Today, the High Court handed down two judgments regarding Hong Kong’s laws affecting same-sex married couples: Ng Hon Lam Edgar v. Secretary For Justice [2020] HKCFI 2412 and Sham Tsz Kit v. Secretary For Justice [2020] HKCFI 2411.
Ng Hon Lam Edgar v. Secretary For Justice [2020]
The Applicant, Edgar, entered into a same sex marriage in the United Kingdom on 28 January 2017. Edgar purchased a flat under Government’s Home Ownership Scheme in April 2018. Edgar, however, became concerned what would happen to the flat if he died without making a will or provision for his estate upon his death.
Intestates’ Estates Ordinance
The definition of “valid marriage” under the Intestates’ Estates Ordinance, Cap. 73 (“IEO”) only covers a heterosexual marriage – not same-sex marriage – and accordingly, the surviving spouse of a party to a same-sex marriage cannot qualify as a “husband” or “wife” for the purpose of entitlements under the IEO. In other words, there is differential treatment being accorded to parties to heterosexual marriages and parties to same-sex marriages under the IEO.
Edgar’s husband would not, therefore, inherit the flat under the IEO.
Inheritance (Provision for Family and Dependants) Ordinance
The Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 (“Provision Ordinance”) empowers the court to make orders of provision from the deceased estate to certain family members and dependents.
The definitions “husband”, “wife” and “valid marriage” in the Provision Ordinance are materially the same as those in the IEO. As such, the surviving spouse of a party to a same-sex marriage cannot qualify as a “husband” or “wife” of that party. The effect of not being able to qualify as a lawful husband or wife materially impacts the amount of the financial provision that can be ordered in favour of a surviving spouse.
It is clear that for the purpose of the IEO and Provision Ordinance there is differential treatment accorded to parties to heterosexual marriages and parties to same-sex marriages.
Prior to commencing any action, Edgar wrote to the Secretary for Justice seeking clarification on whether the Government accepted that same-sex marriages performed according to the laws of foreign jurisdictions would be recognized as marriages for the purpose of probate, inheritance and intestacy. The Secretary for Justice, however, refused to provide the necessary clarification which necessitated the legal proceedings.
Challenging the IEO and the Provision Ordinance
Edgar successfully challenged the definitions of “valid marriage”, “husband” and “wife” under both ordinances on the grounds that they are unlawful and unconstitutional to the extent that they do not recognize and provide for same-sex marriages, civil unions and civil partnerships on terms of equality with heterosexual marriages in violation of the principle of equality guaranteed by Basic Law and the Hong Kong Bill of Rights (“BOR”).
The arguments advanced on both sides ran along similar lines to those in the historical judgments of Leung Chun Kwong v Secretary for Civil Service [2019] and QT v Director of Immigration [2018].
As in the cases of QT and Leung, the Court dismissed the (now tired and already debunked) arguments advanced on behalf of the Secretary of Justice that: (i) opposite sex and same sex married couples are not in a comparable position; and (ii) if there is differential treatment accorded to same-sex married couples and opposite-sex married couples it can be justified.
“In all, the differential treatment accorded to same-sex married couples and opposite-sex married couples under the Ordinances cannot be justified, and constitutes unlawful discrimination” – The Honourable Justice Chow
Sham Tsz Kit v. Secretary for Justice [2020] HKCFI 2411
The Applicant, Jimmy Sham, invited the Courts to consider whether the laws of Hong Kong, in so far as they do not recognize foreign same-sex marriage, constitute a violation of the Basic Law and BOR.
Jimmy’s case was that, had he been allowed, he would have married his same-sex partner in Hong Kong (both being Hong Kong permanent residents) and there is no reason why they should be forced to marry outside their home town.
Two of the three grounds advanced by Jimmy had already been determined (and dismissed) by the Court in MK v Government of HKSAR [2019] that held: (i) the denial of the right to marriage to same-sex couples under the laws of Hong Kong did not constitute any violation of their constitutional rights, and (ii) the Government was under no positive legal obligation to provide an alternative legal framework such as civil unions, registered partnerships or other legally recognized status giving same-sex married couples the same rights and benefits enjoyed by opposite-sex married couples.
Jimmy’s case expanded on the arguments in MK with a third ground, namely that the laws of Hong Kong, in so far as they do not recognize foreign same-sex marriages, constitute a violation of the right to equality protected by Hong Kong Bill of Rights and Basic Law.
This argument was, however, also dismissed:
“The Applicant’s attempt in the present case to achieve complete parity of legal recognition of foreign same-sex marriages and foreign opposite-sex marriages (or, indeed, local opposite-sex marriages) is too ambitious” – The Honourable Justice Chow
These two cases show that while the Court is prepared to strike down various of the government’s current policies and/or statutory provisions on the grounds of unlawful discrimination based on sexual orientation, continuing the recent precedents set in QT and Leung, the Court is not prepared to grapple the core issue of marriage equality in Hong Kong.
Our team at Hugill & Ip has extensive experience in dealing with Private Client, Probate & Trust and LGBT Rights issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
