HCAL 160/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 160 OF 2004
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BETWEEN
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LEUNG TC WILLIAM ROY |
Applicant |
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and |
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SECRETARY FOR JUSTICE |
Respondent |
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Before : Hon Hartmann J in Court
Dates of Hearing : 21 and 22 July 2005
Date of Handing Down Judgment : 24 August 2005
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J U D G M E N T
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Introduction
1. The applicant, a 20-year-old man, is homosexual. He has been conscious of his sexual orientation since puberty. The applicant is thereby a member of a minority – but nevertheless significant – section of the Hong Kong community : the gay community.
2. The applicant says that since the age of 16 he has had a number of relationships with gay men. Those relationships have been based on mutual attraction and respect. Within those relationships – in private and on an entirely consensual basis – he and his partners would have desired to give physical expression to their shared sexual orientation. However, that desire, says the applicant, has been frustrated by the existence of certain provisions of Hong Kong’s criminal law contained in Part XII of the Crimes Ordinance, Cap.200 (‘the Ordinance’).
3. It is the applicant’s case that the provisions contained in Part XII of the Ordinance, while they permit heterosexual and lesbian couples to give physical expression to their shared sexual orientation once they have reached 16 years of age, discriminate against gay couples in that they prohibit them from a similar expression of their shared desires until each of them has reached 21 years of age. The provisions, says the applicant, further discriminate against gay men by prohibiting certain intimate activities no matter how old they are. This prohibition, however, does not apply to heterosexual or lesbian couples.
4. It is the applicant’s case that the provisions also constitute an arbitrary interference in his private life. It is said on the applicant’s behalf by his leading counsel, Mr Dykes SC, that what takes place in the bedroom on an entirely consensual basis between two men who are both aged 16 or older is very much a matter private to them and that privacy should be protected by law just as it is protected for heterosexual and lesbian couples.
5. The applicant says that, still being under 21 years of age, the existence of the regime contained in Part XII of the Ordinance has, and continues, to place a considerable stress on his relationships with other gay men, clouding such relationships with apprehension and making it effectively impossible to develop, as he would wish, long-lasting relationships.
6. It is further the applicant’s case that his knowledge that the physical desires which define his sexual orientation are perceived by the law to be a form of deviance warranting condign criminal punishment has led to feelings of low self-esteem and an on-going denial of his true identity, even to those closest to him. The result has been a sense of marginalisation and what I infer to be a profound uncertainty as to his own moral worth as a member of the Hong Kong community.
7. The applicant’s sexual orientation, however, has not resulted in any form of public action being taken against him. He has not, for example, been prosecuted for any criminal offence arising out of Part XII of the Ordinance. His application for judicial review is not therefore founded on some ‘decision’ of a public law body applicable to him.
8. It is instead the applicant’s case that under the Basic Law he has the right to equality before the law; that is, the right not to be discriminated against because of his sexual orientation. Under the Hong Kong Bill of Rights he also has the right not to be subjected to arbitrary or unlawful interference in how he seeks self-autonomy in private. But, by reason of the regime contained in Part XII of the Ordinance, both of those rights, says the applicant, are unlawfully denied to him and other gay men over the age of 16.
9. Accordingly, the applicant has taken the step of seeking to directly challenge the provisions in Part XII of the Ordinance which he says impinge on his constitutional rights. The applicant does so, not by relying on any prerogative remedy, but by seeking declarations that those provisions are inconsistent with the Basic Law and/or the Hong Kong Bill of Rights.
10. This application therefore raises two fundamental questions. First, whether this court has jurisdiction to determine the application and, if it does, whether, in the exercise of its discretion, it should properly do so and, second, if the first question is answered in the affirmative, whether, on the merits, the provisions of Part XII of the Ordinance identified by the applicant should be declared to be unconstitutional.
