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CACV317/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 317 OF 2005
(ON APPEAL FROM HCAL NO. 160 OF 2004)
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BETWEEN
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LEUNG T C WILLIAM ROY
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Applicant
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and
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SECRETARY FOR JUSTICE
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Respondent
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_________________________
Before: Hon Ma CJHC, Woo VP & Tang JA in Court
Dates of Hearing: 6 & 7 July 2006
Date of Handing Down Judgment: 20 September 2006
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J U D G M E N T
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Hon Ma CJHC :
1. This appeal raises, among a number of others, two points of some considerable importance : - first, the limits of the court’s power to hear cases and if necessary grant appropriate relief when so called academic points are raised; secondly, whether homosexual men have been unjustifiably discriminated against by certain provisions contained in the Crimes Ordinance, Cap.200 relating to buggery. In this latter context, an interesting argument has emerged : - can a piece of legislation be deemed unequal or discriminatory where on their face, the relevant provisions can be seen to apply equally (in the present case, to men and women, homosexuals and heterosexuals alike)?
2. The Applicant in the judicial review proceedings that have led to this appeal is a young man, now 21 years of age, who is a homosexual. At the time the application for judicial review was taken out by him (on 18 December 2004), he was then aged 20 and it is in this context that I deal with the facts of the case. He has been since the age of 10 attracted to members of the same sex. Since the age of 16, he has felt the desire to express himself sexually with other boys. He puts it in the following way in the Notice of Application for Leave to Apply for Judicial Review : -
“The Applicant felt the desire for sex at the age of 16. He was sure that he is mature enough to consent to sexual acts. He has had relationships with male partners over the years. However, he has experienced great difficulties in developing lasting homosexual partnerships because the law prohibits consensual homosexual sex until a man reaches the age of 21, as oppose to 16, which is the case for heterosexual or lesbian relationships.”
3. The relevant statutory provisions (all in the Crimes Ordinance) which were targeted by the Applicant in the Form 86A relate to the offences of buggery and gross indecency committed in private when two or more are present. I shall identify these offences presently.
4. The existence of the said statutory offences has placed the Applicant (and I would assume other homosexual men in a similar position) in the following dilemma : -
(1) He has not been able to have any fulfilling relationships with partners for fear of prosecution. When, for example, he and his partners returned home, he feared that security guards or neighbours might report their activities to the police.
(2) He has not even been able to tell his parents about his sexual orientation in case they would worry about the possible legal consequences of his having a homosexual relationship.
(3) As a result, the Applicant has suffered from distress and loneliness.
5. In the present judicial review proceedings, the Applicant challenges the constitutionality of certain provisions of the Crimes Ordinance as being an infringement of his rights to equality and privacy. The relevant articles protecting these fundamental rights are contained in Articles 25 and 39 (bringing into force the provisions of the International Covenant on Civil and Political Rights (“ the ICCPR”)) of the Basic Law and Articles 1, 14 and 22 of the Hong Kong Bill of Rights, Cap.383 (“the Bill of Rights”) (the latter reflecting the equivalent provisions in the ICCPR).
The challenged provisions in the judicial review proceedings
6. Part XII of the Crimes Ordinance deals with sexual and related offences. For example, the offence of rape is covered. The offence of buggery is also dealt with. Sections 118C, 118D and 118F provide as follows : -
“118C. Homosexual buggery with or by man under 21
A man who –
(a) commits buggery with a man under the age of 21; or
(b) being under the age of 21 commits buggery with another man, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
118D. Buggery with girl under 21
A man who commits buggery with a girl under the age of 21 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
118F. Homosexual buggery committed otherwise than in private
(1) A man who commits buggery with another man otherwise than in private shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.
(2) An act which would otherwise be treated for the purposes of this section as being done in private shall not be so treated if done –
(a) when more than 2 persons take part or are present; or
(b) in a lavatory or bathhouse to which the public have or are permitted to have access, whether on payment or otherwise.
