Ng Hon Lam Edgar v. Secretary for Justice

HCAL 3525/2019

[2020] HKCFI 2412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3525 OF 2019

________________________

________________________

________________________

J U D G M E N T

________________________

INTRODUCTION

1.The principal issue which arises for determination in this application for judicial review is whether the exclusion of spouses to same-sex marriages from legal entitlements and benefits under the Intestates’ Estates Ordinance, Cap 73 (“the IEO”) and the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the IPO”) constitutes unlawful discrimination on the ground of sexual orientation.

2.In my view, the answer is “yes”.

BASIC FACTS

3.The basic facts of this case are simple and can be shortly stated.  The Applicant, a male, was born and raised in Hong Kong, and is a Hong Kong permanent resident.

4.In or around November 2012, the Applicant met “H”, also a male and Hong Kong permanent resident.  In 2016, they decided to marry and publicly declare their commitment to each other in a form which was dignified and socially recognized.  On 28 January 2017, the Applicant and H married in London, followed by a blessing service at a church in Hong Kong.

5.According to the Applicant, he and H wished to live together as a family unit, emotionally, socially and financially reliant on each other.  They also intend to share their properties and support each other’s life after the death of one of them.

6.On 10 April 2018, the Applicant purchased a Home Ownership Scheme (“HOS”) flat under the Housing Ordinance, Cap 283, to be used as his matrimonial home with H.

7.Under the relevant HOS policy of the Housing Authority, H cannot be a joint owner of the HOS flat because his same-sex marriage with the Applicant is not recognized.  The Applicant is concerned that should he died intestate, his properties, including the HOS flat, will not be passed to H under the IEO.

8.On 25 June 2019, the Applicant, through his solicitors, wrote to the Secretary for Justice seeking clarification on whether the Government accepted that same-sex marriages performed according to the laws of foreign jurisdictions would be recognized as marriages for the purpose of probate, inheritance and intestacy.  In that letter, the Applicant’s solicitors also contended that since the Applicant’s marriage with H was lawfully performed in the United Kingdom, H should be regarded as his spouse for the purpose of the IEO and other statues including the IPO.  By a letter dated 28 August 2019 to the Applicant’s solicitors, the Secretary for Justice refused to provide the clarification sought, on the basis that the role of the Department of Justice was not to provide legal advice to private individuals or their solicitors.

THE INTESTATES’ ESTATES ORDINANCE

9.The IEO makes provision for the distribution of intestates’ estates.  By s 4(1) of the IEO, the residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in that section.

10.The purpose of s 4(1) is to give effect to the “presumed intention” of the intestate as to who should be entitled to share in his estate after his death.  At §7.3 of the Law Reform Commission Report on the Law of Wills, Intestate Succession and Provision for Deceased Persons’ Families and Dependants (1990) (“the LRC Report”), which led to the amendments of the IEO in 1995, the underlying assumption of the rules relating to intestacy was explained as follows:

“The rules are based upon the assumption that people who die intestate would, if they had made a will, have wished to make provision for certain classes of near relations, preferring some of those relations to others. The primary assumption is that people usually wish to provide for their children equally, and also to make provision for their widows or widowers during the remainder of their lives. Failing surviving children or a surviving spouse, or both, they usually wish to benefit their nearer relations, and only wish to leave property to remoter relations if there are no nearer ones surviving. It is also assumed that after divorce or judicial separation people do not usually wish to benefit the divorced or separated spouse.”

11.At §7.6 of the LRC Report, the Law Reform Commission went on to state the following:

“The Commission has, in reviewing the laws governing intestacy in Hong Kong, attempted to formulate the law as if standing in the shoes of a reasonable testator living in Hong Kong in the 1980s. We have formulated rules disposing of the estate of such a hypothetical testator in accordance with what we consider would reasonably have been his wishes, taking into account his circumstances and his dependants. No code can cater for every conceivable family situation or eventuality, and there will always be cases where injustice has resulted in peculiar circumstances. However, we believe that if the Ordinance were amended as recommended later, such injustices would be reduced to a minimum. Where injustice does result in individual cases, a remedy may be afforded by the legislation relating to provision for deceased persons’ family and dependants. This is dealt with in Part III of this report.”

