A A

HCAL 753/2017
B B
[2019] HKCFI 1431
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

E NO 753 OF 2017 E

_______________
F F

BETWEEN
G G
YEUNG CHU WING Applicant
H H
and
I I
SECRETARY FOR JUSTICE Respondent
J J
RAINBOW ACTION Interested Party
K _______________ K

L L
Before: Hon Au J in Court
M Date of Hearing: 27 September 2018 M

Dates of Supplemental Written Submissions: 25 October and 1 November 2018

N N
Date of Judgment: 30 May 2019
O O

P P
JUDGMENT
Q Q
A. INTRODUCTION
R R
1. This is the applicant’s judicial review asking the court to
S
declare seven provisions (collectively “the Provisions”) in the Crimes S

T
Ordinance (Cap 200) (“the CO”) to be unconstitutional. The applicant T

U U

V V
 - 2 -
A A

says the Provisions are discriminatory against male homosexuals and thus
B B
inconsistent with Article 25 of the Basic Law (“BL25”) and Article 22 of
1

C the Hong Kong Bill of Rights (“BOR22”).2 The Provisions are: C

D (1) section 118C; D

E (2) section 118G; E

(3) section 118H;

F F
(4) section 118I;
G G
(5) section 118J(1);
H (6) section 118K; and H

I
(7) section 141(c). I

J 2. For convenience, in this judgment, unless otherwise stated, J

all references made to a statutory provision is a reference to that provision

K K
of the CO.
L L

M 3. As a start, it is pertinent to set out the Secretary for Justice M

(“SJ”)’s position in this application:
N N
(1) She accepts that sections 118G, 118H, 118J(1) and 118K
O (collectively “the Uncontested Provisions”) are inconsistent O

with BL25 and BOR22 and hence the declarations sought by

P P
the applicant in relation to them should be granted.
Q Q
(2) Even though sections 118C, 118I and 141(c) (collectively
“the Contested Provisions”) are prima facie in their present
R R

1
BL25 provides: “All Hong Kong residents shall be equal before the law.”
S 2
BOR22 provides: “All persons are equal before the law and are entitled without any S
discrimination to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
T discrimination on any ground such as race, colour, sex, language, religion, political or other T
opinion, national or social origin, property, birth or other status.”

U U

V V
 - 3 -
A A

B form also inconsistent with BL25 and BOR22, the SJ asks B

the court to adopt respective remedial interpretations of these
C C
provisions to preserve their validity, and hence the
declarations sought should not be granted.
D D

E 4. Given the SJ’s said position, the real issues arising in this E

application are a narrower one: whether the court could and should make
F F
the remedial interpretations as submitted by the SJ respectively of
G sections 118C, 118I and 141(c). G

H H
5. The applicant is represented by Mr Hectar Pun SC, leading
I I
Mr Anson Wong Yat Yu. The SJ is represented by Mr Raymond Leung

J
SC, leading Ms Grace Chow. J

K K
6. Before I consider the remedial interpretation issues, as urged
L by Mr Pun, I should still first briefly set out below the reasons why the L

Uncontested Provisions shall be declared to be unconstitutional.

M M

N B. THE UNCONTESTED PROVISIONS N

O 7. The Uncontested Provisions respectively provide as follows: O

P “118G. Procuring others to commit homosexual buggery P

A person who procures a man to commit an act of

Q buggery with a third person, who is another man, shall Q
be guilty of an offence and shall be liable on
conviction on indictment to imprisonment for
R R
2 years.”

S “118H. Gross indecency with or by man under 16 S

A man who—
T T

U U

V V
 - 4 -
A A

(a) commits an act of gross indecency with a man

B under the age of 16; or B

C
(b) being under the age of 16 commits an act of C
gross indecency with another man,

D shall be guilty of an offence and shall be liable on D

conviction on indictment to imprisonment for 2
years.”
E E
“118J. Gross indecency by man with man otherwise than in
F
private F
(1) A man who commits an act of gross indecency with
G another man otherwise than in private shall be guilty of an G
offence and shall be liable on conviction on indictment to
imprisonment for 2 years.
H H
…”
I I
“118K. Procuring gross indecency by man with man

J A person who procures a man to commit an act of gross J

indecency with a third person, who is another man, shall be
guilty of an offence and shall be liable on conviction on
K indictment to imprisonment for 2 years.” K

L L
8. For the following reasons, in the court’s view, the SJ is right
M in accepting that these provisions are unconstitutional as they are M

discriminatory against male homosexuals.

N N

O 9. The principles in relation to the constitutional protection O

against discrimination are about equality of treatment as set out by Li CJ

P P
in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335, at
Q paragraphs 19 - 22 as follows: Q

R “19. In general, the law should usually accord identical R

treatment to comparable situations. As Lord Nicholls observed
in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.566C:
S S
Like cases should be treated alike, unlike cases should not
T be treated alike. T

U U

V V
 - 5 -
A A

20. However, the guarantee of equality before the law does

B not invariably require exact equality. Differences in legal B
treatment may be justified for good reason. In order for
C differential treatment to be justified, it must be shown that: C

(1) The difference in treatment must pursue a legitimate

D aim. For any aim to be legitimate, a genuine need for D
such difference must be established.
E (2) The difference in treatment must be rationally E
connected to the legitimate aim.
F F
(3) The difference in treatment must be no more than is
necessary to accomplish the legitimate aim.
G G
The above test will be referred to as ‘the justification test’. In
the present case, the Court has had the benefit of submissions
H on its appropriate formulation. There is no material difference H
between the justification test and the test stated in R v Man Wai
I Keung (No 2) [1992] 2 HKCLR 207 at p.217 which was used by I
the Court in So Wai Lun v HKSAR (2006) 9 HKCFAR 530 at
para.20.
J J
21. The burden is on the Government to satisfy the court
that the justification test is satisfied. Where one is concerned
K K
with differential treatment based on grounds such as race, sex
or sexual orientation, the court will scrutinize with intensity
L whether the difference in treatment is justified. See Ghaidan v L
Godin-Mendoza [2004] 2 AC 557 at p.568G (Lord Nicholls).

