Procedural Posture
In the trial court the applicant challenged the constitutionality of Section 118C of the Crimes Ordinance of the Hong Kong Special Administrative Region. The Section criminalised anal intercourse between males where one partner was below the age of 21. Where one partner was under the age of 21, both partners would be criminally liable. Section 118D set out a similar provision in relation to “buggery with a girl under 21”. Section 118D only criminalised the conduct of a male partner older than 21 years of age who had anal intercourse with a younger female partner. Unlike Section 118C, Section 118D did not criminalise the conduct of the female partner. By contrast to these sections, the age of consent for all other sexual conduct by heterosexual and, by implication, lesbian couples, was a uniform 16 years of age. At first instance the trial court found for the Applicant. The Secretary of Justice appealed to the High Court, contending that Section 118C was constitutionally valid.
Facts
The applicant was 20 years of age when the proceedings for judicial review were commenced and therefore he, and any of his male sexual partners over the age of 21, were subject to Section 118C. The applicant submitted that he had “experienced great difficulties in developing lasting homosexual partnerships” because the law prohibited consensual anal sex between men until a man reached the age of 21 (rather than 16). The existence of the provision created a “fear of prosecution” in the applicant and the applicant claimed to have suffered from loneliness and distress as a result. The applicant contended that the differential age of consent violated his constitutional rights to privacy, equality and non-discrimination.
Issue
Whether (to the extent that it created a different legal standard for sexual intercourse between males over the age of 16 and under the age of 21 and their older sexual partners) Section 118C was unjustifiably discriminatory relative to laws applicable to heterosexual or lesbian couples, and as such was in breach of the equality, non discrimination and privacy provisions contained in the Basic Law and the Bill of Rights.
Domestic Law
Basic Law of Hong Kong, Article 25 (equality before the law) and Article 39 (incorporating the ICCPR into the law of Hong Kong).
Hong Kong Crimes Ordinance, Sections 118C and 118D.
Hong Kong Bill of Rights, Article 1 (entitlement to rights without distinction, following ICCPR Article 2), Article 14 (Protection of privacy, family, home, correspondence, honour and reputation, following ICCPR Article 17), and Article 22 (equality before and equal protection of the law, ICCPR Article 26).
Comparative Law
A v. Secretary of State for the Home Department, House of Lords, United Kingdom, 2005 (on the importance of the independence of the judiciary and judicial ability to rule on the validity of legislation as a “cornerstone” of the rule of law).
Ghaidan v. Godin-Mendoza, House of Lords, United Kingdom, 2004 (holding that “where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification”).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (equating sexual acts between male partners to those between male and female partners).
International Law
International Covenant on Civil and Political Rights.
Dudgeon v. the United Kingdom, ECtHR, 1981 (absolute criminalisation of “buggery” violated right to privacy under the European Convention, but permissible for countries to fix age limits for sexual conduct).
Norris v. Ireland, ECtHR, 1988 (finding that sodomy laws of Ireland violated the right to privacy under the European Convention).
Sutherland v. the United Kingdom, ECtHR, 2001; L v. Austria, ECtHR, 2003 (finding that unequal ages of consent for sexual conduct violated European Convention).
Reasoning of the Court
The applicant argued that the age restriction and criminalisation of consensual anal intercourse created by Section 118C infringed the rights to privacy, equality and non-discrimination set out in Articles 25 and 39 of the Basic Law of Hong Kong. Article 25 provided that “all Hong Kong residents shall be equal before the law”.
In addition, it was argued that Articles 1, 14 and 22 of the Hong Kong Bill of Rights had been breached. Article 1 enshrined an entitlement to rights without distinction; Article 14 created a right to the protection of privacy, family, home, correspondence, honour and reputation; and Article 22 provided that all Hong Kong residents should have equality before and equal protection of the law. These provisions of the Bill of Rights mirrored Articles 2, 17 and 26 of the ICCPR respectively.
The Secretary of Justice argued that “buggery was not to be equated with sexual intercourse between a man and a woman” and therefore it was not discriminatory to differentiate between anal intercourse and other sexual acts. The Secretary of Justice submitted that the legislative scheme was non-gender specific and that “there was no inequality: the minimum age restrictions applied equally to both women and men” by virtue of Sections 118C and 118D.
For the purposes of the appeal the High Court focused on non-discrimination and equality. While the Court acknowledged that consensual homosexual acts committed in private were an aspect of the right to privacy, it considered that contravention of that right was a subsidiary issue, since homosexual acts (in the form of buggery) had been decriminalised in Hong Kong since 1991. There was no total prohibition of “buggery” but rather a differentiated age of consent. Consequently, the Court’s primary concern was discrimination and inequality of treatment, on the basis of the age restrictions contained in Section 118C.
