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18 Jul 2007

hong kong's highest court invalidates public gay sodomy law

Upholding a lower court ruling, Hong Kong's highest court has ruled that the territory's laws which applies specifically to gay men but not heterosexuals "for the same or comparable conduct" is unconstitutional and discriminatory.

Hong Kong's Court of Final Appeal on Tuesday upheld a 2006 lower court ruling that invalidated a law penalising public homosexual sodomy under the Crimes Ordinance.

It ruled that the law's specific focus against homosexual sodomy is unconstitutional, discriminatory, and thereby violates Hong Kong's Basic Law and the Bill of Rights.

Chief Justice Andrew Li said in the ruling that the law targets homosexuals and "does not criminalise heterosexuals for the same or comparable conduct."

"Homosexuality constitutes a minority in the community. The provision has the effect of targeting them and is constitutionally invalid," Li ruled. "Section 118F [1] is discriminatory and infringes upon the right to equality."

The original ruling, issued last-September by the Court of Appeal for the High Court, stemmed from the prosecution of two men who acknowledged committing sodomy in a private car parked on a dark and isolated public road at night.

While sodomy is not an offense, it is considered a criminal act if it takes place in public. If found guilty, the men face a maximum penalty of five years in jail.

Last year, a magistrate dismissed the case on the grounds that the law under which they were charged was discriminatory as it did not equally apply to heterosexuals. The Court of Appeal upheld the decision, prompting the government to appeal the case further to the highest court.

The case was the first such prosecution since the law was enacted in 1991 when Hong Kong was a British colony.

Last September, the Court of Appeal for the High Court upheld a 2005 ruling that invalided laws prohibiting homosexual sex, specifically rejecting a law that held that men under 21 who engaged in sodomy could receive a life sentence, while heterosexual and lesbian relationships were legal after the age of 16.

In 2005, William "Billy" Leung, a 20-year-old Hong Kong gay man successfully challenged another law that punishes men under 21 who engage in gay sodomy by up to life imprisonment. The consensual age for heterosexual intercourse in Hong Kong is 16. The Hong Kong government also unsuccessfully appealed that ruling.

Director of Hong Kong Human Rights Monitor, Law Yuk-kai, called the latest judgment an "important milestone" for gay rights.

"In future, even though the law remains, the police would find it difficult to apply with the latest ruling," Law was quoted as saying in The Standard newspaper. He further urged the government to review the related ordinance and clear up any law that discriminates against homosexuals.

Hong Kong

Reader's Comments

Comment #1 was deleted by its author
Comment #2 was deleted by its author
3. 2007-07-18 20:02  
Warmest regards to the jury & glbt community in HK :) And of course, Chief Justice Li- fr his remarks you are able to tell he is a man of high integrity & intelligence- somewhat sadly lacking in the allegedly 'superior' justice system in Singapore :p... He proved his case very strongly by highlighting the difference of treatment 118F meted out to public homosexual in contrast to heterosexual sex; also note age of consent differences. If this is not shameless discrimmination, then i don't know what is. Anyone realize that in Singapore, we face a similar situation
4. 2007-07-18 21:05  
Equal H U M A N rights under the laws of
this planet....

no GAY rights
no Str8 rights

5. 2007-07-18 21:53  
to be honest i find no sense in this article....
i dont understand why the government cant standardise all form of sexual behaviour into one? after all being hetero or homo,we are all human beings living in the same planet....
or who knows in years from now,homo marriage is legal and hetero is a crime?
WHERE IS HUMAN RIGHT? (human in general,not str8 or not str8)
6. 2007-07-18 23:13  
It's not only HUMAN rights.
Dogs and Cats copulate all the time in public, orgy and even between males.

It's the WAY OF LIFE.
7. 2007-07-19 00:53  
This article would make me laugh, if it wasn't reality. Thank God I don't live in that part of the world, but my empathy goes out there anyway.

How can anyone who doesn't have have a dildo shoved up the ass 24/7, think that it's criminal for humans to engage in any sexual activity? Does it always have to be in the f**king bed room? I'm not implying, go have sex on a park bench. Humans are by nature, somewhat discreet about sex, as are many other animals species. Sexual encounters in a car discreetly parked somewhere is hot and sometimes, romantic! To be put in prison for that is beyond ridiculous.

For those who have the power to affect law and for those who sit in judgement, I'd say to them - "May the one who is without a sexual drive, be the first to throw the stone at a sexual human being. 'Cause we all know, we all want to be a-sexual, upright citizens." *smirks* Give me a break!

F**king ridiculous.

Drew - Canada
8. 2007-07-19 09:23  
Hurray! Asia's moving forward, if Hong Kong's Law can stand it's ground to mete out JUSTICE rightly, surely it's matter of moments that Singapore's Law on Penal code 377A be repealed on same reasoning!?

For crying out loud, what does the nation's govt want? Horrors, not expecting gays there to pay & charge to get pink licenses to Fornicate Under Consent of (K)ash$, is it?
9. 2007-07-19 15:11  

Many parts of the world still have sodomy laws. Even just south of you in the US, 13 states had them when the Superme Court ruled on "Lawerence v. Texas" in June 2003. Even the SC invalidated sodomy laws in that ruling, 12 of those 13 states still let theirs stay.
10. 2007-07-19 15:41  
that is awesome
11. 2007-07-19 17:28  
Hope that it will be Singapore's turn to announce the good news next!! *Fingers crossed*
12. 2007-07-19 17:59  
William "Billy" Leung is a great man
13. 2007-07-27 12:36  
I wonder how about Malaysia? I guess it will take this country another 150 years before anything remote to equality for gay ppls ever happen.

In Malaysia, they still argue about secular and Islamic state status whereby it was already write it clear and loud it is a secular counrty with Islam as official religion (same as turkey).

Wat to do!!!! sigh!
14. 2007-07-31 12:52  
Another silly one. I don't understand the fatalistic mentality from some of our community when we can cheer & jeer the same situation at the same time... It's as good as slapping oneself & serving the glbt adversaries by saying such dismal remarks. Thanks a lot...not.

Reality is what we make of it, so let's not give up hope without a REAL fight first, least we are seen as serving our own sentence on a silver plate to the lawmakers.

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