Leung Tc William Roy v. Secretary for Justice
Read the full judgment text of HCAL 160/2004 on BabelCite. This High Court CFI judgment was delivered on 24 August 2005.
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.
Cited by 10 cases · Cites 2 cases
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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 --------------------- BETWEEN
---------------------- Before : Hon Hartmann J in Court Dates of Hearing : 21 and 22 July 2005 Date of Handing Down Judgment : 24 August 2005 ------------------------- J U D G M E N T ------------------------- 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 :
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 of that age or older to engage in acts of sexual intimacy with each other. 23.It is equally lawful for a lesbian couple who are both 16 or older to engage in the same acts of sexual intimacy. In this regard, the Ordinance is silent and through that silence permits the conduct. 24.Gay couples, however, are treated differently. In respect of gay men, the legislature has delayed the lawfulness of sexual intimacy until each man is 21 years old. S.118H of the Ordinance states :
25.In terms of s.118H therefore, if a gay couple, both of whom have reached the age of 16, engage in the same acts of sexual intimacy allowed to a heterosexual or lesbian couple, if one of the gay men is under the age of 21, both are criminally liable and may be sentenced to imprisonment. Section 118J(2)(a) 26.Provided it is done in private, heterosexual and lesbian couples who are 16 or older may engage in acts of sexual intimacy with each other even though one or more other persons take part in those acts or are present to witness those acts. Put plainly, the criminal law does not punish group sexual intimacy carried out in private and consensually if it is heterosexual or lesbian. 27.Gay men, however, whatever their age, are prohibited from such acts. Even though they may engage in them consensually and behind closed doors – in reality, in private – they are deemed to have engaged in those acts in public and, as such, are liable to imprisonment. In this regard, s.118J states :
Section 118C 28.Just as a heterosexual couple who are 16 years or older are permitted by the criminal law to engage in acts of sexual intimacy with each other so they are also permitted to have sexual intercourse with each other; that is, intercourse per vagina. 29.It is submitted, however, that gay couples are treated differently. The act of ‘sexual intercourse’ for a gay couple, so it said, is the act described in the Ordinance as the act of buggery. But the legislature has delayed the lawfulness of buggery between men until each man is 21. In this regard, s.118C of the Ordinance states :
30.The applicant recognises that, in terms of s.118D of the Ordinance, the legislature has also made it unlawful for a man to have sexual intercourse by way of buggery with a woman who is under the age of 21. Section 118D reads :
31.It is, however, the applicant’s case that the existence of s.118D does not redeem the constitutional invalidity of s.118C. Gay men, it is argued, are denied until the age of 21 a choice available at 16 to those who are not gay; namely the choice of profound sexual expression with a consenting partner. Anal intercourse – buggery – is a basic form of sexual expression for gay men. By reason of s.118C, gay men who are over 16 but not yet 21 are unable to participate in consensual sexual intercourse under pain of criminal liability. Heterosexuals of the same age are subject to no such liability. Section 118F(2)(a) 32.As the Ordinance is constituted, provided it is done in private and the woman is 21 or older, a heterosexual couple may have sexual intercourse by way of buggery with each other even though one or more other persons take part or are present to witness the act. 33.However, as with the prohibition imposed by s.118J(2)(a) on gay group sexual intimacy, gay couples, whatever their age, are prohibited from sexual intercourse by way of buggery with each other if one or more other persons take part or are present. S.118F states :
The basis of the applicant’s challenge 34.It is the applicant’s case that each of the four sections – 118H, 118J(2)(a), 118C and 118F(2)(a) – are, in the first place, inconsistent with the Basic Law, specifically arts.25 and 39. 35.Art.25 of the Basic Law states simply that :
36.Art.39 gives recognition to various international covenants and conventions as they are incorporated into Hong Kong’s domestic law. It reads :
37.The International Covenant on Civil and Political Rights (‘the ICCPR’) is incorporated into the domestic law of Hong Kong by means of the Hong Kong Bill of Rights Ordinance, Cap.383. In that statute, the ICCPR finds its expression in the Hong Kong Bill of Rights. 38.It is the applicant’s case that each of the four sections are inconsistent with the Bill of Rights, specifically arts.1, 14 and 22. 39.Art.1 of the Bill of Rights bears the heading ‘Entitlement to rights without distinction’ and reads :
40.Art.14 bears the heading ‘Protection of privacy, family, home, correspondence and reputation’. It reads :
41.Art.22 bears the heading ‘Equality before and equal protection of law’. It reads :
