Balaoro Marietta S. (also known as “Marrz”) v. The Secretary for Justice

HCAL 1188/2019

[2020] HKCFI 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1188 OF 2019

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Before: Hon Chow J in Court

Date of Hearing:  22 October 2019

Date of Judgment: 4 March 2020

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J U D G M E N T

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INTRODUCTION

1.In this application for leave to apply for judicial review, the Applicant seeks a declaration that the performance of the ceremonies of Holy Matrimony and Holy Union according to the rites observed by the LGBTS Church between consenting adult couples of the same gender or sex does not contravene Section 30 of the Marriage Ordinance, Cap 181 (“the Ordinance”).

2.In what follows, unless the context indicates otherwise, references to Sections shall be to the Ordinance.

BACKGROUND FACTS

(i)  The LGBTS Church

3.The Applicant, a Philippine national, is a “pre-operative trans man”.  His gender as stated on his Hong Kong identity card is “F”.  However, in view of the Applicant’s preference to be addressed in the masculine gender, the Applicant shall be so addressed in this judgment.

4.The Applicant has been permitted to remain in Hong Kong as a foreign domestic helper since 1981.  Currently, he is permitted to remain in Hong Kong until 3 May 2020.

5.According to the Applicant, he was the founder, and is currently a volunteer officer, of “Filguys Association Hong Kong” (“Filguys HK”), an organization formed on 8 October 2006 for transmen and lesbians with the aim of providing help and support to the Filipino LGBT community in Hong Kong.  Filguys HK currently has around 400 members, about 60 of whom are active.

6.LGBTS Christian Church (Philippines), said to be an ecumenical community of believers of Jesus Christ for LGBTS, was founded in 2012 in the Philippines.  According to the Applicant, the LGBTS Church preaches a doctrine that welcomes all regardless of sex, sexual orientation, gender identity or expression, promoting advocacies towards understanding, acceptance and equality.

7.On 28 July 2013, the Applicant became an installed pastor, and on 8 July 2017, an ordained pastor, of LGBTS Christian Church (Philippines).

8.On 28 November 2014, the LGBTS Christian Church HK (“the LGBTS Church”) was registered as a society under the Societies Ordinance, Cap 151, with the Applicant as Pastoral Leader and Founding Pastor.  The membership of the LGBTS Church largely overlaps with that of Filguys HK, and its members are predominantly transmen and lesbians.  The services of the LGBTS Church are performed at various places convenient to its parishioners, and regularly at Studio 94, 3/F, Neng Heng Sheng Commercial House, 94 Jervois Street, Sheung Wan, Hong Kong.

9.The LGBTS Church distinguishes between the Rite of Holy Matrimony (Marriage) and the Rite of Holy Union for its parishioners:

(1)  The LGBTS Church’s position is that the Rite of Holy Matrimony should be available not only to heterosexual couples, but equally to LGBT couples, and LGBT couples who wish to pursue a non-celibate relationship must undergo the Rite of Holy Matrimony.  The Rite of Holy Matrimony performed by the LGBTS Church is, it is said, in all material aspects identical to that performed by most protestant and ecumenical churches, and will almost always include these rites in the following order:

(a)  the service begins with the introductory rites, and the performance of the Liturgy of the Word;

(b)  the minister administers the exchange of vows by the couple, who make the required declarations to God and those assembled;

(c)  the minister gives a sermon to those assembled and to the couple;

(d)  there is an exchange of rings followed by the administration by the minister of the Lord’s blessing on the couple; and

(e)  there is a collective prayer followed by a blessing administered by the minister on the congregation.

(2)  On the other hand, the Rite of Holy Union is for LGBT couples to demonstrate a voluntary, spiritual, expression of their life-long partnership, commitment and loyalty to one another, seeking God’s blessing.  This ceremony takes a similar form to a liturgy worship with Bible-reading and singing of Christian songs.  The couple may read personal messages to each other and exchange rings.  After that, the minister performing the Rite of Holy Union would announce “you may kiss each other and you are now a couple” before allowing the couple and himself to sign the Holy Union Certificate.  The ceremony will end with the minister saying “I pronounce you partners in life”.

10.On 31 January 2018, the Immigration Department received an application from the Applicant for “Licensing a Place of Worship for Celebration of Marriage” in the name of “LGBTS Christian Church Hong Kong” for the premises at “2A, No.36 Hamtin San Tsuen, Pui O, Lantau Island, N.T., HKSAR”.  In view of the failure of the LGBTS Church to provide supporting documents for the application despite repeated requests, on 17 December 2018 the Director of Immigration decided that the application would not be processed further.  It is not in dispute that no premises of LGBTS Church are currently on the “List of Licensed Places of Worship for Celebration of Marriages” maintained by the Director of Immigration.

