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How far will the rainbow stretch?

Since 2017, the courts in Hong Kong have recognised various rights of same-sex couples, including the right to be granted a dependent visa, spousal benefits, and tax benefits.

In 2020, two more cases went before the court seeking determination on issues relating to foreign same-sex marriage. In one case, the applicant applied for judicial review of a government’s decision refusing to recognise foreign same-sex marriage for the purpose of probate, inheritance and intestacy, while the other case sought the court’s recognition of foreign same-sex marriage in Hong Kong. The decisions of both cases were handed down by the Court of First Instance on 18 September 2020.

A.         Inheritance rights

Ng Hon Lam Edgar v Secretary for Justice[1]

The applicant and his same-sex partner married in London. The applicant purchased a Home Ownership Scheme flat under the Housing Ordinance (Cap. 283) to be used as their matrimonial home, and the applicant was concerned that should he die intestate, his estate would not be passed to his partner under the Intestates’ Estates Ordinance (Cap. 73) (IEO). The issue was whether the exclusion of spouses to foreign same-sex marriages from legal entitlements and benefits under the IEO and the Inheritance (Provision for Family Dependants) Ordinance (Cap. 481) (I(PFD)O) constitutes unlawful discrimination on the ground of sexual orientation contrary to the Basic Law.  

Following the cases of QT[2] and Leung Chun Kwong[3], the Court found in favour of the applicant. The context in Ng Hon Lam Edgar concerns the provision of benefits to persons under the provisions of the IEO and the I(PFD)O, which include members of the deceased family and the deceased’s dependants. The applicant challenged the definitions of “valid marriage”, “husband” and “wife” under the IEO and the I(PFD)O as the definitions of these terms do not include persons who have entered into foreign same-sex marriage. After analysing the purposes of the IEO and the I(PFD)O, the Court held that the classes of eligible beneficiaries whom the deceased was under a legal obligation to maintain under the IEO and the I(PFD)O are not confined only to those persons. Opposite-sex married couples and same-sex married couples are relevantly comparable for the purpose of the IEO and the I(PFD)O. Further, it is illogical to suggest that the denial of benefits under the IEO and I(PFD)O to same-sex couples would promote the traditional institution of marriage, encourage heterosexual marriage or maintain the coherence, consistency and workability of Hong Kong legislations on the institution of marriage recognised under the Basic Law. The differential treatment is accordingly held to be unjustified, and the Court granted a declaration and remedial interpretation of the expressions “valid marriage”, “husband” and “wife” in the IEO and I(PFD)O.

By way of passing, the Court refused to rule on the question whether for the purpose of the IEO and the I(PFD)O “marriage” can be read to include civil partnerships and civil unions between persons of the same sex as the applicant has not entered into any civil partnership or civil union. Further, the Court also refused to deal in that case with the position of civil partnerships and civil unions generally.

B.         Right to lawfully get married in Hong Kong

Sham Tsz Kit v Secretary for Justice[4]

The applicant and his same-sex partner married in New York. He challenged the constitutionality of two statutory provisions respectively under the Marriage Ordinance (Cap. 181) and the Matrimonial Causes Ordinance (Cap. 179). The applicant sought a declaration that the laws of Hong Kong, insofar as they do not recognise foreign same-sex marriage, constitute unlawful discrimination on the ground of sexual orientation which therefore constitute a violation of the relevant provisions of the Hong Kong Bill of Rights Ordinance (Cap.383) and the Basic Law. 

The Court dismissed the application, holding that the applicant’s approach of using the four-step justification test to establish his legal proposition is fundamentally flawed and accordingly his application for a general declaration cannot be supported. In order to succeed, the Court of Final Appeal has in Leung Chun Kwong v Secretary for Civil Service laid down the general approach, that is, the court must determine whether there is differential treatment on a prohibited ground and, only if this can be demonstrated, then, to examine whether it can be justified. The question of whether there is unlawful discrimination is therefore context and fact-specific, and cannot be addressed in the abstract. The Court remarked that many of the government’s current policies and/or statutory provisions identified in the report commissioned by the Equal Opportunities Commission titled “The Recognition and Treatment of Relationships under Hong Kong law” (June 2019) are vulnerable to challenge. That said, the applicant’s attempt to achieve equal legal recognition of foreign same-sex marriages and foreign opposite-sex marriages or local opposite-sex marriages, regardless of the subject matter under consideration and its context, is too ambitious and cannot be supported. 

It is unknown at this stage whether the applicant will appeal the decision of the Court of First Instance. In any event, it seems likely that there will be more cases in the future seeking to challenge decisions (based on a policy or statutory provision) that give rise to differential treatment based on sexual orientation as a violation of a person’s constitutional right to equality . How far the rainbow can stretch remains to be seen.

[1] [2020] HKCFI 2412

[2] QT v Director of Immigration (2018) 21 HKCFAR 324

[3] Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127

[4] [2020] HKCFI 2411

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