Gay sex ruling may affect old cases

PUBLISHED : Friday, 26 August, 2005, 12:00am
UPDATED : Friday, 26 August, 2005, 12:00am
 

If court decision overturning laws stands, men convicted years ago could win leave to clear names, expert says


Men convicted of buggery and gross indecency with other men might be able to clear their names after Wednesday's landmark court ruling overturning the laws under which they were charged, an academic said.


'A court decision is declaratory in nature,' said Eric Cheung Tat-ming, associate professor in the Law Faculty at the University of Hong Kong.


If the provisions violated the Basic Law and Hong Kong Bill of Rights, then they had been invalid since these measures were enacted. 'So defendants convicted of those provisions could file an appeal,' he said.


But it is up to the Court of Appeal whether delayed applications would be accepted. 'Many of these cases must have long passed the 28-day limit for filing an appeal, but the Court of Appeal holds discretion to grant out-of-time leave to the applicants providing there is a strong reason,' Professor Cheung said.


According to gay-rights group Civil Rights for Sexual Diversities, 63 men were arrested under the repealed law in question between 1998 and 2003. Of these, 31 have been prosecuted and 26 convicted.


The Department of Justice said there were appeals pending for trial but declined to comment on what grounds they were based on.


'If [Wednesday's] judgment is upheld, it is almost certain that appeals would be allowed,' Professor Cheung said. 'But applicants will have to wait until the government reveals whether they will appeal against Mr Justice Hartmann's ruling before they can use his ruling to their advantage.'


On the other hand, he believed the government stood a good chance of overturning Mr Justice Michael Hartmann's ruling on Section 118(c)(a) of the Crimes Ordinance, which in effect reduces the legal age of consent for the active male partner of buggery from 21 to 16.


'I think this is Hartmann's thinnest argument, because as the legal age of the active male partner of heterosexual intercourse remained 21, the law now actually tips to the advantage of the homosexuals,' Professor Cheung said.


He conceded it was necessary to repeal Section 118(c)(b) of the ordinance, which in effect lowers the legal age of consent for the passive male partner in anal sex, because as the Hartmann judgment said, you do not send a young man to jail when the principle is set to protect him.


However, it did not necessarily amount to discrimination if a higher age limit were imposed for the active partner in sexual activity that posed health risks.


Many foreign governments had made such rules on the age of consent for sexual behaviour out of a concern to protect youth from health risks and sexual exploitation. Statistics from Civil Rights for Sexual Diversities show that anyone, regardless of sex, has a higher rate of infection through anal than through vaginal intercourse.


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