11. It is the respondent’s contention that this court has no jurisdiction to entertain the application. Alternatively, if it does possess jurisdiction, that jurisdiction should be exercised sparingly, especially when, as in the present case, an applicant seeks to directly challenge primary legislation and does so solely on the prospective basis that he wishes to act in the future in a way that presently offends the legislation.
12. During the course of submissions, however, Mr McCoy SC, leading counsel for the respondent, said that, if the court came to the determination that it did have jurisdiction and should determine the merits, then he was instructed to concede that, in light of the Basic Law and the Bill of Rights, certain – but not all – of the provisions challenged by the applicant were unsustainable. I shall return later in this judgment to the nature and extent of this important concession.
13. The applicant seeks declarations that four sections contained in Part XII of the Ordinance – ss.118C, 118F(2)(a), 118H and 118J(2)(a) – are unconstitutional.
14. For the avoidance of any doubt, the applicant makes no suggestion that the minimum age of 16 imposed by the Ordinance on all forms of sexual conduct with or towards another person is in any way unlawful.
15. In addition, it is to be understood that the four sections in Part XII which are challenged, notwithstanding the deeming provisions contained in two of them, concern what are in reality entirely consensual acts carried out in private by gay men over 16 years of age.
16. The relevant acts which are prohibited in Part XII of the Ordinance fall into two categories :
(i) |
The first category concerns acts of ‘gross indecency’. The phrase is not defined in the Ordinance but, as I see it, covers sexual conduct with or towards another person that is offensive to common propriety, each case being judged in the context of its own time, place and circumstance. For the purpose of this judgment, I shall describe it as ‘sexual intimacy’ by which I mean any act of such intimacy with or towards another person that falls short of sexual intercourse; namely, penetration. |
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(ii) |
The second category concerns sexual intercourse itself, either procreative intercourse; that is, intercourse per vagina, or intercourse per anum, the form of intercourse described in the Ordinance as buggery, that term being synonymous with sodomy. |
Is buggery, within the meaning of the Ordinance, a form of sexual intercourse?
17. During the course of the hearing the issue arose of whether, in terms of the Ordinance, buggery constituted sexual intercourse. For reasons which will become evident, the issue is fundamental to the applicant’s case. I am satisfied, however, that in ordinary language buggery constitutes a particular form of sexual intercourse and, second, that the Ordinance has not narrowed the generic meaning of the phrase so that it only applies to intercourse per vagina to the exclusion of other forms of intercourse.
18. The phrase ‘sexual intercourse’, like the more venerable phrase ‘carnal knowledge’, is a polite reference to copulation and just as there may be different forms of copulation, both for procreation and pleasure, so may there be different forms of sexual intercourse. In Archbold 2003, at 20-13 (page 1753), it is said that the definition of the offence of buggery derives from common law and consists of ‘sexual intercourse’ per anum by man with man or, in the same manner, by man with woman. That buggery is recognised as a form of sexual intercourse has long been recognised by the courts of England : see, for example, R. v. Barron [1914] 2 KB 570 (CCA).
19. In the Ordinance itself, while the term ‘sexual intercourse’ is used to describe intercourse per vagina and not per anum, I am satisfied that has been done as a matter of convenience only. I am unable, on an ordinary reading of the relevant sections, to read into the use of the phrase ‘sexual intercourse’ any intent on the part of the draftsman to convert it into a term of art; that is, from a phrase which describes a genus to a phrase which describes a specie. In any event, buggery in common law being a form of ‘sexual intercourse’, it seems to me to be tautologous to qualify it in the Ordinance with that phrase.
20. I am satisfied therefore that, both in common law and in the Ordinance, buggery is recognised to be a form of sexual intercourse.
The four sections challenged
21. In terms of s.146 of the Ordinance, a person, male or female, who commits an act of ‘gross indecency’ – an act that I have described as one of ‘sexual intimacy’ – with a boy or a girl under the age of 16, is guilty of an offence. Consent is not a defence. The ‘threshold age’ is therefore the age of 16.
Section 118H
22. The threshold age being 16, it is lawful for a man and a woman who are both...
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