The High Court has handed the government its second defeat in its attempt to uphold a law that says men younger than 21 who engage in sodomy may be imprisoned for life.

Three Court of Appeal judges Wednesday upheld the original ruling by Justice Michael Hartmann in August last year that arose from a judicial review filed by William Roy Leung, 21, over what he considered to be unfair laws against homosexual men.

Hartmann had ruled that the law was discriminatory and unconstitutional because it mandated a higher age of consent for gays than for heterosexuals and lesbians, for whom the age of consent is 16.

In dismissing the government's appeal against Hartmann's ruling, Chief Judge Geoffrey Ma Tao-li said: "I cannot see any justification for either the age limit of 21, or, in particular, for the different treatment of male homosexuals compared with heterosexuals."

While the government had argued that Leung's case was flawed because it was not challenged under the Crimes Ordinance, that it was a "hypothetical" issue that did not relate to any previous legal decision and because Leung "came off the street" to seek the review, Ma said: "It's important to bear in mind that where the constitutionality of a statute is being questioned on the basis that fundamental human rights have been breached, the public interest is very much engaged.

"Put bluntly, if a law is unconstitutional, the sooner this is discovered the better."

Leung, a human resources coordinator for Medicins Sans Frontieres, was on holiday in Japan Wednesday, but his lawyer, Michael Vidler, read a statement on his behalf calling the decision "a victory not only for me and the gay community in Hong Kong [but] a victory for all of us in Hong Kong, gay and straight alike who all have fundamental human rights that the courts here have shown us they're prepared to uphold."

While the ruling does not erase the law -- the legislature would need to remove it from the statutes first -- it does make it technically unenforceable, Vidler said.

It also had an immediate effect on another, less well-known case involving homosexuals.

Along with Leung's case, the Court of Appeal also ruled Wednesday that two men, Yau Yuk-lung Zigo and Lee Kam-chuen, who were charged with engaging in sodomy in a car ("otherwise than in private") could not be prosecuted because the law under which they were charged was discriminatory as it did not apply to heterosexuals and lesbians.

Law Yuk-kai, director of the Hong Kong Human Rights Monitor, said Leung's victory was "timely" and "a good decision" by the court.

"The court has demonstrated that the protection of human rights is possible in Hong Kong," Law said.

"I hope the government stops at this point. But if the government appeals against this in the Court of Final Appeal ... I think they'll suffer another humiliation."

Choi Chi-sum, general secretary of the Hong Kong Alliance for Family, a conservative Christian and family values group, said his organization "feels sorry about the judgment and hopes the Hong Kong government will appeal against it."

He felt it was a matter for the public, and ultimately the Legislative Council, to decide, not "judges and lawyers."

The Society for Truth and Light, another conservative Christian group, said the verdict was "regrettable" and set a "dangerous precedent."

Choi Chi-sum, the group's general secretary, said sodomy should not be classified as sexual intercourse as it involved high health risks.

"The focus of this case was wrong. It should not be on whether this is discriminatory, the focus should be on whether there were moral and hygienic problems in buggery and whether it should be encouraged.

"This shouldn't be for the court judges to decide, they are not doctors," he said, urging the government to take the case to the Court of Final Appeal and consult the public on the issue. A spokeswoman for the Security Bureau said the Department of Justice was studying the judgment and declined to say whether the government would take the case to the territory's highest court or not.

* * * * *

20 Sept 2006
AFP

Hong Kong's government lost an appeal against a landmark ruling which struck down a law saying gay men under the age of 21 should be jailed for life for acts of sodomy.

The three judges at the Court of Appeal unanimously upheld a ruling issued last year that a higher age of consent for homosexuals than for heterosexuals and lesbians was discriminatory and unconstitutional.

Heterosexuals and lesbians face a maximum of five years in jail if they have sex before the age of 16, but homosexuals who have sex before they are 21 risk life in prison.

"I fail to see on any basis the justification of this age limit," Chief High Court Judge Geoffrey Ma wrote in his judgement.

"No evidence has been placed before us to explain why the minimum age requirement for buggery is 21 whereas as far as sexual intercourse between a man and a woman is concerned, the age of consent is only 16," he said.

Ma said the current law "does not justify in any way" life imprisonment and added that there was sufficient cause for a judicial review of the law.

The case was originally brought by 21-year-old homosexual William Roy Leung. On holiday in Japan, he hailed the decision in a city that only decriminalized homosexuality in 1991.

"This is a victory not only for me and the gay community in Hong Kong, it is a victory for all of us in Hong Kong, gay and straight alike who all have fundamental human rights that the courts here have shown us they are prepared to uphold," he said in a statement read out by his lawyer Michael Vidler.

Taiwan, South Korea, Thailand, Vietnam, Cambodia and the Philippines all have equal ages of consent.

He said the judgement means the law, as it applied to gay sex, was unenforceable and the next step would be for the administration to introduce legislation to remove the provision from the statute book.

The Security Bureau said it was studying the court's judgement in detail and would not say whether it planned to appeal the ruling.

Law Yuk-kai, director of Hong Kong Human Rights Monitor, welcomed the judgement.

He said "Such discrimination is unjustifiable. It's very clear that, in accordance with international jurisdiction, it is an intrusion of privacy and discriminatory.

"The current law is disrespectful to people's privacy and should be removed."

The Society for Truth and Light, a conservative Christian pressure group, said the verdict was "regrettable" and set a "dangerous precedent".

Choi Chi-sum, the group's general secretary, said sodomy should not be classified as sexual intercourse as it involved high health risks.

"The focus of this case was wrong. It should not be on whether this is discriminatory, the focus should be on whether there were moral and hygienic problems in buggery and whether it should be encouraged."

"This shouldn't be for the court judges to decide, they are not doctors," he said, urging the government to take the case to the Court of Final Appeal and call for public consultation on the issue.

The government had argued that there was no inequality on the restriction on buggery as it was different to sexual intercourse between a man and a woman.

The arguments were dismissed by Ma, who said courts around the world have consistently treated sodomy as a form of sexual intercourse.