Decriminalisation of homosexuality in Hong Kong

source: A paper by Christine Wong and Vincent Chan, University of Hong Kong

Historical Perspective: Decriminalization of Homosexuality in Hong Kong

The legal institutions are one of the important mechanisms of social control in our society. In the first place, legal institutions are responsible for the making and preservation of the rules and norms which define our behavior to an acceptable level in society. They announce which acts can be officially punished and how and which we cannot be punished. Secondly, the legal system carries out many social controlling activities; for instance, the police arrests burglars. Finally, laws, in particular the criminal laws, not only protect private and public interests but also preserve social order in our society. 

In the case of homosexuality, it is found that the offense against Person Ordinance (1981), in force since 1901, prescribed penalties of up to life imprisonment for anal intercourse between men, with a woman or with an animal, and up to two years’ imprisonment for any act of “gross indecency” by a man with another man, irrespective of whether it is performed with or without consent in private or in public. Furthermore, in 1978, the Royal Hong Kong Police Force established a special unit to investigate offenses of a male homosexual nature by adopting a low-key approach to carry out its duty. In this period, homosexuality was regarded as a criminal offense and that harsh punishment were set to deter such an activity. However, homosexuality was decriminalized. It has no longer been regarded as a criminal offence since 1991. 

In this part, a historical development of decriminalization of homosexuality in Hong Kong will be given first, and followed will be some reasons for the decriminalization.

 
Historical Development of Decriminalization of Homosexuality in Hong Kong

From a historical perspective, the issue of homosexuality began to gain attention in Hong Kong in 1980 when an inspector of the Royal Hong Kong Police Force was found to be a homosexual and committed suicide. After this incident, the Hong Kong government appointed the Law Reform Commission to investigate the law governing homosexuality to see if any necessary changes were needed in the present laws of Hong Kong. Since homosexuality was morally a very sensitive issue, the public also showed a considerable concern about it at the same time. Immediately after the incident, the society had held many discussion, open forums and debates among various fields such as teachers, social workers and lawyers to express their attitudes and opinions for the concerned issue. 

On 14 June 1980, the Attorney General and the Chief Justice further asked the Law Reform Commission to consider the idea of “Should the present laws governing homosexual conduct in Hong Kong be changed; and if so, in what ways”. Following this idea, a Report on the Laws Governing Homosexual Conduct was published by the Law Reform Commission in April 1983. Some recommendations for reforms of the present laws were also suggested in the report. These recommendations not only raised the important legal and moral issues in our society but also successfully persuaded the government to step further to publish a consultation paper to allow members of the public the opportunity to express their views in June 1988. In the consultation paper, three important clear options were presented, which were: 
1. to keep the present laws unchanged;
2. to decriminalize homosexual acts ( i.e. to remove of the criminal penalties of homosexual acts ) in private between consenting adults; and 
3. to reduce of the penalties for homosexual acts in private between consenting adults.

The public, at the same time, were invited to submit their views and opinions on the consultation paper to the City and New Territories Administration from June to September 1988. And all submissions of views and opinions would be treated in confidence. At the end, the government received around 3000 responses to its paper. Both supporting and opposing voices from various parties were collected. However, despite the wide consultation, there still emerged no official result of consultation published and made available to the general public. 

In June 1990, the Hong Kong government thought the issue dragged on for too long time and then brought it back on the table for discussion again. With the introduction of Bill of Rights for Hong Kong in 1990, the decriminalization of private homosexual behavior between consenting adults was brought to the Executive Committee. As a result, a motion to debate decriminalization was held in July in the same year. Finally, the Legislative Council voted in favor of decriminalizing homosexual acts between adults in private. From then on, sexual relations which occur between consenting adults in private places are simply no any business to laws. From 21 July 1991 onwards, it was seen that the Crime Ordinance (Cap 200) has no longer charged against homosexual acts between two consenting adults in private as a criminal offense. The rights of minorities ( i.e. the homosexuals) ought not to be decided by the majorities ( i.e. the heterosexuals). The decriminalization act of homosexuality recognized that “what consenting adults do in private is their own business provided that it does not affect anyone else”. 

 
Factors leading to the decriminalization of homosexuality in Hong Kong

As mentioned before, the issue of decriminalization of homosexuality in Hong Kong had been discussed for almost 10 years before it came into being in 1991. And despite the government attempt to make a wide consult with the public and to conduct commission to be responsible for the issue, there was still no any official reasoning given to the general public consequently for decriminalization issue. However, by researching some government publications concerning homosexuality and laws, the reasoning for the decriminalization of homosexuality can still be revealed. It was analyzed that two main streams of factors, namely the immediate factor and underlying factors, likely led to the law of the Decriminalization of Homosexuality in Hong Kong.

