Fridae

After a few anxious weeks, the verdict is finally out: The Hong Kong government's appeal against a landmark ruling on the city's age of consent law for homosexual men has been turned down by the court.

Top pic: 21-year-old William ''Billy'' Leung, who initiated the judicial review in 2004, and his solicitor Michael Vidler.

The judgement, handed down by justices Geoffrey Ma Tao-li, Robert Tang Ching and Woo Kwok-hing of the Court of Appeal, upholds a ruling made by High Court's Justice Michael Hartmann in August last year.

It was determined that section 118C of the Crimes Ordinance, which recommended a life sentence for buggery by or on men under the age of 21, and section 118H of the ordinance prescribing a two-year sentence for acts of gross indecency between men where either one or both was under 21 violated Articles 25 and 39 of the Basic Law, the city's constitution, as well as Articles 1, 14 and 22 of the Hong Kong Bill of Rights, which protect the fundamental rights to equality and privacy.

Justice Hartmann found that with anal intercourse being the only form of sexual intercourse available to homosexual men, prescribing a different age of consent to it (21, versus 16 for vaginal intercourse) constituted to inequality.

Sections 118F and 118J, which criminalised homosexual acts between men when more than two persons take part or are present, regardless of age, were also declared unconstitutional as they target homosexual males and do not apply to heterosexual or lesbian relationships.

These sections of Crimes Ordinance 118 became unenforceable after Hartmann's judgement, and they remain so now that the appeal has been dismissed. The government has two options: Amend the law accordingly or take it to the Court of Final Appeal.

The duo who initiated this judicial review case that has literally made history is solicitor Michael Vidler and plaintiff William Roy Leung, commonly referred to as Billy.

Vidler has consistently been involved with cases concerning human rights and works as duty lawyer for people who find themselves on the wrong side of the law but cannot afford Hong Kong's costly legal system.

"I'd been thinking about [the age of consent] issue for some time... the ordinance was obviously draconian. Life in prison... for what? For being in a loving relationship!" he said.

But to have a case, there needs to be an applicant.

"It would take someone who wasn't an activist, without the baggage of a campaign, and who filed the case as a concerned individual," he said. And as the case would involve outing one's sexuality to the public, it seemed that willing candidates were few and far between.

But came Billy, a 20-year-old who on the surface seemed an unlikely choice. "I was referred to Billy by someone else. He didn't know what he could do, and he hadn't come out to his parents," Vidler said.

Ironically, Billy was also an ideal archetype for such a case. "He's a local guy, from a blue-collar family and educated in local schools," Vidler said. "If he had a Western education, there would be prejudice against him and say he was a victim of the Western plague."

But taking on this initiative would mean outing Billy to the whole of Hong Kong. "I said to him, if you are going to do it, you have to follow through. Otherwise, it would be like taking antibiotics and stop before they had run their course. It would make things worse," Vidler said.

The two met and discussed about the idea. "I knew I could do something about it. Mike explained the law to me and gave me time to think about it," Billy, who has just turned 21, said.

Then, a fateful moment.

"It was my 20th birthday and I was out waiting to meet my friends for dinner. Mike called and we talked again... and I just said, 'I'd do it.'"

The next challenge to Billy was to come out to his family before things inevitably became public. "Honestly, I was surprised, they were more supportive than I imagined," he said. Upon hearing their son's revelation, Mr and Mrs Leung only had care in their hearts.

"My dad said, 'You have to be sure this is what you want to do because you will have to live with it and carry it for quite some time.' I am still their son, and they still love me. My sexual orientation doesn't matter," he said.

And perhaps the most surprising of all was his grandmother's appearance at the court. "You'd have thought people of her age would be very traditional, but she came to one of the hearings. She told me she was worried about what might happen to me in court," Billy said.

And his grandmother's concern was not without basis. A case involving such a "taboo" subject matter would certainly invite backlash, innuendos and even allegations.

"All along we tried to keep on the point. There was no touching the issue of what to do with people in prison [because of the ordinance], otherwise they would say, 'That's all it is, you want to free prisoners,'" Vidler said.

Things were going well for Vidler and Billy right from the start. On the first day of last year's hearing before Hartmann, the government's counsel, Gerard McCoy, acknowledged that the gross indecency laws were discriminatory and unsustainable.

"Those two subsections cannot be relied upon," McCoy was quoted by the South China Morning Post as saying. "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."

But despite that McCoy objected to the case being heard, reasoning that Billy had not actually run up against the law and had no standing to question it. That remained one of the government major arguments when it decided to appeal against Hartmann's judgment.

The High Court judges were not convinced. Justice Ma was quoted by The Standard as saying at a July 6 hearing: "Why should a bad law be perpetuated, especially if others have already been convicted of it? If a law is bad the sooner it is dealt with, the better to be rid of it."

And as Hong Kong does not have a constitutional court, ordinary courts are responsible for dealing with constitutional challenges.

In his reading of the judgment today, Justice Ma said he failed to see the justification for the different age of consent set for sex between two men.

It is not clear whether the Security Bureau will lodge another appeal, but sources familiar with the working of the administration explained that it was necessary for the government to appeal to the High Court for a more authoritative judgement in order mute the antigay force, which has been lobbying hard to deflect any attempts in advancing sexual rights in policy and law.

Vidler, however, thinks politics are at play, especially with the next Chief Executive Election looming. "Donald Tsang does not want to rock the boat, he wants to avoid controversial issues," he said. "The tactic is to delay it, throw money at it; who cares if they lose?"

Nevertheless, it would probably be safe to say that the Chief Executive is ambivalent towards gay rights at best.

During a question-and-answer session on his policy address with over 1,000 youngsters last October, Mr Tsang was asked to comment on the Hartmann judgement and in response he was quoted by the South China Morning Post as saying: "I believe the privatisation of morals has become a danger in society.

"Some people say 'since what I do does not affect others and it has nothing to do with other people, why should I be constrained?' I have reservations about this because a moral is a value shared by the entire society."

In any case, the ball is in the government's court. "The government would have to do something or they would have no credibility," he said. "It's the government's job to ensure that all the laws are in line with the constitution."

Please show your support for the court's decision in upholding the ruling by signing the petition. Although the ruling has been upheld, the petition also calls on the Hong Kong government to enact legislation to protect gay and lesbian citizens against discrimination at www.fridae.asia/hkequalrights.