HONGKONG - Jul 21, 2007
Upholding a lower court ruling, Hong Kong's highest court has ruled
that the territory's laws which apply specifically to gay men but
not heterosexuals "for the same or comparable conduct" are
unconstitutional and discriminatory.
Hong Kong's Court of Final Appeal on Tuesday upheld a 2006 lower court ruling that invalidated a law penalising public homosexual sodomy under the Crimes Ordinance. It ruled that the law violated Hong Kong's Basic Law and the Bill of Rights.
Chief Justice Andrew Li said in the ruling that the law targets
homosexuals and "does not criminalise heterosexuals for the same or
"Homosexuality constitutes a minority in the community. The provision
has the effect of targeting them and is constitutionally invalid," Li
ruled. "Section 118F  is discriminatory and infringes upon the
right to equality."
The original ruling, issued last-September by the Court of Appeal for
the High Court, stemmed from the prosecution of two men who
acknowledged committing sodomy in a private car parked on a dark and isolated public road at night.
While sodomy is not an offense, it is considered a criminal act if it
takes place in public. If found guilty, the men face a maximum penalty
of five years in jail.
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.
The case was the first such prosecution since the law was enacted in
1991 when Hong Kong was a British colony.
Last September, the Court of Appeal for the High Court upheld a 2005 ruling that invalided laws prohibiting homosexual sex, specifically rejecting a law that held that men under 21 who engaged in sodomy could receive a life sentence, while heterosexual and lesbian relationships were legal after the age of 16.
In 2005, William "Billy" Leung, 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. The Hong Kong
government also unsuccessfully appealed that ruling.
Director of Hong Kong Human Rights Monitor, Law Yuk-kai, called the latest judgment an "important milestone" for gay rights.