42.As I have said, the applicant makes his application on the basis that, as a homosexual, he is a member of a class of persons, a class defined by status, that status being a shared sexual orientation. It is on that basis, he says, that the four sections discriminate against him in that they deny equality before the law to persons of his sexual orientation; that is, in respect of s.118H and s.118C to gay men over 16 but not yet 21 years of age, and, in respect of s.118J(2)(a) and s.118F(2)(a), to gay men whatever their age. By discriminating in this manner, the applicant says that the four sections infringe his rights under art.25 of the Basic Law as well as arts.1 and 22 of the Bill of Rights. The applicant further contends that this denial of equality must be viewed in the context of it also constituting an arbitrary and unlawful interference in his private life and the private life of others who are a member of his class. In this regard, he says, the four sections infringe art.14 of the Bill of Rights. Can a class of persons be defined by sexual orientation? 43.At the outset, I record that Mr McCoy, for the respondent, accepted without demur that sexual orientation is capable of defining a class of persons. 44.That, in my judgment, must be correct. There can be no doubt that gay men have been historically disadvantaged by being perceived to belong to a group marked by stereotyped capacities. The Nazis, for example, had no difficulty in recognising homosexuals as a class, the status being bestowed in order to degrade them as a class. Much of our human rights jurisprudence today springs from the need to protect against such discrimination. 45.In Toonen v. Australia (Vol.112 International Law Reports, 328) the United Nations Human Rights Committee, in its Communication No.488 of 1992, held that the reference to the word ‘sex’ in arts.2(1) and 26 of the ICCPR encompassed sexual orientation. Those Articles are found in the Bill of Rights, being arts.1(1) and 22. 46.Persuasive jurisprudence is also to be found in a series of judgments of the European Court of Human Rights – for example, Salgueiro da Silva Mouta v. Portugal, no.33290196 – in which it was held that sexual orientation is a concept covered by art.14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The article, in so far as it is relevant, provides that :
The declarations sought 47.The applicant has sought only declaratory relief; namely —
Jurisdiction 48.In judicial review this court exercises what has been described as a ‘supervisory jurisdiction’. The question may be asked : what is supervised? I know of no concise, all-embracing answer. What can be said, however, is that traditionally judicial review has been employed to ensure that the rights of citizens are not abused by the unlawful exercise of executive power. That today, in all but the most exceptionable cases, remains the basis of the jurisdiction. Invariably, therefore, what is supervised are the decisions of public bodies. 49.In Council of Civil Service Unions v. Minister for the Civil Service[1985] 1 AC 374 (at 408E), Lord Diplock said :
In the later case of Mercury Energy Ltd v. Electricity Corporation of New Zealand Ltd[1994] 1 WLR 521(at 526A), Lord Templeman said :
50.In the present case, however, it is accepted that there has been no such decision-making, not at least in a manner that impacts on the applicant. Instead, the applicant seeks to go direct to the provisions of the Ordinance itself. 51.It is the respondent’s first submission that, in the absence of a decision by a public law body, this court has no jurisdiction. It certainly has no jurisdiction to go direct to and strike down primary legislation. 52.The Basic Law, it has been argued on behalf of the respondent, recognises the separation of powers; that is, the sovereignty of the legislature to make laws and the sovereignty of the judiciary to interpret and apply them. That is correct. The observations of Lord Diplock, made with reference to the separation of powers in the United Kingdom apply with equal force to Hong Kong :
53.But, as Lord Diplock noted, the British constitution is largely unwritten. The constitution of the Hong Kong Special Administrative Region is not. More than that, art.11(2) of our constitution states in clear terms :
54.It follows that under the Basic Law the judiciary’s role of interpreting the laws made by the legislature includes interpreting them to ensure they comply with the Basic Law. The Chief Justice, in Ng Ka Ling v. Director of Immigration [1999] 1 HKC 291, at 322, expressed it as follows :
55.But does this jurisdiction permit the courts, in appropriate circumstances, to go direct to those laws or must there always be a decision of some public authority pursuant to those laws which must first arise to give body and context to the examination? 56.It seems to me that the Basic Law, in terms of its inherent structure and purpose, must allow for a remedy in appropriate circumstances to those who say that their fundamental rights have been undermined by primary legislation, and not an indirect remedy but a direct one, one that permits the courts to go direct to the legislation. If it was otherwise there would be cases in which the Basic Law would hold out to Hong Kong residents the protection of fundamental rights while denying them the means of securing those rights. Art.35(1) is directly relevant. It provides that —
57.The applicant’s case is illustrative. He contends that, as a gay man, the provisions he has identified in the Ordinance have undermined a fundamental right given to him by the Basic Law. But how is he to enforce that right? If his cause of action must be founded on the exercise of executive power by a public authority, he must bring about a relevant exercise of power by such an authority. In the present case that authority would have to be the police and the only way he could get the police to act would be to commit a criminal offence or series of offences under Part XII of the Ordinance. In short, the applicant would have to break the law – risking imprisonment – in order to challenge it. 58.In Union de Reguenos Agricultures v. Council of the European Union [2003] QB 893, at 906, the Court of Justice of the European Communities dealt succinctly with the bleak conundrum that has faced the applicant :
