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The long-running judicial review in which the Court of Final Appeal (CFA) ruled in June 2019 that same-sex couples who were legally married overseas should enjoy the same spousal benefits and right for joint tax assessment has finally been brought to a close. The CFA handed down its judgment on relief earlier this month and ruled, inter alia, that the Inland Revenue Ordinance (IRO) should be re-interpreted in a manner which curbs discriminatory treatments against same-sex couples.
The appellant Leung Chun Kwong (Leung) is an immigration officer who married his same-sex partner in 2014 in New Zealand where same-sex marriage is legal. When Leung sought to update his marital status and apply for medical and dental benefits provided by the government under the Civil Service Regulations (CSR), he was denied entitlement to spousal benefits on the basis that his same-sex marriage would not constitute a change in marital status under the CSR (Benefits Decision). Subsequently, Leung was unable to include his partner as his spouse when he applied for joint tax assessment because the marriage did not fall within the definition of “marriage” under the IRO (Tax Decision).
Leung applied for judicial review against the two decisions. In June 2019, the CFA held in favour of Leung that the differential treatments in respect of both the Benefits Decision and Tax Decision could not be justified. On the parties’ request, the CFA reserved judgment on relief pending written submissions.
For a more detailed background of this case, please refer to our Client Alert “Triumph of the Rainbow: CFA recognises spousal benefits and joint-tax right for same sex married couples” issued on 11 June 2019.
Decision on Relief
In respect of the Tax Decision, the CFA agreed that a remedial interpretation of the IRO in the following manner should be adopted to render it consistent with the rights conferred under the Basic Law and the Hong Kong Bill of Rights:
|(1)||The term “marriage” in section 2 of the IRO shall be read as: “any marriage, whether or not so recognised, entered into outside Hong Kong according to the law of the place where it was entered into and between persons having the capacity to do so, provided where the persons are of the same sex and such a marriage between them would have been a marriage under this Ordinance but for the fact only that they are persons of the same sex, they shall be deemed for the purposes of such a marriage to have the capacity to do so”; and|
|(2)||For the purposes of the IRO, references to:|
|(i) “husband and wife” shall be read as “a married person and his or her spouse”;|
|(ii) “not being a wife living apart from her husband” shall be read as “not being a spouse living apart from the married person”; and|
|(iii) “either the husband or wife” shall be read as “either the married person or his or her spouse”.|
The CFA also ordered a six-month suspension period for the Inland Revenue Department to deal with administrative matters, which is set to expire before the end of the current tax year.
In respect of the Benefits Decision, the CFA ruled that, on fairness and good administration, the government should pay Leung his spousal benefits backdated to the first instance judgment in 2017.
The remedial interpretation of the IRO would become effective in six months’ time and the Inland Revenue Department is expected to issue new guidelines and practice notes. While the effect on the private sector has yet to be seen, employers are advised to keep abreast of related public discussions and developments and review their policies regularly to ensure timely compliance with the law.
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