Daily Archives: May 10, 2014

Is the internet a “public place”?

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Hong Kong skyline. Stock photo: Hans Mahncke

HKSAR v Chan Yau Hei is a recent case that made me wonder about the direction of the common law in Hong Kong. Basically, the accused is a guy who posted an allegedly inflammatory comment on HKGolden, a internet chat site. The comment was that we should learn from the Jewish people and bomb the Liaison Office. The accused was charged with the common law offence of outraging public decency. The case boiled down to the question of whether the internet is a “public place” as the offence outraging public decency can only occur in a “public place”. The court decided that it was not, because a public place had to be a physical, tangible place. The accused was acquitted.

The shame about this case, given that it covers the extremely challenging and intriguing question of applying old common law principles to the age of the internet, with potential for developing common law precedents, is that the court basically refused to develop the law or even have a proper discussion about developing the law or whether there are other applicable laws. In fact, only one out of five judges bothered to write a judgment and Chief Justice Ma himself merely commented that criminal liability should be determined by legislation. The beauty of the common law is that it is flexible and has the ability to adapt and evolve. Passing the buck to the legislature is not usually what the common law is about. I also wonder why the Chief Justice has placed so much emphasis on the apparent lack of legislation. Perhaps the prosecution should have simply laid a different charge? Fascinating case which I am sure we will read more about in the years to come.

You can find the full case here: http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfa/2014/18.html?stem=&synonyms=&query=%22Chan%20Yau-hei%22

Judicial review again substitutes for democratic decision making

PLA HQ. Photo: Hans Mahncke

PLA HQ. Photo: Hans Mahncke

The writing has been on the wall. The Designing Hong Kong group has filed for leave to apply for judicial review of the Town Planning Board’s decision to rezone the land in front of the PLA HQ in Central so that it could be used as the PLA’s pier. Not for the first time, Hong Kong’s strange blend of non-democratic executive, semi-democratic legislature and largely independent judiciary has led to a decision, which would normally lie in the domain of democratic discourse, to be brought before the courts. While this substitution effect has been going on for quite a while, what is new is that it now involves the PLA. I would not like to be the judge assigned this case.

The news story can be found here: http://rthk.hk/rthk/news/englishnews/news.htm?main&20140510&56&1005253