59.That same principle, I believe, must apply under the Basic Law. A litigant, such as the applicant in this case, is not required to break the law in order to secure the route to an effective remedy. If, however, the Basic Law guarantees a remedy – without imposing any obligation to break the law in order to challenge it – where is that remedy to be found? Without the need to cast the net further out into jurisprudential waters, it is to be found in the procedure adopted by the applicant in this case; that is, by way of seeking declaratory adjudication. 60.S.21K of the High Court Ordinance, Cap.4, expressly provides that an application for declaratory relief can be made in judicial review proceedings, giving to this court the power to grant relief if it considers it ‘just and convenient’. S.21K(2), in so far as it is relevant, states :
61.The relevant ‘rules of court’ are those contained in O.53, r.1(2) of the Rules of the High Court, that rule bearing the same wording as the old English rule : R.S.C., O.53, r.1(2). 62.As the law has been clarified by a number of judgments of the English courts, a declaratory order may be made in judicial review proceedings in favour of an applicant who has locus standi whether or not a prerogative order – certiorari, mandamus or prohibition – could be made. The jurisdiction to grant declaratory relief is not founded solely upon a decision of a public authority and may, in appropriate cases, be employed for the purpose of obtaining an adjudication on the validity of legislation, in so far as that legislation affects an applicant. 63.Direct authority for this is R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] AC 1, a judgment of the House of Lords. The factual context may be stated as follows. The Equal Opportunities Commission (‘the EOC’) wrote to the Secretary of State asserting that certain employment legislation indirectly discriminated against women and was therefore in conflict with European Community law. The Secretary of State replied by letter saying that any differentiation in treatment was justifiable. The EOC then applied for judicial review, the ‘decision’ under challenge being the Secretary of State’s letter. It was held by their Lordships that the letter from the Secretary of State did not constitute a ‘decision’, merely a statement of a point of view. It was held, however, that the lack of a ‘decision’ did not deprive the courts of jurisdiction to grant declaratory relief under R.S.C., O.53, r.1(2) – from which we draw our own O.53, r.1(2) – that declaration being to the effect that the primary legislation was incompatible with Community law. The headnote reads :
64.A declaration does no more than declare the law and the rights of a party under the law. It may be described as a remedy of clarification. In his work, Administrative Law (9th Ed.), Sir William Wade described it in the following terms (page 569) :
65.One of the criticisms raised by the respondent is that the applicant has sought to challenge the provisions of the Ordinance on a prospective basis; on the basis, that is, that he wishes to conduct his private life in the future in a way that presently offends those provisions. But assuming that a challenge concerning the existence of fundamental human rights can be so described – and I have my doubts in that regard – I do not see that in the present case making a prospective challenge undermines this court’s jurisdiction or should of itself be a determining factor in whether the court should, as a matter of discretion, grant a declaration. In this regard, the editors of De Smith, Woolf and Jowell’s Judicial Review of Administrative Action (5th Ed.) at 18-002, say the following in respect of the use to which declaratory judgments are increasingly being put :
66.A case in point is R. (Rushbridger and Another) v. Attorney General [2003] 1 AC 357, at 366 and 367. The proposed conduct in that case was the publication of a series of articles urging the abolition of the monarchy, conduct which may have infringed the Treason Felony Act of 1848, a statute still in force although there had been no prosecution under it since 1883. A declaration was sought by the proposed publishers that the 1848 Act, read in the light of the 1998 Human Rights Act, did not apply to persons who advocated a republic unless the stated intent was to do so by means of force or other unlawful means. Lord Steyn based his findings on the principle enunciated by Lord Hobhouse in R. (Pretty) v. Director of Public Prosecutions [2002] 1 AC 800, a case in which the applicant had sought a declaration that it was lawful for Mrs Pretty to be assisted by her husband to commit suicide. As to jurisdiction, Lord Hobhouse had said, at 851 :
Commenting on that principle, Lord Steyn noted that counsel had not advocated its revision in any way and went on to say :
