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Tommy Chen, the founder of Rainbow Action, at the High Court in Admiralty on Thursday. Photo: Felix Wong

Victory for Hong Kong’s LGBT community as High Court abolishes four offences that criminalise sex between men

  • Court rules in favour of Yeung Chu-wing, a gay activist who brought the lawsuit in 2017
  • Offences overturned or revised made gay men criminally liable for acts that are legal for heterosexuals

Hong Kong’s LGBT community has earned a long-awaited legal victory, with a court abolishing or revising seven offences that criminalised sex between men.

The High Court on Thursday ruled that four criminal offences were unconstitutional and repealed them with immediate effect. The court also revised its interpretations of three offences, deciding in favour of Yeung Chu-wing, an LGBT activist who brought the lawsuit against the government in 2017.

The seven offences under challenge – all part of the Crimes Ordinance – made homosexual men criminally liable for acts that are legal for heterosexuals and, in some cases, lesbians.

Mr Justice Thomas Au Hing-cheung, in the language of the court, abolished the crimes of “procuring others to commit homosexual buggery” and “gross indecency with or by a man under 16”. He also overturned “gross indecency by a man with a man otherwise than in private” and “procuring gross indecency by a man with a man”.

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Au also changed the interpretation of three other crimes, ruling that they must now apply to women as well as men to be constitutional.

The three offences that now apply to both genders are “homosexual buggery with or by a man under 16”, “gross indecency by a man with a male mentally incapacitated person”, and “permitting a young person to resort to or be on a premises or vessel for intercourse, prostitution, buggery or homosexual acts”.

Tommy Noel Chen, founder of Rainbow Action, a local LGBT rights group, said his organisation had been trying to get these laws changed for more than 20 years.

“This judicial review should not have happened in the first place,” Chen said. “But every time we fought for [changes to these law], the government either refused or delayed.”

During the trial, however, the secretary for justice conceded to nearly all the changes.

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Michael Vidler, Yeung’s lawyer, said: “The failure by [Hong Kong] to repeal or amend these anti-homosexual criminal offences and sentencing provisions since 1997 is all the more reprehensible, because it has led to the prosecution, conviction and sentencing of gay men under these discriminatory laws – for all these years and up to as recently as 2018, even after this challenge was launched.”

Local LGBT activists have brought a series of court challenges in recent years to push for greater legal rights.

Last year, the movement succeeded in pushing the government to recognise same-sex marriages for the purpose of spousal visas.

And as Yeung’s judgment was handed down, lawyers on a different floor of the court building were arguing in the city’s first-ever court battle to challenge Hong Kong’s unwillingness to recognise same-sex marriages or civil union partnerships.

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Yeung, who was not in court to hear the judgment, launched his judicial challenge in October 2017 and it was heard last August. He asserted that the seven criminal offences violated Article 25 of the Basic Law, the city’s mini-constitution, and Article 22 of the Bill of Rights. The two provisions guarantee equality before the law.

The four offences the court struck down did not apply to heterosexuals and lesbians, the court said in its judgment on Thursday.

For example, the court pointed out that for gross indecency with or by a man under 16, the boy under the age of 16 who was engaged in the act would also be caught by the law. But when the subject was a girl, she would not be held criminally liable if she was under the same age.

Au also reinterpreted homosexual buggery with or by a man under 16, because he said it also held the boy under 16 liable. The offence punished those found guilty of the charge with a possible life sentence in jail, although the maximum sentence for unlawful sexual intercourse with a girl under 16 was only five years.

Au decriminalised the underage boy and brought the punishment in line with the charge faced by heterosexual people.

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For the offence of gross indecency by a man with a male mentally incapacitated person, Au made it possible for the accused to be any “person” and also for the victim to be gender neutral.

He also adjusted the charge of permitting a young person to resort to or be on a premises or vessel for intercourse, prostitution, buggery or homosexual act. In the new interpretation, those who induced boys or girls under the age of 16 to commit gross indecency with a man or woman would be found guilty. Au made the charge gender neutral and reduced the age from 21 to 16.

Au acknowledged that the offences he abolished on Thursday could be reintroduced by the legislature. He said doing so would be a lengthy process, but the court would have a judicial duty to comply.

“It is undesirable and unsatisfactory to leave open a legal vacuum after striking down the contested provisions,” he said.

In 2005, the High Court ruled that it was unfair for gay men to commit buggery only at or above the age of 21, while the legal age for heterosexual intercourse was 16. The law was changed in 2014.

This article appeared in the South China Morning Post print edition as: City’s LGBT community wins legal challenge
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