12.For the purpose of this judgment, it is unnecessary to describe in detail the statutory trusts provided for under s 4 of the IEO, save to mention that a surviving husband or wife of an intestate is generally entitled to take the “personal chattels” (as defined) of the intestate as well as the whole or a portion of the residuary estate, depending on whether the intestate also leaves issue and/or other close relatives (namely, a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood).

13.Further, under s 7 of, and Schedule 2 to, the IEO, the surviving husband or wife of an intestate has the right to acquire the premises in which he/she was residing at the time of the intestate’s death.

14.The following definitions of “husband”, “wife” and “valid marriage” appear in the IEO:

(1) “husband” and “wife” are defined in s 2(1) to mean (unless the context otherwise requires), in relation to a person, “a husband or wife of that person by a valid marriage”;

(2) “valid marriage” is defined in s 3 to mean -

“(a) a marriage celebrated or contracted in accordance with the provisions of the Marriage Ordinance (Cap. 181);

(b) a modern marriage validated by the Marriage Reform Ordinance (Cap. 178);

(c) a customary marriage declared to be valid by the Marriage Reform Ordinance (Cap. 178);

(d) a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed.”

15.It is common ground that, as a matter of statutory construction, the definition of “valid marriage” under s 3 of the IEO only covers a heterosexual marriage, but not same-sex marriage, and accordingly, the surviving spouse of a party to a same-sex marriage cannot qualify as a “husband” or “wife” of that party for the purpose of entitlements under the IEO.  In other words, there is differential treatment being accorded to parties to heterosexual marriages and parties to same-sex marriages under the IEO.

THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ORDINANCE

16.As stated in the long title to the IPO, it is an Ordinance which makes provision for empowering the court to make orders for the making out of the estate of a deceased person of provision for certain members of that person’s family and dependants of that person.

17.The predecessor of the IPO was the Deceased’s Family Maintenance Ordinance, Cap 129 (“the DFMO”), which in turn was based largely upon the Inheritance (Family Provision) Act of 1938 (“the 1938 Act”).  The purpose of the 1938 Act was described in §13.1 of the LRC Report, as follows:

“The principle of freedom of testamentary disposition was a feature of English law. In action, however, this principle would sometimes result in a testator avoiding his duty to his dependants, by failing to make adequate provision for them after his death. This unsatisfactory situation eventually led to statutory reform. The Inheritance (Family Provision) Act of 1938 (‘the 1938 Act’) restricted the testator’s right to arbitrarily determine how his estate would be distributed. It gave jurisdiction to the courts, where applications were made by certain dependants, to interfere with the testator’s expressed testamentary intentions in cases where a reasonable provision had not been made for the dependant’s maintenance. Initially the court could only exercise its power where the deceased had left a will. Later reform extended this power to cases where the deceased had died wholly or partially intestate.”

18.In Sherrin and Bonehill, The Law and Practice of Intestate Succession, 3^rd Ed, at §1-032, it is stated that the purpose of the 1938 Act was to provide an overriding system of discretionary family provision outside the code established for distribution of intestates’ estates to deal with exceptional circumstances.

19.The DMFO was repealed and replaced by the IPO in 1995, following the recommendations of the Law Reform Commission contained in the LRC Report.  The principal changes to the DMFO included:

(1) a substantial revision of the scope of those entitled to apply for financial provision, including the creation of a new category of eligible persons on the basis that they were dependant, either wholly or partially, on the deceased; and

(2) empowering the court to order reasonable financial provision for a surviving spouse that is not limited to that required solely for maintenance[1].

20.In recommending the widening of the classes of potential beneficiaries beyond surviving spouse (including former spouse, concubine and male partner), parent and child to “other dependant” under the IPO, the Law Reform Commission made the following comments in the LRC Report:

“Other ‘dependant’

14.18 As emphasised in the foregoing paragraphs, the DFMO places strict limits on those who may apply for provision, even within the deceased’s immediate family. What of other persons not within this group who, nonetheless, may have been actually dependent upon the deceased at the time of his death? Should the law enforce after his death what may have been a moral, but not a legal obligation assumed by the deceased during his lifetime?

