The respondents were charged with having committed buggery with each other otherwise than in private, contrary to s 118F(1) of the Crimes Ordinance (Cap 200). The CA upheld the decision of the Magistrate that the provision was unconstitutional and dismissed the appeal. The appellant appealed to CFA [Court of Final Appeal] which certified that two questions of law were of great and general importance:(1) Was s 118F(1) discriminatory to the extent that it was inconsistent with the BL and the BoR?(2) What was the proper order to be made when the charge against the defendant was found to be unconstitutional?
Court ruling
The CFA was of the view that equality before the law was a fundamental human right. Equality was the antithesis of discrimination. The constitutional right to equality was in essence the right not to be discriminated against. It was guaranteed by BL 25 and art 22 of the BoR (corresponding to art 26 of the ICCPR).
Discrimination on the ground of sexual orientation would plainly be unconstitutional under both BL 25 and art 22 of the BoR in which sexual orientation was within the phrase “other status”.
The constitutional provisions
Whether s 118F(1) was discriminatory and unconstitutional The CFA held that s 118F(1) in criminalizing only homosexual buggery otherwise than in private plainly gave rise to differential treatment on the ground of sexual orientation which required to be justified. The first stage of the justification test was to consider whether the differential treatment pursued a legitimate aim. For this purpose, a genuine need for the difference in treatment had to be made out. That need could not be established from the mere act of legislative enactment. In the present case, no genuine need for the difference in treatment had been shown. That being so, it had not been established that the differential treatment in question pursued any legitimate aim. The matter failed at the first stage of the justification test. In enacting a package of measures to reform the law governing homosexual conduct, the Legislature was entitled to decide whether it was necessary to enact a specific criminal offence to protect the community against sexual conduct in public which outraged public decency. But in legislating for such a specific offence, it could not do so in a discriminatory way. Section 118F(1) was a discriminatory law. It only criminalized homosexual buggery otherwise than in private but did not criminalize heterosexuals for the same or comparable conduct when there was no genuine need for the differential treatment. The courts had the duty of enforcing the constitutional guarantee of equality before the law and of ensuring protection against discriminatory law. Accordingly, s 118F(1) was discriminatory and infringed the right to equality and was unconstitutional.
https://www.doj.gov.hk/en/publications/pdf/basiclaw/basic11_4.pdf
