The Journey to Decriminalization and Equality

Ashley Sit

Author Ashley Sit is a law student at HKU enrolled in the SocSc (Govt & Laws) & LLB programme. 

For over 100 years, homosexuality has been a taboo in Hong Kong, not to mention homosexual sex that were treated as criminal acts.  This article delves into how the decriminalisation of consensual homosexual sexual activity developed in Hong Kong and how criminal offence of homosexual male becomes less stigmatized.  

In recent years, films and television drama on homosexual male couples have been emerging in the cultural industry. In particular, “Call me by your name” and “Your name engraved herein” lightly touches upon sex between homosexual male in the silver screens of both Western world and Asia. Undeniably, these films and drama show that sex between homosexual male couples is also a part of the relationship like any other heterosexual couples. However, the journey to remove stigma, especially through the law, is much tougher and longer.  

In Hong Kong’s colonial days, laws that governed male homosexual sexual conduct were similar to those in force in England before the Sexual Offences Act 1967. For instance, consenting adult males in private to commit buggery was an offence that could be punished by life imprisonment. At that time, a Special Investigation Unit was also established under the Royal Hong Kong Police Force. Lots of homosexual male were arrested and sent to imprisonment by the court. [1]   

The fact that sex between homosexual male were criminalized brought forward the issue of morality and law.  One of the most well-known thesis regarding the issue was the Devlin and Hart debate.  In gist, the debate discussed whether criminal law should be used to regulate private sexual morality and when it is justified for the law to interfere with people’s lives.  

According to Lord Devlin’s  “Disintegration thesis”, the law functions like a cement that holds the entire society together by morality, preventing anything that undermines the shared values of society to prevent society from falling apart. Acts such as abortion, homosexual conduct, and incest between close adult relatives, though not necessarily performed in public and committed offence against others, does not suggest that they be regarded purely as matters of private morality and rejects the interference of criminal law. [2] However, Devlin’s view calls for the question of whether the law shall only be used to punish immoral acts without promoting individual rights and freedom. Unlike Devlin’s stern position on the law having the duty to uphold morality, Professor Hart suggested that there shall be a distinction between private and public acts. To penalise sex between homosexual males was hardly justified, espeically when it did not cause misery and deprived liberty of others. To men who have given their consent, criminal consequences are simply too harsh and unjustified. [3]

Hart’s view actually met the minds of Hong Kong’s colonial government in 1988. In the consultation document “Shall the law on homosexual crime be amended?”,  the government provided three options for public consultation - (i) let the law remain unchanged; (ii) decriminalize sexual conduct between two consenting male, applicable only to male aged above 21; and (iii) reduce the penalty for homosexual sex between consenting male adults from life imprisonment to $5,000 fine and one year imprisonment, and penalty of buggery reduced from two-year imprisonment to $2,000 fine and three-month imprisonment. Three years later in 1991, the Legislative Council passed the bill decriminalizing sexual conduct between two consenting male above 21 years old, which marked a turning point of criminal law in Hong Kong. This also led to the registration of numerous pro-homosexual societies, bringing the homosexual community under public’s attention. [4]

However, decriminalization did not mean the criminal law in Hong Kong has equalized the penalty against homosexual offences and heterosexual offences. It still took more than 20 years to bridge the gap such that equality in regards to sexual conduct can truly be achieved.

In the 2005 case Leung TC William Roy v Secretary for Justice [5], it was held that section 118C of the Crimes Ordinance (Cap. 200) infringed the applicant's rights to privacy and equality contained in Articles 25 and 39 of the Basic Law and Articles 1, 14 and 22 of the Bill of Rights (HKBOR). Section 118C and 118H placed the limit for the age of consent for sexual intercourse between men at 21 years of age. However, the age of consent for sexual intercourse between men and women is 16.  Hence, this constituted infringement of the right to equality in light of the fact that buggery and sexual intercourse between a man and a woman are to be regarded as being similar. It was also declared that sections 118F(2)(a) and 118J(2)(a) of the Crimes Ordinance are inconsistent with Articles 25 and 39 of the Basic Law and Articles 1, 14 and 22 of the HKBOR. Thus, the following provisions were found to be unconstitutional. 

Provisions
Section 118C Homosexual buggery with or by man under 21
Section 118F(2)(a) Homosexual buggery committed otherwise than in private
Section 118H Gross indecency by man with man otherwise than in private
Section 118J(2)(a) Gross indecency with or by man under 21
​
Despite the judgement being laid, it took another 7 years for the government to officially amend the relevant provisions in the Crimes Ordinance. In 2019, the case Yeung Chu Wing v Secretary for Justice further challenged the constitutionality of section 118G、118H、118J and 118K under the Crimes Ordinance.  The court struck down these provisions which impose higher penalties for offences committed by homosexual men, such as lowering the highest penalty of “homosexual buggery with or by a man under 16” such that it is the same as that of sexual intercourse with girl under 16. 
In conclusion, although homosexual male couples have faced the darkest times before buggery was decriminalized and unconstitutional criminal offences were amended, the decriminalization of homosexual buggery undoubtedly shows that the law can progressively adapt to changing basis of morality There is hope that there will be a day where there will be no longer discrimination against homosexual couples.

References:
[1] The Law Reform Commission of Hong Kong. (1988). Laws Governing Homosexual Conduct (Topic 2). Paragraph 1.6
[2] P. Devlin. (1965). The Enforcement of Morals. The Cambridge Law Journal. 
[3] Hart. (1963). Liberty and Morality. Standford University Press.
[4] LesCorner. (2018). Decriminalization of sex between homosexual male. Retrieved from https://lgbtpedia.hk/%e5%90%8c%e6%80%a7%e6%88%80%e9%9d%9e%e5%88%91%e4%ba%8b%e5%8c%96%e5%8f%8a%e9%ba%a5%e6%a8%82%e5%80%ab%e4%ba%8b%e4%bb%b6/
[5] CACV317/2005 [14], [47]