(ii)  The Applicant’s arrest and the subsequent decision that he would not be prosecuted

11.On 24 August 2017, the Applicant was arrested by officers of the Immigration Department on suspicion of (i) being in breach of condition of stay in Hong Kong by taking up an unapproved employment, (ii) having knowingly and willfully celebrated or pretended to celebrate a marriage, not being legally competent to do so, and (iii) having advertised or represented himself as a civil celebrant or knowingly permitted himself to be advertised or represented as a civil celebrant.  He was remanded on bail until 13 December 2017 when he was told that a decision had been made not to prosecute him.  By a letter dated 15 December 2017, the Director of Immigration formally informed the Applicant’s solicitors (Vidler & Co) that a decision had been made not to lay any charge against the Applicant after assessment of his case by the Prosecution Section of the Immigration Department.

12.According to the Applicant, on 28 January 2018, one of his parishioners (“Mr S”), a biologically female-transman with gender identifier “F” on his HKID card, approached and requested him to perform a same-sex religious marriage ceremony for Mr S and his female partner according to the rites of the LGBTS Church (ie Holy Matrimony). However, due to his previous arrest on 24 August 2017 for, inter alia, being suspected of having knowingly and willfully celebrated or pretended to celebrate a marriage in contravention of Section 33, the Applicant did not accede to Mr S’s request for fear of prosecution.  He has since been approached by other parishioners asking him if he would be able to perform marriage ceremonies according to the rites, observations and teachings of the LGBTS Church.

13.On 2 May 2018, Vidler & Co (on behalf of the Applicant and Mr S) wrote to the Director of Public Prosecutions (“the DPP”) asking for confirmation that:

(1)  the conducting of or participating in religious same-sex marriage ceremonies did not constitute a criminal offence under the Ordinance; and therefore

(2)  the conducting of such religious same-sex marriage ceremonies would not expose the Applicant to the risk of prosecution

(hereinafter referred to as “the Confirmation of Non-Criminality and No Risk of Prosecution”).

14.In that letter, Vidler & Co stated, inter alia, the following:

“Our clients consider that Section 33 of the Marriage Ordinance (Cap. 181), properly construed, does not prohibit them or the parishioners of the LGBTS Christian Church from performing their religious rites, ceremonies or observances including the religious rite of Holy Matrimony. Same-sex marriages do not fall within the definition of ‘marriage’ in the ordinance, and conducting a same-sex marriage ceremony accordingly cannot be within the scope of the prohibition.”

15.On 1 June 2018, the DPP replied, declining to provide the confirmation sought by the Applicant for the following reasons:

“  First, insofar as your clients are seeking my advice as to whether or not certain proposed conduct of your clients would constitute a criminal offence, please note that the Department of Justice is confined to providing legal services and advice to government bureau and/or departments, but not to private individuals.

Secondly, insofar as your clients are asking me to make a prosecutorial decision before the proposed conduct has been carried out, please note that prosecutorial decisions must be made in accordance with the applicable law and the Prosecution Code, which provides inter alia that prosecution can only be instituted where there is sufficient evidence and it is in the public interest to prosecute. As such, the power of deciding whether or not to prosecute can only be exercised in respect of past events.

Thirdly, insofar as your clients are asking me to undertake in advance not to prosecute [the Applicant] (or any other person including [Mr S]), please note that the case law has firmly established that I do not have such power.

The common law in this regard is clear -- no immunity or pardon can be granted in advance...

In relation to the arrest of [the Applicant] on 24 August 2017, I am given to understand that the Immigration Department informed [the Applicant’s] solicitors on 15 December 2017 that no prosecution would be instituted in respect of that relevant incident.  Any allegation on your clients’ part that the past criminal investigation of [the Applicant] is having a ‘chilling effect’ must be categorically rejected.”

16.There were some further letters exchanged between Vidler & Co and the DPP on whether the latter should provide the confirmation, or “guidance”, sought by the Applicant. The pre-application correspondence ended with the DPP’s letter dated 8 April 2019 reiterating that:

“(1) It is not the role of the Department of Justice to provide legal services and advice to private individuals.

(2) The power of deciding whether or not to prosecute can only be exercised in respect of past events.

(3) Neither the Secretary for Justice nor I can undertake in advance not to prosecute any person.

(4) There are no exceptional circumstances in the present situation warranting the issue of guidance on whether or not to prosecute the offence under section 30 of the Marriage Ordinance beyond the guidance provided in the Prosecution Code.”

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

17.On 3 May 2019, the Applicant filed a Form 86 applying for leave to apply for judicial review of “Section 30 of the Marriage Ordinance (Cap 181)”.

