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