Sham Tsz Kit v. Secretary for Justice

HCAL 2682/2018

[2020] HKCFI 2411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2682 OF 2018

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J U D G M E N T

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INTRODUCTION

1.In this application for judicial review, the Applicant seeks, inter alia, a declaration that “the laws of Hong Kong, in so far as they do not recognize foreign same-sex marriage, constitute a violation of Article 25 of the Basic Law of the HKSAR and Article 22 of the Hong Kong Bill of Rights”.  In my view, the general declaration sought is unsustainable as a matter of law.

BACKGROUND FACTS

2.For the purpose of this judgment, the following brief summary of the background facts should suffice.

3.The Applicant is a male Hong Kong permanent resident.  He was born and raised in Hong Kong, and was 31 years old (at the time of the application).

4.The Applicant is a homosexual, and realized his sexual orientation when he was in primary school.  The Applicant has had a stable same-sex partner in Hong Kong since 2011.  However, they were unable to marry in Hong Kong because Hong Kong law did not allow same-sex marriage.  In 2013, the Applicant and his same-sex partner decided to marry in the United States, which they eventually did in New York in November 2013.

5.The Applicant says that, had it been permissible to do so, he would have married his same-sex partner in Hong Kong because they are both Hong Kong permanent residents and there is no reason why they should be forced to marry outside their home town.

6.The Applicant accepts that his foreign same-sex marriage is not recognized under Hong Kong law as currently understood.  This means that he and his same-sex partner do not enjoy the rights and benefits currently enjoyed by heterosexual married couples in Hong Kong, including but not limited to matters relating to taxation and inheritance.  This, says the Applicant, is tantamount to depriving homosexual couples of the legal protection that should follow from their marital status[1], which the Applicant considers to be highly unfair to and discriminatory against homosexual couples.

PROCEDURAL HISTORY

7.In his Form 86 dated 22 November 2018, the Applicant seeks to challenge the constitutionality of two statutory provisions, namely:

(1) Section 40 of the Marriage Ordinance, Cap 181, which states as follows -

“(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.”

(2) Section 20(1)(d) of the Matrimonial Causes Ordinance, Cap 179, which states as follows -

“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.”

8.Three grounds of judicial review are raised in the Form 86:

(1) Ground 1 - exclusion of same-sex couples from the institution of marriage constitutes a violation of the right to equality protected by Article 22 of the Hong Kong Bill of Rights (“BOR”) and Articles 25 of the Basic Law of the HKSAR (“BL”);

(2) Ground 2 - alternatively, the laws of Hong Kong, in so far as they do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnerships (such as civil unions or registered partnerships), constitute a violation of (i) the right to privacy protected by BOR 14 and/or (ii) the right to equality protected by BOR 22 and BL 25;

(3) Ground 3 - further or in the further alternative, 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 BOR 22 and BL 25.

9.On 3 January 2019, the court granted the Applicant leave to apply for judicial review, but stayed the proceedings pending the determination of another application for judicial review, namely, MK v Government of HKSAR (HCAL 1077/2018), which raised the same or similar issues under Grounds 1 and 2.

10.On 18 October 2019, the court gave its judgment in MK v Government of HKSAR [2019] 5 HKLRD 259, holding that (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.

11.On 22 November 2019, the court made an order lifting the stay of proceedings herein in so far as it applies to Ground 3.

DISCUSSION

12.Ground 3 of judicial review raises the issue of legal recognition of foreign same-sex marriages under Hong Kong law.  Mr Hectar Pun, SC on behalf of the Applicant puts forward a single argument in support of Ground 3[2], namely, that the laws of Hong Kong, which recognize foreign opposite-sex marriages but do not recognize foreign same-sex marriages, constitutes differential treatment on the ground of sexual orientation which cannot be justified upon the application of the well-established four-step justification test.  In particular, Mr Pun argues that the differential treatment: (i) does not pursue any legitimate aim, (ii) is not rationally connected to the legitimate aim (if any), (iii) is more than necessary to accomplish the legitimate aim (if any), and (iv) fails to strike a reasonable balance between the societal benefits arising from the application of the differential treatment and the interference with the individual’s equality rights[3].