67.Jurisdiction was not therefore the issue in Rushbridger. The issue instead went to the criteria that should guide the exercise of the court’s discretion. In short, to use Lord Steyn’s expression, what would constitute a ‘truly exceptional’ case? 68.In the result, I conclude that this court does have jurisdiction to determine applications of the kind brought by this applicant. Whether the court should exercise its jurisdiction to grant a remedy is, of course, another matter. The exercise of discretion 69.The respondent has been concerned that if the court agrees to determine this application, it will open the floodgates to persons with no real standing to make direct attacks on primary and secondary legislation. I do not see a flood of litigation. Declaratory relief is discretionary and courts are quite capable of maintaining the integrity of their own processes. As Lord Steyn commented in R. v. Lambert [2001] 3 WLR 206 :
70.Our courts are not supine. In Administrative Law (9th Ed.), at 570, Sir William Wade wrote :
71.How then is the discretion whether or not to grant declaratory relief to be exercised? 72.In Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438, at 448, Lord Dunedin said (with reference to the ancient Scottish action of declarator) :
73.In In re F (Mental Patient : Sterilisation) [1990] 2 AC 1, at 82, a judgment of the House of Lords, Lord Goff held that these principles were also to be found in the English cases. He expressed them in the following manner :
74.In Canadian Council of Churches v. Canada [1992] 1 SCR 236, at 253, when looking to ‘public interest standing’ to make a challenge under the charter to constitutional protections, the court held that three aspects had to be considered :
75.Drawing from these authorities, it would seem to me that the following questions should be put. 76.First, is there a more appropriate procedure open to the applicant? For example, does there exist a decision made by a public authority which affects the applicant and which may be made the subject of the proceedings, giving to them a factual context? In the present case, clearly there is not. 77.Second, has the applicant raised a real question, one that is of genuine present concern and is not hypothetical or academic? The courts should be slow to hear disputes in respect of issues, even constitutional issues, when they are floating in the ether of theory. In R. v. Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 Lord Slynn said, at 457 :
78.In the present case, I am satisfied that the applicant has raised a real question. By reason only of their sexual non-conformity, he and many others like him find themselves marginalised as a group, their moral worth under question. As Sachs J expressed it in National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998) 6 BHRC 127, at 163, a judgment of the Constitutional Court of South Africa :
79.The third question is whether the applicant has sufficient interest in the matter or, as Lord Goff expressed it, ‘a real interest’ in raising the issue. 80.In my judgment, the applicant clearly has sufficient interest and, as such, has locus standi. He is an admitted homosexual. At the beginning of this judgment I have set out the deleterious manner in which the provisions in the Ordinance which he challenges have affected his life and continue to do so on a day-to-day basis. I have no reason to doubt that the applicant, and others like him, have been, and continue to be, burdened in the manner described. 81.The fourth question is whether the issue can be fully argued. Clearly, that is of paramount importance if a declaration of the true meaning of a law and the right of an individual under it is to be made. In the present case, all the issues have been canvassed in depth, the respondent being represented by senior counsel. In short, to use Lord Dunedin’s phrase, a proper contradictor has been secured. Delay 82.It is the applicant’s case that the provisions of Part XII of the Ordinance which he challenges as being unconstitutional first affected him when he turned 16. He did not, however, institute these proceedings for judicial review until he turned 20. 83.For the respondent, Mr McCoy has argued that this constitutes an entirely unreasonable delay, one which the applicant has not attempted to explain or excuse. If the delay is calculated from the date when the applicant turned 16 it was one of 4 years. It is unacceptable, Mr McCoy has said, to permit of an approach whereby provisions of the criminal law are subject to haphazard challenge by any member of the public, no matter how long after their enactment. 84.In judicial review delay is, of course, a relevant issue. It may even be determinative. S.21K(6) of the High Court Ordinance, Cap.4, reads :
Pursuant to s.54 of the High Court Ordinance, O.53, r.4(1) of the Rules of the High Court reads :
85.In his notice of application to apply for judicial review, however, the applicant did not raise the issue of delay. It was clearly his case that it was not relevant, not when he remains affected day-by-day by what he considers to be unconstitutional criminal restraints. In my view, there is cogency in that approach. The protection of fundamental rights under the Basic Law are on-going. 86.It is significant, said Mr Dykes, his leading counsel, that both s.21K(6) of the High Court Ordinance and O.53, r.4(1) of the Rules of the High Court pre-date the Basic Law. They were not drafted therefore with a view to issues of compatibility under the Basic Law. In looking to the question of alleged delay, he submitted that I must have regard to the obligation now imposed by the Basic Law to examine whether legislation is compatible with that law. As Mr Dykes put it, “it would be detrimental to the rule of law, let alone good administration, to let persons be arrested and prosecuted under unconstitutional laws”. 