Secretary For Justice v Yau Yuk Lung Zigo And Another

Judgment Date20 September 2006
Citation[2006] 4 HKLRD 196
Judgement NumberHCMA107/2006
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000107/2006 SECRETARY FOR JUSTICE v. YAU YUK LUNG ZIGO AND ANOTHER

HCMA107/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 107 OF 2006

(ON APPEAL FROM TWCC NO. 3105 OF 2004)

______________________

BETWEEN

  SECRETARY FOR JUSTICE Appellant
  and  
  YAU YUK LUNG ZIGO(丘旭龍) 1st Respondent
  LEE KAM CHUEN(李錦全) 2nd Respondent

______________________

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

______________

J U D G M E N T

______________

Hon Tang JA :

1. The respondents were charged with having committed buggery with each other, otherwise than in private, contrary to section 18F(1) of the Crimes Ordinance, Cap. 200. Following the respondents’ pleas of not guilty, counsel for the respondents applied for a stay of proceedings on the basis that section 118F(1) of the Crimes Ordinance was unconstitutional. Mr John Glass, Permanent Magistrate, dismissed the charges against each of the respondents on the ground that section 118F(1) was unconstitutional.

2. The appellant filed a Notice of Appeal by way of case stated, challenging the correctness of that conclusion of law. The magistrate signed the case stated on 24 January 2006 and Pang J, on 6 March 2006, ordered, pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap. 227, that their appeal be argued before the Court of Appeal. Pursuant to the Chief Judge’s direction this appeal was heard at the conclusion of the hearing in CACV 317 of 2005.

3. The sole issue in this appeal is whether section 118F is unconstitutional.

4. Section 118F created the offence of homosexual buggery otherwise than in private which carried a sentence of 5 years’ imprisonment on conviction as follows:

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.”

5. Section 118F(2)(a) as well as section 118J(2)(a) have been held by Hartmann J as unconstitutional in Leung TC William Roy v Secretary for Justice [2005] 3 HKLRD 657. There was no appeal from these findings. The only appeal from HCAL 160 of 2004 was in respect of section 118C of the Crimes Ordinance (CACV 317 of 2005). The judgment of this court in that appeal will be handed down at the same time as this judgment. Section 118J created the offence of gross indecency between men otherwise than in private, and is otherwise identical to section 118F.

6. Since the offence is homosexual buggery otherwise than in private, no question of privacy is involved in this appeal unlike in Leung. We are concerned with an offence of public indecency.

7. The sole ground of challenge by the respondents is that section 118F is discriminatory.

8. It is said to be discriminatory because there is an absence of an equivalent statutory offence criminalizing:

“(i) consensual vaginal sexual intercourse between heterosexuals other than in private;

(ii) consensual buggery between heterosexuals other than in private; or

(iii) consensual sexual conduct (akin to sexual intercourse) between lesbians other than in private.”

9. As Mr Dykes SC, who led for the 1st respondent (and whose submissions were adopted by Mr Stanley Ma, counsel for the 2nd respondent), correctly put it:

“The issue is whether this different treatment is objective and reasonable, pursues a legitimate aim and is proportional to the aim at which it is directed.”

Legislative history

10. Section 118F offence was created by the Crimes (Amendment) Bill 1991 which was enacted for the dual objectives of:

“(i) decriminalising male homosexuality; and

(ii) extending to men and boys the protection from sexual exploitation afforded to women and girls.”

11. There were no existing equivalent offences which corresponded to the offence created by section 118F or section 118J but these provisions do not appear to fall into the category of either of the objectives just mentioned.

12. Mr Dykes submitted that the enactment of section 118F and section 118J was a wholly gratuitous and unnecessary reference to male homosexuals because the existing common law offence of outraging public decency in fact continued to apply to and was adequate for the purpose of penalising “public behaviour by homosexuals likely to cause offence to the public”. See Legislative Council Brief: Review of Laws on Homosexual Offences (20.3.1991), para. 8.

13. Mr Dykes further submitted that the effect of the enactment of section 118F is to subject male homosexuals to a less favourable treatment than heterosexuals and lesbians in that:

“i it exposes male homosexuals to the risk of prosecution and conviction for an additional or alternative offence which would otherwise not apply to heterosexuals and lesbians;

ii it singles out male homosexuals as a class of persons and imposes a social and moral stigma which does not apply to anyone else.”