18.In the Form 86, the Applicant seeks, inter alia, the following relief:

(1)  a declaration that the performance of the ceremonies of Holy Matrimony and Holy Union according to the rites observed by the LGBTS Church between consenting adult couples of the same gender or sex does not contravene Section 30;

(2)  a declaration that Section 30, to the extent that it prohibits any minister of any church, denomination, or religious body celebrating the religious ceremony of marriage according to the rites of usages of marriage observed in such church, denomination, or religious body, between two consenting adults of the same gender or sex, who are not within a prohibited relationship of kindred or affinity prescribed by Schedule 5 of the Ordinance, mutatis mutandi, is inconsistent with Articles 25, 39 and 141 of the Basic Law (“BL”) and Articles 1, 14, 15 and 22 of the Hong Kong Bill of Rights (“BOR”) provided in Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383);

(3)  a declaration that Section 30, to the extent that it prohibits any minister of the LGBTS Church celebrating in Hong Kong the religious ceremonies of Holy Union or Holy Matrimony according to the rites observed by the LGBTS Church between two consenting adults of the same gender or sex, who are not within a prohibited relationship of kindred or affinity prescribed by Schedule 5 of the Ordinance, mutatis mutandi, is inconsistent with BL 25, 39 and 141 and BOR 1, 14, 15 and 22; and

(4)  if necessary, an extension of time to make the application.

19.On 7 May 2019, the court directed that there should be an inter partes oral hearing of the application for leave to apply for judicial review.

20.On 18 September 2019, the Applicant gave notice of intention to seek leave to amend the Form 86 to:

(1)  challenge not only Section 30 but also “the decision of the Director of Public Prosecution not to provide assurance or guidance as to prosecution of the Applicant for performance of same-sex religious marriage ceremonies held in accordance with the rites of the LGBTS Church”; and

(2)  rely, additionally, on BOR 23 in support of the 2 declarations sought referred to in §18(2) and (3) above.

21.On 18 October 2019, this court handed down its judgment in MK v Government of HKSAR [2019] HKCFI 2518, in which it was held, inter alia, that same-sex couples did not have any legal or constitutional right to marry in Hong Kong, and the Government had no legal or constitutional obligation to provide, as an alternative to marriage, a legal framework for the recognition of same-sex relationships such as civil unions, registered partnerships or other legally recognized status for same-sex couples giving them the same rights and benefits enjoyed by opposite-sex married couples.

22.In a document titled “Note on Effect of MK v Government of HKSAR [2019] HKCFI 2518 & Response to Some Procedural Points” dated 22 October 2019, Mr Philip Dykes, SC (for the Applicant) informed the court that the court’s judgment in MK removed the need to consider the “alternative grounds for the application (summary at F86 §§4, 5)”, ie the 2 declarations referred to in §18(2) and (3) above.

23.Accordingly, the only issue which the Applicant seeks the court’s determination in this application is whether the performance of the ceremonies of Holy Matrimony and Holy Union according to the rites observed by the LGBTS Church between consenting adults couples of the same gender or sex would contravene Section 30.

THE MARRIAGE ORDINANCE

24.Currently, Hong Kong law does not permit same-sex couples to marry in Hong Kong, or recognize any such purported marriage.  That this is so is clear from the following statutory provisions:

(1)  Section 4 of the Marriage Reform Ordinance, Cap 178, which states that:

“Marriages entered into in Hong Kong on or after [7 October 1971[1]] shall imply the voluntary union for life of one man with one woman to the exclusion of all others and may be contracted only in accordance with the Marriage Ordinance.”

(2)  Section 40, which states that:

“(1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage.

(2) The expression Christian marriage or the civil equivalent of a Christian marriage (基督敎婚禮或相等的世俗婚禮) implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others.”

(3)  Section 20(1) of the Matrimonial Causes Ordinance, Cap 179, which states that:

“A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only -

(d)  that the parties are not respectively male and female.”

25.Part 6 of the Ordinance relates to “Celebration of Marriage, Certificates of Marriage and Validity of Marriage”.  In particular:

(1)  Section 19(1) provides that “[m]arriages may be celebrated in any licensed place of worship by any competent minister of the church, denomination, or body to which such place of worship belongs, and according to the rites or usages of marriage observed in such church, denomination, or body, provided that the marriage is celebrated with open doors, and (except in case of a special licence) between 7 a.m. and 7 p.m., and in the presence of 2 or more witnesses, besides the officiating minister.”

(2)  Section 21 relates to marriages before the Registrar of Marriages or a civil celebrant, and is not relevant for the present purpose.

(3)  Section 27(2)(a)(i)(B) provides that a marriage shall be null and void if it is not celebrated “by a competent minister in a licensed place of worship” and both parties knowingly and wilfully acquiesce in its celebration in such circumstances.

