The claimants were charged under Section 118F(1) of the Crimes Ordinance (Cap 200) which criminalised ‘homosexual buggery committed otherwise than in private.’ The claimants were arrested for same-sex sexual relations in a private car parked beside a public road.
At the trial at the Magistrate’s Court, the claimants challenged the constitutionality of the provision. The Magistrate upheld the constitutional challenge and dismissed the charges. The Secretary of Justice appealed to the Court of Appeal which upheld the Magistrate’s decision. The Secretary of Justice then appealed to the Hong Kong Court of Final Appeal (CFA) which certified that two questions of law were important:
- Is [s. 118F(1)] discriminatory to the extent that it is inconsistent with the Basic Law and the Hong Kong Bill of Rights?
- What is the proper order to be made when the charge against the defendant is found to be unconstitutional?
The CFA asserted that the right to equality is constitutionally protected in Hong Kong and that it was the antithesis of discrimination. The CFA outlined that the right to equality is guaranteed by Article 25 of the Basic Law (BL) which provides: ‘All Hong Kong residents shall be equal before the law.’ The right to equality is also protected in Article 22 of the Bill of Rights (BOR), corresponding to Article 26 of the International Covenant on Civil and Political Rights. The court also stated that discrimination on the grounds of sexual orientation is plainly unconstitutional under Article 25 BL and Article 22 BOR, emphasising that sexual orientation fell within ‘other status.’
The CFA held that equality before the law does not invariably require exact equality and that the differential treatment might be justified on the basis that it was to pursue a legitimate aim. The court found that ‘homosexuals alone are subject to the statutory offence in s.118F(1)’ and as such a ‘dividing line is drawn on the basis of sexual orientation.’ The CFA held that differential treatment was not justified. It stated that the provision had the effect of ‘targeting’ homosexuals, infringing the right to equality and freedom from discrimination and was constitutionally invalid.
The court found that the second certified question, regarding the proper order where a magistrate held the charge to be unconstitutional, could be assessed under Section 27 of the Magistrates Ordinance (Cap 227). The CFA found that Government undertook that it would not seek remittal of the case and would not bring any charge in relation to the conduct alleged in the case. As such, the court dismissed the appeal.
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