M 22. In requiring differential treatment to be justified, the M

view has been expressed that the difference in treatment in
question is an infringement of the constitutional right to
N N
equality but that the infringement may be constitutionally
justified. See the Court of Appeal’s judgment in the present
O case at p.208B-C (Ma CJHC) and in Leung v Secretary for O
Justice [2006] 4 HKLRD 211 at p.234G-H. This approach is not
appropriate. Where the difference in treatment satisfies the
P justification test, the correct approach is to regard the difference P
in treatment as not constituting discrimination and not
Q infringing the constitutional right to equality. Unlike some Q
other constitutional rights, such as the right of peaceful
assembly, it is not a question of infringement of the right which
R may be constitutionally justified.” (emphasis added) R

S S
10. Hence, the principle of equality is about like cases being
T treated alike, and unlike cases should be treated differently. The law T

U U

V V
 - 6 -
A A

does not treat differential treatment between two groups of person as

B B
discrimination if there is sufficient relevant difference between them to
C C
warrant the differential treatment. If the two groups of person are not in

D
comparable situations, no question of discrimination arises as the law D
does not require them to be treated identically. However, if they can be
E E
regarded as to be in comparable situations, there would be prima facie

F
discrimination unless the differential treatment can be justified under the F
justification test.
G G

H 11. Recently in Director of Immigration v QT (2018) 21 H

HKCFAR 150, the Court of Final Appeal affirmed (at paragraph 86) the
I I
addition to the justification test of “the fourth step involving
J consideration of whether a reasonable balance had been struck between J

the societal benefits of the encroachment on the one hand, and the inroads
K K
made into the constitutionally protected rights of the individual on the
L other, asking in particular whether pursuit of the societal interest results L

in an unacceptably harsh burden on the individual”.

M M

N 12. In QT, the Court of Final Appeal also re-iterated the need for N

scrutiny and that “the correct approach is to examine every alleged case
O O
of discrimination to see if the difference in treatment can be justified” at
P paragraphs 81 - 83 (footnotes omitted): P

Q “81. Where an issue of equality before the law arises, the Q

question of whether a measure is discriminatory is necessarily
R
bound up with whether the differential treatment which the R
measure entails can be justified. Thus, in Secretary for Justice v
Yau Yuk Lung, Li CJ pointed out that a difference in treatment
S does not constitute discrimination where it satisfies the S
justification test. One does not decide independently whether
there has been discrimination and then seek to determine
T T
whether it can be justified. His Lordship stated:

U U

V V
 - 7 -
A A

‘Where the difference in treatment satisfies the justification

B test, the correct approach is to regard the difference in B
treatment as not constituting discrimination and not
C infringing the constitutional right to equality. Unlike some C
other constitutional rights, such as the right of peaceful
assembly, it is not a question of infringement of the right
D which may be constitutionally justified.’ D

82. And in Fok Chun Wa v Hospital Authority, Ma CJ

E E
stated:

F ‘In the majority of cases where equality issues are involved, F

it will be necessary for the Court to look at the materials
which go to the three facets of the justification test before
G this crucial question is answered. It will be a rare case, I G
daresay, where the court will comfortably be able to answer
this question without any recourse to the issue of
H H
justification at all...’

I 83. Indeed, in our view, the correct approach is to examine I

every alleged case of discrimination to see if the difference in
treatment can be justified. As Lord Nicholls observed, ‘the
J essential question for the court is whether the alleged J
discrimination, that is, the difference in treatment of which
K complaint is made, can withstand scrutiny’. In particular, as K
Lord Bingham of Cornhill noted: ‘What has to be justified is
not the measure in issue but the difference in treatment between
L one person or group and another.’ And as Lord Nicholls also L
pointed out, sometimes the answer may appear obvious: ‘There
may be such an obvious, relevant difference between the
M M
claimant and those with whom he seeks to compare himself that
their situations cannot be regarded as analogous.’ Those are
N cases where the justification is readily apparent, but N
nonetheless required.”3
O O

13. It is trite that the burden is on the respondent (the SJ in the

P P
present case) to satisfy the court that the challenged differential treatment
Q is justified. Q

R R

S S

3
See also the observations in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at
T paragraphs 56 - 59 per Ma CJ that in most questions involving the right to equality, there will T
be an overlap in the application of the two-stage test set out in Yau Yuk Lung.

U U

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 - 8 -
A A

14. In this respect, there have been judicial decisions in Hong

B B
Kong which considered the constitutionality of similar provisions. The
C C
Court of Appeal in Leung v Secretary for Justice [2006] 4 HKLRD 211

D
declared section 118C4 and section 118H5 to be unconstitutional due to D
the different age requirements for homosexual and heterosexual buggery
E E
and gross indecency respectively. The Court of Final Appeal in

F
Secretary for Justice v Yau Yuk Lung also declared section 118F(l)6 to be F
unconstitutional for only criminalising homosexual buggery otherwise
G G
than in private but not comparable heterosexual acts.

