Calling the law against homosexual anal sex in a public place "unconstitutional," Hong Kong's top court has unanimously rejected an appeal by the secretary of justice in a case in which two men were charged but acquitted.

Delivering his judgment in the Court of Final Appeal yesterday, Chief Justice Andrew Li Kwok-nang described the law under which the two men were charged as "discriminatory" as it targets only homosexuals and does not censure heterosexuals for the same conduct.

In common law, buggery is not an offense, but under Section 118F (1) of the Crimes Ordinance, homosexual buggery is considered a criminal act if it takes place in public.

"Homosexuality constitutes a minority in the community. The provision has the effect of targeting them and is constitutionally invalid," Li ruled. "Section 118F (1) is discriminatory and infringes upon the right to equality."

Zigo Yau Yuk-lung, 19, and Lee Kam-chuen, 30, were charged with engaging in sodomy in a car parked in Ting Kau in April 2004.

Last year, a magistrate dismissed the case on the grounds that the law under which they were charged was discriminatory as it did not equally apply to heterosexuals. The Court of Appeal upheld the decision, prompting the government to appeal the case further to the highest court.

Roddy Shaw, a friend of the two defendants and chairperson of Civil Rights for Sexual Diversities, welcomed Li's ruling, saying the top court has spoken volumes on the unconstitutionality of laws against gays.

Shaw expects the Law Reform Commission, which was set up last year, to come up with a neutral gender and sexual orientation law instead of singling out a particular group.

Director of Hong Kong Human Rights Monitor, Law Yuk-kai, called the judgment a "key blow" to the existing law and an "important milestone" for gay rights. He said the judgment fundamentally questioned the law for being discriminatory against homosexuals, and the appellant could not prove the reason for singling out gays in the ordinance, while the Basic Law guaranteed that everyone shall be equal before the law.

"In future, even though the law remains, the police would find it difficult to apply with the latest ruling," Law said, urging the government to review the related ordinance and clear up any law that discriminates against homosexuals.

However, Law doubted the new government would have the courage or commitment to push the boundary further by amending the law. He said this is a "hot potato" the government would be reluctant to handle for fear of provoking an outcry from religious groups and moralists.

"This could be very dangerous for our civil rights. I doubt the government would take any action at all. But leaving the law the way it is, the government is losing face and [the law] is disrespectful of the gay community," Law said.

Society for Truth and Light - a conservative Christian group - called the verdict "regrettable" and "disappointing," saying it has set a "dangerous precedent."

Choi Chi-sum, general secretary of the group, said using a technicality to strike down the appeal is worrisome.

"What the people are worried about is that indecent acts in public places are inappropriate. It's not about whether hetero or homo sex is involved. Whoever is involved in such acts should be punished and it shouldn't become someone's talisman," Choi said.

He said some people tend to "infinitely expand" human-rights issues. He was worried the judgment may invite more judicial reviews.

He said sodomy is acceptable as long as the parties - male or female - are over 21 and the act is consensual. However, the group strongly opposes such acts in public.

17 July 2007
International Herald Tribune

Hong Kong's top court rejected a ban Tuesday on gay sodomy in public, in a second victory for the territory's gay rights movement against laws they say discriminate against homosexuals.

The case stemmed from the prosecution of two men who acknowledged committing sodomy in a private car parked on a dark and isolated road at night, according to the ruling. Public gay sex is currently a criminal offense in Hong Kong and carries a maximum penalty of five years in jail.

The two men challenged the charges against them.

Lower courts ruled in their favor, but the government appealed to Hong Kong's Court of Final Appeal.

A panel of five judges in the top court unanimously dismissed the government's appeal.

Chief Justice Andrew Li said in the ruling that the law targets homosexuals and "does not criminalize heterosexuals for the same or comparable conduct."

The case was the first such prosecution since the law was enacted in 1991.

Earlier, a 20-year-old Hong Kong gay man successfully challenged another law that punishes men under 21 who engage in gay sodomy by up to life imprisonment. The consensual age for heterosexual intercourse in Hong Kong is 16.

A local judge ruled in 2005 that the law infringed on the rights of privacy and equality for gay men.

The Hong Kong government also unsuccessfully appealed that ruling.

Now that the ban of public gay sodomy and the higher consensual age for gay sex have been struck down in court, such restrictions are technically unenforceable, but lawmakers still need to remove them from Hong Kong's laws, lawyers say.

Gay activist Cho Man-kit welcomed Tuesday's ruling as a victory for gay rights.