Introduction

In our Newsletter in June 2017, we discussed the judgment of the Court of First Instance (“CFI”) in Leung Chun Kwong v Secretary for the Civil Service and Another HCAL 258/2015, where the CFI ruled that the Hong Kong Government should grant the same spousal benefits to employees in same-sex marriages as those enjoyed by their heterosexual colleagues or otherwise the difference in treatment would, at least, amount to an indirect discrimination against one’s sexuality.

Whilst the CFI’s ruling was a landmark decision with far-reaching implications for Hong Kong’s LGBTs, the judgment has given rise to controversy over the past year. On 11 and 12 December 2017, the Court of Appeal (“CA”) heard the Government’s appeal, and by its judgment dated 1 June 2018 ([2018] HKCA 318; CACV 126/2017), the CA overturned the CFI’s decision.

The Court of First Instance

To recap, Mr Leung Chun Kwong, a gay senior immigration officer, commenced a judicial challenge in late 2015 against the Civil Service Bureau (“CSB”), after the CSB refused to accept Mr Leung’s same-sex spouse as his husband when he applied for spousal benefits. There were two decisions subject to the judicial review before the CFI, namely:

1. Whether Mr Leung should be entitled to the same benefits and allowances that the Government provides to the spouses of other heterosexual married civil servants (“Benefits Decision”)?
2. Whether Mr Leung’s same-sex marriage is regarded as a “marriage” for the purposes of the Inland Revenue Ordinance (Cap. 112) (“IRO”) (“Tax Decision”)?

In respect of the Benefits Decision, the CFI considered that it was unjustified to have the difference in treatment in relation to spousal benefits accorded to Mr Leung based on his sexual orientation, and ruled that the Benefits Decision unlawfully discriminated against Mr Leung.

In respect of the Tax Decision, the CFI took the view that the term “marriage” is defined by the IRO as between a “man” and a “woman”. Mr Leung did not challenge the law or constitutional order of marriage in Hong Kong, and thus, the CFI held that to construe “marriage” under the IRO as covering same-sex marriages would be inconsistent with the meaning of “marriage” under the Hong Kong statutes.

The Court of Appeal

At the CA level, the Hong Kong Government submitted that the bases of the Benefit Decision and Tax Decision are to protect, and not to undermine, the status of marriage in light of the prevailing views of the Hong Kong community on marriage. This was not disputed by Mr Leung. Whilst the CA also acknowledged that spousal benefits and joint assessment involve the Government’s consideration of the fiscal policies, it should be subject to stringent scrutiny when human right issues such as sexual orientation may be affected. In this connection, in respect of the degree of judicial scrutiny, the CA ruled that the courts would only adopt the “no more than necessary standard” of scrutiny, i.e. the means adopted by the Government to pursue the said legitimate aim should be no more than necessary.

In giving its ruling, the CA expressly stated that the laws of Hong Kong, including the Basic Law, only recognise heterosexual marriage and the prevailing socio-moral views of society still regard heterosexual marriage as the only acceptable form of marriage. As such, the immense public interests for protecting marriage were held to have a heavy weighting in the assessment. In particular, the CA acknowledged that the concerns of the people who hold a strong view against same-sex marriage is real and substantive, because they would consider that by allowing same-sex couples to share in benefits which are enjoyed by heterosexual married couples, it would undermine the uniqueness of the status of marriage in society, and would also “offend, challenge, question, confuse, or subtly change” the understanding and concept of marriage. Therefore, the CA found that such objection cannot be simply ignored as irrational or purely discriminatory.

Further, the CA considered that the perceived prejudice that Mr Leung may feel as a result of the denial of spousal benefits and the right to elect joint assessment is also reasonably balanced out by the immense public interests involved in protecting the status of marriage. As such, by allowing the appeal of the Hong Kong Government and dismissing the judicial review by Mr Leung against the Benefits Decision and the Tax Decision, the CA ruled that to restrict both spousal benefits and the right to elect joint assessment to married couples, and not to extend the same to homosexual couples, it is “no more than necessary” to protect the status of marriage as accepted by the Hong Kong’s community.

Takeaways

Whilst it is yet to see if Mr Leung would appeal the decision of the CA to the Court of Final Appeal, Hong Kong’s highest court, the legal issues involved in the said judicial review continue to be controversial and attract heated debates over LGBT’s rights among different sectors in Hong Kong. We at ONC Lawyers will keep an eye out for any further development and changes in the law and write further on this topic when there are such development and changes.

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This article is written by ONC Lawyers and was first published on ONC’s website.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.