13.In my view, the general declaration sought by the Applicant that the non-recognition of foreign same-sex marriages under Hong Kong law constitutes a violation of his right to equality cannot be supported as a matter of principle, and Mr Pun’s approach of using the four-step justification test to establish such proposition is fundamentally flawed.

14.The Hong Kong courts generally apply the conflict of laws rules as part of the common law to determine whether a foreign marriage is recognized as a valid marriage in this jurisdiction.  Under the conflict of laws rules, a foreign marriage is recognized as a valid marriage if it satisfies both the requirements of (i) formal validity in accordance with the law of the place where the marriage is celebrated, and (ii) essential validity in accordance with the law of each party’s antenuptial domicile, unless its recognition is repugnant to the conscience of the Hong Kong court or public policy in Hong Kong (see Wong Zhong Lan-Xiang v Frank Wong, HCAP 900002/1995 (18 April 2002), at §48 per Deputy High Court Judge Andrew Cheung (as he then was); Johnston and Harris, The Conflicts of Laws in Hong Kong (3^rd ed, 2017), at §§7.092, 7.093, 7.096 and 7.098).

15.For this purpose, essential validity requires that the parties possess the capacity to enter into the marriage in question (Dicey, Morris & Collins, The Conflict of Laws (15^th ed, 2012), Vol 2, Rule 74 at §17R-05; Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474, at §§39-40 per Bokhary PJ and §98 per Lord Millet NPJ).

16.It is not in dispute that the Applicant’s antenuptial domicile was in Hong Kong[4]. In Wong Zhong Lan-Xiang, at §48, Deputy High Court Judge Andrew Cheung expressly referred to “union between the same sex” as a matter going to a person’s capacity to marry.  Since Hong Kong marriage law does not permit marriage between persons of the same sex, and neither the Basic Law nor the Hong Kong Bill of Rights provides for or protects the right of same-sex couples to marry in Hong Kong[5], it follows that the Applicant’s same-sex marriage lacks essential validity, and cannot therefore be recognized as a valid marriage under Hong Kong law.

17.Although Mr Pun puts the Applicant’s case in terms of “recognition”[6] of his foreign same-sex marriage, in substance he is contending that the “status” of marriage is generally open to couples of the same sex provided that they are lawfully married according to the laws of the place where the marriage is celebrated[7].  This contention is inconsistent with the observation of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 324, at §25 -

“As this Court recognised in W v Registrar of Marriages, by virtue of section 40 of the Marriage Ordinance, a valid marriage is a ‘voluntary union for life of one man and one woman to the exclusion of all others’. Marriage in this jurisdiction is therefore heterosexual and monogamous. By definition, it is not a status open to couples of the same sex.” [emphasis added]

18.It remains open to the Applicant to challenge any particular decision (including a matter of policy or a statutory provision) which accords differential treatment based on sexual orientation as a violation of his constitutional right to equality.  However, whether such challenge can successfully be made depends on the subject matter under consideration and its relevant context.

19.As pointed out by the Court of Final Appeal in Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127, at §19, the general approach of the court in any alleged case of discrimination is “first, to determine whether there is differential treatment on a prohibited ground and, only if this can be demonstrated, then, to examine whether it can be justified.”

20.In respect of the first question, in order to show the existence of a differential treatment on a prohibited ground, generally speaking, the complainant must establish that (i) he has been treated differently to a person in a comparable, or analogous, position, and (ii) the reason for the differential treatment is based on the prohibited ground (see QT, at §38, and Leung Chun Kwong, at §20).

21.In the present case, the Applicant puts forward foreign opposite-sex marriages as the relevant comparators.  However, whether two groups of persons are in an analogous or comparable position is context specific.  As stated by the Court of Final Appeal in QT, at §45:

“The notion of whether the comparators are analogous or relevantly similar is elastic both linguistically and conceptually. As his Lordship pointed out in the same judgment: ‘Some analogies are close, others are more distant’. It is therefore generally unprofitable to debate in the abstract whether a given comparator is or is not sufficiently analogous to require like treatment. The context of the question is crucial.” [emphasis added]

At §76 in QT, the Court of Final Appeal further stated as follows:

“This is not to suggest that a person’s marital status is irrelevant as a condition for the allocation of rights and privileges. Such status may in some circumstances be highly important or even decisive. The point we make is that the relevance and weight to be attributed to that status is taken into account in considering whether a particular difference in treatment is justified as fair and rational, and that a person’s marital condition cannot determine presumptively that discrimination does not exist.”

