Fridae

Hong Kong's Court of Final Appeal on Tuesday upheld a 2006 lower court ruling that invalidated a law penalising public homosexual sodomy under the Crimes Ordinance.

It ruled that the law's specific focus against homosexual sodomy is unconstitutional, discriminatory, and thereby violates Hong Kong's Basic Law and the Bill of Rights.

Chief Justice Andrew Li said in the ruling that the law targets homosexuals and "does not criminalise heterosexuals for the same or comparable conduct."

"Homosexuality constitutes a minority in the community. The provision has the effect of targeting them and is constitutionally invalid," Li ruled. "Section 118F [1] is discriminatory and infringes upon the right to equality."

The original ruling, issued last-September by the Court of Appeal for the High Court, stemmed from the prosecution of two men who acknowledged committing sodomy in a private car parked on a dark and isolated public road at night.

While sodomy is not an offense, it is considered a criminal act if it takes place in public. If found guilty, the men face a maximum penalty of five years in jail.

Last year, a magistrate dismissed the case on the grounds that the law under which they were charged was discriminatory as it did not equally apply to heterosexuals. The Court of Appeal upheld the decision, prompting the government to appeal the case further to the highest court.

The case was the first such prosecution since the law was enacted in 1991 when Hong Kong was a British colony.

Last September, the Court of Appeal for the High Court upheld a 2005 ruling that invalided laws prohibiting homosexual sex, specifically rejecting a law that held that men under 21 who engaged in sodomy could receive a life sentence, while heterosexual and lesbian relationships were legal after the age of 16.

In 2005, William "Billy" Leung, a 20-year-old Hong Kong gay man successfully challenged another law that punishes men under 21 who engage in gay sodomy by up to life imprisonment. The consensual age for heterosexual intercourse in Hong Kong is 16. The Hong Kong government also unsuccessfully appealed that ruling.

Director of Hong Kong Human Rights Monitor, Law Yuk-kai, called the latest judgment an "important milestone" for gay rights.

"In future, even though the law remains, the police would find it difficult to apply with the latest ruling," Law was quoted as saying in The Standard newspaper. He further urged the government to review the related ordinance and clear up any law that discriminates against homosexuals.