OVERVIEW
In Hong Kong, buggery means anal intercourse involving penile penetration. Consensual buggery is not a general offence between adults, but the Crimes Ordinance (Cap. 200) retains specific offences involving absence of consent, assault with intent, persons below specified ages and mentally incapacitated persons. The precise provision and its constitutional status must therefore be identified.
- Non-consensual buggery: Section 118A makes buggery with a person who does not consent punishable by up to life imprisonment.
- Assault with intent: Section 118B makes assault with intent to commit buggery punishable by up to 10 years' imprisonment.
- Offences involving persons below specified ages: Section 118C concerns homosexual buggery with or by a male under 16. Following the remedial interpretation adopted in Yeung Chu Wing v Secretary for Justice, the under-16 participant is not criminally liable merely for participating and the maximum sentence for the adult offender is aligned with the comparable heterosexual offence. Section 118D separately retains statutory wording concerning buggery with a female under 21.
- Mentally incapacitated persons: Section 118E addresses buggery with a mentally incapacitated person and carries a maximum of 10 years' imprisonment.
STATUTORY PROVISIONS
Part XIIA of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Section 118A — Non-consensual buggery
A person who commits buggery with another person who at the time of the buggery does not consent to it shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
Section 118B — Assault with intent to commit buggery
A person who assaults another person with intent to commit buggery shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.
Sections 118C and 118D — Age-based offences
Section 118C: A man who—
(a) commits buggery with a man under the age of 16; or
(b) being under the age of 16 commits buggery with another man,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
Section 118D: A man who commits buggery with a girl under the age of 21 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
Section 118E — Buggery with mentally incapacitated person
(1) Subject to subsections (2) and (3), a man who commits buggery with a mentally incapacitated person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.
(2) A man who commits buggery with another person is not guilty of an offence under this section if he does not know and has no reason to suspect the other to be a mentally incapacitated person.
(3) A man who commits buggery with a woman is not guilty of an offence under this section if he is, or believes on reasonable grounds that he is, married to that woman.
ELEMENTS OF THE OFFENCE
The requirements under sections 118A to 118E.
Section 118A — Non-consensual buggery
The prosecution must prove that the accused intentionally committed buggery with another person and that the other person did not consent at the time of the act, together with the mental element required by the governing law.
Section 118B — Assault with intent
The prosecution must prove an assault upon another person and that, when committing the assault, the accused specifically intended to commit buggery.
Section 118C — Male under 16
The statutory text concerns a man committing buggery with a male under 16, or a male under 16 committing buggery with another man. Consent by the person under 16 is not a defence to the adult offender. Its application is subject to the remedial interpretation adopted in Yeung Chu Wing v Secretary for Justice, including that the under-16 participant is not criminally liable merely for participating.
Section 118D — Female under 21
The statutory text requires proof that a man committed buggery with a female who was under 21 at the material time. Whether she consented is irrelevant and consent is not a defence under the statutory provision. The provision's distinct age and gender wording must be considered together with applicable constitutional law.
Section 118E — Mentally incapacitated person
The prosecution must prove that a man committed buggery with a mentally incapacitated person. Factual consent does not itself provide a defence once the person falls within the statutory definition and the accused knew or had reason to suspect that status. Subsection (2) excludes liability where he did not know and had no reason to suspect that status; subsection (3) contains the stated marital exception.
IMPORTANT CASE
Yeung Chu Wing v Secretary for Justice
In Yeung Chu Wing v Secretary for Justice [2019] 3 HKLRD 238, the Court of First Instance considered whether seven provisions of the Crimes Ordinance discriminated against male homosexuals contrary to the constitutional guarantees of equality. Sections 118G, 118H, 118J(1) and 118K were declared unconstitutional and struck down because they imposed unequal restrictions or criminal liability on male homosexual conduct without adequate justification.
The Court preserved sections 118C, 118I and 141(c) by giving them remedial interpretations so that they operated without unlawful discrimination. In particular, section 118C was read as protecting a male under 16 rather than criminalising him for participating, and the maximum penalty for buggery with a boy aged over 13 but under 16 was reduced to five years' imprisonment. The decision shows that the wording of these provisions must be read together with the constitutional interpretations imposed by the Court.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.