Respecting Privacy and Affirming Equality: The Dual Significance of Leung v Secretary For Justice for Hong Kong's Gay Community

Abstract

On 24 August 2005, Justice Hartmann handed down a landmark judgment in Leung v Secretary for Justice, the first 'gay rights' case to come before the Hong Kong courts. In a judicial review application, the High Court declared that four provisions in the Crimes Ordinance relating to sexual activities between men were unconstitutional and therefore invalid, on the basis that they arbitrarily interfered with the private lives of gay men, and discriminated against them on the ground of their sexual orientation. The Government has appealed the decision regarding section 11 8C (only), which prohibits 'buggery' between men where one party is under the age of 21. This article calls for the Court of Appeal to uphold Justice Hartmann's ruling, arguing that it should comfortably withstand the Government's grounds of appeal, and highlighting further potential precedents and arguments in support. It also responds to an article in Volume 35, Part 3 of this journal, in which Robert Danay argued that the offence of buggery should have been analysed on privacy grounds alone, and that the use of the equality analysis had resulted in the judicial promotion of a negative, ‘hypersexualised homosexual stereotype’. This article contends that upholding the dual aspects of the judgment is important for continuing Hong Kong's progressive jurisprudence in the fields of equality and human rights, and also has positive significance for Hong Kong's gay community, by both respecting the privacy and affirming the equality of gay men in Hong Kong society.