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Summarised by Vanessa Chan (Associate)
The respondents were charged and admitted the offence of homosexual buggery otherwise than in private, contrary to section 118F (1) of the Crimes Ordinance (Cap. 200). They challenged the constitutionality of the offence and argued that section 118F (1) had infringed the right to equality by targeting homosexuals. Both the magistrate and the Court of Appeal upheld that the charge against the respondents was unconstitutional. The Secretary for Justice made a further appeal to the Court of Final Appeal.
(1)Whether section 118F (1) was inconsistent with the Basic Law and the Hong Kong Bill of Rights by being discriminatory to an extent; and
(2)What was the proper order to be made when the charge against the defendants was found to be unconstitutional?
Generally, legislation is held to be unconstitutional, if a right has been infringed, and the differential treatment has not been justified. A justification test has to be satisfied to justify differential treatment:
(1)Section 118F(1) is discriminatory to an extent that it is unconstitutional.
The protection of the right to equality is enshrined in Article 25 of the Basic Law and Article 22 of the Bill of Rights. The significance of the protection is to eradicate discrimination. According to the two articles, all persons are equal before the law thus no one should not be discriminated on grounds such as “other status”.
The effect of section 118F (1) essentially produces differential treatment by only criminalising homosexuals buggery otherwise than in private based on the ground of sexual orientation. Therefore, as sexual orientation falls within “other status”, homosexuals’ right against discrimination has been infringed in the present case.
Justification test: whether the differential treatment pursued a legitimate aim
The need for differential treatment is not justified. Having considered the presence of a non-discriminatory common law offence of outraging public decency, there is no need for an additional discriminatory offence like section 118F(1). Therefore, the matter has failed in the first stage of the justification test.
Therefore, section 118F(1) was discriminatory to the extent that it had not justified infringement of the right to equality and was unconstitutional.
(2)The magistrate should refer to section 27 of the Magistrates Ordinance (Cap. 227)
Amendment of information
Section 27 of the Magistrates Ordinance is triggered if there is “a defect in the substance or form of any complaint, information or summons”. Accordingly, as the information charged was held to be unconstitutional, it falls within a “defence in the substance of the information”. Hence, the magistrates should amend or dismiss the information subsequently (section 27(2), Magistrates Ordinance) according to the procedures provided in section 27(3)). Information shall be dismissed if injustice is observed in the amendment.
If the magistrate held that the provision is unconstitutional and the prosecution wishes to challenge the decision, the magistrates may accede to an application and adjourn the proceedings of information amendment, for the outcome of the appeal. This allows the examination of the challenge of constitutionality while preserving the position in the magistrates’ court.
There is no need for amendment of information by substituting an alternative charge as the Secretary for Justice had undertaken not to seek remittal of the case.