Human rights — equality before the law — sexual offences involving male homosexual conduct — Crimes Ordinance (Cap. 200) ss. 118G, 118H, 118J(1) and 118K unconstitutional as discriminatory against male homosexuals and struck down — remedial interpretation of ss. 118C, 118I and 141(c) Crimes Ordinance adopted to render them constitutionally compliant — Basic Law art. 25 — Hong Kong Bill of Rights Ordinance (Cap. 383) s. 8 art. 22
X brought judicial review proceedings seeking a declaration that seven provisions, namely ss. 118C, 118G, 118H, 118I, 118J(1), 118K and 141(c) of the Crimes Ordinance (Cap. 200), were unconstitutional. X argued that the provisions were discriminatory against male homosexuals and thus were inconsistent with the right to equality before the law under art. 25 of the Basic Law (“BL25”) and the right to equal protection of law under art. 22 of the Hong Kong Bill of Rights (“BOR22”). The Secretary for Justice (SJ) accepted that s. 118G (procuring others to commit homosexual buggery), s. 118H (gross indecency with or by a man under 16), s. 118J(1) (gross indecency by a man with a man otherwise than in private) and s. 118K (procuring gross indecency by a man with a man) (the “Uncontested Provisions”) were inconsistent with BL25 and BOR22. The SJ submitted that even though s. 118C (homosexual buggery with or by a man under 16), s. 118I (gross indecency by a man with a male mentally incapacitated person (MMIP)) and s. 141(c) (permitting a boy under 21 to resort to or be on premises or vessel for committing act of gross indecency with a man) (the “Contested Provisions”) were prima facie inconsistent with BL25 and BOR22, the Court could apply a retrospective remedial interpretation to render the three provisions constitutional.
Held, granting X’s application relating to the Uncontested Provisions; but adopting a remedial interpretation of the Contested Provisions so that they were consistent with BL25 and BOR22 and dismissing X’s challenge to them, that:
1) The Uncontested Provisions all targeted illegal sexual activities between homosexual men only and amounted to differential treatment between male homosexuals and heterosexuals or female homosexuals. As regards ss. 118G and 118K, there were no comparable offences for heterosexuals or female homosexuals; and as to s. 118J(1), there were no comparable offences for heterosexuals. Section 118H also treated homosexual boys under 16 less favourably since an under 16 participant would not be held criminally liable for the same or similar act between heterosexuals and this constituted direct discrimination. Section 118J(1) mirrored s. 118F(1) which had been struck down by the Court of Final Appeal and the circumstances under the provision could be covered by the common law offence of outraging public decency or s.148. Given the lack of justification for any of the Uncontested Provisions, they were inconsistent with the right to equality protected by BL25 and BOR22 and so discriminatory and should be struck down (Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 applied). (See paras. 8, 14, 16–17.)
2) The Court accepted the SJ’s arguments on the Contested Provisions. The Court could only exercise the power of remedial interpretation in accordance with established principles and should not go beyond the limitations set by those principles (not effectively create a new offence). Here, none of the proposed interpretations of the Contested Provisions did so and they came within the limits of remedial interpretation. Further, it was the Court’s judicial duty to remedially interpret these sections, so far as it was possible, to render them constitutionally compliant rather than strike them down (HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise  2 HKLRD 1372 applied). (See paras. 21, 28, 30, 33, 37–38, 40, 43, 48–50, 52, 56, 60–61, 66–67, 69.)
3) Section 118C was aimed at protecting a man under 16 against buggery. By way of remedial interpretation, s. 118C would be read down so that a man who commits buggery with a man under the age of 16 only would be guilty of an offence, but not a man under 16 who commits buggery with a man above 16; and to reduce the maximum life sentence for buggery to five years’ imprisonment if committed with a boy under 16 but above 13, bringing it in line with the sentence under s. 124 for unlawful sexual intercourse with a girl under 16. Although this would lower the maximum sentence, it remained consistent with the principle of s. 118C and should be adopted. The legislature would have intended its legislative provision to have a valid, even if reduced, operation than none at all and it was not fundamentally different from what was enacted. (See paras. 32–38.)
4) When the amendment was introduced, s. 118I was aimed at protecting MMIPs, by extending to men and boys most of the protection from sexual abuse and exploitation afforded to women and girls in the then existing provisions of the Ordinance. Striking down s. 118I might leave vulnerable MMIPs without protection where the act of gross indecency did not constitute indecent assault under s. 122. However, by reading “man” expansively to mean “person” and inserting the words “or she” after “he”, female and male MIPs would be equally protected, while male homosexuals would no longer be targeted, as s.188I would cover female homosexuals and heterosexuals. This remedial interpretation was consistent with the fundamental feature or essential principle of the legislative scheme and did not alter the way in which the legislature had chosen to protect MIPs against gross indecency, ie by making it an offence with the specified statutory defence (In Fairclough v Whipp (1951) 35 Cr App R 138, R v Burrows (1951) 35 Cr App R 180 considered). (See paras. 39–43, 46–50.)
5) The legislative materials also showed that the fundamental feature or essential principle of the legislative scheme of s. 141(c) was to extend to men and boys most of the then existing provisions of the Ordinance designed to offer women and girls protection. Striking down s. 141(c) would leave a legal vacuum as s. 146 which prohibits a person (including an owner or occupier) from committing an act of gross indecency with or towards a child under 16 did not criminalise owners or occupiers who allowed or condoned certain unlawful acts being committed on their premises or vessels. For consistency in the wording of s. 141 as a whole, s. 141(c) would be remedially interpreted by reading “boy” expansively as “girl or boy” and substituting “another person” for “a man”, so that boys and girls would be equally protected, while male homosexuals would no longer be targeted, since female homosexuals and heterosexuals would be covered. Further, reading down the age from 21 to 16 would bring it in line with s. 146. (See paras. 51, 53, 55–59, 61–63.)
6) Even though the Law Reform Committee’s Review of Sexual Offences Sub-Committee had submitted its recommendations to the legislature, in light of the above considerations the proposed interpretations should be adopted. Insofar as permissible under the established legal principles, it was necessary to ensure the protection of vulnerable persons (minors and MIPs) and public interests as intended by the legislature in enacting the provisions. Any further changes to existing legislation by new enactments would involve a complicated and lengthy process, and it was undesirable and unsatisfactory to leave open a legal vacuum if the Contested Provisions were struck down instead. (See paras. 63–64, 66–69.)
This was an application for judicial review seeking a declaration that seven provisions in the Crimes Ordinance (Cap. 200) were unconstitutional on the basis that they were discriminatory against male homosexuals. The facts are set out in the judgment.