Leung Chun Kwong v. Secretary for The Civil Service and Another

CACV 126/2017

[2018] HKCA 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2017

(ON APPEAL FROM HCAL NO 258 OF 2015)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.By judgment [2018] HKCA 318 handed down on 1 June 2018, this Court allowed the 1^st respondent’s appeal in respect of the Benefits Decision and dismissed the applicant’s cross-appeal in respect of the Tax Decision.  The applicant now applies for leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on both the “great general or public importance” limb and the “or otherwise” limb.  The questions raised in his notice of motion dated 6 August 2018 are :

“ 1. Does the protection of ‘traditional’ marriage as it was characterised by the Court of Appeal (that is, heterosexual, monogamous marriage) constitute a ‘legitimate aim’ for the purposes of justifying the denial of spousal benefits under the Civil Service Regulations (‘CSRs’) to resident civil servants and former civil servants who have entered into a same-sex marriage outside Hong Kong according to the law of the place in which it was entered into and between persons having the capacity to do so (‘a same-sex marriage overseas’)? (Question 1)

2. If the answer to Question 1 is ‘Yes’ : (a) is that aim rationally connected to the difference in treatment; (b) is what are said by the Court of Appeal to be the prevailing socio-moral views of society on the question of marriage relevant to the issue of proportionality; and/or (c) has the First Respondent justified the difference in treatment having regard to the need for ‘particularly convincing and weighty reasons’ and/or Articles 25 and 39 of the Basic Law and Articles 1 and 22 of the Hong Kong Bill of Rights and/or the common law principle of equality?  (Question 2)

3. (1) Is a same-sex marriage overseas a ‘marriage’ and/or is a party to such a marriage a ‘spouse’ for the purposes of the Inland Revenue Ordinance, Cap 112 (‘IRO’)? (Question 3(1))

AND

(2) If, as a matter of construction of the IRO, the answer to either limb of Question 3(1) is ‘No’, does the protection of ‘traditional’ marriage as it was characterised by the Court of Appeal (that is, heterosexual, monogamous marriage) constitute a ‘legitimate aim’ for the purposes of justifying the denial of joint assessment under the IRO to Hong Kong residents who have entered into a same-sex marriage overseas?  (Question 3(2))

(3) If the answer to Question 3(2) is ‘Yes’ : (a) is that aim rationally connected to the difference in treatment (b) is what are said by the Court of Appeal to be the prevailing socio-moral views of society on the question of marriage relevant to the issue of proportionality and/or (c) has the Second Respondent justified the difference in treatment for eligibility for joint assessment, having regard to the need for ‘particularly convincing and weighty reasons’ and/or Articles 25 and 39 of the Basic Law and Articles 1 and 22 of the Hong Kong Bill of Rights and/or the common law principle of equality?  (Question 3(3))”

2.The respondents argue that leave to appeal should not be given on Question 1, Question 3(1) and Question 3(2).  Alternatively, if leave is to be granted on Question 1 or Question 3(2), they should be re-formulated as suggested in their written submissions.  As to Question 2 and Question 3(3), the respondents are prepared not to contest that, as re-formulated in their written submissions, they are great general or public importance questions that ought to be submitted to the Court of Final Appeal for determination.

3.After considering the parties’ written submissions with care, we take the view that the matter can be properly disposed of without an oral hearing.  We now hand down our judgment.

Question 1

4.As the law in Hong Kong now stands, marriage means a heterosexual monogamous marriage, that is, a voluntary union for life of one man and one woman to the exclusion of others. At [2] of our judgment, the Chief Judge noted that the applicant accepted and did not challenge that in Hong Kong marriage means heterosexual marriage.  At [125], in subjecting the Benefits Decision and the Tax Decision to the justification analysis, Poon JA further noted that it was the parties’ common ground that “protecting and not undermining the status of marriage in light of the prevailing views of the community on marriage … is plainly a legitimate aim”.  That was the dual position adopted by the applicant before us.

5.In the circumstances, whether protecting heterosexual monogamous marriage could constitute a legitimate aim for the Benefits Decision or the Tax Decision was never an issue before us.  Question 1 does not arise.

6.Mr Nigel Kat, SC (with Mr Azan Marwah) for the applicant, argues that to the extent that the applicant accepted that the concept or institution of marriage might amount to a legitimate aim, this was on the basis that under Hong Kong law marriage is not in all circumstances limited to heterosexual marriage.  But the applicant had made no such qualification when he adopted the dual position before us.