H H

15. In coming to those conclusions, the court has observed that

I I
buggery and sexual intercourse between a man and a woman are to be
J regarded as being similar7. Further, Hartmann J has remarked in the first J

instance judgment in Leung v Secretary for Justice8, at paragraph 134 that

K K
“for gay couples the only form of sexual intercourse available to them is
L anal intercourse; that is, the act of buggery”.9 L

M M

N N
4
The then section 118C provides that:
O “A man who: O
(a) commits buggery with a man under the age of 21; or
(b) being under the age of 21 commits buggery with another man,
P shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment P
for life.”
5
The then section 118H provides that:
Q “A man who: Q
(a) commits an act of gross indecency with a man under the age of 21; or
(b) being under the age of 21 commits an act of gross indecency with another man,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment
R R
for two years.”
6
The then section 118F(1) provides that:
“A man who commits buggery with another man otherwise than in private shall be guilty of
S an offence and shall be liable on conviction on indictment to imprisonment for five years.” S
7
Leung v Secretary for Justice [2006] 4 HKLRD 211 (CA) at paragraph 47 per Ma CJHC (as
the learned CJ then was).
T 8
[2005] 3 HKLRD 657. T
9
Agreed by Ma CJHC at paragraph 49 of the Court of Appeal judgment.

U U

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 - 9 -
A A

16. In the present case, the Uncontested Provisions are all

B B
concerned with illegal sexual activities between homosexual men only.
C C
As pointed out by Mr Pun and accepted by Mr Leung, the Uncontested

D
Provisions amount to differential treatment which target only male D
homosexuals (but not heterosexuals or female homosexuals):
E E
(1) Both sections 118G and 118K target only male homosexuals
F but no comparable offences exist for heterosexuals or female F

homosexuals. Applying the reasoning in Yau Yuk Lung

G G
where the Court of Final Appeal held at paragraphs 23 - 30
H that section 118F(1) (concerning the offence of homosexual H
buggery otherwise than in private) was discriminatory in
I I
targeting male homosexuals, in the absence of any
justification, these two provisions are discriminatory and
J J
should be declared unconstitutional10.
K K
(2) Section 118H also targets male homosexuals but no
comparable offences exist for heterosexuals or female
L L
homosexuals. The provision further treats a homosexual
M boy under the age of 16 less favourably in that for the same M

or similar act between heterosexuals (eg, under

N N
sections118D, 122, 123, and 124), the under 16 participant
O would not be held criminally liable. This amounts to direct O
11
discrimination . Given there exists a similar offence under
P section 146(1) (indecent conduct towards a child under 16) P

with a heavier penalty which could deal with the same

Q Q

R R

S 10
The SJ however has pointed out that the existence of section 89 of the Criminal Procedure S
Ordinance (Cap 221) (which states that a person who aids, abets, counsels or procures the
commission by another person of any offence shall be guilty of the like offence) may deal
T with the same mischief. T
11
See the Court of Appeal’s judgment in Leung v Secretary for Justice, supra, at paragraph 128.

U U

V V
 - 10 -
A A

B mischief12, section 118H is discriminatory in nature unless B

there are other justifications for it.
C C
(3) Section 118J(1) only targets male homosexuals but no
D comparable offences exist for heterosexuals. Given that D
section 118J(1) mirrors section 118F(1) which has been
E E
struck down in Yau Yuk Lung and the fact that the scenarios
pertinent to section 118J(1) can be covered by the common
F F
law offence of outraging public decency or section 148,
G section 118J(1) should be declared unconstitutional in the G

absence of any justification.

H H

I 17. The SJ has not provided any justification for any of the I

Uncontested Provisions. In the premises, these provisions are

J J
inconsistent with the right to equality protected under BL25 and BOR22
K and discriminatory in nature. They are unconstitutional and should be K

struck down.
L L

M C. THE CONTESTED PROVISIONS M

N 18. As mentioned above, the SJ accepts that the Contested N

Provisions read as they are now would amount to prima facie differential
O O
treatment against male homosexuals and thus inconsistent with BL25 and
P BOR22. However, Mr Leung SC asks this court to adopt a remedial P

interpretation of these provisions to make them Basic Law-compliant.

Q Q

R R

S S
12
Section 146(1) provides: “…a person who commits an act of gross indecency with or towards a
child under the age of 16, or who incites a child under the age of 16 to commit such an act
T with or towards him or her or another, shall be guilty of an offence and shall be liable on T
conviction on indictment to imprisonment for 10 years.”

U U

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A A

19. It is now firmly established that the court has the implied
B B
power to adopt remedial interpretation for the purpose of making a
C C
statutory provision Basic Law or BOR compliant. Striking down a

D
legislative provision for being not constitutional is appropriate only D
where a remedial interpretation is impossible. The rationale is that the
E E
court interferes less with the exercise of legislative power than it would if

F
it cannot engage in a remedial interpretation. See: HKSAR v Lam F
Kwong Wai (2006) 9 HKCFAR 574 at 611B - D, H - I,
G G
per Sir Anthony Mason NPJ; Ghaidan v Godin-Mendoza [2004] 2 AC 557

H at paragraph 32, per Lord Nicholls. H

I I
20. The court in adopting remedial interpretation may make use
J of the well-known techniques of severance, reading in, reading down and J

striking out: see Lam Kwong Wai at paragraph 71.

K K

L 21. It is indeed a matter of judicial duty to adopt a remedial L

interpretation of an infringing provision, although it could only do so as

M M
far as it is possible: Lam Kwong Wai at 611B - D,
N per Sir Anthony Mason NPJ. N

O O
22. In this respect, the court should not make decisions for
P P
which they are not equipped such as where their choice amongst several

Q
ways of making a provision Basic Law or BOR compliant may involve Q
issues that should be deliberated by the legislature: Ghaidan at
R R
paragraph 33, per Lord Nicholls. Further, it is not permissible for the

S court to reach an interpretation in the name of remedial interpretation the S

T T

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 - 12 -
A A

result of which is wholly different from what the parliament has

B B
13
intended .
C C

D 23. The tool of remedial interpretation therefore has its limits at D

least to the extent that the court should not make decisions on matters that
E E
should be deliberated and determined by the legislature, in particular
F where, as Lord Nicholls stressed in Ghaidan at paragraph 33, there is a F

number of ways to make the infringing provision constitutional.

