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Leung TC William Roy v Secretary for Justice: Equality for all in laws on sexual intercourse and intimacySummarised 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
Decision and Reasoning
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.
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