(4)  Section 28 provides that all marriages celebrated under the Ordinance shall be good and valid in law to all intents and purposes.

For the purpose of the Ordinance, a “licensed place of worship” means a place of public worship licensed by the Chief Executive for celebration of marriages under Section 4.

26.Part 7 of the Ordinance relates to “Offences and Penalty” in respect of marriages.

(1)  By Section 30(b), any minister or civil celebrant who “wilfully celebrates a marriage contrary to any other provision of this Ordinance, or knowing that any provision of this Ordinance has not been complied with”, shall be guilty of an offence and shall be liable to a fine at level 5 and imprisonment for 2 years.

(2)  By Section 33, any person who “knowingly and wilfully celebrates or pretends to celebrate a marriage, not being legally competent to do so”, shall be guilty of an offence and shall be liable to a fine at level 5 and imprisonment for 2 years.

DISCUSSION

27.In my view, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success, for the following reasons.

28.First, in so far as the Applicant is seeking a declaration that the performance of the ceremonies of Holy Matrimony and Holy Union according to the rites observed by the LGBTS Church between consenting adult couples of the same gender or sex does not contravene Section 30, there is in fact no dispute between the parties that this is the correct view of the matter.  This is because, for the purpose of Section 30, “marriage” means “the voluntary union for life of one man and one woman to the exclusion of all others”.  The ceremonies of Holy Matrimony and Holy Union performed by the LGBTS Church for same-sex couples cannot, by definition, be “marriages” for the purpose of Section 30.  Such ceremonies as performed by the LGBTS Church, while they may have some religious or other significance to those involved, would not being about the legal consequences of a marriage.  Those who engage in the ceremony of Holy Matrimony or Holy Union, including the “minister” of the LGBTS Church and the same-sex couple involved, would be doing an act which is legally null and void and of no effect as far as Hong Kong law is concerned.  That does not mean, however, that such act is unlawful or prohibited by law.  More particularly, a minister (or any person) who performs the ceremony of Holy Matrimony or Holy Union for a same-sex couple would not be celebrating a marriage properly so-called, and he cannot therefore be celebrating a marriage “contrary to any other provision of [the] Ordinance, or knowing that any provision of [the] Ordinance has not been complied with” within the meaning of Section 30.

29.That this is the legal effect of Section 30 is supported by R v Bham [1966] 1 QB 159.  That case concerned Section 75(2)(a) of the Marriage Act 1949, which provided, so far as relevant, as follows:

“Any person who knowingly and wilfully -

(a) solemnizes a marriage (not being a marriage by special licence, a marriage according to the usages of the Society of Friends or a marriage between two persons professing the Jewish religion according to the usages of the Jews) in any place other than - (i) a church or other building in which marriages may be solemnised according to the rites of the Church of England ...

shall be guilty of felony and shall be liable to imprisonment for a term not exceeding five years.”

30.The defendant in that case performed a ceremony of nichan, a potentially polygamous marriage in accordance with the Islamic law, between a Mohammedan man and an English girl of 16 who had adopted the Mohammedan faith and obtained her parents’ consent, the ceremony being performed at the request of the parties in a private house in England.  The defendant was convicted on an indictment charging that he solemnised a “marriage” contrary to Section 75(2)(a) of the Marriage Act 1949. On appeal, the English Court of Criminal Appeal held that the Marriage Act 1949 applied only to the performance in England of a ceremony in a form known to and recognised by English law as capable of producing when performed in England a valid monogamous marriage prima facie conferring the status of husband and wife on the parties; that, since the ceremony performed by the defendant was not that of a monogamous marriage and did not prima facie confer on the parties the status of husband and wife by English law, it did not constitute the solemnisation of a “marriage” within section 75(2)(a) of the Marriage Act 1949; and that, accordingly, the conviction should be quashed.  At 168-169, the court stated as follows:

“It seems to us that counsel for the defendant is correct in his submission that the Marriage Act, 1949, which consolidates earlier Marriage Acts is dealing throughout with marriage as known to and permitted by English domestic law. The provisions of the Act prescribe and control the manner in which such a marriage may be solemnised. It does not seem to the court that the provisions of the Act have any relevance or application to a ceremony which is not and does not purport to be a marriage of the kind allowed by English domestic law. That this was a ceremony under the Islamic law admits of no doubt. The marriage certificate issued by the defendant over his signature makes this clear. On the face of the certificate it is stated to be ‘Under the Islamic Law’ and further that the defendant ‘being duly authorised by the parties do hereby solemnise the marriage.’ But unless the ‘marriage’ purporting to be solemnised under Islamic law is also a marriage of the kind allowed by English law it is not a marriage with which the Marriage Act, 1949, is concerned.