G G

H 24. The court must and can only exercise that power in H

accordance with the established principles.

I I

J 25. In this respect, the Court of Appeal in Keen Lloyd Holdings J

Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 at

K K
paragraph 97 has summarized the relevant principles as follows14:
L L
(1) Subject to limitations in (3) and (4) below, the court can
M exercise the power of remedial interpretation to depart from M

even the unambiguous meaning of the legislative provision

N N
in order to give a Basic Law-compliant effect to the same.
O (2) In adopting a remedial interpretation, the court can interpret O

language in a statutory provision restrictively or expansively.

P P
It can also read in words which change the meaning of the
Q provision. Q

(3) However, the court cannot adopt a meaning inconsistent with

R R
a fundamental feature of the legislative scheme or its
S essential principles. Whether an element in the statutory S

13
See also Wong Chi Fung v Secretary for Justice [2016] 3 HKLRD 835 at paragraph 72 and the
T authorities cited therein. T
14
Derived from Ghaidan v Godin-Mendoza, supra.

U U

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 - 13 -
A A

B provision constitutes a fundamental feature or essential B

principle must be determined with regard to its place in the
C C
overall scheme of the legislation.

D (4) Remedial interpretation does not empower the courts to D

make decisions for which they are not equipped such as
E E
choosing between various options which requires legislative
deliberation or adopting a meaning which has important
F F
practical repercussions which the court is in no position to
G evaluate. G

H H
26. Mr Leung has helpfully drawn the court’s attention to a
I number of recent cases where the Hong Kong courts have applied I

remedial interpretation and interpreted language expansively:

J J

(1) In W v Registrar of Marriages (2013) 16 HKCFAR 112, the

K K
Court of Final Appeal (Chan PJ dissenting), by way of
L
remedial interpretation, declared that the word “woman” in L
section 40 of the Marriage Ordinance (Cap 181) and the word
M “female” in section 20(l)(d) of the Matrimonial Causes M

Ordinance (Cap 179) must be read and given effect so as to

N N
include within the meaning of those words a post-operative
O male-to-female transsexual person whose gender has been O
certified by an appropriate medical authority to have
P P
changed as a result of sex reassignment surgery; and

Q (2) In Keen Lloyd Holdings Ltd, supra, the Court of Appeal Q

applied a remedial interpretation to expand “domestic

R R
premises” in section 22 of the Import and Export Ordinance
(Cap 60) to mean “premises or place” and therefore
S S
non-domestic premises were also covered.
T T

U U

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A A

27. Further, in Independent Thought v Union of India WP(C)

B B
No.382 of 2013 (11 October 2017), the Supreme Court of India adopted a
C “purposive” interpretation to read down Exception 2 to Section 375 of the C

D
Indian Penal Code (which provides that it is not rape if a man has sexual D
intercourse with a girl, being his wife, who is above 15 of age) as “sexual
E E
intercourse or sexual acts by a man with his own wife, the wife not being

F
under eighteen years of age, is not rape” in order to make it consonance F
with the Protection of Children from Sexual Offences Act, the spirit of
G G
other pro-child legislations and the human rights of a married girl child

H (see paragraph 105). H

I I
28. In relation to the SJ’s submissions asking the court to
J remedially interpret the Contested Provisions, Mr Pun SC emphasizes that J

the burden is on the SJ to satisfy the court that the proposed

K K
interpretations come within the limits of remedial interpretation.
L Mr Pun however clarifies that he would not go so far as to make L

submissions to contend that the proposed interpretations go beyond those

M M
limitations. He would only seek to assist the court by further pointing
N out in particular that the court cannot adopt a remedial interpretation N

which will effectively be creating a new offence.

O O

P 29. For that purpose: P

Q (1) Mr Pun indeed agrees (subject to the court’s own view) to the Q

use of the technique of remedial interpretation as proposed

R R
by the SJ for section 118C.
S (2) Mr Pun however observes that the proposed respective S

remedial interpretations in relation to sections 118I and 141(c)

T T
may be regarded as creating new offences, as persons who
U U

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 - 15 -
A A

B previously would not be caught under those provisions may B

now be. He again emphasizes that it is for the SJ to
C C
persuade the court that her proposed remedial interpretations
are appropriate.
D D

E 30. In my view, properly considered, the question of “new E

offences” are effectively part of the limitations as summarized by the

F F
Court of Appeal in Keen Lloyd, in that the court cannot adopt remedial
G interpretations which (a) will go beyond or are inconsistent with a G

fundamental feature of the legislative scheme or its essential principles,

H H
and (b) amount to the courts making decisions for which they are not
I equipped, such as choosing between various options which requires I

legislative deliberation or adopting a meaning which has important

J J
15
practical repercussions which the court is in no position to evaluate .
K K

L 31. Bearing these principles in mind, I now turn to look at the L

Contested Provisions and consider the respective specific remedial
M M
interpretations suggested by the SJ.
N N

32. Section 118C provides as follows:

O O
15
In the premises, I do not find it necessary to go into the various authorities and article cited by
P Mr Leung and Mr Pun in their respective supplemental submissions dealing with the point of P
whether an interpretation to extend the coverage of the subject statute would amount to
creating a new offence. Suffice also for me to say that these authorities should also be read
Q and understood in the wording of the particular statutes concerned, and do not materially or Q
substantially add anything to the principles that have been summarized in Keen Lloyd. In
any event, this court is bound by the principles set out in Keen Lloyd and Lam Kwong Wai
regarding the exercise of the power of remedial interpretation. Notwithstanding this, I must
R R
register my gratitude to counsel and their legal teams on both side for their industry in
researching on these materials in order to assist the court. As a matter of record, the
authorities cited are: People v Liberta, 474 N.E.2d 567 (N.Y, 1984); Plas v State, 598 P.2d
S 966 (Alaska); State v George, 602 A.2d 593 (Vt. 1991); Hernandez v Robles, 7 Misc 3d 459 S
(2005), 26 A.D. 3d 98 (2005), 855 N.E.2d 1 (N.Y. 2006); Williams v State, 494 So2d 819
(AlaCrApp 1986); Skinner v Oklahoma, 316 US 535 (1942), 155 P2d 715 (1945). The
T article cited is: Extension versus Invalidation of Underinclusive Statutes: A Remedial T
Alternative (1975) Colum JL & Soc Probs 115.