Immediate Factor 

The suicide of a homosexual police inspector 
Homosexuality is a very sensitive and a taboo subject in Hong Kong, not only on the legal ground, but also on the moral, social and personal levels. It was only brought into discussion when an inspector of the Royal Hong Kong Police Force, John Macleman, was found to be a homosexual and committed suicide. As members in police force were socially perceived as role model citizens by the general public, the sudden suicide of John Macleman for his own homosexual sex-orientation did discredit the image of the Hong Kong government. Not only that, his death also created a great shock to the general public. Fearing that similar case would happen again, and the image of the Hong Kong would be damaged. Immediately after this incident, the Hong Kong government appointed the Law Reform Commission to investigate the law governing homosexuality to see if any necessary changes were needed in the present laws of Hong Kong. 

Underlying Factors

a. Unclear nature of homosexuality and homosexual behavior
Homosexuality is very difficult to define. Charging homosexuality against criminal law should be very inhumane and unfair to the homosexual people themselves. For example, it was published in the Report on the Laws Governing Homosexual Conduct Law that homosexuality should be defined in a broad sense as a sexual preference for people of ones’ own sex. An important distinction should be considered between homosexuality and homosexual behaviors. For homosexuality, it was suggested that it should be considered as a biological or psychological state and as such should not come within the scope of criminal law. Therefore, to have a sexual preference for men should not be treated as a crime. Moreover, there should have probably been homosexuals in all civilizations in all ages; and attitudes towards homosexuals conducts should have ranged from tolerance to persecution. Thus, it was very difficult to find out “who are homosexuals who are not”. Besides, the report also highlighted the unknown and uncertain causes of homosexuality. Apart from genetic or biological factors, social environment might also play a part in the development of homosexuality tendencies. Therefore, it was not possible to disentangle genetic and environmental factors but it seemed likely that environmental factors could, perhaps temporarily, encourage latent homosexual tendencies. Furthermore, homosexuality was not generally regarded by the medical professions as an illness or a disease. There should be no “cure” for it and most homosexuals did not really seek for a “cure” as well; because they did not consider their sexual preference to be deviant or prevented even thought at times it could give rise to feelings of guilt and shame. Under this situation – that homosexuality had a very board definition, can involve unknown proportion of population, and has unknown cause and no means to cure so far, it should be totally difficult and unsuitable as well as unfair to criminalize homosexuality.

b. International trend in dealing with homosexual laws
The Report on the Laws Governing Homosexual Conduct pointed out that Hong Kong’s present laws reflected British social and legal tradition before 1967; yet the year homosexual acts in private between consenting men had ceased to be criminal in England and Wales. The law in Scotland and Northern Ireland was similarly changed in 1980 and 1982 respectively. In addition, the report pointed out in most western European countries the laws did not proscribe homosexual behaviors. Homosexual marriage was even made legal in Canada, Denmark, Belgium and the Netherlands. However, in the East, homosexual acts were considered as criminal offense, particularly in India, Malaysia and Singapore. Nevertheless, such acts were not criminal in Japan, the Philippines, South Korea and New Zealand and most states of Australia. In the People’s Republic of China, homosexual acts were even not included in the criminal code. Under this situation, it was certain that the law in Hong Kong governing homosexuality was not up to international standard, and international pressure was received by the Hong Kong government to change its present laws concerning homosexual acts.

c. Increasing influence of humanitarianism
The humanitarianism was first introduced by the United Nations in 1956, which emphasized on basic human rights as the rights to live, to make one’s own decision, and to practice what is wanted, etc. It reached Hong Kong in 1970s. With the increasing number of people receiving education, the idea of basic human rights was allowed to penetrate into our society successfully. More and more people in Hong Kong realized their own rights. This finally attributed to the introduction of the Bill of Rights for Hong Kong in 1990 in which various human rights based on the idea of humanitarianism were introduced. For example, it stated that everyone in Hong Kong should be borne by equal and should be entitled to enjoy all resources in society. As the homosexuals should be treated equally with the majority heterosexuals as humans borne by equal, it was thus necessary to make adjustment to the present law which still prescribed the homosexuals unequally with the others as criminals.

d. Increasing activities for gay rights
According to our interviewee Dr.Petula Ho, she gives information that various gay organizations began actively to launch activities for gay rights since 1980s. Closely the same as her information suggested, it is found some gay organizations like 10% Club, Rainbow Club, and Tongzhi Club started their first socio-political activities to press the government to improve gay rights in Hong Kong in after 1988. According to Tongzhi Discussion, gay right movement were in fact after the government’s public consultation of decriminalization of homosexuality in 1988; and their activities became intensified during the year of 1989-1990. This data probably gave a hint that the decriminalization of homosexuality in 1991 could be a result of the increasing gay rights movement in Hong Kong. Because of the increasing pressure from the local homosexual people, necessary change in the present law government homosexual conducts was needed to pacify social discontentment.

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