... Nor do we think that in this case was there any intention on the part of the defendant to effect an English marriage, nor did he purport to do so. Indeed, as already stated, the certificate is issued under the Islamic law.

When the defendant was seen by the police he used expressions such as ‘it is legal.’ This may have been intended to assert either (a) that the ceremony was effective to create a valid marriage by Islamic law, or (b) that, whether or not it was effective for that purpose, it was at all events legal, that is, not in contravention of English legal requirements for Muslims to engage in such a ceremony in England. What we cannot take him to have intended to assert is that the ceremony was effective to create a marriage by English law or that it was intended by him or the parties to do that....

What, in our judgment, was contemplated by this Act and its predecessors in dealing with marriage and its solemnisation, and that to which alone it applies, was the performing in England of a ceremony in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage. For the Act to have any application the ceremony, in our judgment, in agreement with Humphreys J. and adopting certain of his words, ‘must be at least one which will prima facie confer the status of husband and wife on the two persons.’ Here it is acknowledged that the ceremony performed was not of that character in that it did not prima facie confer on them that status by English law and in our judgment it did not constitute the solemnisation of a marriage within the meaning of section 75(2)(a).”

31.In this case, it has all along been the Applicant’s position that the performance of the Rite of Holy Matrimony/Holy Union would not result in any marriage registrable under the Ordinance, and therefore does not contravene Section 30[2]. This is also the position taken by the Secretary for Justice[3].

32.It is not, however, the general function of the civil court in an application for judicial review to give any advisory opinion, or prior assurance to the Applicant that his past or proposed conduct would not give rise to any criminal liability.  Save in exceptional circumstances, the court would not entertain an application by a member of the public against the Government for a declaration that certain past or proposed conduct is lawful.

33.In Imperial Tobacco Ltd v Attorney General [1981] AC 718, the plaintiffs, tobacco manufacturers, started a “Spot Cash” advertising scheme.  Cards each with six small plastic covered boxes or spaces were placed in packets of a brand of their cigarettes, without any additional charge.  When uncovered each box described a prize, ranging from £5,000 to £1 or a free packet of cigarettes, which could be won.  If when the covers were removed three of the spaces were found to contain the same named prize, that prize could be claimed.  After the scheme had been started, competitors of the plaintiffs sought the Attorney-General’s consent for a relator action to test the scheme’s legality.  Such consent was refused and the competitors’ complaint was passed to the Director of Public Prosecutions who considered that the scheme was illegal.  Summonses were issued against the plaintiffs and four of their directors or managers alleging that in furtherance of the scheme they had distributed tickets in an unlawful lottery contrary to section 2(1)(b) of the Lotteries and Amusements Act 1976.  The plaintiffs then started an action seeking a declaration that the scheme was lawful and did not contravene the provisions of the Act of 1976 as being either a lottery or an unlawful competition.  The plaintiffs’ action failed.  On the question of whether the court ought to make a declaration as to the criminality or otherwise of the plaintiffs’ conduct, Viscount Dilhorne stated at 740-742 as follows:

“I now turn to what I think is the most important question in this appeal. Could the court in the proper exercise of its discretion grant the declaration sought?

Donaldson J. thought it could but did not grant it as he thought that the Spot Cash scheme was a lottery and an unlawful competition. The Court of Appeal, holding that it was neither, granted it.

That decision, if it stands, will form a precedent for the Commercial Court and other civil courts usurping the functions of the criminal courts. Publishers may be tempted to seek declarations that what they propose to publish is not a criminal libel or blasphemous or obscene. If in this case where the declaration sought was not in respect of future conduct but in respect of what had already taken place, it could properly be granted, I see no reason why in such cases a declaration as to future conduct could not be granted. If this were to happen, then the position would be much the same as it was before the passing of Fox's Libel Act 1792 when judges, not juries, decided whether a libel was criminal, blasphemous or obscene.

Such a declaration is no bar to a criminal prosecution, no matter the authority of the court which grants it. Such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings, the result of which will depend on the facts proved and may not depend solely on admissions made by the accused. If a civil court of great authority declares on admissions made by the accused that no crime has been committed, one can foresee the use that might be made of that at the criminal trial.

The justification for the Court of Appeal taking this unusual and unprecedented course - no case was cited to us where a civil court had after the commencement of a prosecution, granted a declaration that no offence had been committed - was said to be the length of time it would have taken for the matter to be determined in the criminal courts. I can well see the advantages of persons being able to obtain rulings on whether or not certain conduct on which they propose to embark will be criminal and it may be a defect in our present system that it does not provide for that. Here, I wish to emphasise, it was not a question whether future conduct would be permissible but whether acts done were criminal. It was said that the administration of justice would belie its name if civil courts refused to answer reasonable questions on whether certain conduct was or was not lawful. I do not agree. I think that the administration of justice would become chaotic if, after the start of a prosecution, declarations of innocence could be obtained from a civil court...