(3) In this section, ‘bathhouse’ (浴室) means any premises or part of any premises maintained for the use of persons requiring a sauna, shower-bath, Turkish bath or other type of bath.”
7. Sections 118C and 118F(2)(a) were challenged by the Applicant but section 118D is also relevant as will be apparent in the discussion below.
8. Next, I turn to the offence of gross indecency. Here, sections 118H and 118J(2)(a) were challenged by the Applicant : -
“118H. Gross indecency with or by man under 21
A man who –
(a) commits an act of gross indecency with a man under the age of 21; or
(b) being under the age of 21 commits an act of gross indecency with another man,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2 years.
118J. Gross indecency by man with man otherwise than in private
(1) A man who commits an act of gross indecency with another man otherwise than in private shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2 years.
(2) An act which would otherwise be treated for the purposes of this section as being done in private shall not be so treated if done –
(a) when more than 2 persons take part or are present; or
(b) in a lavatory or bathhouse to which the public have or are permitted to have access, whether on payment or otherwise.
(3) In this section, ‘bathhouse’ (浴室) means any premises or part of any premises maintained for the use of persons requiring a sauna, shower-bath, Turkish bath or other type of bath.”
9. As I have mentioned, the Applicant’s challenge to these provisions were on the basis that they infringed his right to equality and privacy. Briefly, the challenge was as follows : -
(1) The buggery provisions (sections 118C and 118F(2)(a)) discriminated because (a) as an act of or akin to sexual intercourse as far as consensual sex was concerned, the minimum age limit for buggery was put at 21 years whereas as far as sexual intercourse between men and women were concerned, the age limit was 16 years of age (section 118C compared with section 124 of the Crimes Ordinance); and (b) notwithstanding consent or that both parties were 21 years or older, it was an offence for buggery to take place when more than two persons were present whereas there was no such offence for men and women when having sexual intercourse (section 118F(2)(a)).
(2) As for acts for gross indecency (which Hartmann J in the court below called an act of sexual intimacy with or towards another person that felt short of sexual intercourse), while it was an offence for a man to commit an act of gross indecency with another man if either was under the age of 21, the minimum age limit for heterosexual (meaning in this context men and women) or lesbian couples was 16 (section 118F compared with section 122(2), which deals with the offence of indecent assault). Further, even if a man reached the said minimum age of 21 and notwithstanding consent, it was an offence if more than two persons were present whereas no such offence existed for heterosexuals or lesbians (section 118J(2)(a)).
10. The relief sought by the Applicant in the judicial review proceedings were declarations that : -
(1) Sections 118C and 118H were, to the extent that they applied to a man aged 16 or over and under 21, inconsistent with Articles 25 and 39 of the Basic Law and Articles 1, 14 and 22 of the Bill of Rights and therefore unconstitutional; and
(2) Sections 118F(2)(a) and 118J(2)(a) were inconsistent with the said Articles of the Basic Law and the Bill of Rights and therefore also unconstitutional.
11. For reasons that will appear below, we are really in this appeal (as Hartmann J was) only concerned with the constitutionality of section 118C of the Crimes Ordinance.
The proceedings in the court below
12. In a Ruling dated 18 January 2005, Hartmann J granted leave ex parte to the Applicant to apply for judicial review. On 17 June 2005, the Respondent applied to set aside leave but in a judgment handed down on 28 June 2005, this was dismissed.
13. The substantive hearing of the judicial review took place on 21 and 22 July 2005. At the hearing, the Respondent contended first that the court lacked jurisdiction to hear the judicial review or grant the declarations sought. However, the Respondent conceded that if the court did have the necessary jurisdiction, then he would accept that sections 118F(2)(a), 118H and 118J(2)(a) were unconstitutional in the light of the Basic Law and the Bill of Rights. The effect of the concessions was that section 118H would be read down...
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