to R v. Walker and assuming different facts for the case. If the defendant had in his living room posted an obscene message on an internet forum which two girls had seen by accessing the relevant website and downloading the offending content on their mobile phones, the persons outraged would be the two girls and the place of indecent behavior would be the living room of defendant’s house and not the internet. [para. 47]
Moreover, “It is similarly a fiction to regard persons who access an internet discussion forum as being in the same position as reasonable people who venture out physically in public and who are entitled to protection against having their sense of decency outraged. Notwithstanding that they may be physically outdoors at the time, those who surf the internet are not in fact venturing out anywhere and are instead only virtually visiting a place when accessing a particular website or discussion forum.” [para. 48]
The Court rejected that the internet can be a “public place” and agreed with the defendant’s counsel that the offence was in effect a strict liability offence. It said that to hold the internet as a tangible place would judicially extend the boundaries of criminal liability impermissibly. [para. 50]
The Court then proceeded to refute the respondent’s reliance on the Scottish case of Webster v. Dominick,  JC 65 that “the offence of outraging public decency could be committed by acts done on the internet.” [para. 52] In this case Lord Justice Clerk had observed that indecent conduct might be committed “by means of a lewd conversation with the victim, whether face-to-face or by a telephone call or through an internet chat-room.” [para. 53] The Court said that in that case the internet chat-room is not an indication of “location” but a reference to the “medium” through which the offence is committed. [para. 54]
The Court also rejected the respondent’s reliance on Rose v. Director of Public Prosecutions,  1 WLR 2626. The facts of this case were, a sexual activity was carried out in the foyer of a bank in early hours of the morning. This act was observed in a CCTV footage by another employee of the bank. The court in this particular case quashed the conviction for outraging of public decency as the Judge held that there was a lack of “sufficient public element for the offence to be established” because only one person had seen it and “viewing privately of a private recording of an act which had not been seen by any person was insufficient to constitute the offence.” [para. 55]
The book Rook & Ward had stated that “viewing of the product of a camera ought to be sufficient where the viewing takes place in real-time, e.g. where the product is broadcast over the internet or on live-feed CCTV.” [para. 56]
The Court, limiting the discussion to the specific facts of this case, observed that the fact that the internet cannot be identified as a public place did not imply that the “offence can never be committed by a message posted to an internet discussion forum.”[para. 64]
However, the Court said it wasn’t necessary to conclude whether the offence may be committed when outrageous material is posted to the internet and then accessed from the internet at a place where the public has access or where what is done is capable of public view. In this case, it said, that there wasn’t sufficient evidence to support such a conclusion.
On the lack of evidence, the Court observed that the charge against the defendant was framed on the basis that the defendant had posted the message at his home. However, this was not the place of publication. Further, applying the two-person rule for the offence, it was not known who had seen the message apart from the Oriental Daily newspaper reporter. In these circumstances, it could not be conclusively held whether the place(s) where the reporter and the police accessed the message were place(s) of public access. [para. 67]
With regards to the offence being consistent with freedom of expression, the Court speculated that in future cases the issue may arise as to whether this offence is inconsistent with the constitutional right to freedom of expression. It further stated that although the message posted by the defendant met the threshold necessary for outraging public decency, not every “rude, abusive or low-grade statement in the course of a spirited debate” on a matter of public interest will cross the threshold. [para. 87]
The Court further suggested introducing a statutory provision to criminalize the posting of messages of a similar nature. It emphasized the features of the internet such as “one-to-many communications” and the “widespread, democratized, access to media” which act as conduits to allow individuals the ability to communicate messages and other content. Since the internet is a virtual space and cannot qualify as a “public” place to meet the elements of the outraging of public decency, the Court suggested that dedicated legislation could regulate internet-based offences.
Finally, the Court quashed the defendant’s conviction by holding that the public element of the offence was not satisfied by defendant’s message.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case provides a mixed outcome because it does not really get to the heart of the potential freedom of speech implications with the common law (although the Court notes that these may conflict in later cases), but rather dismisses the charge by noting that the offence of committing an act outraging public decency does not apply to the internet as the internet is a “medium” and not a “public place” therefore, the task of addressing obscene and disgusting material posted on the internet would be better addressed by way of legislation.
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Case significance refers to how influential the case is and how its significance changes over time.
Since this is a decision of the Court of Final Appeal, it is binding on all lower courts.
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