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2005
Biased law on gay sex overturned by judge source: South China Morning Post, 25 August 2005
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25 August 2005South China Morning Post Biased law on gay sex overturned by
judge The law under which defendants could be sentenced to up to life imprisonment for sexual acts between men was overturned yesterday in a court ruling which stated that it violated the Basic Law and Hong Kong's Bill of Rights. In a judgment in the Court of First Instance, Mr Justice Michael Hartmann found that some sections of the Crimes Ordinance unfairly discriminated against homosexual men by outlawing all forms of sexual expression between males under 21, and certain other acts by men of any age, even in private. "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," he said. The decision was welcomed by community, gay and human rights groups, although critics said it could encourage more people to engage in dangerous sexual acts. Mr Justice Hartmann had been hearing a judicial review initiated by William Leung, a 20-year-old homosexual who said the law discriminated against gay men because it prohibited homosexual sex until a man was 21, as opposed to 16 for heterosexuals and lesbians. Section 118(c) of the Crimes Ordinance recommended a life sentence for buggery by or on men under the age of 21. Section 118(h) of the ordinance prescribed a two-year sentence for acts of gross indecency between men where at least one of them was under 21. Also challenged were sections 118F and 118J of the Crimes Ordinance, which criminalised homosexual acts between more than two consensual males in private. The government argued the court could not hear the case because there had been no decision taken against Mr Leung. But if the court did have jurisdiction - which Mr Justice Hartmann found it did - the government was prepared to acknowledge that all of the provisions, barring the prohibition of buggery with or between men under 21, violated the Basic Law and were unsustainable. Article 25 of the Basic Law guarantees equality before the law for everyone in Hong Kong. Finding that the court could review the law, the judge said if Mr Leung had to wait for a decision against him before bringing the action, it would mean committing a criminal offence. Courts should not act as a de facto legislature, but in matters of high constitutional importance, such as legally entrenched human rights, they needed to give less deference to the legislature than might otherwise be the case, the judge said. Mr Justice Hartmann also found that sexual orientation was a basis for protection from discrimination. "For gay couples, the only form of sexual intercourse available to them is anal intercourse, that is, the act of buggery," which was outlawed. "It is disguised discrimination founded on a single basis: sexual orientation. "The four sections are demeaning of gay men who are, through the legislation, stereotyped as deviant. The sections also constitute ... a grave and arbitrary interference with the right of gay men to self autonomy in the most intimate aspects of their private lives." The government said last night it was studying the ruling and would continue to consult the community on issues related to homosexuality. Director of Hong Kong Human Rights Monitor Law Yuk-kai said "We could not agree more with the court's view that all persons - in their sameness and difference - are worthy of respect." Outside court, Mr Leung said "Now homosexuals in Hong Kong can enjoy equal rights. The system is working." The general secretary for the Society for Truth and Light, Choi Chi-sum, said the ruling would encourage more people to engage in dangerous sex acts. Rose Wu Lo-sai, director of the Christian Institute, welcomed the ruling. She urged Christians to keep an open mind on the issue, saying the verdict would further equalise status between men and women. * * * * * 25 August 2005 A blow struck for the rights of the individual The declaration by High Court judge Michael Hartmann that certain provisions of the Crimes Ordinance are unconstitutional is a landmark for the rights of the individual guaranteed by the Basic Law of Hong Kong and the Bill of Rights. It also affirms unambiguously the duty of the courts to strike down laws that are not consistent with guaranteed rights. The government failed in an argument that the legislature had a right, in the democratic process, to make laws that overrode the constitutional rights of the individual in certain circumstances. These included protecting people vulnerable because of their youth, for example by prohibiting adolescent homosexual activity on moral grounds alone. An application was brought before the court by a 20-year-old gay man, William Leung, for a judicial review of laws that he claimed discriminated against gay men. It was not because he had been prosecuted for any criminal offence. He argued that provisions that permit heterosexual and lesbian couples to engage in sex once they have turned 16 discriminate against gay couples by prohibiting the same acts by consent until they are 21. His lawyers