14.19 The 1975 Act[2] introduced into England and Wales a new provision which allowed ‘any person’ (other than one of those discussed above) who was being maintained, wholly or partly, by the deceased immediately prior to his death, to apply for provision under the Act. This was undoubtedly one of the most controversial changes introduced by the legislation. In particular, it opened the door to applications for maintenance by de facto spouses against the deceased’s estate. (Consider also in Hong Kong the case of a family servant who is kept on into old age. She may have looked after the deceased since his infancy.) An argument in favour of the extension is that the deceased’s failure to make provision may well have been unintentional. An order for family provision in such cases therefore would be doing for the deceased what he might reasonably be assumed to have intended himself. In any event, the provision grants a right to apply only, not a right to receive maintenance. The applicant of course would need to justify the claim to the court’s satisfaction.

14.20   Having given consideration to the various implications of this issue, we are of the view that a provision similar to that contained in the 1975 Act should be introduced into Hong Kong.  We therefore recommend the inclusion of a new class of person entitled to apply, namely ‘any person [not being a person already included] who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.’”

21.Under the former DMFO, only the following classes of persons were able to benefit:

(1) a wife or husband of the deceased by a valid marriage;

(2) a daughter of the deceased by a valid marriage who had not been married;

(3) an infant son of the deceased by a valid marriage;

(4) a son of the deceased by a valid marriage who was, by reason of some mental or physical disability, incapable of maintaining himself; and

(5) a parent of the deceased substantially maintained by him immediately before his death.

22.The current IPO has substantially enlarged the classes of persons who are eligible to apply for benefit.  Under s 3(1) of the IPO, where a person dies domiciled in Hong Kong or having been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death, and is survived by any of the following persons:

“(i) the wife or husband of the deceased;

(ii) a former wife or former husband of the deceased who has not remarried and was being maintained, either wholly or substantially, by the deceased immediately before his death;

(iii) a tsip or male partner of the deceased by a union of concubinage;

(iv) a parent of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(v) an infant child of the deceased, or a child of the deceased who is, by reason of some mental or physical disability, incapable of maintaining himself;

(vi) an adult child of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(vii) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage and was being maintained, either wholly or substantially, by the deceased immediately before his death;

(viii) a brother or sister of the half blood or the whole blood of the deceased who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased;

(ix) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased”,

such person may apply to the court for an order under s 4 on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

23.Under s 4(1) of the IPO, where an application is made for an order under that section, the court may, if it is satisfied that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make “reasonable financial provision” for the applicant, make an order giving reasonable financial provision in favour of the applicant.

24.The definitions of the expressions “husband”, “wife” and “valid marriage” in the IPO are materially the same as those in the IEO[3].  It is common ground that, upon the true construction of the IPO, the surviving spouse of a party to a same-sex marriage cannot qualify as a “husband” or “wife” of that party for the purpose of s 3(1)(i), although he/she may qualify under s 3(1)(ix).  There are, however, 2 major differences between these two classes of applicants:

(1) A “husband” or “wife” of the deceased is entitled without more to apply for an order under s 4, while the surviving spouse of a party to a same-sex marriage may apply for such order only if he/she was immediately before the death of the deceased being maintained, either wholly or substantially, by the deceased.

(2) Where the “husband” or “wife” is the applicant, “reasonable financial provision” means “such financial provision as it would be reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his or her maintenance” under s 3(2)(a).  On the other hand, where the applicant is a person who was, immediately before the death of the deceased, being maintained, either wholly or substantially, by the deceased, “reasonable financial provision” means “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance” under s 3(2)(b).

25.Again, it is clear that there is differential treatment being accorded to parties to heterosexual marriages and parties to same-sex marriages under the IPO.

APPLICATION FOR JUDICIAL REVIEW

26.In this application for leave to apply for judicial review made on 27 November 2019, the Applicant challenges the definitions of “valid marriage”, “husband” and “wife” under ss 2 and 3 of the IEO and s 2 of the IPO (collectively “the Marriage Provisions”) to the extent that they do not include or incorporate persons who have entered into marriages with persons of the same sex in foreign jurisdictions for the reason that they are marriages between persons of the same sex.