14. For the appellant, Mr McCoy SC submitted that the court must not substitute its own views for those of the Legislative Council. He argued that a significant discretionary area of judgment should be accorded by the court to the legislature, particularly in relation to policy matters and moral and social issues. It is said that in this case the legislature only prohibits homosexual buggery in a public place or otherwise than in private. It is not the task of the court to “tidy up the statue book”. R(Rusbridger) v Attorney General [2004] AC 357 at 371H, 377D, 378B. Mr McCoy also reminded us of the off-quoted words of Bokhary J (as he then was) in The Queen v Man Wai-keung [1992] 2 HKCLR 207 at 217:

“… Thirdly, we are now concerned with equality before the courts as an entrenched fundamental human right, so that no departure from its strict terms is valid unless such departure is necessary, proportionate to such need and rational. And finally, at no time does common sense go out the window when these things are judged.

Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need.”

15. He also warned us of the danger of over-intrusive judicial intervention in matters of broad social policy. He submitted the issues of the type which arise in this appeal should be resolved by the legislature rather than by the court. In support of the last proposition he cited the case of Banana v State [2002] 8 BHRC 345 at 388 C-D, and R v Kirk [2002] EWCA Crim 1580 at paras. 14 and 26.

16. In Banana v State, McNally JA said at 388 C-D:

“In the particular circumstances of this case, I d not believe that the ‘social norms and values’ of Zimbabwe are pushing us to decriminalise consensual sodomy. Zimbabwe is, broadly speaking, a conservative society in matter of sexual behaviour. More conservative, say, than France or Sweden; less conservative than, say, Saudi Arabia. But, generally, more conservative than liberal.

I take that to be a relevant consideration in interpreting the constitution in relation to matters of sexual freedom. Put differently, I do not believe that this court, lacking the democratic credentials of a properly elected parliament, should strain to place a sexually liberal interpretation on the constitution of a country whose social norms and values in such matters tend to be conservative.”

17. However, I prefer the dissenting judgment of Gubbay CJ. A quotation from his judgment at page 363 explained why “conservatism” may in fact be unacceptable entrenched prejudice:

“As Professor R Dworken, in his work Taking Rights Seriously, p 258, emphatically proclaimed:

‘Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalisation (based on assumptions of fact so unsupported that they challenged the community’s own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It remains possible that the ordinary man could produce no reasons for his view, but would simply parrot his neighbour who in turn parrots him, or that he would produce a reason which presupposes a general moral position he could not sincerely or consistently claim to hold. If so, the principles of democracy we follow do not call for the enforcement of a consensus, for the belief...

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4 cases
  • Secretary For Justice v Yau Yuk Lung Zigo And Another
    • Hong Kong
    • Court of Final Appeal (Hong Kong)
    • 17 July 2007
    ...upheld the conclusion that s. 118F(1) is unconstitutional and dismissed the appeal. Secretary for Justice v Yau Yuk Lung and Another [2006] 4 HKLRD 196. Leave to 8. The appellant appeals to the Court with the leave of the Appeal Committee which certified two questions of law: “1. Is [s. 118......
  • Dr. Chan Sze Lai, Jacqueline v The Dental Council Of Hong Kong
    • Hong Kong
    • High Court (Hong Kong)
    • 7 November 2013
    ...ICCPR) been infringed? (2) Second, if so, can such infringement be justified?’ See : Secretary for Justice v Yau Yuk Lung & Another [2006] 4 HKLRD 196, at 208 B‑C (para. 45); Leung v Secretary for Justice [2006] 4 HKLRD 211, at 234 G‑H (para. In other words, although there may be an infring......
  • Dr. Kwok-hay Kwong v The Medical Council Of Hong Kong
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 January 2008
    ...ICCPR) been infringed? (2) Second, if so, can such infringement be justified?” See : Secretary for Justice v Yau Yuk Lung & Another [2006] 4 HKLRD 196, at 208 B-C (paragraph 45); Leung v Secretary for Justice [2006] 4 HKLRD 211, at 234 G-H (paragraph 43). In other words, although there may ......
  • Cho Man Kit v Broadcasting Authority
    • Hong Kong
    • High Court (Hong Kong)
    • 8 May 2008
    ...‘prejudices, personal aversions and [dubious] rationalisations’. In this regard, in Secretary for Justice v. Yau Yuk Lung and Another [2006] 4 HKLRD 196, at 202, our Court of Appeal cited with approval the following comments in respect of certain attitudes towards homosexuality by Professor......

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