FACC No. 12 of 2006
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 12 OF 2006 (CRIMINAL)
(ON APPEAL FROM HCMA NO. 107 OF 2006)
||SECRETARY FOR JUSTICE
||- and -
||YAU YUK LUNG ZIGO
||LEE KAM CHUEN
Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ
Dates of Hearing: 25 and 26 June 2007
Date of Judgment: 17 July 2007
J U D G M E N T
Chief Justice Li:
1. Equality before the law is a fundamental human right (“the right to equality”). Equality is the antithesis of discrimination. The constitutional right to equality is in essence the right not to be discriminated against. It guarantees protection from discrimination. The right to equality is enshrined in numerous international human rights instruments and is widely embodied in the constitutions of jurisdictions around the world. It is constitutionally protected in Hong Kong.
2. Discriminatory law is unfair and violates the human dignity of those discriminated against. It is demeaning for them and generates ill-will and a sense of grievance on their part. It breeds tension and discord in society.
3. The question in this appeal is whether s.118F(1) of the Crimes Ordinance, Cap. 200 (“s. 118F(1)”), which criminalises homosexual buggery committed otherwise than in private, is unconstitutional on the ground that it is discriminatory and infringes the constitutional right to equality.
4. The respondents were charged with having committed buggery with each other otherwise than in private, contrary to s. 118F(1). It is alleged that they had developed a liaison over the Internet and that they committed the act in a private car parked beside a public road. This case is the first prosecution under s. 118F(1) since its enactment in 1991.
5. At the commencement of their trial before the Magistrate (Mr John Glass), the respondents challenged the constitutionality of s. 118F(1) and applied for a stay of the proceedings. The Magistrate upheld the constitutional challenge and dismissed the charges.
The Court of Appeal
6. The appellant appealed by way of case stated to challenge the Magistrate’s conclusion of law. The Court of First Instance ordered that the appeal be heard by the Court of Appeal.
7. The Court of Appeal (Ma CJHC, Woo VP and Tang JA as he then was) upheld the conclusion that s. 118F(1) is unconstitutional and dismissed the appeal. Secretary for Justice v Yau Yuk Lung and Another  4 HKLRD 196.
Leave to appeal
8. The appellant appeals to the Court with the leave of the Appeal Committee which certified two questions of law:
“1. Is [s. 118F(1)] discriminatory to the extent that it is inconsistent with the Basic Law and the Hong Kong Bill of Rights?
2. What is the proper order to be made when the charge against the defendant is found to be unconstitutional?”
In seeking leave, the appellant gave undertakings (i) not to seek remittal of the case; (ii) not to bring any charge in relation to the conduct alleged in this case; and (iii) not to seek an adverse costs order against the 1strespondent and to pay the reasonable costs of the 2nd respondent to be taxed if not agreed.
The constitutional provisions
9. The right to equality is guaranteed by art. 25 of the Basic Law which provides:
“All Hong Kong residents shall be equal before the law.”
10. Further, the right is protected by the Bill of Rights (“the BOR”) contained in the Hong Kong Bill of Rights Ordinance, Cap. 383, which implements in accordance with art. 39 of the Basic Law the provisions of the International Covenant on Civil and Political Rights (“the ICCPR”) as applied to Hong Kong. Article 22 of BOR (corresponding to art. 26 of the ICCPR) provides:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 1(1) of the BOR provides that the rights recognised therein:
“shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
As art. 22 itself guarantees the right to equality, it is unnecessary to rely on art. 1(1) in the present case.
11. Discrimination on the ground of sexual orientation would plainly be unconstitutional under both art. 25 of the Basic Law and art. 22 of BOR in which sexual orientation is within the phrase “other status”.
12. Section 118M of the Crimes Ordinance abolished the offence of buggery at common law. However, s. 118F(1) criminalises homosexual buggery committed otherwise than in private. It provides:
“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.”
Section 118F(2) is a supplementary provision. It prescribes two situations in which an act shall not be treated as done in private. The first situation provided for in subsection (2)(a) is when more than two persons take part or are present. However, this subsection was held to be unconstitutional by Hartmann J in Leung v Secretary for Justice  3 HKLRD 657 at para. 99. The Government had so conceded before the judge. The second situation prescribed in subsection (2)(b) is where the act is done:
“in a lavatory or bathhouse to which the public have or are permitted to have access, whether on payment or otherwise.”
“Bathhouse” is defined by s. 118(F)(3) to mean:
“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.”
13. In April 1983, the Law Reform Commission (“the Commission”) published its Report on laws governing homosexual conduct. Its main recommendations included the decriminalisation of homosexual acts performed in private by consenting adult males and the enactment of measures to protect men and boys from sexual abuse and exploitation.
14. Some seven years later, in 1991, the Crimes (Amendment) Ordinance was enacted and came into force on 12 July 1991. It is significant to note that the Hong Kong Bill of Rights Ordinance came into force shortly before that date on 8 June 1991. As stated in the Explanatory Memorandum to the Bill, the Crimes (Amendment) Ordinance implemented the main recommendations of the Commission’s Report.
15. Section 118F was enacted as part of the Crimes (Amendment) Ordinance in 1991 and criminalises only homosexual buggery otherwise than in private. Its provenance was not the Commission’s Report. In fact, the Commission had recommended the creation of a new offence of indecent public behaviour which in contrast to s. 118F, would be neutral on sexual orientation. The Commission proposed the new offence in order to increase protection “for all members of the community from any public behaviour of a sexual nature, including homosexual behaviour, which offends the common standard of decency of the community.” See paras 11.24 and 12.17 of the Commission’s Report.
16. The circumstances in which s. 118F came to be proposed in the Bill and enacted are somewhat puzzling. It can be ascertained from the nature of the provision that its purpose is for the protection of public decency. By enacting this section, the Legislature was protecting the community from outrageous public behaviour. Yet, in introducing the Bill, which included this provision, the Government stated its position in the Legislative Council Brief to be that:
“the existing law to safeguard standards of public decency adequate to ensure that public behaviour by homosexuals likely to cause offence to the public would continue to be an offence.”
The existing law which the Brief then described was the common law offence of committing an act outraging public decency. The Brief noted that it covers both homosexual and heterosexual behaviour in public. See para. 8 of the Legislative Council Brief on the Crimes (Amendment) Bill 1991 issued on 20 March 1991 by the then Security Branch of the Government.
The common law offence
17. It is an offence at common law to commit any act of a lewd, obscene or disgusting nature which outrages public decency. As Lord Simon observed in Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions  AC 435 at 493 G-H and 495D, the offence is concerned with minimum standards of decency and its rationale is that:
“… reasonable people should be able to venture into public without their sense of decency being outraged”.
The maximum penalty for the offence is seven years imprisonment and a fine. Section 101I(1) of the Criminal Procedure Ordinance, Cap. 221.
18. On the authorities in England, the act must have been committed in public in the sense that at least two persons must have been able to see the act in question. R v Mayling  2 QB 717. There is a further requirement that the offence must have been committed in a place where there exists a real possibility that members of the general public might witness what happens. The place need not necessarily be one of public resort but must be one where the public are able to see what takes place there. R v Walker  1 Cr. App. R. 111 at 114 C-E. The question whether the common law offence...