Hong Kong: Leung v. Sec'y for Justice, [2006] 4 H.K.L.R.D. 211 (C.A.)

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(NOTE: Although this is not a Court of Final Appeal case (the highest court in Hong Kong), the decision in this case seems to be accepted in Hong Kong.)

The plaintiff was a homosexual man aged 20. He challenged the constitutionality of parts of the criminal law as being discriminatory on the basis of sexual orientation. The provisions in question mandated that, among other things, if two men committed buggery (sodomy) with each other and one or both of them were under the age of 21, then both would be guilty. The state could then sentence them to life imprisonment, or any duration up to life imprisonment. The Court of Appeal held that this provision was unconstitutional for being discriminatory against homosexuals. It noted that when two consenting heterosexual people had vaginal intercourse, no criminal liability existed so long as both parties were above the age of sixteen. Homosexual males between sixteen and twenty-one, however, could be convicted of a crime. Thus, the CA held, the provision in question was discriminatory against male homosexuals.

In so holding, the CA relied upon international human rights norms and the European Convention on Human Rights, as well as the Canadian Charter of Rights and Freedoms. It cited the anti-discrimination cases of Toonen v. Australia, UN Human Rights Committee, Communication No. 488 of 1992, 112 I.L.R. 328, and R. v. M., [1995] 82 O.A.C. 68 (Can.). It also cited the European Court of Human Rights case of L & V v. Austria, 36 Eur. H.R. Rep. 55 (2003), the U.S. Supreme Court case of Lawrence v. Texas, 539 U.S. 558, 584 (2003), and the Constitutional Court of South Africa case of Nat'l Coalition for Gays & Lesbian Equal. v. Minister of Justice 1998 (6) B.H.R.C. 127 (S. Afr.).

(found in "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong" by Albert H.Y. Chen, pp. 21-23)

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