U U

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 - 16 -
A A

“118C. Homosexual buggery with or by man under 16

B B
A man who—
C C
(a) commits buggery with a man under the age of
16; or
D D
(b) being under the age of 16 commits buggery with
another man,
E E
shall be guilty of an offence and shall be liable on
conviction on indictment to imprisonment for life.”
F F

G 33. Section 118C covers homosexual buggery with or by a boy G

under the age of 16, which includes buggery with a boy under the age of 13.
H H
The SJ accepts that as it is, the provision amounts to differential treatment
I against male homosexuals to the extent that: I

J (1) It criminalizes a man aged under 16 for committing buggery J

with another man whereas for the same or similar act

K K
between heterosexuals (eg, sections 118D, 122, 123 and
L 124), the participants under the age of 16 would not be held L
criminally liable. In Leung v Secretary for Justice, the
M Court of Appeal held at paragraph 128 that such direct M

inequality of treatment in section 118C was discriminatory.

N N
(2) Upon conviction under section 118C, the man who commits
O buggery with a man under 16 is liable to imprisonment for O

life whereas under section 124 a man who has unlawful

P P
sexual intercourse with a girl under 16 shall be liable to
Q imprisonment for five years only. As mentioned above, the Q

Court of Appeal in Leung v Secretary for Justice has held at

R R
paragraph 7 that buggery and sexual intercourse between a

S
man and woman are regarded as being similar. S
Accordingly, the maximum sentence should be the same.
T T

U U

V V
 - 17 -
A A

34. However, Mr Leung proposes that section 118C should be

B B
remedially interpreted by reading it down as follows to make it Basic
C C
Law-compliant:

D “A man who— D

(a) commits buggery with a man under the age of 16; or

E E
(b) being under the age of 16 commits buggery with another
F man, F

shall be guilty of an offence and shall be liable on conviction

G on indictment to (a) imprisonment for life if the buggery is G
committed with a boy under the age of 13; or (b) imprisonment
for 5 years if the buggery is committed with a boy under the
H H
age of 16 but is of or above the age of 13.”

I I
35. Mr Leung submits that, by: (1) striking out the words “or
J (b) being under the age of 16 commits buggery with another man”, the J

man under 16 is no longer criminally liable if the other man with whom
K K
he commits buggery is above 16; and (2) reading down the maximum
L L
sentence for buggery for imprisonment to five years if committed with a

M
boy under the age of 16 but is or above the age of 13 brings it in line with M
the sentence for unlawful sexual intercourse with a girl under section 124;
N N
section 118C will be Basic Law-compliant.

O O

36. I agree with Mr Leung that the court should adopt this
P P
remedial interpretation for section 118C.
Q Q

37. The clear objective fundamental feature and essential

R R
principle of the legislative scheme of this provision is to protect a man
S under 16 from buggery. The remedial interpretation, even though S

having the effect of reducing the maximum sentence if the buggery is

T T
committed with a boy under 16 but above 13 from life to five years, it is
U U

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 - 18 -
A A

still consistent with this principle. The interpretation also will not have
B B
any effect of creating new offence. Quite to the contrary, if anything, it
C C
has the effect of making a man under 16 no longer being criminally liable

D
if he commits buggery with another man above 16, as he would have been D
under the originally worded section 118C.
E E

F 38. In the premises, as submitted by Mr Leung, this remedial F

interpretation does not go beyond the limits set out in paragraphs 25(3)
G G
and (4) above16. The legislature would have intended its legislative
H provision to have a valid, even if reduced, operation than to have no H

operation at all and it is not fundamentally different from what was

I I
enacted. It is the court’s judicial duty to remedially interpret
J section 118C as proposed instead of striking it down. J

K K
39. Section 118I provides as follows:
L L
“1181. Gross indecency by man with male mentally
incapacitated person
M M
(1) Subject to subsection (2), a man who commits an
act of gross indecency with another man who is a
N N
mentally incapacitated person shall be guilty of an
offence and shall be liable on conviction on
O indictment to imprisonment for 2 years. O

(2) A man who commits an act of gross indecency

P with another man is not guilty of an offence under P
this section if he does not know and has no reason
Q to suspect the other to be a mentally incapacitated Q
person.”

R R

S S

T 16
As I mentioned above, Mr Pun for the applicant indeed agrees that the proposed interpretation T
of section 118C falls within the principles governing remedial interpretation.

U U

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 - 19 -
A A

40. Mr Leung accepts that section 118I only targets male

B B
homosexuals but no comparable offences exist for heterosexuals or
C C
female homosexuals.