My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started.”

34.Although the plaintiffs’ application for a declaration of non-criminality in that case was made after a prosecution had been started against them, it is clear from the speech of Viscount Dilhorne that it would generally not be appropriate, save in very exceptional circumstances, for the court to grant such declaration in respect of future conduct.  As to what might amount to exceptional circumstances sufficient to justify a civil court granting a declaration as to the criminality of otherwise of future conduct, guidance can be found in the opinion of the House of Lords in R (Rusbridger) v Attorney General [2004] 1 AC 357 at §56, per Lord Rodger of Earlsferry:

“The claimants seek a declaration as to the interpretation of section 3 of the 1848 Act or as to its incompatibility with the right to freedom of expression under article 10 of the Convention. Before the House the parties agreed that these declarations should be treated in the same way as a civil declaration as to the criminality or otherwise of future conduct. A civil court can make such a declaration, although it would be right to do so only in a very exceptional case: Imperial Tobacco Ltd v Attorney General [1981] AC 718, 742c-d per Viscount Dilhorne. The authorities do not spell out what constitutes a very exceptional case for these purposes. In ordinary cases people must take and act on their own legal advice. So, broadly speaking, a very exceptional case must be one where, unusually, the interests of justice require that the particular claimant should be able to obtain the ruling of the civil court before embarking on, or continuing with, a particular course of conduct which, on one view, might expose him to the risk of prosecution.”

35.In the same case, Lord Hutton said at §35:

“It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. This point was well put by the Lord Justice-Clerk (Thomson) in Macnaughton v Macnaughton's Trustees 1953 SC 387, 392:

‘Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.’”

36.In my view, the present case is not one where, unusually, the interests of justice would require that the Applicant should be able to obtain the ruling of the civil court before embarking on, or continuing with, the performance of the ceremonies of Holy Matrimony and Holy Union according to the rites observed by the LGBTS Church for same-sex couples. Neither is there a “live practical question” to be determined.  While it is true that the Applicant was previously arrested on 24 August 2017 on suspicion of (i) being in breach of condition of stay in Hong Kong by taking up an unapproved employment, (ii) having knowingly and willfully celebrated or pretended to celebrate a marriage, not being legally competent to do so, and (iii) having advertised or represented himself as a civil celebrant or knowingly permitted himself to be advertised or represented as a civil celebrant, he was subsequently told that a decision had been made not to prosecute him, and he was, as a matter of fact, never prosecuted for any of those offences.  There has not since been any threatened prosecution by the Immigration Department or other law enforcement agencies should he decide to resume the performance of the ceremonies of Holy Matrimony and Holy Union.

37.In any event, even if, for the sake of argument, there is a possibility or risk that criminal proceedings may be initiated for a past or proposed course of action, that would not by itself be an exceptional circumstance justifying the civil court to make a declaration of criminality or non-criminality of such course of action.  On the contrary, that would be a positive reason against the civil court making such declaration.  In Amstrad Consumer Electronics Plc v The British Phonographic Industry Ltd [1986] FSR 159, the plaintiffs manufactured, advertised and sold audio systems which incorporated a double cassette-deck feature which offered the facility of recording from one tape-deck to the other at twice the normal play back speed.  The defendant company (BPI), which included among its members the majority of the major record and cassette manufacturing companies, considered that the effect of the plaintiffs’ advertising coupled with the sale of the plaintiffs’ machines would be to encourage home copying of pre-recorded cassettes to the detriment of their members.  BPI wrote to the plaintiffs alleging that they were acting unlawfully by reason of the way in which they advertised and marketed their machines and sent copies of that letter to the plaintiffs’ trade customers.  The plaintiffs responded by denying that they were acting unlawfully and issued a writ seeking a declaration that they had not by advertising, offering for sale or selling or supplying their audio systems incorporating the double-deck high speed facility acted unlawfully as alleged by the defendants in their letter or at all.  The Court of Appeal considered that the plaintiffs were not civilly liable on various possible causes of action.  Nevertheless, since there was a possibility that the plaintiffs’ advertising might be capable of amounting to an incitement to commit an offence under section 21(3) of the Copyright Act 1956, the Court of Appeal held that it would not be a proper exercise of the court’s discretion to grant the declaratory relief sought.

