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LGBTI

Hong Kong man mounts legal challenge against laws on gay sex, calling them discriminatory and unconstitutional

Bid contests seven sections under Crimes Ordinance on sexual activities involving male homosexuals

PUBLISHED : Wednesday, 11 October, 2017, 3:09pm
UPDATED : Monday, 27 November, 2017, 6:55pm

A gay man on Tuesday mounted a legal challenge to repeal Hong Kong laws that criminalise sexual activities involving gay men, saying they were discriminatory and unconstitutional.

The seven contested sections under the Crimes Ordinance covered homosexual buggery, gross indecency by man and the conduct of procuring young person to resort to, or be on premise or vessel, for intercourse, prostitution, buggery or homosexual act.

Yeung Chu-wing, a volunteer from local sexual minorities rights group Rainbow Action, argued that such laws were discriminatory since they targeted only gay men without providing equivalent criminal sanctions against heterosexuals or lesbians for the same or comparable conduct.

He is demanding that the High Court declare the relevant sections inconsistent with Article 25 of the Basic Law and Article 22 of the Bill of Rights, and therefore unconstitutional.

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“The existence of discriminatory provisions against homosexuals in the Crimes Ordinance has the effect of stigmatising homosexuals in Hong Kong and reinforcing public prejudice against homosexuals,” the application for leave to apply for judicial review said.

“This seriously affects the dignity of the applicant as a member of the homosexual community in Hong Kong and causes distress to the applicant.”

This seriously affects the dignity of the applicant
legal writ filed to High Court

The Basic Law the city’s mini-constitution, provides that all Hong Kong residents shall be equal before the law, while the Bill of Rights further states that all persons “are entitled without any discrimination to the equal protection of the law”.

Yeung’s case came after the Law Reform Commission completed a consultation in March on the abolition of sexual offences based on gender and sexual orientation.

It presents a broader challenge compared with a similar judicial review successfully lodged by William Roy Leung in 2004, through the same legal team at Vidler and Co Solicitors.

Mr Justice Michael Hartmann in 2005 found the law had unfairly discriminated against gay men.

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But the disputed sections continued to stand for another eight years until November 2014, when the ordinance was finally amended to allow gay men commit buggery or an act of gross indecency, provided they are 16 or older.

Yeung, 24, said he was keen to eliminate discrimination against the LGBT community, given his personal experience as a gay man who had been isolated at school and ostracised by his family.

After leaving home in 2010, he became an active volunteer at Rainbow Action, a group that fights against discrimination in the city.

In a writ filed to High Court, Yeung said it was well established that vaginal intercourse and buggery – being the only form of sexual intercourse open to gay people – were to be regarded as similar, yet the law only criminalises gay men under 16 for committing buggery or an act of gross indecency with another man.

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Gay men also face a far more severe maximum sentence of life imprisonment for buggery, while men committing unlawful sexual intercourse with a girl under 16 get at most five years in jail.

But Yeung argued: “Imposing a higher maximum sentence for the former than the latter does not pursue any legitimate aim.”

As for gross indecency, Yeung said the ordinance had already provided for a gender-neutral offence punishing a person who commits such acts with children under 16 and as such there was “no discernible reason” for specifically criminalising gay men.

“It infringes the right to equality and is therefore unconstitutional,” he said.