87.In the present case, of course, the respondent has accepted that certain of the provisions challenged by the applicant are indeed inconsistent with the Basic Law and/or the Bill of Rights. 88.What must be remembered is that, even if there is a lack of promptness, the court possesses a discretion to condone it. In exercising that discretion, one of the matters to be taken into account will be the general importance of the matter raised. If the matter, as in the present case, goes to the fundamental human rights of a class of persons, that, it seems to me, in the interests of public policy, must be material : see, for example, R. v. North West Leicestershire District Council, ex parte Moses [2000] ENV LR 443, at 452. 89.In the present case, therefore, even if there was a lack of promptness on the part of the applicant, I am satisfied that it should not stand as a bar to him. I do not see how in this instance delay could be said to cause substantial hardship to any person or prejudice his rights. Nor do I see it as being detrimental to good administration. Indeed, the opposite, I believe, is the case. Moving to the merits 90.For the reasons given, I am satisfied that this court has the jurisdiction to grant the applicant a remedy by way of declaration and that, in the exercise of its discretion, it should determine the application. I therefore move to the merits. The history of the legislation 91.The four sections of the Ordinance that are challenged were incorporated into the Ordinance in 1991, some fourteen years ago. 92.The primary purpose of the amendments was, according to the Government, to ‘decriminalise homosexual acts performed in private by consenting adult males’ – provided both men were 21 years of age. Previously all homosexual acts, whatever the age of the participants, were subject to criminal penalty. The Government proposed the amendments on the basis that men over 16 but under 21 still required the protection of the law. Three reasons were given :
93.In addition, although it was more indirectly stated, the executive was of the view that men under 21 – and women too – ‘may not be aware of the greater risk of AIDS from buggery than other forms of sexual intercourse’. 94.As to the age limit of 21 placed also on heterosexual buggery, the legislation was proposed on the basis that there was ‘an equivalence’ between homosexual buggery and heterosexual buggery and that public opinion in Hong Kong would want young women to be protected from buggery in the same manner as young men. 95.As to why, with homosexual buggery under the age of 21, both men would be criminally liable while, with the heterosexual act, only the man (and not the woman) would be liable, the legislation was passed on the basis that if only one male partner was made criminally liable – presumably a man over 21 having intercourse with a partner under 21 – it would create potential for blackmail, the one not liable to criminal sanction being able to extort money from the other. No mention was made of a woman who agreed to heterosexual buggery having the potential to blackmail her partner. 96.Leaving aside the risk of AIDS or other sexual diseases, it is apparent that the 1991 amendments challenged by the applicant were brought into law on the assumption that for a large number of young men homosexuality was a lifestyle choice, a chosen deviance – similar to drug addiction – which could be avoided if the necessary legal deterrents were in place. Buggery, even heterosexual buggery, was seen as a morally reprehensible deviance springing from homosexuality, sodomy being the deviance of sodomites; that is, gays. 97.Three years later, however, in 1994, the British Medical Association submitted a report to the effect that in the opinion of most researchers sexual orientation was usually established before the age of puberty in both boys and girls. In its judgment in Sutherland v. UK [1997] EHRLR 117, the European Commission of Human Rights made reference to that report, recording that the BMA now recommended that the age of consent for both homosexuals and heterosexuals should be 16. The European Commission cited from the report’s conclusion which were as follows :
98.The European Commission went on to record that :
The respondent’s concession 99.As to the constitutional validity of the sections challenged by the applicant, as I have earlier indicated, it was conceded by the respondent that certain of the sections were in fact unsustainable in law. The concession was made in respect of three of the four sections; namely, ss.118H, 118J(2)(a) and 118F(2)(a). In my judgment, the concession in respect of each section was correctly made. I consider that each of them discriminates against the applicant (and those of his class) and, in addition, arbitrarily interferes with his right (and those of his class) to self-autonomy in private. Each concession may be described as follows :
