Last Friday Mr Justice Anderson Chow ruled in favour of Henry Li and his late husband Edgar Ng, confirming that the Housing Authority’s policies on adding occupants and transferring ownership of Home Ownership Scheme (HOS) flats constituted unlawful discrimination on the basis of sexual orientation.
The judge held that both policies were “unlawful and unconstitutional” for violating the equality provisions in the Hong Kong SAR Basic Law and the Bill of Rights. The discriminatory policies were described to be both “disproportionate and oppressively unfair”.
The HOS policies excluded same-sex spouses of owners of HOS flats from being added as authorised occupants and required a premium payment for the same-sex spouse to jointly own the property – in this case the premium would have been about HK$2.4 million (with the purchase price of the flat being only HK$5,450,000). Such difference of treatment was based on a policy excluding same-sex spouses from falling within one of recognised nine categories of family relationships – which included “Husband/Wife” – but only in the context of a heterosexual marriage.
Same-sex marriage is not recognised in Hong Kong, except in respect of specific policies that have been challenged in local courts and include policies regarding: dependant visas, civil servants’ spousal benefits, tax assessment, public housing and inheritance rights. You can refer to our previous articles Leung v. Secretary for the Civil Service (Tax and Civil Service Benefits) and Ng Hon Lam Edgar v. Secretary For Justice (Inheritance) to understand more about some of the challenges that were brought to court by a group of brave individuals belonging to the LGBT community.
Mr Justice Anderson Chow allowed the application of the late Edgar Ng for judicial review of the Housing Authority’s decision and granted the following relief:
- (1) a declaration that the Spousal Policy and Decision are unlawful and unconstitutional for being in violation Article 25 of the Basic Law and/or Articles 22(1) and 1(1) of the Hong Kong Bill of Rights;
- (2) an order of certiorari to remove into the High Court and to quash the Spousal Policy and Decision; and
- (3) liberty to apply for such further or other relief as may be necessary to give effect to this judgment.
In the 45-page judgment, Justice Chow specified: “The fact that heterosexual marriage is constitutionally recognised and protected by BL 37 does not mean that it is permissible to discriminate against same-sex couples based on their sexual orientation in relation to matters where same-sex couples and opposite-sex couples are in a comparable or analogous position.”
Henry Li and his late husband had previously brought to court a judicial review related to inheritance rights (which is presently subject to appeal) and he has more recently issued a third challenging the denial of his rights to identify his late husband’s body without the authorization of his mother-in-law.
Mr Justice Anderson Chow has previously urged the HK SAR Government and other public bodies to “undertake a comprehensive review on this matter” following another high-profile 2019 case (MK v. Government of HKSAR). He stated that the consequence of failing to do so would bring further challenges in court on the ground of discrimination creating more time and cost being wasted and “resulting in an incoherent state of the law at different times”. Despite this warning, there doesn’t appear to be any appetite to do so by the HK SAR Government and so it seems the only path to progress is via piecemeal legislation that identifies and challenges the discriminatory nature of many of the existing Government policies that deny equal rights to same-sex spouses and the wider LGBT community.
It is crucial that the LGBT community and its allies really seize on the momentum created by these legal challenges and stand up and fight for equal rights until everyone has the same rights, opportunities and privileges.
Our team at Hugill & Ip has extensive experience in dealing with LGBT Rights issues – so if you need further advice on these subject, get in touch with us.
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.