D D
41. Leading counsel submits that however, section 118I aims to
E E
protect male mentally incapacitated persons (“MIPs”). There are no
F other provisions in the CO which afford equal or similar protection of F

male MIPs. If section 118I is declared unconstitutional and invalid, one

G G
can only resort to the offence of indecent assault (section 122). However,
H there are instances where an act of gross indecency may not amount to H

indecent assault, for examples:

I I

(1) In Fairclough v Whipp (1951) 35 Cr App R 138, the

J J
defendant exposed himself in the presence of a 9-year old

K
girl and invited her to touch his penis. It was held that an K
invitation to another to touch the person making the
L invitation could not amount to an assault on the person L

receiving the invitation, and therefore there was no indecent

M M
assault by the defendant.
N (2) In R v Burrows (1951) 35 Cr App R 180, the appellant was N

charged with committing an indecent assault on a boy. The

O O
boy’s evidence was that the appellant exposed himself to
P him and asked the boy to masturbate him. The boy further P
said that the appellant did attempt to touch his private parts.
Q Q
The trial judge directed the jury that the question for them to
consider was whether the appellant had done either of the
R R
things alleged by the boy, and the jury convicted the
S appellant of indecent assault. The English Court of Appeal S

held that the direction was wrong in law, as the former act
T T
could not amount to an indecent assault, because there had
U U

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 - 20 -
A A

B been no threat or hostile act by the appellant towards the boy, B

and consequently assault. The Court of Appeal at 182
C C
observed that if the appellant had been charged with an act
of gross indecency, he would have been properly convicted.
D D

E 42. In the premises, to avoid leaving no protection for vulnerable E

male MIPs from acts of gross indecency being committed on them by

F F
striking down the entire section 118I, Mr Leung proposes that section 118I
G should be remedially interpreted as follows: G

H “(1) Subject to subsection (2), a man person who commits an H

act of gross indecency with another man person who is a
mentally incapacitated person shall be guilty of an offence and
I I
shall be liable on conviction on indictment to imprisonment for
2 years.
J J
(2) A man person who commits an act of gross indecency with
another man person is not guilty of an offence under this
K section if he or she does not know and has no reason to suspect K
the other to be a mentally incapacitated person.”
L L

43. I also accept that this remedial interpretation is consistent

M M
with a fundamental feature or essential principle of the legislative scheme
N underlying this provision as enacted. N

O O
44. As pointed out by the SJ, section 118I was one of the new
P sections incorporated in the CO by the Crimes (Amendment) Bill 1991 P

(“the 1991 Bill”) which followed closely the main commendations of the
Q Q
1983 Law Reform Commission Report on Laws Governing Homosexual
R R
Conduct. In introducing the 1991 Bill, Legislative Council Brief SCR

S
2/2801/83 at paragraphs 2, 5 and 21 state as follows: S

T T

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 - 21 -
A A

B “BACKGROUND B

2 A motion was moved in the Legislative Council on

C C
11 July 1990 by the Chief Secretary proposing that measures be
taken to remove the criminal penalties relating to homosexual
D acts committed in private by consenting men who have reached D
the age of 21, and that the protection from sexual abuse and
exploitation, afforded to women and girls by the Crimes
E Ordinance, should be extended, where appropriate, to men and E
boys. Thirty-one Members voted in favour of the motion and
F thirteen against; six Members abstained. F

…
G G
5 The provisions of the Bill implement the main
recommendations of the 1983 Law Reform Commission Report
H on Laws Governing Homosexual Conduct. A clause-by-clause H
description of the Bill can be found in the explanatory
I memorandum attached to the Bill. The following paragraphs I
give a description and analysis of the provisions of the Bill by
subject.
J J
…
K 21 At Annex B is a list of all the existing protective K
measures for females found in the Crimes Ordinance; against
L this list are the proposals to extend the offence to protect males L
from the corresponding homosexual or heterosexual conduct
(or, where one or both are not proposed to be extended, an
M explanation).” (emphasis added) M

N N
45. Similarly, the Extracts of Hansard Records 17 provides
O relevantly at pp 6 - 7 as follows when introducing the 1991 Bill for O

second reading:
P P

“CRIMES (AMENDMENT) BILL 1991

Q Q
THE SECRETARY FOR SECURITY moved the Second
Reading of: ‘A Bill to amend the Crimes Ordinance.’
R R
He said: Sir, I move that the Crimes (Amendment) Bill 1991 be
read a Second time. The Bill seeks to give effect to the motion
S S
approved by this Council in July last year that measures be
taken:
T T
17
In relation to the LegCo proceedings held on 17 April 1991.

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 - 22 -
A A

(a) to remove the criminal penalties relating to homosexual acts

B committed in private by consenting men who have reached the B
age of 21; and
C C
(b) to extend to men and boys where appropriate the protection
from sexual exploitation afforded to women and girls.
D D
…
E Secondly, the Bill will extend to men and boys most of the E
present provisions of the Crimes Ordinance which are designed
F
to offer women and girls protection from sexual exploitation. A F
number of existing offences designed for the protection of
females refer to ‘unlawful sexual intercourse’, which means,
G essentially, intercourse otherwise than between a man and his G
wife. A person who has unlawful sexual intercourse does not
necessarily commit an offence. However, in certain
H H
circumstances such an act will amount to an offence; for
example, if the act is procured by threats, or false pretences, or
I obtained by the administration of drugs. Clause 2 introduces the I
term ‘unlawful sexual act’ will include unlawful sexual
intercourse and also homosexual acts. By describing such acts
J as ‘unlawful sexual acts’ and designating them as immoral for J
the purposes of section 147 of the Ordinance, which relates to
K soliciting for immoral purposes, it is made clear that they are K
not acts which the law condones or will support.” (emphasis
added)
L L

M 46. In light of these legislative materials, it is clear to me that a M

fundamental feature and essential principle of the legislative scheme for
N N
enacting section 118I is to extend to men and boys most of the then
O existing provisions of the CO designed to offer women and girls O

protection18.
P P

Q 47. The remedial interpretation, in reading “man” expansively to Q

mean “person”, means that both female and male MIPs will be equally
R R
protected, while male homosexuals will no longer be targeted as it would
S cover female homosexuals and heterosexuals. Such protection offered S

T T
18
See also Affirmation of Chiu Man Hin at paragraph 20(ii).