sought a declaration that sections of the ordinance were inconsistent with constitutional guarantees of equality before the law and the right to privacy. The application was opposed by the government, which left itself with a difficult case to argue after conceding that three of four provisions cited by Mr Leung were indeed unconstitutional. This concession was noted as significant by Mr Justice Hartmann, who said each of the three discriminated against homosexuals and arbitrarily interfered with their right to self-autonomy in private. But the government did not concede that a fourth provision making it unlawful for a gay couple to have intercourse with each other if either was under 21 was unconstitutional, or that it infringed their right to privacy. (The offence carried a sentence of up to life imprisonment). It argued that it was for the legislature to determine how best to protect young people and that the courts should defer to it. Its counsel argued that the legislature was in a better position than the courts to judge the prevailing "social norms and values". Mr Justice Hartmann said that in matters of "high constitutional importance" the courts were obliged to give "considerably less deference to the legislature than would otherwise be the case". The two constitutional rights upon which Mr Leung relied - equality before the law and his right to privacy - were recognised in the Hong Kong jurisdiction as fundamental human rights. Drawing on a recent British legal precedent, he described them as "rights which belong to individuals simply by virtue of their humanity, independently of any utilitarian calculation". The judgment does not amount to a rebuff of the post-handover government or Legislative Council. The provisions were passed years before the handover, in 1991, and have almost certainly become an outdated reflection of community values. As Mr Justice Hartmann said, no evidence was put before him to demonstrate what today -- if it could be ascertained -- was the prevailing view of the community towards private, consensual homosexual activity. In a cosmopolitan society "social norms and values" changed rapidly. The real significance of the judgment is that it upholds the core value of the Basic Law and the Bill of Rights -- the constitutional guarantees of individual rights and freedoms. Constitutions are not set in stone. But the guarantees of our rights are. There is nothing wrong in principle with occasional suggestions of changes to the Basic Law to meet changing circumstances, when absolutely necessary and with the support of the people. But provisions concerning our city's high degree of autonomy and way of life - including our rights and freedoms - are the core of a solemn promise to the people of Hong Kong - and off-limits. * * * * * 25 August 2005 Young activist hails his rights
victory for gays William Leung, left, and his lawyer Michael Vidler declare their victory in the gay rights case yesterday. Picture by Dustin Shum After eight months of uncertainty, William Leung could only express relief yesterday as the law that prevented gay male couples from making love were declared unconstitutional. "I'm very pleased ... very happy," the 20-year-old said of the judgment by Mr Justice Michael Hartmann that struck down a 14-year-old law that prescribed life imprisonment for consensual anal sex between men where at least one of them is below 21. "I have one less threat hanging over my head." Mr Leung, who turns 21 in October, launched a judicial review of the law in December, claiming certain provisions of the Hong Kong Crimes Ordinance prevented him giving physical expression to his sexuality, even in private. Those provisions were yesterday declared unconstitutional because they violated the Basic Law by singling out sexual acts performed between men while allowing the same acts between heterosexuals and between lesbians. Mr Leung admitted he had never contemplated the case failing. "We were very confident in this case. We were not asking for anything new. This was all in the Basic Law and the Bill of Rights." All he had done was ask the court to confirm that gay men enjoyed the same rights to sexual expression in private as every other member of society. "Now I can have a loving relationship without being scared of going to jail," he said. "If you constantly have to think about behaving differently ... it prevents you from having the relationship that you want." While he was always confident of winning, he expressed some curiosity at how hard the government had fought to try to stop the review proceeding. "I was surprised they were trying to fight it. We weren't trying to change anybody else's behaviour, we just wanted to have equal rights," he said. That said, he acknowledged that once most of their arguments against the process had been dealt with, the government had conceded most of the provisions he had been fighting were unsustainable. "It is a step towards bringing Hong
Kong into line with the rest of Asia and the rest of the world," Mr
Leung said, "and it is a small step towards improving human rights in
Hong Kong."
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