Yawning Bread. July 2007

Hong Kong court finds public sodomy law discriminatory




Hong Kong's Court of Final Appeal, the territory's highest court, this week struck down the law that criminalised sodomy (or "buggery" as it is known in Hong Kong) in public. The 5 judges on the court unanimously found that as currently written, the law was discriminatory, and therefore unconstitutional, as it targets only homosexual men.

The law in question was this one:

Section 118F of the Crimes Ordinance:

Homosexual buggery committed otherwise than in private

(1) A man who commits buggery with another man otherwise than in private shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

(2) An act which would otherwise be treated for the purposes of this section as being done in private shall not be so treated if done -

(a) when more than 2 persons take part or are present; or

(b) in a lavatory or bathhouse to which the public have or are permitted to have access, whether on payment or otherwise.

(3) In this section, "bathhouse" means any premises or part of any premises maintained for the use of persons requiring a sauna, shower-bath, Turkish bath or other type of bath. (Added 90 of 1991 s. 3)

Source: http://www.hklii.org/hk//legis/ord/200/ Crimes Ordinance

In his ruling, Chief Justice Andrew Li said, "Homosexuality constitutes a minority in the community. The provision has the effect of targeting them and is constitutionally invalid."

"Section 118F (1) is discriminatory and infringes upon the right to equality."

Hong Kong at night


Two men, 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. Even at the initial trial, the magistrate had 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 case then went to the Court of Appeal which upheld the magistrate's decision.

The government decided to appeal the case further to the highest court, not so much because they wished to hound the two defendants, but because they wanted clarity in the law, one way or the other.

The latest ruling has now settled it.

For press reports, see HK court strikes down public sodomy law

* * * * *

The elements of this Hong Kong case mirrors the issues surrounding the debate in Singapore over the retention of Section 377A of the Penal Code. Like Section 118F of Hong Kong's Crimes ordinance, the provisions of Section 377A apply only to 2 male persons engaging in a certain act (in the case of 377A, "gross indecency", which can be construed to mean anything sexual).

I have long argued that 377A is discriminatory, just as the Court of Final Appeal in Hong Kong has found 188F to be. The problem of course, is that the Singapore constitution does not explicitly forbid discrimination on the basis of sexual orientation; in fact it does not even forbid discrimination on the basis of sex. So men and women can be treated differently under Singapore law, and indeed are. What is a crime for men need not be a crime for women. If we haven't even recognised that men and women are equal, this only shows how backward we are.

Then again, Hong Kong's Basic Law (its constitution) does not specifically mention sexual orientation either. It came about because its courts have recognised gays and lesbians as a minority that deserves the protection of law like any other minority, following legal developments in advanced countries.

Would Singapore courts do likewise? It's a big unknown, but nobody is holding his breath. Our courts have acquired a deserved reputation for conservatism and timidity.

Instead the government has tried to assuage progressive-minded Singaporeans by saying that 377A will not be "pro-actively" enforced. Is this good enough? I think not.

Nominated Member of Parliament Siew Kum Hong limned a scenario last Sunday at the Wild Rice forum. Imagine a gay couple that breaks up acrimoniously, he suggested. One party then goes to the police out of spite and makes a police report that his erstwhile lover had engaged in "gross indecency" with him.

What would happen?

The police would be duty-bound to commence investigations. In fact, the other party could be arrested and thrown into the police lock-up because 377A is a seizable offence.

You cannot expect the police NOT to investigate. It would a sad day if the police could choose whether to follow up a citizen's complaint of a crime having been committed. There are plenty of examples from China about the abuses that can follow if the police exercised such arbitrariness.

Days, weeks or months later, when the investigation is completed and the matter referred to the Attorney-General's Chambers, the AGC may decide not to prosecute. Or he may, for technically, the AGC does not take instruction from the minister. He is supposed to be a man of integrity who makes his own decision whether or not to pursue certain cases, and his discretionary powers are enshrined by statute in the form of the Criminal Procedure Code. For a good reason: If he had to answer to the cabinet, we'd never be able to pursue corruption or politically sensitive cases involving ministers, for example.

Therefore, would the ministers' promise that Section 377A would not be "pro-actively" enforced mean anything? Might the government then say, "Oh, it's out of our hands now, since the AG is independent"? Or might they say this wasn't a case of "pro-activity" since the original complainant came to the police of his own volition? As you can see, there is so much wiggle room.

Should the matter come to the court, some have argued that it can still throw out the case based on ministers' statements that the law was not meant to be "pro-actively" enforced. Frankly, leaving aside whether it was or was not a case of "pro-activity", even this hope is at best uncertain.

As a lawyer friend of mine pointed out, this argument rests on Section 9A of the Interpretation Act, which allows the use of purposive interpretation in construing written law. Purposive interpretation takes into account the intent and purpose of the statute when construing how a statute is to be read.

Section 9A reads as follows:

Purposive interpretation of written law and use of extrinsic materials

9A. (1) In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.

But as my friend observed,

It does not mean that whatever the Minister says in Parliament automatically becomes law! It means that what the Minister says can be used in interpreting the statute when there are any ambiguities.

The basis canons of statutory interpretation in our common law is simply this:

Firstly, apply literal interpretation to construing a statute. If the statute is clear and unambiguous, you must take the statute in its literal words. Secondly, if the statute is not clear and is capable of several interpretations, then it is when purposive interpretation kicks in.

Let's not kid ourselves. Section 377A of the Penal Code is very clear. Homosexual acts are criminal offences. So what if the Minster says they will not prosecute. It doesn't leave it any less a criminal offence.

Some readers may hold a different view about the applicability of this provision. I'd like to hear from them.

Yawning Bread