The Court adopted a two-stage approach when it analysed the constitutionality of Section 118C. It considered first whether Section 118C infringed the rights to equality, non discrimination or privacy protected by the Basic Law or the Bill of Rights (ICCPR); and, if so, second, whether the infringement could be justified.
For an infringement of a constitutional right to be justified, the Court required that the impugned provision should be “rationally connected to a legitimate purpose” and that “the means used to restrict that right must be no more than is necessary to accomplish the legitimate purpose in question”.
In assessing whether an infringement existed and in dealing with the submissions of the Secretary of Justice, the Court followed the trial court in ruling that “homosexual buggery” was a form of sexual intercourse comparable to vaginal intercourse. The Court stated,
Sexual intercourse between men and women is not just for the purpose of procreation. It also constitutes an expression of love intimacy and constituting perhaps the main form of sexual gratification. For homosexual men, buggery fits within these definitions
On this point the Court cited European Court case law including Sutherland v. the United Kingdom and L v. Austria.
In dealing with the Secretary’s second contention, that no inequality existed if Section 118C was read in conjunction with Section 118D, the Court held that the legislative scheme had a substantively greater impact on homosexual men engaging in anal intercourse than it did on heterosexual men and women. The Court agreed with Justice Hartman that the fact that anal intercourse was the “only means” of sexual intercourse available between males was decisive. The Court quoted with approval the following passage of the trial court’s decision:
Denying persons of a minority class the right to sexual expression in the only way available to them, even if that way is denied to all, remains discriminatory when persons of a majority class are permitted the right to sexual expression in a way that is natural to them … It is disguised discrimination founded on a single base: sexual orientation.
For that reason it held that Section 118C substantively infringed the rights to equality and to privacy enshrined in the Basic Law and the Bill of Rights.
The Court then determined whether the infringement could be rationally justified. This involved an inquiry into the purpose of the legislation. The purpose was suggested to be “the protection of the young from sexual activities which are, for want of a better term, for more mature persons”. However, no evidence was submitted to the Court to justify the setting of 21 as the age limit for consensual anal sex. The Court noted that the absence of any medical reason to vary the age of consent for different sexual acts. In addition, the Court referred to parliamentary debates on the decriminalisation of “buggery” in 1991 and fixing the age of consent. As for the argument that 21 was an appropriate age of consent to sexual acts of that nature because individuals were “more mature”, the Court concluded that this was an insufficient justification for differentiating between “buggery” and other sexual activity. As a result, the Court found that “the burden of justifying the infringement on the Applicant’s fundamental rights” had not been met.
As a final consideration, the Court turned to the concept of the “margin of appreciation” accorded to the legislature in cases involving constitutional challenges, in recognition of the unique place of the legislature to make determinations as to the needs of society. Citing the case of Dudgeon v. United Kingdom, the Court acknowledged that it was not its place to infringe on the policy-making mandate of the legislature. However, the Court held that this concept was of limited application and it followed Lord Nicholls in the English case of Ghaidan v. Godin-Mendoza in holding that the courts must “scrutinize with intensity” any purported justification of a breach of rights on the basis of race, sex or sexual orientation. The Court stated:
Where the Court does not see any justification for the alleged infringement of fundamental rights, it would be its duty to strike down unconstitutional laws, for while there must be deference to the legislature as it represents the views of the majority in a society, the Court must also be acutely aware of its role which is to protect minorities from the excesses of the majority. In short, the Court’s duty is to apply the law; in constitutional matters, it must apply the letter and spirit of the Basic Law and the Bill of Rights.
In essence the Court asserted that, while a margin of appreciation exists, the true role of the courts is to independently apply and interpret the law free from the legislature’s influence, even in areas where the issue in question was socially or morally contentious.
The High Court upheld the first instance decision of Justice Hartman, ruling that Section 118C was unconstitutional on the grounds that it breached the relevant sections relating to non-discrimination, equality and privacy contained in the Basic Law and the Bill of Rights. The Court read down section 118C, converting the age of consent to 16 years of age.
Leung v. Secretary for Justice, High Court of the Hong Kong Special Administrative Region, Court of First Instance (full text of judgment, PDF)
Leung v. Secretary for Justice, High Court of the Hong Kong Special Administrative Region, Court of Appeal (full text of judgment, PDF)