7.Mr Kat also takes a number of points in contending that it is reasonably arguable that we were wrong in holding that protection of marriage is a legitimate aim.  We will not entertain these new points.  For it is simply impermissible for the applicant to resile from his dual position adopted before us and try to run a contrary case now.

Question 2

8.Mr Stewart Wong, SC (with Mr Johnny Ma) for the respondents proposes to reformulate Question 2 thus :

“ (a) Is the legitimate aim of protecting and/or not undermining the concept and/or institution of marriage, being the voluntary union for life of one man and one woman to the exclusion of all others, as understood in and under the laws of Hong Kong, rationally connected to the difference in treatment, between a person who is a party to such a marriage and a person who is a party to a same-sex marriage entered into outside Hong Kong according to the law of the place in which it was entered, for the purpose of conferral of spousal benefits under the Civil Service Regulations;

(b) Are the local legal landscape and societal circumstances including prevailing socio-moral values of society on marriage relevant to the issue of proportionality and/or justification; and

(c)     Has the First Respondent justified the difference in treatment?”

9.With respect, we prefer Mr Wong’s formulation as it is better worded and focuses the issues on justification for the Benefits Decision more clearly than the original version of Question 2.

Question 3(1)

10.While Question 3(1) might have great general or public importance, it has no reasonable prospect of success.  For the reasons that Poon JA gave at Part D2 of our judgment, it is plain and obvious that as a matter of statutory construction, “marriage” for the purpose of the Inland Revenue Ordinance is intended to mean only a heterosexual marriage between a husband and a wife, but not a same-sex marriage.  Mr Kat has not advanced any arguments in substance to persuade us that Question 3(1) is reasonably arguable.

Question 3(2)

11.Like Question 1, Question 3(2) does not arise as the issue was never raised before us.  It must be rejected for the same reasons that we gave above.

Question 3(3)

12.Mr Wong’s reformulation of Question 3(3) reads :

“ (a) Is the legitimate aim of protecting and/or not undermining the concept and/or institution of marriage, being the voluntary union for life of one man and one woman to the exclusion of all others, as understood in and under the laws of Hong Kong rationally connected to the difference in treatment, between a person who is a party to such a marriage and a person who is a party to a same-sex marriage entered into outside Hong Kong according to the law of the place in which it was entered, for eligibility for joint assessment under section 10 of the IRO;

(b) Are the local legal landscape and societal circumstances including prevailing socio-moral values of society on marriage relevant to the issue of proportionality and/or justification; and

(c) Has the Second Respondent justified the difference in treatment?”

13.Similarly, Mr Wong’s reformulation is better worded and focuses the issues on justification for the Tax Decision more clearly than the original version of Question 3(3).  We prefer it.

DISPOSITIONS

14.For the above reasons, we refuse to grant leave to appeal on Question 1, Question 3(1) and Question 3(2) on the “great general or public importance” limb.  Following the usual practice, we will leave the matter to the Court of Final Appeal to decide if leave to appeal should be granted on them on the “or otherwise” limb.

15.We grant leave to appeal on Question 2 and Question 3(3) as reformulated by Mr Wong on the “great general or public importance” limb.

16.On costs, having regard to the outcome, which is in fact what Mr Wong has advocated, we think the respondents should be entitled to their costs relating to Questions 1, 3(1) and 3(2) which we refuse to grant leave and the remainder of the parties’ costs on Questions 2 and 3(3) should be costs in the cause of the appeal to the Court of Final Appeal.  According to their statement of costs dated 4 September 2018, the total costs incurred by the respondents are HK$55,941.00.  Taking the matter in the round, we would apportion HK$30,000.00 to Questions 1, 3(1) and Question 3(2).  In consequence, we order :

(1)     the applicant to pay the respondents costs summarily assessed at HK$30,000.00;

(2)     the remainder of the costs incurred by the parties be costs in the cause of the appeal to the Court of Final Appeal;

(3)     the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Nigel Kat SC and Mr Azan Marwah, instructed by Daly, Ho & Associates, assigned by the Director of Legal Aid, for the Applicant

Mr Stewart Wong SC and Mr Johnny Ma, instructed by the Department of Justice, for the 1^st and 2^nd Respondents