High Court Strikes Down 'gay' Criminal Offences

The High Court has struck down a number of offences set out in Hong Kong's Crimes Ordinance, ruling they were unconstitutional because they unfairly singled out gay men.

The ruling follows a legal challenge brought by Yeung Chu-wing, a volunteer with the LGBT group Rainbow Action.

In a case that went to court in 2017, Yeung argued that seven criminal offences in the city were inconsistent with the Basic Law and the Hong Kong Bill of Rights because they only targeted gay men, with no equivalent offences for others.

They included such things as procuring others to commit homosexual buggery and acts of gross indecency between men.

Yeung said having such laws on the books stigmatised gay people and reinforced public prejudice against them.

Handing down his ruling on Thursday, Judge Thomas Au agreed that four of the seven offences cited in the case do indeed amount to differential treatment and must be struck down.

These offences were procuring others to commit homosexual buggery, gross indecency with or by a male under 16, gross indecency by a man with a man otherwise than in private, and procuring gross indecency by a man with a man.

But the judge decided that the court has a duty to adopt a "remedial interpretation" of the other three offences to render them consistent with the Basic Law, and to avoid creating a legal vacuum by striking down the provisions.

These three offences are homosexual buggery with or by a male under 16, gross indecency by a man with a male mentally incapacitated person, and permitting a young person to resort to or be on a premises or vessel for intercourse, prostitution, buggery or a homosexual act.

These three offences will now be interpreted in a broader manner so they no longer discriminate against gay men in particular.

Yeung's lawyer, Michael Vidler, described the judgement as a full victory for his client.

"Since the decriminalisation of homosexuality, the gay community has been living under the Sword of Damocles of being prosecuted for these discriminatory offences which don't apply to heterosexual people," Vidler said.