U U

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 - 23 -
A A

under the remedial interpretation is therefore consistent with the

B B
above-said fundamental feature and principle of the legislative scheme.
C C

D 48. It also does not involve the court choosing alternative D

options which is best left to the legislature. The remedial interpretation
E E
does not change in any aspect the way to protect MIPs from being
F subjected to act of gross indecency as already chosen by the legislature in F

enacting section 118I: ie, by making it an offence to do so, with the

G G
statutory defence as provided.
H H

49. Nor is any new offence created. In light of the fundamental

I I
feature of the legislative scheme for the provision as mentioned above,
J the material and operative elements of the offence are still that (a) an act J

of gross indecency is committed by the offender, and (b) it is made to an

K K
intended protected category of individuals, ie, MIPs.
L L

50. In the premises, it is the court’s judicial duty to remedially

M M
interpret section 118I as proposed instead of striking it down.
N N

O 51. Section 141 provides as follows: O

“141. Permitting young person to resort to or be on

P P
premises or vessel for intercourse, prostitution,
buggery or homosexual act
Q Q
An owner or occupier of any premises or vessel, and
any person who manages or assists in the management
R or control of any premises or vessel, who induces or R
knowingly suffers—
S S
(a) a girl under the age of 16 to resort to or be on such
premises or vessel for the purpose of having
T unlawful sexual intercourse with a man or for the T
purpose of prostitution;
U U

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 - 24 -
A A

(b) a girl or boy under the age of 21 to resort to or be

B on such premises or vessel for the purpose of B
committing buggery with a man; or
C C
(c) a boy under the age of 21 to resort to or be on such
premises or vessel for the purpose of committing
D an act of gross indecency with a man, D

shall be guilty of an offence and shall be liable on

E conviction on indictment to imprisonment for E
14 years.”
F F

52. Section 141(c) only criminalizes an owner or occupier who

G G
induces or knowingly suffers a boy under 21 to be on the premises or
H vessel for the purpose of committing an act of gross indecency with a H

man, but not an act of gross indecency with a woman nor an underage girl
I I
to be on the premises or vessel for the purpose of committing an act of
J gross indecency with a man or a woman. J

K K
53. As pointed out by Mr Leung, section 141(c) is a separate and
L L
distinct offence from the offence created by section 146 19 which

M prohibits a person (including an owner or occupier) actually committing M

an act of gross indecency with or towards a child under the age of 16.
N N
Section 146 therefore does not penalize an owner or occupier for allowing
O or condoning certain unlawful sexual acts being committed on their O

premises or vehicles. Thus, if section 141(c) is declared unconstitutional,

P P

19
Q Section 146 provides: Q
“146. Indecent conduct towards child under 16
(1) Subject to subsection (3), a person who commits an act of gross indecency with or
towards a child under the age of 16, or who incites a child under the age of 16 to commit
R R
such an act with or towards him or her or another, shall be guilty of an offence and shall
be liable on conviction on indictment to imprisonment for 10 years.
(2) It shall not be a defence to a charge under this section to prove that the child consented to
S the act of gross indecency. S
(3) A person who commits an act of gross indecency with or towards a child or who incites a
child to commit such an act with or towards him or her is not guilty of an offence under
T this section if that person is, or believes on reasonable grounds that he or she is, married T
to the child.”

U U

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 - 25 -
A A

there will be a legal vacuum (for example, the problems of sex parties in
B B
premises and vessel could not be tackled) and there is reduced protection
C C
for a male under the age of 2120.

D D
54. Mr Leung therefore submits that the court should remedially
E E
interpret section 141(c) as follows:
F F
“An owner or occupier of any premises or vessel, and any
person who manages or assists in the management or control of
G any premises or vessel, who induces or knowingly suffers— G

…
H H
(c) a boy person under the age of 21 16 to resort to or be on
such premises or vessel for the purpose of committing an
I I
act of gross indecency with a man another person,

J shall be guilty of an offence and shall be liable on conviction J

on indictment to imprisonment for 14 years.”

K K
55. By reading “boy” expansively to mean “person” and
L L
substituting “another person” for “a man”, male homosexuals will not be

M targeted only. Furthermore, reading down the age from 21 to 16 will M

bring it in line with section 146.
N N

O 56. For the following reasons, I agree with Mr Leung that the O

proposed interpretation does not go beyond the limitations of remedial

P P
interpretation.
Q Q

57. Section 141 was added to substitute a previous offence (“As

R R
owner or occupier knowingly permitting a girl under the age of 16 to
S resort to or be on premises or vessel for prostitution or unlawful sexual S

T T
20
See also See Affirmation of Chiu Man Hin, paragraph 20(iii).

U U

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 - 26 -
A A

intercourse”21) such that both buggery and gross indecency with a man
B B
was covered: see Legislative Council Brief SCR 2/2801/83, paragraphs 2,
C 21 (as quoted above) and Annex B, which relevantly provides that “the C

D
protection” at the present section 141(b) and (c) “overs both homosexual D
and heterosexual buggery[,] boys are additionally protected in respect of
E E
gross indecency with a man”.

F F

58. Given these legislative materials, again, it is clear that a

G G
fundamental feature or essential principle of the legislative scheme for
H enacting section 141(c) is to extend to men and boys most of the then H

existing provisions of the CO designed to offer women and girls

I I
protection.
J J

59. With the remedial interpretation in reading “boy”

K K
expansively to mean “person”, both boy and girl will be equally protected,
L while male homosexuals will no longer be targeted as it would cover L

female homosexuals and heterosexuals. Such protection offered under

M M
the remedial interpretation is thus consistent with the above-said
N fundamental feature or principle of the legislative scheme. N

O O
60. For the same analysis I have made at paragraphs 48 and 49
P P
above, the remedial interpretation does not:

Q (1) change in any aspect the way to protect the subject young Q

individuals by criminalizing a premises or vessel owner or

R R
occupier to induce or allow protected individuals to be
S subjected to gross indecency on the said premises or vessel. S

T T
21
This original offence has come under section 141(a) after the amendment.