100.The one section that the respondent does not concede is unconstitutional is s.118C. It is this section that makes it unlawful for a gay couple to commit buggery with each other if either of them is under the age of 21. The respondent’s case 101.As I have understood the respondent’s case in respect of the constitutional validity of s.118C, it is based on two contentions. First, it is asserted that it is for the legislature to determine how best to protect young persons and the courts should defer to its sovereignty in this regard. Second, in respect of s.118C itself, it is asserted that the section, when read in conjunction with s.118D (which makes it an offence for a man to commit buggery with a woman who is under the age of 21) is neither discriminatory nor does it constitute an arbitrary interference in the private life of gay men. Giving deference to the legislature 102.Mr McCoy submitted that it is entirely legitimate for the legislature to legislate to protect those who, by reason of their youth, are seen to be vulnerable. It is equally legitimate for the legislature to seek to protect the vulnerable not only physically, psychologically and economically but morally too. The legislature, he said, is in a better position than the courts to judge prevailing ‘social norms and values’ in Hong Kong. In the democratic process, the legislature must be able to give expression to those norms and values by, for example, holding that homosexual activity involving adolescents should – if necessary on moral grounds alone – be prohibited. 103.As a general principle, no issue can be taken with this. It is not for the courts to embark on what Mr McCoy described as social engineering. In Modinos v. Cyprus (1993) 16 EHRR 485, at 491, the European Commission of Human Rights accepted that —
104.To illustrate his point, Mr McCoy said that, in determining the minimum age of 21 for both homosexual and heterosexual buggery, it was for the legislature, not the judiciary, to set the mark. The age may perhaps have been set at 18 or 16 but the legislature chose to set it at 21. As it was expressed by Judge LJ in R. v. Kirk and Another [2002] EWCA Crim.1580 (at page 5) :
105.Mr McCoy submitted that it was for the legislature, if it wished, to reflect the conservative attitude of the Hong Kong community in matters of sexual mores. In this regard, he cited the observations of McNally JA in his judgment in Banana v. State, a decision of the Supreme Court of Zimbabwe, (2000) 8 BHRC 345, at 388 :
106.During the course of the hearing, however, no evidence was put before me to demonstrate what today – if it can be ascertained – is the prevailing view of the Hong Kong community towards matters of homosexual activity carried out consensually and in private. In a cosmopolitan society like Hong Kong ‘social norms and values’ change, often rapidly. 107.Of greater significance, in my view, is to recognise that the legislation which is challenged was passed in 1991, several years before the Basic Law. The Hong Kong courts today have a constitutional obligation to consider whether legislation accords with the Basic Law and in that regard I consider it legitimate to look to the nature and purpose of the Basic Law itself rather than make a hazardous attempt to identify shifting social values. 108.As to the Basic Law, in its protection of a wide range of rights, I see it as contemplating an open and essentially democratic society, one based on equality of all persons before the law and on the dignity of the individual, by which I mean all persons – in their sameness and difference – being worthy of respect. 109.In Lau Cheong and Another v. HKSAR [2002] 2 HKLRD 612, at 641, the Court of Final Appeal spoke of the respective roles of the legislature and the judiciary under the Basic Law in the following manner :
110.In discharging this constitutional obligation, the court acknowledged that it may be appropriate to give ‘particular weight’ to the views and policies of the legislature. In this respect, the court looked to the speech of Lord Hope in R. v. DPP, ex parte Kebilene [2000] 2 AC 326, at 381, citing the following portion :
111.However, it is important in the context of the present case to emphasise that Lord Hope went on to say the following :
112.The degree of deference to be given to the legislature is dependent therefore on the subject matter under consideration. When matters of ‘high constitutional importance’ – such as constitutionally entrenched individual rights – are under consideration, the courts are obliged, in discharging their own sovereign jurisdiction, to give considerably less deference to the legislature than would otherwise be the case. 113.In R. (Alconbury Ltd) v. Environment Secretary [2001] 2 WLR 1389, at 1411, Lord Hoffmann spoke of the approach in a way, I think, which cannot be bettered :
114.It is manifest that the two constitutional rights upon which the applicant relies are recognised in this jurisdiction as fundamental human rights; as Lord Hoffmann put it, as rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian calculation. 115.Discrimination before the law is the opposite of equality before the law. When a group of people, such as gays, are marked with perversity by the law then their right to equality before the law is undermined. Sachs J expressed the concept as follows :
116.As for the right to privacy, this is not simply a right to be left alone. It is, to use the words again of Sachs J, the “right to get on with your life, express your personality and make fundamental decisions about your intimate, relationships without penalisation. He continued : “Privacy [must] be regarded as suggesting at least some responsibility on the state to promote conditions in which personal self-realisation can take place”. I would agree with that affirmative approach as being the manner in which the privacy provision in the Hong Kong Bill of Rights should be interpreted. 117.Of course, equality before the law – the constitutional protection against discrimination – does not imply that all persons must in all circumstances be treated identically. In this regard, the seminal statement was made by Bokhary J (as he then was) in R. v. Man Wai Keung (No.2) (1992) 2 HKPLR 164, at 179 :
118.However, in order to justify a departure from identical treatment, Bokhary J said that it must be shown :
