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HCAL 753/2017
[2019] HKCFI 1431
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 753 OF 2017
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| BETWEEN |
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YEUNG CHU WING |
Applicant |
and |
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SECRETARY FOR JUSTICE |
Respondent |
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RAINBOW ACTION |
Interested Party |
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| Before: Hon Au J in Court |
| Date of Hearing: 27 September 2018 |
| Dates of Supplemental Written Submissions: 25 October and 1 November 2018 |
| Date of Judgment: 30 May 2019 |
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J U D G M E N T
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A. INTRODUCTION
1. This is the applicant’s judicial review asking the court to declare seven provisions (collectively “the Provisions”) in the Crimes Ordinance (Cap 200) (“the CO”) to be unconstitutional. The applicant says the Provisions are discriminatory against male homosexuals and thus inconsistent with Article 25 of the Basic Law[1](“BL25”) and Article 22 of the Hong Kong Bill of Rights (“BOR22”).[2] The Provisions are:
(1) section 118C;
(2) section 118G;
(3) section 118H;
(4) section 118I;
(5) section 118J(1);
(6) section 118K; and
(7) section 141(c).
2. For convenience, in this judgment, unless otherwise stated, all references made to a statutory provision is a reference to that provision of the CO.
3. As a start, it is pertinent to set out the Secretary for Justice (“SJ”)’s position in this application:
(1) She accepts that sections 118G, 118H, 118J(1) and 118K (collectively “the Uncontested Provisions”) are inconsistent with BL25 and BOR22 and hence the declarations sought by the applicant in relation to them should be granted.
(2) Even though sections 118C, 118I and 141(c) (collectively “the Contested Provisions”) are prima facie in their present form also inconsistent with BL25 and BOR22, the SJ asks the court to adopt respective remedial interpretations of these provisions to preserve their validity, and hence the declarations sought should not be granted.
4. Given the SJ’s said position, the real issues arising in this application are a narrower one: whether the court could and should make the remedial interpretations as submitted by the SJ respectively of sections 118C, 118I and 141(c).
5. The applicant is represented by Mr Hectar Pun SC, leading Mr Anson Wong Yat Yu. The SJ is represented by Mr Raymond Leung SC, leading Ms Grace Chow.
6. Before I consider the remedial interpretation issues, as urged by Mr Pun, I should still first briefly set out below the reasons why the Uncontested Provisions shall be declared to be unconstitutional.
B. THE UNCONTESTED PROVISIONS
7. The Uncontested Provisions respectively provide as follows:
“118G. Procuring others to commit homosexual buggery
A person who procures a man to commit an act of buggery with a third person, who is another man, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2 years.”
“118H. Gross indecency with or by man under 16
A man who—
(a) commits an act of gross indecency with a man under the age of 16; or
(b) being under the age of 16 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.
…”
“118K. Procuring gross indecency by man with man
A person who procures a man to commit an act of gross indecency with a third person, who is another man, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2 years.”
8. For the following reasons, in the court’s view, the SJ is right in accepting that these provisions are unconstitutional as they are discriminatory against male homosexuals.
9. The principles in relation to the constitutional protection against discrimination are about equality of treatment as set out by Li CJ in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, at paragraphs 19 - 22 as follows:
“19. In general, the law should usually accord identical treatment to comparable situations. As Lord Nicholls observed in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.566C:
Like cases should be treated alike, unlike cases should not be treated alike.
20. However, the guarantee of equality before the law does not invariably require exact equality. Differences in legal treatment may be justified for good reason. In order for differential treatment to be justified, it must be shown that:
(1) The difference in treatment must pursue a legitimate aim. For any aim to be legitimate, a genuine need for such difference must be established.
(2) The difference in treatment must be rationally connected to the legitimate aim.
(3) The difference in treatment must be no more than is necessary to accomplish the legitimate aim.
The above test will be referred to as ‘the justification test’. In the present case, the Court has had the benefit of submissions on its appropriate formulation. There is no material difference between the justification test and the test stated in R v Man Wai Keung (No 2) [1992] 2 HKCLR 207 at p.217 which was used by the Court in So Wai Lun v HKSAR (2006) 9 HKCFAR 530 at para.20.
21. The burden is on the Government to satisfy the court that the justification test is satisfied. Where one is concerned with differential treatment based on grounds such as race, sex or sexual orientation, the court will scrutinize with intensity whether the difference in treatment is justified. See Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.568G (Lord Nicholls).
22. In requiring differential treatment to be justified, the view has been expressed that the difference in treatment in question is an infringement of the constitutional right to equality but that the infringement may be constitutionally justified. See the Court of Appeal’s judgment in the present case at p.208B-C (Ma CJHC) and in Leung v Secretary for Justice [2006] 4 HKLRD 211 at p.234G-H. This approach is not appropriate. Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of infringement of the right which may be constitutionally justified.” (emphasis added)
10. Hence, the principle of equality is about like cases being treated alike, and unlike cases should be treated differently. The law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to warrant the differential treatment. If the two groups of person are not in comparable situations, no question of discrimination arises as the law does not require them to be treated identically. However, if they can be regarded as to be in comparable situations, there would be prima facie discrimination unless the differential treatment can be justified under the justification test.
11. Recently in Director of Immigration v QT (2018) 21 HKCFAR 150, the Court of Final Appeal affirmed (at paragraph 86) the addition to the justification test of “the fourth step involving consideration of whether a reasonable balance had been struck between the societal benefits of the encroachment on the one hand, and the inroads made into the constitutionally protected rights of the individual on the other, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual”.
12. In QT, the Court of Final Appeal also re-iterated the need for scrutiny and that “the correct approach is to examine every alleged case of discrimination to see if the difference in treatment can be justified” at paragraphs 81 - 83 (footnotes omitted):
“81. Where an issue of equality before the law arises, the question of whether a measure is discriminatory is necessarily bound up with whether the differential treatment which the measure entails can be justified. Thus, in Secretary for Justice v Yau Yuk Lung, Li CJ pointed out that a difference in treatment does not constitute discrimination where it satisfies the justification test. One does not decide independently whether there has been discrimination and then seek to determine whether it can be justified. His Lordship stated:
‘Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of infringement of the right which may be constitutionally justified.’
82. And in Fok Chun Wa v Hospital Authority, Ma CJ stated:
‘In the majority of cases where equality issues are involved, it will be necessary for the Court to look at the materials which go to the three facets of the justification test before this crucial question is answered. It will be a rare case, I daresay, where the court will comfortably be able to answer this question without any recourse to the issue of justification at all...’
83. Indeed, in our view, the correct approach is to examine every alleged case of discrimination to see if the difference in treatment can be justified. As Lord Nicholls observed, ‘the essential question for the court is whether the alleged discrimination, that is,...
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