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Laws Governing Homosexual Conduct

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THE LAW REFORM COMMISSION OF HONG KONG REPORT LAWS GOVERNING HOMOSEXUAL CONDUCT (TOPIC 2) LAWS GOVERNING HOMOSEXUAL CONDUCT WHEREAS : On 15 January 1980, His Excellency the Governor of Hong Kong Sir Murray MacLehose, GBE, KCMG, KCVO in Council directed the establishment of the Law Reform Commission of Hong Kong and appointed it to report upon such of the laws of Hong Kong as may be referred to it for consideration by the Attorney General and the Chief Justice; On 14 June 1980, the Honourable the Attorney General and the Honourable the Chief Justice referred to this Commission for consideration a Topic in the following terms : "Should the present laws governing homosexual conduct in Hong Kong be changed and, if so, in what way?" On 5 July 1980, the Commission appointed a Sub-committee to research, consider and then advise it upon aspects of the said matter; On 28 June 1982, the Sub-committee reported to the Commission, and the Commission considered the topic at meetings between July 1982 and April, 1983. We are agreed that the present laws governing homosexual conduct in Hong Kong should be changed, for reasons set out in our report; We have made in this report recommendations about the way in which laws should be changed; i NOW THEREFORE DO WE THE UNDERSIGNED MEMBERS OF THE LAW REFORM COMMISSION OF HONG KONG PRESENT OUR REPORT ON LAWS GOVERNING HOMOSEXUAL CONDUCT IN HONG KONG : Hon John Griffiths, QC Hon Sir Denys Roberts, KBE (Attorney General) (Chief Justice) （祈理士） （羅弼時） Hon G.P. Nazareth, OBE, QC Robert Allcock, Esq. (Law Draftsman) （歐義國） （黎守律） Hon Mrs Selina Chow, JP Hon Mr Justice Fuad （周梁淑怡） (Justice of Appeal) （傅雅德） Hon HU Fa-kuang, JP Dr Ambrose King （胡法光） （金耀基） Dr. Philip Kwok, JP Andrew Li, Esq. （郭志權） （李國能） David Li, Esq. JP Hon T.S. Lo, CBE, JP （李國寶） （羅德丞） Brian McElney, Esq., JP Professor Peter Willoughby （麥雅理） （韋彼得） Dated this 15th day of April 1983. ii THE LAW REFORM COMMISSION OF HONG KONG REPORT LAWS GOVERNING HOMOSEXUAL CONDUCT ______________________________________ CONTENTS Frontispiece Terms of Reference (i) Signature Page (iii) List of Contents (iv) Chapter Title Paragraph Page I Introduction 1 II Our Approach 4 The Role of This Commission 2.1 4 The Role of Law 2.5 4 III Who Is Homosexual? A Medical View 8 Introduction 3.1 8 Definition 3.2 8 Epidemiology 3.5 8 Causes 3.10 9 Psychopathology 3.19 11 Viral Hepatitis 3.20 11 Psychological Tests 3.25 12 Treatment 3.26 12 Conclusion 3.27 13 Acknowledgement 3.30 13 IV Homosexuality In Traditional China 14 Introduction 4.1 14 Homosexuality Throughout History 4.2 14 iii Chapter Title Paragraph Page Conclusion 4.11 17 Social Sanctions 4.12 17 Acknowledgement 4.13 17 V Homosexuality In Modern Hong Kong 18 Homosexual Behaviour 5.1 18 The Incidence of Homosexual Offences 5.9 23 Official Reactions to Homosexuality 5.16 24 Commentary 5.27 30 Civil Service Employment 5.36 32 Epilogue 5.41 33 VI The Laws In Hong Kong 34 Introduction 6.1 34 General Protection 6.6 35 Life Liberty and Bodily Injury 6.6 35 Marriage and Divorce 6.8 35 Public Behaviour 6.13 36 Public Performances 6.28 41 Publications 6.39 43 Specific Protection 6.52 46 Women 6.53 46 Women and Children under 21 6.62 48 Mental Defectives 6.65 49 Venereal Disease 6.71 50 School Children 6.73 50 Prisoners 6.75 51 The Armed Services 6.78 51 The "Abominable Offences" 6.79 52 Background 6.79 52 The Present Law 6.82 52 Buggery 6.83 53 Attempted Buggery and Inchoate 6.84 53 Offences Liability of Secondary Parties 6.87 54 Gross Indecency 6.91 55 Indecent Assault 6.94 56 Summary 6.95 56 Sexual Offences - Proof and Evidence 6.98 57 Prosecution of Offences 6.103 58 VII Comparative Law - The East 60 The East 7.1 60 Australia 7.2 60 The Commonwealth 7.2 60 iv Chapter Title Paragraph Page The States 7.3 60 India 7.10 61 Japan 7.12 62 Malaysia 7.15 63 Pakistan 7.17 63 People's Republic of China 7.18 64 The Philippines 7.22 66 Singapore 7.23 66 South Korea 7.26 66 Taiwan 7.28 67 Summary 7.30 67 VIII Comparative Law - The West 69 The West 8.1 69 Canada 8.4 69 United Kingdom 8.7 71 England and Wales 8.7 71 Northern Ireland 8.16 77 Scotland 8.29 81 United States of America 8.56 88 International Conventions 8.64 89 IX Our Public Consultation and Local 92 Research Television, Radio and the Press 9.1 92 Public Appeal 9.5 93 Direct Appeal 9.7 93 Employers 9.13 94 Other Organizations 9.15 95 