The review, before Mr Justice Michael Hartmann, was initiated by William Roy
Leung, a 20-year-old gay man who says the law discriminates against gay men
because it prohibits homosexual sex until a man reaches 21, as opposed to the
age of consent of 16 for heterosexuals and lesbians.
Mr Leung argues the laws violate Article 22 of the Bill of Rights, which states
'the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination'; Article 25 of the Basic Law;
and several sections of the United Nations' International Covenant on Civil and
Political Rights.
Gerard McCoy SC, for the government, began the day by announcing that, in the
case the court did decide to go ahead with the review, the government would
agree that sections 118 (h), (f) and (j) were unsustainable.
Section 118 (h) prescribes a two-year sentence for men who commit acts of
'gross indecency' with other men where at least one of them is under 21. And
118 (f) and 118 (j) criminalise homosexual acts between more than two
consensual males in private and impose extra liability for male homosexuals.
'Those two subsections cannot be relied upon,' Mr McCoy said.
'The secretary of justice ... accepts that it is the law of Hong Kong that
sexual orientation is a valid basis for challenging law that is said to be
discriminatory.'
Mr McCoy described the move as 'a milestone for jurisprudence in Hong Kong' but
objected to the case being heard on the basis that Mr Leung had not in fact run
up against the law and had no standing to question it.
Mr Leung had also taken two-and-three-quarter years since he turned 18 to bring
his complaint to court, an undue delay.
He also cautioned against the court getting involved in 'jurisprudential social
engineering' or playing the role of de facto legislator.
