Hong Kong courts

Hong Kong government agrees laws targeting gay men are incompatible with Basic Law

While the government conceded the seven offences were inconsistent with the city’s mini-constitution, it does not want all of them to be declared unconstitutional

PUBLISHED : Friday, 28 September, 2018, 7:01am
UPDATED : Friday, 28 September, 2018, 9:57am

The Hong Kong government on Thursday conceded that seven local laws targeting sexual activities involving gay men were inconsistent with the city’s mini-constitution which provides that all residents are equal before the law.

The seven offences came under scrutiny following a judicial review mounted by Yeung Chu-wing, a volunteer from local sexual minorities rights group, Rainbow Action, who is demanding that the High Court declare them unconstitutional.

But while the government conceded the offences were inconsistent with the Basic Law and the Hong Kong Bill of Rights, it did not want all seven of them to be declared unconstitutional.

Instead, the government has asked the court to exercise its power of remedial interpretation by reading three of the offences in a way that would bring them in line with the Basic Law, so that they would be preserved before new laws are made.

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Yeung’s counsel Hectar Pun Hei SC said: “We recognise the sincerity of the secretary for justice to save the law in the interest of the public.”

But Raymond Leung SC, representing the secretary for justice, observed that there remains “an uphill task, notwithstanding the concessions” made by the government.

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

Several sections are currently under review by the Law Reform Commission tasked in 2006 to reform the sexual offences in the city.

That prompted Mr Justice Thomas Au Hing-cheung to ask if the government’s proposed interpretation would affect the ongoing review.

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But Leung noted that legislative amendment would take time. A remedial interpretation is needed “to hold the fort and prevent any lacuna”, he said.

For instance, the government proposed the court could “read down” the offence of homosexual buggery with or by a boy under the age of 16, by bringing down its maximum sentence of life imprisonment in line with that of unlawful sexual intercourse with a girl under 16, which is capped at five years.

“The remedial interpretation we propose would be reasonable and give effect to the legislative intent to have equal treatment,” Leung said.

Another proposal suggested expanding the term “man” in the offence of gross indecency by a man with mentally incapacitated person to mean “person” so as to ensure both genders are equally protected.

But Pun is concerned that the proposed reading may be akin to creating a new offence that would catch more people. “The proposal is at the very far end of what the court can do,” he said. “[Leung] is trafficking in very dangerous waters.”

Both legal teams are now given two more weeks to conduct further research on the proposed interpretation.