District Boards 9.18 96 Personal Meeting 9.21 97 The Prisons 9.35 100 The Police 9.37 101 The MacLennan Commission 9.38 101 Survey of Public Opinion 9.41 102 Miscellaneous Matters 9.44 102 Consultations Outside Hong Kong 9.48 103 Materials 9.51 104 Summary 9.52 104 X Consequences of Change 105 Introduction 10.1 105 England and Wales 10.11 107 Scotland 10.14 108 Australia 10.16 108 v Chapter Title Paragraph Page United States of America 10.17 109 Our Conclusions 10.24 111 XI Our Reasoning and Conclusions 113 Introduction : Our Guiding Principles 11.1 113 Marriage 11.8 114 Youth Under 21 Years Old 11.10 115 Prostitution, Procuration and 11.10 115 Sexual Intercourse Indecent Assault 11.17 116 Public Behaviour 11.21 117 Other Areas of Concern 11.30 119 Child Stealing and Selling 11.31 119 Obscene Telephone Calls 11.32 120 Peeping Toms 11.33 120 Indecent Publications and Films 11.34 120 Sex Shops 11.37 121 Employment 11.38 121 Consensual Homosexual Conduct by 11.39 121 Adults Consenting Adult Males in Private 11.42 122 Arguments for retaining the present 11.42 122 law Our own reasoning and views 11.43 123 "In Private" 11.51 126 Procuration 11.53 126 The Age of Adult Responsibility 11.55 127 Lesbianism 11.56 127 Penalties 11.57 128 Prisons 11.58 128 Armed Services 11.59 128 Consequential Matters 11.60 129 The Scope of Our Proposals 11.65 130 XII Summary of Our Work and 12.1 131 Recommendations 12.12 133 XIII Summary in the Chinese Language 133 XIV List of Annexures Ai 1 Sub-Committee : (I) Membership A1 (II) Terms of Reference A3 2 Acknowledgements A4 vi Chapter Title Paragraph Page 3 List of Materials A8 4 The Press A26 5 Public Appeal: (I) The Form A37 (II) The Responses A37 6 Summary of the Laws in Hong Kong A45 relating to Homosexuality 7 (I) Form of Questionnaire to A48 Business Houses (II) Analysis of Results A57 8 (I) Form of letter to Organisations A64 (II) List of Organisations A66 (III) Analysis of Results A69 9 Hong Kong University Academic Staff A79 Association - Survey of Members 10 Hong Kong Polytechnic Staff A103 Association - Survey of Members 11 Views of District Boards and Fight Crime Committees (I) List of District Boards A108 (II) Extracts of Replies A109 12 "Movement for Homosexual Law A115 Reform" – Proposals 13 Notes of Meeting with A120 Representatives of Kowloon Chamber of Commerce, Hong Kong Residents Society and Others 14 Letter from Hong Kong General A124 Chamber of Commerce 15 Notes of Meeting with Mr George A125 Chang 16 Statement of a Chinese Homosexual A127 vii Chapter Title Paragraph Page 17 Notes of Meeting with 4 young A135 Chinese Homosexuals 18 Statement by Mr. W A139 19 Submissions by a Homosexual A153 20 Views of Inmates of Drug Addiction A156 Treatment Centres 21 Survey of Public Opinion (1980) A164 22 Survey of Public Opinion (1982) A175 23 Reported Offences relating to A178 Homosexuality 24 Details of Court Cases from 1979 to A179 1981 25 Submission by Scottish Organisation A184 26 Schedule of Miscellaneous Statistics A185 27 Summary of Evidence given publicly A193 by Male Prostitutes before The Commission of Inquiry into the death of Inspector John MacLennan 28 Letter of 31 August 1979 from the A198 Attorney General 29 Civil Service Circular on Employment A201 30 Laws in Hong Kong A202 31 Miscellaneous Legal Provisions A216 32 Crimes (Sexual Offences) Act, 1980 A226 (Victoria) 33 Sexual Offences Act, 1967 (England A249 and Wales) viii Chapter I Introduction _________________ 1.1 It has been our duty and task under the reference which is reproduced on page (iii) to consider whether or not it would be in the best interests of society as a whole in Hong Kong for any changes to be made in the laws governing homosexual conduct; and if so, what changes we recommend. That task has not been easy, for homosexuality in many societies, including our own, is for many people a taboo subject. Certainly, when it is discussed, views often are widely polarised. 1.2 Some people share the opinion that : " It is not the time for this culture or any other to adopt laws that help to disintegrate families. The God of heaven and earth who made man, made him male and female and said "for this cause a man should leave his father and his mother and cleave to his wife" (Mathew 19:4-9). And to prevent fornication he said : "Let each man have his own wife and let each woman have her own husband" (I Corinthians 7:2). The sexual nature of man was created by God himself.
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