Procedural Posture

The respondents were charged with having committed buggery “other than in private”, in violation of Section 118F(1) of the Crimes Ordinance. They pleaded not guilty on the ground that the law was unconstitutional. Finding the law unconstitutional, the magistrate dismissed the charges and the government appealed to the Court of Appeal. The Court of Appeal agreed that Section 118F was unconstitutional and dismissed the government’s appeal. The government then appealed to the Court of Final Appeal.

Issue

Whether the law criminalising buggery “other than in private” was discriminatory and in violation of the Basic Law and the Hong Kong Bill of Rights.

Domestic Law

Basic Law of Hong Kong, Article 25 (equality before the law).

Hong Kong Bill of Rights, Article 22 (implementing Article 26 of the ICCPR).

Crimes Ordinance, Section 118F(1) (“A man who commits buggery with another man otherwise than in private shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years”).

International Law

International Covenant on Civil and Political Rights, Article 26.

Reasoning of the Court

The Court held that Section 118F(1) was discriminatory and infringed the constitutional right to equality. The Court noted that a common law offence of committing “any act of a lewd, obscene or disgusting nature which outrages public decency” existed under which sexual activity in public could be prosecuted. However, unlike their heterosexual counterparts, same-sex couples had been additionally subjected to Section 118F(1).

The Court commenced with a review of the law of equality. Not all differences in treatment would be discriminatory. However, in order for differential treatment to be justified, a law had to satisfy three tests. First, the law must pursue a legitimate aim, meaning that it has to be established that a genuine need for the different treatment existed. Second, the difference in treatment must be rationally connected to that legitimate aim. Third, the difference in treatment must be proportionate, no more than was necessary to accomplish the legitimate aim. The Court stated: “Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality”. The Court also noted that, where the differential treatment was based on grounds such as race, sex or sexual orientation, the Court would scrutinise with intensity whether the difference in treatment was justified.

The Court found that Section 118(1) created a difference in treatment affecting gay men. Although all people, regardless of sexual orientation, were exposed to criminal liability for committing “a sexual act of a lewd, obscene or disgusting nature which outrages public decency”, only gay men were subject to the statutory offence in Section 118F(1). Heterosexuals were not subject to any comparable criminal liability. Section 118F(1) drew a “dividing line … on the basis of sexual orientation … in relation to the same or comparable conduct”.

The Court rejected the government’s argument that genuine need was established by the fact that the law was enacted and that “in enacting it, the Legislature must be taken to have considered that there was a genuine need for such a specific offence”. The Court held that a genuine need for a discriminatory law could not be “established from the mere fact of legislative enactment”. A genuine need had to be “identified and made out”. No such need was made out.

The Court concluded that Section 118F(1) was discriminatory because it “only criminalises homosexual buggery otherwise than in private but does not criminalise heterosexuals for the same or comparable conduct when there is no genuine need for the differential treatment”.

Secretary for Justice v Yau Yuk Lung Zigo (High Court) (full text of judgment, PDF)

Secretary of Justice v Yau Yuk Lung Zigo (Court of Final Appeal) (full text of judgment, PDF)