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Nick Gentle

Law on sex between men discriminatory

Laws that discriminate against various sections of society in the absence of a compelling and genuine reason have no place in Hong Kong, the city's highest court ruled yesterday.

The Court of Final Appeal  made the ruling as it confirmed that a law specifically targeting sexual acts between men in public was unconstitutional. At the same time, the court also clarified the procedure regarding what should happen when a law is ruled unconstitutional during the course of a trial.

The case stemmed from the attempted prosecution of two men caught  engaged in sodomy in a car beside a public road. Magistrate John Glass ruled that the law used to prosecute the men, Section 118F(1) of the Crimes Ordinance, was unconstitutional because it denied them their Basic Law right to equality.  He immediately dismissed the charges.

The magistrate's actions were upheld by the Court of Appeal in September.  The government  then applied to the  Court of Final Appeal for a final determination on the law's constitutionality.

Chief Justice Andrew Li Kwok-nang said that for a law to discriminate, it needed to pass a three-pronged 'justification test'.

First, the aim of the law had to be legitimate, meaning there was a genuine need for legally differentiating between one group and another.

Second,  the difference in treatment needed to be 'rationally connected to the legitimate aim'.

Finally, the difference in treatment 'must be no more than is necessary to accomplish the legitimate aim'.

The burden, therefore, lay on the government to prove  the justification for the discriminatory aspect of the law.

The court noted that there was a perfectly functional offence, of outraging public decency, already on the books that  covered the type of behaviour in which the two men were alleged to have been engaged.

That law  also carried a more severe maximum punishment of seven years in prison rather than five.

The court - comprising the chief justice, permanent judges Mr Justice Kemal Bokhary, Mr Justice Roberto Ribeiro and Mr Justice Patrick Chan Siu-oi,  and non-permanent judge Sir Anthony Mason - found no genuine need for the discrimination by Section 118F(1) and ruled it unconstitutional.

'There is no better way to secure human rights than ensuring that they are enjoyed by everyone in equal measure,' Mr Justice Bokhary said. 'Law is a problem solver, while discrimination is a problem and never a solution.'

The court also ruled that if a similar situation arose in the future, and the government wished to challenge a finding of unconstitutionality by a magistrate or lower court judge, the issue should be referred to a higher court before a decision is taken whether or not to dismiss or amend  the charges against an individual.

One of the men involved in the original case yesterday  welcomed the ruling and said he hoped it  would arouse a public debate.

'I admit that having sex in a car park might be morally inappropriate. But why did I do this? It is because of discrimination against homosexuals in society, and because the law discriminates against us. That is why I  did such a thing,' he said.

'We try to have sex by booking hotel rooms, but hotel staff refuse to rent rooms to us.'

He  said the three-year legal battle had cost him more than HK$200,000.

'What about those who have been convicted by this unconstitutional law? Not every one of them has the economic support to launch an appeal.'

Roddy Shaw Kwok-wah, of Civil Rights for Sexual Diversities,  said the ruling  had enormous symbolic meaning for the gay community.

'The ruling tells us the dignity of all men, including homosexuals, should be well respected. It is time for the government to  tidy up the law book concerning this issue,' he said.

'We hope the Law Reform Commission  will come up with a set of recommendations regarding amendment of the law very soon.'

Joseph Cho Man-kit, vice-president of the Hong Kong Ten Percent Club, said the government should  amend  the law and discuss the issue  in the Legislative Council.



Ruling by top court upholds gay rights