(1)  Lawton LJ stated the following at 208-209 -

“Mr. Kentridge in this court but not before the trial judge, submitted that Amstrad’s advertisements and promotional literature provided evidence that they were inciting purchasers of their machines to commit offences contrary to section 21(3) of the 1956 Act ... Does putting out advertising material of the kinds I have specified amount to an incitement to commit a crime? It could do ... I do not find it either necessary or proper to adjudge whether, on the evidence before the court, Amstrad have incited anyone to commit an offence contrary to section 21(3) of the 1956 Act. In the event of anyone instituting criminal proceedings in respect of Amstrad’s advertising activities, a finding by this court would prejudice the trial. In these circumstances, in my judgment, it would not be right, in the exercise of the court's discretion, to grant the declaration requested.”

(2)  Similarly, Slade LJ stated the following at 216-217 -

“In the course of his argument before this court, however, Mr. Kentridge made two submissions which I understand were never made to the learned judge but are, in my opinion, of the greatest importance. First, he submitted that the ordinary ‘home-copier’ will be guilty of a criminal offence under section 21(3) of the Copyright Act 1956. Secondly, he submitted that Amstrad, by their form of advertisement and marketing already referred to, are inciting the commission of criminal offences of this nature ...

Accordingly, I respectfully agree with Lawton L.J. that the putting out by Amstrad of advertising material of the nature complained of might be capable of amounting to an incitement to commit a crime though, for the reasons given by him, I also agree that it would neither be necessary nor proper for this court to decide on the evidence before it whether or not Amstrad has in fact committed any such offence.

In these circumstances and in the final result, it seems to me plain that this court cannot properly grant Amstrad the declaration which it seeks, or any other declaration of lawful conduct.”

(3)  Glidewell LJ also agreed with Lawton LJ, and stated the following at 219:

“I agree with Lawton L.J. that a person who infringes copyright by copying on to a blank cassette the content of a pre-recorded tape is probably guilty of an offence under section 21(3) of the 1956 Act, and that it is, at the least, possible that Amstrad might be held guilty of inciting such an offence. Whether they would be found guilty would, of course, depend on the facts of the particular case. My view is based on the material before us, including in particular the nature of the advertising material to which Lawton L.J. has referred. Because of this possibility, but for this reason alone, I consider it would not be right to grant the declaration sought by Amstrad, either in its original or amended form.”

38.In support of his submission that the court should, in the exercise of its discretion, grant the declaration sought by the Applicant, Mr Dykes relies upon the judgment of the Court of Appeal in Leung TC Willion Roy v Secretary for Justice [2006] 4 HKLRD 211.  That case is, however, plainly distinguishable because, on the face of the statutory provisions in question, in particular, Section 118C of the Crimes Ordinance (Cap 200), the conduct which Leung felt the desire to commit was prohibited, and the Secretary for Justice did not argue otherwise.  There was thus a live practical question to be determined, which also affected many other persons in the same position as Leung.  No such circumstances exist in the present case.

39.In all, I do not consider this to be a proper case where the court should, in the exercise of its discretion, grant the declaration, in substance one of non-criminality, sought by the Applicant.  Incidentally, as earlier mentioned, the Applicant is no longer seeking any relief as regards the constitutionality of Section 30.

40.In so far as the Applicant seeks to challenge, by his proposed amendments to the Form 86, the decision of the DPP not to provide the Confirmation of Non-Criminality and No Risk of Prosecution, it is notable that the Applicant is not seeking any relief in respect of the DPP’s decision, eg an order of mandamus or a declaration of failure of duty to act (see the “Relief Sought” in the draft Amended Form 86).  Anyhow, I consider the position taken by the DPP in his letters dated 1 June 2018 and 4 April 2019 to be correct as a matter of law.  It is no part of the DPP’s functions to provide legal services to private individuals, or proffer advice to them as to whether or not certain past or proposed conduct constituted or would constitute a criminal offence.

41.If the Applicant’s past or proposed conduct does not constitute any criminal offence, he does not require any confirmation from the DPP.  If the position is unclear, he is legally represented, and should turn to his lawyers for advice.  Finally, if his conduct or proposed conduct gives rise to criminal liability, the DPP has no power to give any general or specific undertaking or assurance that no prosecution would be instituted against him.  That position has been made abundantly clear by the House of Lords in R (Pretty) v DPP [2002] 1 AC 800:

(1)  per Lord Bingham of Cornhill at §39 -

“I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give.”

(2)  per Lord Steyn at §§65-66 -

“65 This issue centres on the nature of the Director of Public Prosecutions’ discretion to grant or refuse his consent to criminal proceedings under section 2(1) of the 1961 Act. This is a provision of primary legislation. The discretion under section 2(4) is contained in a criminal statute. It is concerned with the deep-rooted sanctity of life principle... he may only exercise his discretion, for or against a prosecution, in relation to the circumstances of a specific prosecution. His discretion can therefore only be exercised in respect of past events giving rise to a suspicion that a crime under section 2(1) has been committed. And then the exercise of this discretion will take into account whether there is a realistic prospect of securing a conviction and whether a prosecution would be in the public interest...

