In September 2006, the Hong Kong Court of Appeal held that Section 118C of the Crimes Ordinance (Cap 200) was in violation of the rights to equality and privacy. Since 1991, homosexual acts in the form of buggery have been legalized in Hong Kong between consenting adults over the age of 21. The particular issue that arose in this case was the age limit. Section 118C placed the limit at 21 years of age whereas the age of consent for sexual intercourse between men and women was 16. At the time of the application for judicial review, the applicant was 20 years old and felt unable to express himself sexually with other men due to the age of consent in Hong Kong.
The Applicant argued this was discriminatory, unequal and an infringement of his rights under Articles 25 (equality) and 39 (implementation of International Covenant on Civil and Political Rights) of the Basic Law and Articles 1 (non-discrimination), 14 (right to privacy) and 22 (equality) of the Bill of Rights. The High Court found in favour of the applicant and held Section 118C to be in violation of the rights to equality and privacy. This was appealed and heard by the Court of Appeal.
The Court of Appeal asked two questions when determining whether the legislation unconstitutional:
(1) Has a right protected by the Basic Law or the Bill of Rights been infringed?
(2) If so, can such infringement be justified?
The court stated that it was clear that Section 118C of the Crimes Ordinance significantly affected homosexual men in an adverse way compared with heterosexuals and as such violated the rights to privacy and equality contained in the Basic Law and the Bill of Rights.
The second question was whether this infringement was justified. The court used the proportionality test to determine whether the purpose was a legitimate one for legislation to pursue and whether the legislation was rationally connected to it. Judge Hon Ma CJHC held: ‘For my part, I fail to see on any basis the justification of this age limit. No evidence has been placed before us to explain why the minimum age requirement for buggery is 21 whereas as far as sexual intercourse between a man and a woman is concerned, the age of consent is only 16.’
The Court of Appeal agreed with the conclusion of the High Court and found Section 118C unconstitutional and in breach of the Basic Law and the Bill of Rights.
The Court of Appeal also addressed the issue of whether the courts have the jurisdiction to grant relief in cases which involve future events which may or may not occur and which are therefore sometimes said to be hypothetical. It found that the present case affected the dignity of a section of society and the applicant, as a member of that section, had a ‘sufficient interest’.
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