Leung TC William Roy v Secretary for Justice: Equality for all in laws on sexual intercourse and intimacy

​Leung TC William Roy v Secretary for Justice: Equality for all in laws on sexual intercourse and intimacy

Summarised by James Li (Associate) 

Background 

Prior to this case, the legal age for buggery and sexual intimacy between two men in private is 21 by virtue of the then section118C and section118H of the Crimes Ordinance, whilst the legal age for sexual intercourse and sexual intimacy for heterosexual and lesbian couples is 16. Moreover, it is illegal if more than two men take part or are present in a buggery or an act of sexual intimacy by virtue of the then section118F and section118J of the Crimes Ordinance respectively, whilst no such prohibition is in place for heterosexual and lesbian couples. The applicant in this case is a 20 year-old homosexual man who was of the view that his ability to commit to long-term relationships has been frustrated by this legal prohibition of homosexual sex for men under 21. As a result, he sought to challenge the validity of the relevant provisions of the Crimes Ordinance on the ground that they unlawfully discriminated against him based on his sexual orientation. The Court of First Instance of the High Court ruled in favour of the applicant. The government subsequently appealed to the Court of Appeal but the action was dismissed. 
 
Issues before the Court of First Instance 

1. Whether buggery, within the meaning of the Crimes Ordinance, is a form of sexual intercourse. 
2. Whether the court has jurisdiction to hear the case as it is hypothetical, since the applicant was not prosecuted for any offence. 
3. Whether the provisions of the Crimes Ordinance infringe the right to equality of the applicant as guaranteed under the Basic Law and International Covenant on Civil and Political Rights. 
4. Whether the difference in treatment can be justified. 

 
Decision and Reasoning 

1. Buggery is a form of sexual intercourse. The same has long been recognized in English courts. Additionally, the court is satisfied that the fact that “sexual intercourse” is only used to describe vaginal penetration but not anal penetration in the Crimes Ordinance is just a matter of convenience. 
2. The court has jurisdiction in the present case. The Basic Law must be read to allow remedy for those whose fundamental rights are undermined by primary legislations. Also, a litigant must not be required to break a law before he is able to secure a route to remedy. 
3. The respondent conceded and the court agreed the following: 

• Section118H prohibits homosexual men from engaging in acts of sexual intimacy until they are 21, whilst heterosexual and lesbian couples can do the same provided they have reached 16. This section is discriminatory against homosexual men and shall be read down to mean that homosexual men are prohibited from acts of sexual intimacy if they are under 16. 
• Section118J(2)(a) deems acts of sexual intimacy between more than two men or with the presence of more than two men to be in public and therefore illegal, whilst heterosexual and lesbian couples are not subject to such prohibition. This section is discriminatory against homosexual men and is unsustainable. 
• Section118F(2)(a) deems buggery between homosexual men with one or more other persons taking part or present to be in public and therefore illegal, whilst heterosexual and lesbian couples are not subject to the same prohibition. This section is discriminatory against homosexual men and is unsustainable as well. 
  
  ​4. The court further finds the following: 
• Section118C, when read in conjunction with s.118D, is clearly discriminatory against homosexual men. Section118D states that only the man is criminally liable if heterosexual buggery has taken place between him and a girl under the age of 21, whilst under section118C both men are criminally liable if homosexual buggery has taken place, as long as one of them is under the age of 21. There is direct discrimination in section118C. Section 118C is unconstitutional. 
• The entire legislative scheme indirectly discriminates against homosexual men. To illustrate, the only form of sexual intercourse available to homosexual men is anal intercourse, hence, under the current law, homosexual couples cannot engage in sexual intercourse if they are under 21, while heterosexual couples can.
  
  5. The difference in treatment between homosexual couples and heterosexual couples in the Ordinance cannot be justified. Imprisoning young men on the sole basis of their sexual orientation is not a proportionate response to protecting young men from moral degradation. 

Comments

The legislature has long been regarded as playing the pivotal role in criminalisation of conducts that are thought to affront moral standards, and that courts are often slow to intervene in situations as such. Nevertheless, it is now clear that in cases where the rights engaged are so fundamental that they belong to individuals by virtue of their humanity, including race, sex, and sexual orientation, courts are more proactive in serving justice rather than scrutinising and restraining their role under the constitutional regime.