66 It is, however, necessary to consider whether, apart from the terms of the section 2(4) of the 1961 Act, the Director of Public Prosecutions has any power to undertake in advance not to bring criminal proceedings in respect of a contemplated course of action. In agreement with the Divisional Court I would answer this question No. But I would qualify the thrust of the valuable judgment of the Divisional Court in one respect. The fact that there is a duty under section 10 of the Prosecution of Offences Act 1985 on the Director of Public Prosecutions to issue a general code for Crown Prosecutors does not necessarily mean that he may not ever, in his absolute discretion, give guidance as to how the discretion will be exercised in regard to particular offences... Subject to this narrow qualification I would accept as sound the policy of the Director of Public Prosecutions never to announce in advance, whether he will or will not bring criminal proceedings. Certainly, it is beyond his power to indicate, before the commission of a particular crime that he will or will not prosecute if it is committed.”

(3)  per Lord Hope of Craighead at §82 -

“But I do not see how the Director could be compelled to issue a statement of policy. In Scotland the question whether such statements should be issued are regarded as being entirely a matter for the Lord Advocate. It has never been suggested that he could be ordered to do this by the court. But in any event it is not as a statement of policy that the undertaking has been sought. What Mrs Pretty seeks is an undertaking, before the event occurs, that if her husband helps her to commit suicide he will not be prosecuted. I am not aware of any case where the Lord Advocate has given an undertaking of that kind.”

(4)  per Lord Hobhouse of Woodborough at §117 -

“The request for the undertaking was a request for the grant of an immunity from prosecution equivalent to the grant of a dispensation from the operation of the criminal law or an anticipatory pardon. Even if there was a power to grant a pardon, it could not be exercised in advance.”

42.It should be noted that what the Applicant is seeking in the present case is not any guidelines from the DPP on how he would exercise his prosecutorial discretion in relation to the offence created by Section 30, but a confirmation that his proposed conduct does not constitute any offence and he will not be at risk of prosecution for such conduct.  I am satisfied that the DPP is legally entitled not to provide the Confirmation of Non-Criminality and No Risk of Prosecution sought by the Applicant in the present case.

43.There are two other matters that I should mention in passing.  First, there is a dispute between the parties on whether the Applicant is a “minister” of a church for the purpose of the Ordinance. The expression “minister” is not defined in the Ordinance.  In view of the conclusion reached above, this issue does not arise for determination in this case.  I shall leave it open for future determination should it become necessary to do so.

44.Second, on the issue of delay:

(1)  in so far as the Applicant’s complaint relates to the construction or application of Section 30, he was arrested on 24 August 2017 and was informed that no prosecution would be brought against him on 13 December 2017; and

(2)  in so far as the Applicant’s complaint relates to the decision of the DPP not to not to provide the Confirmation of Non-Criminality and No Risk of Prosecution, that decision was communicated to him on 1 June 2018 (the further correspondence between Vidler and the DPP does not change the relevant date for the purpose of determining whether there has been delay in applying for leave to apply for judicial review, because an applicant cannot get around or avoid the time limit for making an application for leave to apply for judicial review by the device of asking the decision-maker to “reconsider” his decision by putting forward different arguments or providing additional information[4]).

45.On any view of the matter, the delay in making the present application (on 3 May 2019) is very substantial.  Having regard also to the view that I have reached regarding the lack of merits of the application, there would be no basis to grant the Applicant any extension of time to apply for leave to apply for judicial review.

DISPOSITION

46.The applications (i) to amend the Form 86, (ii) for an extension of time to apply for leave to apply for judicial review, and (iii) for leave to apply for judicial review, are dismissed.

47.The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the Secretary for Justice should be entitled to be paid her costs in these proceedings, because:

(1)  of the substantial delay in making the application;

(2)  the Applicant makes the present application essentially for his own benefit;

(3)  the Secretary for Justice has attended the present hearing upon the court’s direction; and

(4)  the Secretary for Justice has provided substantial and helpful assistance to the court in the determination of this application.

48.I therefore make an order that the Applicant shall pay the Secretary for Justice’s costs of these proceedings, to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Philip Dykes, SC and Mr Azan Marwah, instructed by Vidler & Co, assigned by Director of Legal Aid, for the Applicant

Ms Leona Cheung, DPGC (Ag) and Ms Patricia Lam, SGC (Ag), instructed by Department of Justice, for the Putative Respondent