U U

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 - 27 -
A A

B It therefore does not involve the court choosing alternative B

options to protect them.
C C
(2) amount to creating a new offence. Considered under its
D fundamental principle and legislative scheme of D
section 141(c), the material and operative elements of the
E E
offence are still that (a) the defendant induces or knowingly
suffers, (b) an intended protected individual to resort to or be
F F
on such premises or vessel, and (c) for the purpose of
G committing an act of gross indecency. G

H H
61. In the premises, it is the similarly court’s judicial duty to
I remedially interpret section 141(c) as proposed instead of striking it down. I

J J
62. However, to maintain consistency in the wording of
K section 141 as a whole (where section 141(a) and (b) use the word “girl” or K

“boy” to refer to the protected individual), I will remedially interpret

L L
section 141(c) as follows:
M M
“An owner or occupier of any premises or vessel, and any
person who manages or assists in the management or control of
N N
any premises or vessel, who induces or knowingly suffers—

O … O

(c) a girl or boy under the age of 21 16 to resort to or be on

P such premises or vessel for the purpose of committing an P
act of gross indecency with a man another person,
Q Q
shall be guilty of an offence and shall be liable on conviction
R on indictment to imprisonment for 14 years.” R

S S
63. For all the above reasons, I will adopt the respective

T
remedial interpretation as set out above in relation to the Contested T

U U

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 - 28 -
A A

Provisions. Once so interpreted, they are not inconsistent with BL25 or

B B
BOR22.
C C

D 64. At this juncture, it is perhaps convenient to mention that the D

Law Reform Committee (“LRC”) has since 2006 been reviewing the
E E
sexual offences regime in Hong Kong. At the time of this hearing, the
F Review of Sexual Offences Sub-committee of the LRC (“the F

Sub-Committee”) has published its third and final consultation paper (on
G G
Miscellaneous Sexual Offences)22 and the consultation period for that
H paper also ended on 15 August 2018. H

I I
65. In light of this, Mr Pun has submitted that the court should
J perhaps be cautious in adopting the proposed remedial interpretation to J

“rescue” these provisions in a piece-meal manner, since it should and

K K
would be more appropriate for the legislature to enact new legislations as
L a whole after considering the Sub-Committee’s recommendations 23. L

M M
66. For this, I agree with Mr Leung that I should still adopt the
N proposed interpretations once I am satisfied that they do fall within the N

O
limitations concerning the technique of remedial interpretations. I will O
explain why.
P P

Q 67. First, as mentioned above, it is indeed a judicial duty for the Q

court to adopt remedial interpretation (when it can do so) to make a

R R

S 22
On 16 May 2018. S
23
Mr Pun has drawn my attention to the fact that the Sub-Committee in its consultation papers
respectively dated November 2016 and May 2018 recommended that offences created by,
T among others, sections 118C, 118G, 118H, 118I, 118J, 118K and 124 “should be abolished T
upon the enactment of the new legislation” (my emphasis).

U U

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 - 29 -
A A

statutory provision to be constitutionally compliant instead of striking it

B B
down.
C C

D 68. Second, insofar as permissible under the established legal D

principles, it is necessary to ensure the protection of vulnerable persons
E E
(minors and MIPs) and public interests as already intended by the
F legislature by enacting those provisions. Since the subject of sexual F

offences involves complicated and controversial legal and social issues,

G G
any further changes to the existing legislation by way of new enactments
H will require thorough, detailed and holistic consideration in consultation H

with the relevant stakeholders, to strike a proper balance between the

I I
rights of individuals concerned and the rights of others who may be
J affected and the interest of society at large. This process can be lengthy J

before new and consequential enactments can be put in place.

K K

L 69. In the premises, in the interim, it is undesirable and L

unsatisfactory to leave open a legal vacuum in striking down the

M M
Contested Provisions. The court should remedially interpret them in the
N above manner once it is satisfied that the interpretations are permitted N

under the relevant legal principles.

O O

P P
D. DISPOSITION

Q 70. The applicant succeeds in the present application in relation Q

to the Uncontested Provisions. I will declare that the sections 118G,

R R
118H, 118J(1) and 118K are inconsistent with BL25 and BOR22 and are
S S
unconstitutional.

T T

U U

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 - 30 -
A A

71. In relation to the Contested Provisions, the court will adopt

B B
the respective remedial interpretations for section 118C (as set out at
C C
paragraph 34 above), section 118I (as set out at paragraph 42 above) and

D
section 141(c) (as set out at paragraph 62 above). In light of the remedial D
interpretations, they are consistent with BL25 and BOR22 and thus
E E
constitutional. The applicant’s challenge against them in this

F
application fails. F

G G
72. Given my above reasons, the applicant is essentially
H successful in this application. I will therefore make a costs order nisi that H

the costs of this application be to the applicant, to be taxed if not agreed,

I I
with certificate for two counsel. The applicant’s own costs is be taxed
J in accordance with the legal aid regulations. J

K K
73. Lastly, it remains for me to thank counsel for their helpful
L assistance. L

M M

N N

O O
(Thomas Au)
Judge of the Court of First Instance
P P
High Court
Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Vidler &
Q Co, assigned by Director of Legal Aid, for the applicant Q

R Mr Raymond Leung SC and Ms Grace Chow, instructed by Department R

of Justice, for the respondent
S S
The interested party acting in person and absent
T T

U U

V V