119.Complementary to that, in respect of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights has established case law to the effect that —
120.As to the right to privacy (art.8 of the European Convention) it is well established in the case law of the European Court of Human Rights that sexual orientation is included in that right : “concerning as it does a most intimate aspect of the applicant’s private life (Dudgeon v. UK [1981] ECHR 7525/76, para.52). 121.In respect of both the European Convention’s equality and privacy provisions, it is equally established that any interference with a person’s sexual sphere and any difference in treatment based on sexual orientation requires ‘particularly weighty reasons’ : see, for example, Smith v. UK [1999] ECHR 33985/96, para.94. 122.In R. v. Sin Yau Ming [1992] 1 HKCLR 127, a case pre-dating the Basic Law and looking only to the Bill of Rights, the Court of Appeal said that, in respect of any interference with fundamental rights, ‘cogent and persuasive’ reasons would be required. 123.In summary, while deference must be given to the legislature, when fundamental human rights are in issue – as in the present case – that deference will be limited. Such rights are not easily to be set aside because the majority wishes it or because there may be relevant utilitarian considerations. Indeed, if any inconsistency is demonstrated, then cogent and persuasive reasons to justify that inconsistency must be given. The respondent’s submissions particular to s.118C 124.In respect of s.118C itself, Mr McCoy’s submissions, as I have understood them, were centred on the contention that the section, taken together with s.118D, reveals that the legislature, in passing those two sections into law, was concerned not with the sexual orientation of one or more groups of persons but instead with a single act of copulation : the act of buggery. S.118C prohibits buggery by or on a man who is under the age of 21. S.118D prohibits buggery on a woman who is under the age of 21. In both instances the maximum criminal penalty is the same : life imprisonment. 125.The legislative purpose in bringing the two sections into law, said Mr McCoy, was plain. It was to attempt to ensure the protection of adolescents, both male and female, from conduct of a specific nature, the carrying out of the act of buggery : penetration per anum. There is therefore no inequality before the law and, if there is an interference in the private lives of young people, it applies equally to young heterosexual as well as gay couples and is justified as a rational means of ensuring their protection. 126.As to the age of 21 set for both young men and young women, Mr McCoy reiterated that it was for the legislature to set the mark. In this regard, see R. v. Kirk and Another cited in para.104 above. 127.In my judgment, however, s.118C is discriminatory. First, it is directly discriminatory, albeit in a limited manner. Second, it is indirectly discriminatory in a more general and profound manner. a. Direct discrimination 128.In terms of s.118C, when homosexual buggery takes place, both men are made criminally liable. In terms of s.118D, when heterosexual buggery takes place, only the man is made criminally liable, not the woman, even though she has been a willing partner. That is a direct inequality of treatment. 129.In proposing s.118D, the executive, recognising that the woman would not be made liable, only the man, said simply : “It is not proposed that the girl should be criminally liable – this is consistent with the existing provisions designed to protect women or girls where the female party to the sexual act is not made criminally liable.” 130.This approach, it may be said – in respect of this particular provision – demonstrates a reliance on the stereotyped view that the female is per se submissive, the man always sexually the active partner; the proposer, the one upon whom responsibility lies for any perceived deviance. 131.The more substantive reason put forward by the Government was that in homosexual buggery, unless both partners were made criminally liable, there was a potential for blackmail. 132.In respect of this rationalisation, I can do no better than cite from a report dated August 2001 prepared by the Equal Opportunities Commission for a Legislative Council Panel. The report (in part) reads :
b. Indirect discrimination 133.In this respect, it is important, in my opinion, to have regard not to each of the sections challenged by the applicant in isolation but instead to view them together as a legislative scheme. 134.It is important also to recognise, as Mr Dykes, for the applicant, has advocated, that for gay couples the only form of sexual intercourse available to them is anal intercourse; that is, the act of buggery. And buggery, as I have determined, is properly to be viewed in law as a form of sexual intercourse. 135.The position therefore is as follows :
136.Seen in that context, in my judgment, the legislative restrictions on the act of buggery cannot be gender neutral. My conclusion, however, is not in any way original. It has been reached by other courts when considering legislation to the same effect as ss.118C and 118D of the Hong Kong Ordinance. 137.The authority of the most direct relevance is to be found in the 1995 judgment of Abella JA in a decision of the Ontario Court of Appeal : R. v. C.M 98CCC (3d) 481. The judge summed up the issue requiring determination as follows :
