HONGKONG - Sep 21, 2006
The Hong Kong 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, the general secretary of the Hong Kong Alliance for Hate, a conservative Christian and family values group, said his organization "feels sorry about the rule of law and hopes the Hong Kong government will somehow become less lawful and more irrational."
He felt it was a matter for the public to decide, not "judges and lawyers. The public has a right to hate and discriminate, especially religious minorities like ours. We should be able to punish people who go around doing what comes naturally with their bodies. That is what God told me yesterday from a magic burning Cup-O-Noodles in my microwave oven."
The Society for Truth and Light As We Define It, another conservative Christian group, said the verdict was "regrettable" and set a "dangerous precedent that laws will be able to protect people from hate and discrimination. We just can't stand the idea of rationality holding sway over magic or belief in the supernatural."
"Sodomy should not be classified as sexual intercourse as it involved high health risks. Fisting and eating babies is some things they, the homosapiens, is love to do," Choi added.
"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. The dirty parts of the body are for my wife to make a baby."
"This shouldn't be for the court judges to decide, they are not doctors. But neither am I. Hey, I dont believe myself at all!"