In a unanimous ruling issued on September 20, the Court of Appeal for the Hong Kong Special Administrative Region held in Leung v. Secretary for Justice that the criminal statute that outlaws anal sex when committed by a man with another man under the age of 21, even if both are under 21, is unconstitutional.
The statute authorizes life imprisonment as a suitable sentence. A separate section, which plaintiff Leung T. C. William Roy lacked standing to challenge, similarly penalizes anal sex by a man with a girl if one of them is under 21.
The sodomy laws in Hong Kong are, in part, a relic of British colonial rule, and refer to the conduct as “buggery.” They were modernized in 1991 to remove criminal penalties for sex between consenting adults in private. However, the age of consent for anal sex was set at 21, even though it is 16 for heterosexual intercourse. Group sex, involving more than two people, was found not to qualify as “private,” and therefore remains illegal.
Chief Justice Geoffrey Ma Tao-li’s opinion for the court stated that the legislative history from 1991 indicates some vague discussion about having to protect children from blackmailers, but no further substantive explanation for maintaining the age differential.
Leung’s lawsuit challenged a host of provisions criminalizing various forms of consensual sex, and the state conceded that some of its provisions involving gross indecency—oral sex—were unconstitutional, but it refused to give ground on buggery.
The opinion largely focused on Leung’s standing to sue, since at 20 he had never been prosecuted under the law. The court concluded it was not necessary for Hong Kong citizens to deliberately violate the law in order to get a test of its constitutionality.
Despite China’s jurisdiction over Hong Kong, the court drew on a recent ruling from the European Court of Human Rights, in a case arising from Austria, that maintaining differential ages of consent for gay sex implicates the right to respect for private life, and similar rulings on U.K. law led that country to amend its statutes to equalize the age of consent, notwithstanding a bitter debate in Parliament. The court also quoted with approval the ruling striking down the sodomy law by the South Africa Constitutional Court.
The government argued that there was no discrimination here based on sexual orientation, because heterosexuals who wish to engage in anal sex must also wait until they are both at least 21, but the court saw through this pretext, referring back to the trial court’s decision.
“In my judgment,” wrote Ma, “the answer lies in what [Judge Hartmann] held, namely that ‘for gay couples the only form of sexual intercourse available to them is anal intercourse.’ For heterosexuals, the common form of sexual intercourse open to them is vaginal intercourse… The impact on the former group is significantly greater than on the latter.”
The court found it difficult to credit any argument by the government to claim that there was a reasonable justification for treating anal sex differently from other forms of sex when it came to teens beginning at age 16.
“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 chief justice wrote. “There is, for example, no medical reason for this and none was suggested in the course of argument.”
The court rejected the government’s argument that the policy decision to draw a line between anal sex and heterosexual intercourse was a matter of legislative prerogative with which the courts abstain from interfering. Disagreeing, Ma wrote that the court must “be acutely aware of its role which is to protect minorities from the excesses of the majority.”
The government has the choice of appealing to one higher level Hong Kong court.