22.In other words, opposite-sex couples married overseas and same-sex couples married overseas may, or may not, be in an analogous or comparable position.  The answer to that question depends on the subject matter under consideration and its relevant context, and cannot be answered in a vacuum.  For example, in QT, at §67, the Court of Final Appeal pointed out that divorce, being one of the prescribed legal means of dissolving a marriage, may be said to be a remedy appropriately limited to persons who are parties to a “marriage” (which in the context means, I believe, a legally valid marriage recognized under our law), but not to unmarried couples.  This would be one instance where opposite-sex couples and same-sex couples would not be regarded as being in an analogous or comparable position.  There may be other instances where it would be appropriate to confine certain rights or benefits, or accord differential treatment, to opposite-sex couples, eg, where the best interests of a child are involved or where certain biological issues arise (as noted in §54 of the judgment of the Court of Final Appeal in QT). Again, whether the difference in treatment can be justified in such cases depends on the facts of the case.  What seems clear is that there cannot be a general rule applicable in all circumstances that opposite-sex married couples and same-sex married couples should be regarded as being in an analogous or comparable position.

23.The question of whether the reason for the differential treatment is based on a prohibited ground is likewise fact-specific.

24.Mr Pun’s approach of using the four-step justification test to establish the general proposition that the non-recognition of foreign same-sex marriages under Hong Kong law is inconsistent with the right to equality protected by BL 25 and HKBOR 22 is also fundamentally flawed.  The four-step justification test is succinctly stated by the Court of Final Appeal in Leung Chun Kwong, at §22, as follows:

“The justification test consists of four steps or elements: (i) does the differential treatment pursue a legitimate aim; (ii) is the differential treatment rationally connected to that legitimate aim; (iii) is the differential treatment no more than necessary to accomplish the legitimate aim; and (iv) has a reasonable balance been struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights.”

25.It is immediately apparent that each of the four questions requires the court to analyze the relevant facts and context before an answer can be given to the question.  Specifically, in relation to the second question, the Court of Final Appeal in Leung Chun Kwong, at §64, stated as follows:

“It is also important to keep in mind the context of the differential treatment when addressing this question, just as context is relevant in determining whether one is considering an analogous situation giving rise to differential treatment.”

Mr Pun’s attempt to answer the four questions in the abstract is, in my view, unworkable and wrong in principle.

26.While many of the government’s current policies and/or statutory provisions identified in the report by Allen & Overy commissioned by the Equal Opportunities Commission entitled “The Recognition and Treatment of Relationships under Hong Kong law” (June 2019) are vulnerable to challenge on the ground of unlawful discrimination based on sexual orientation and some of them, on analysis, may be held to be unconstitutional, 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 proposition sought to be advanced by Mr Pun on behalf of the Applicant, namely, that foreign same-sex marriages are entitled to be given equal recognition as foreign opposite-sex marriages under Hong Kong law, regardless of the subject matter under consideration and its relevant context, cannot be supported.

27.In all, the Applicant’s Ground 3 of judicial review is rejected.

DISPOSITION

28.In Mr Pun’s Skeleton Argument, he accepts that this court in MK effectively ruled against Grounds 1 and 2, and invites the court to (i) lift the stay of proceedings in so far as it relates to Grounds 1 and 2, and (ii) dismiss those grounds for the reasons given in MK, so that the Applicant may pursue an appeal against the present judgment (in the event that Ground 3, which Mr Pun says is intertwined with Grounds 1 and 2, is rejected) on all grounds in one go.  I consider it to be fair, reasonable and costs effective to do so.  Accordingly, I lift the stay of proceedings granted on 3 January 2019 on in so far as Grounds 1 and 2 are concerned, and formally reject those grounds of judicial review.

29.The present application for judicial review is dismissed.  The Applicant shall pay the Respondent’s costs, to be taxed if not agreed, with certificate for two counsel.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Hectar Pun, SC and Mr Anson Wong Yu Yat, instructed by Ho, Tse, Wai & Partners, for the Applicant (Assigned by Legal Aid Department)

Mr Stewart Wong, SC and Mr Johnny Ma, instructed by Department of Justice, for the Respondent