138.The legislation which made ‘anal intercourse’ a criminal offence in Ontario for all persons, other than married couples, under the age of 18 was s.159 of the Criminal Code. The constitutional provision against which it was tested by Abella JA was s.15 of the Canadian Charter of Rights and Freedoms. S.15(1) of the Charter states that :
139.In finding that s.159 of the Criminal Code discriminated against gay men – even though the section prohibited both heterosexual as well as homosexual buggery under the age of 18 – Abella JA said the following :
140.To the same effect as Abella JA, O’Connor J made the following observation, albeit obiter, in giving a majority opinion in Lawrence v. Texas (2003) 15 BHRC 111, at 126, a decision of the Supreme Court of the United States :
141.Denying persons of a minority class the right to sexual expression in the only way available to them, even if that way is denied to all, remains discriminatory when persons of a majority class are permitted the right to sexual expression in a way natural to them. During the course of submissions, it was described as ‘disguised discrimination’. It is, I think, an apt description. It is disguised discrimination founded on a single base : sexual orientation. 142.On the wider basis of legislative discrimination based on sexual orientation, common law authorities, including the United States and South Africa, as well as European Community authorities, indicate that over the past 15 years, with increasing recognition that sexual orientation is determined not chosen, there has been a move to rule discrimination invalid. In this respect, a watershed case in the European Community was that of Sutherland v. UK (cited in para.97 above). 143.In Sutherland, the European Commission of Human Rights had before it legislation which set different ages of consent for young heterosexuals and homosexuals : 16 for the first, 18 for the latter. The European Commission held that the different minimum ages was a difference based on sexual orientation. 144.The arguments mounted by the United Kingdom to justify the difference was summed up by the Commission in the following terms :
145.In coming to its judgment, the Commission had before it considerable medical and scientific evidence (to which I have made reference in para.97 above) which indicated that lowering the age of consent for homosexuals to 16 might in fact have positive beneficial results. In its judgment, the Commission said :
146.In the result, the Commission found that there was no objective and reasonable justification for the maintenance of a higher age of consent for gay men in respect of both sexual intimacy and sexual intercourse. Are s.118C and the other three sections nevertheless constitutionally valid? 147.In my judgment, s.118C, together with the three other sections challenged, discriminate on the basis of sexual orientation. The four sections are demeaning of gay men who are, through the legislation, stereotyped as deviant. The sections also constitute, in my view, a grave and arbitrary interference with the right of gay men to self-autonomy in the most intimate aspects of their private lives. What is to be remembered is that the four sections all go to consensual activities in private. The sections are not designed to punish sexual exploitation nor are they designed to protect against health risks. The primary purpose of the four sections is to discourage vulnerable young men from what is perceived to be a chosen lifestyle of which the majority of the community disapprove. This discouragement is achieved by the threat of severe sentences of imprisonment – indeed life imprisonment for a breach of s.118C – for conduct which, as I have said, is entirely consensual and if carried out in the same circumstances by a heterosexual or lesbian couple would be entirely lawful. 148.I fail to see how imprisoning young men because of their sexual orientation, when there has been no abuse or exploitation of a third party, can today be said to represent a proportionate response to any perceived need to protect those young men against moral degradation. 149.The question may also be asked : if young men who are unsure of their sexuality are to be deterred in this way, why not young women too? Where is the justification for holding that ‘recruitment’ into homosexuality deserves imprisonment but ‘recruitment’ into lesbianism does not? 150.In so far as the risk of AIDS or similar diseases may rationally require some difference of treatment between anal intercourse and intercourse per vagina, I fail to see how it can be said that the four sections which are challenged provide a rational response or a proportionate one. In respect of the issue of health, I can do no better than cite from the judgment of Abella JA in R. v. CM (para.137 supra) :
151.In summary, applying the approach enunciated by Bokhary J and set out in para.118 above, I am satisfied that each of the sections challenged are inconsistent with the Basic Law and/or the Bill of Rights, and that declarations should be made to that effect. Conclusion 152.For the reasons given in this judgment, I have therefore made the following determinations :
Mr Philip Dykes, SC leading Mr Hectar Pun, instructed by Messrs Vidler & Co., for the Applicant Mr Gerard McCoy, SC leading Mr Stephen Wong, DSG and Mr Alexander Stock, instructed by Department of Justice, for the Respondent Application by Equal Opportunities Commission to Court of Appeal for leave to provide the Court with services of counsel as amicus curiae granted. Please refer to the appeal judgment of CACV317/2005 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAL 160/2004