27.Three grounds of judicial review are raised in the Form 86[4]:

(1) Ground 1 - the Marriage Provisions are unlawful and unconstitutional to the extent that they do not recognize and provide for same-sex marriages, civil unions and civil partnerships on terms of equality with heterosexual marriages, because they violate the principle of equality before the law guaranteed by Article 25 of the Basic Law (“BL 25”) and Articles 1(1) and 22 of the Hong Kong Bill of Rights (“BOR 1(1) and 22”), amounting to unjustified discrimination against the Applicant and H on the ground of sexual orientation.

(2) Ground 2 - they are unlawful and unconstitutional as an unjustified restriction on the Applicant’s right, and that of H, to respect for their private and family life without distinction as to sexual orientation under BOR 14, read with BOR 1(1).

(3) Ground 3 - they are unlawful and unconstitutional as an unjustified restriction on the Applicant’s right, and that of H, to respect and protection for or of their property rights under BL 6 and 105, read with BL 25.

28.The Applicant seeks the following declaratory relief:

(1) No marriage shall not be regarded as a “valid marriage” within the meaning of s 3 of the IEO or s 2(1) of the IPO by reason only of the fact that it is a marriage between persons of the same sex;

(2) For the purpose of the IEO and the IPO, references to:

(a) “husband and wife” shall be read as “a married person and his or her spouse”;

(b) “husband or wife” shall be read as “a married person or his or her spouse”; and

(c) “husband” and “wife” in relation to a person, shall be read as a spouse of that person by a valid marriage.

(3)     For the purpose of the IEO and IPO, references to “marriage” shall be read to include civil partnerships and civil unions between persons of the same sex.

29.The provisions of the Basic Law relied upon by the Applicant state as follows:

(1) BL 6 - “The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.”

(2) BL 25 - “All Hong Kong residents shall be equal before the law.”

(3) BL 105 - “The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.”

30.The provisions of the Hong Kong Bill of Rights relied upon by the Applicant state as follows:

(1) BOR 1(1) - “The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

(2) BOR 14 -

“(1) The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

(2) Everyone has the right to the protection of the law against such interference or attacks.”

(3) BOR 22 - “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

THE SECRETARY FOR JUSTICE’S ANSWER TO THE DISCRIMINATION CHALLENGE

31.As summarized in §4 of the Skeleton Submissions of Mr Abraham Chan, SC, the Secretary for Justice’s answer to the discrimination challenge is as follows:

(1) Same-sex couples such as the Applicant and H are not in a comparable position to those who are married according to Hong Kong law.  Only the latter are legally obliged to maintain their partners during their lifetime and, in certain situations, have rights over each other’s property.  It is this obligation that grounds the operation of the intestacy provisions as they apply to surviving spouses.

(2) If (contrary to the above submission) there is differential treatment requiring justification, they court will accord a wide margin of judgment to the legislature and the Government given the broad and value-laden nature of the policy assessments in question.

(3) On any recognized margin, any interference with fundamental rights is proportionate having regard to (i) the important policy aims of supporting traditional marriages and families and across-the-board legislative coherence on matters resting on marital status; and (2) the very limited overall impact on the position of those like the Applicant and his same-sex partner, who at all material times retain the primary freedom to distribute their property upon death as they please by preparing wills.

SAME-SEX MARRIED COUPLES ARE RELEVANTLY SIMILAR TO OPPOSITE-SEX MARRIED COUPLES FOR THE PURPOSES OF THE IEO AND IPO

32.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.  Differential treatment which is justified does not constitute unlawful discrimination.  However, where differential treatment is not justified, it is unlawful discrimination” (see Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127, at §19, see also QT v Director of Immigration (2018) 21 HKCFAR 324, at §§81-83).

33.That there is differential treatment between same-sex married couples and opposite-sex married couples for the purposes of the IEO and the IPO is clear.  That sexual orientation is a prohibited ground for according differential treatment for the present purpose also cannot be disputed.

34.Generally, in order show a differential treatment on a prohibited ground in any case, the complainant must establish that he has been treated differently to a person in a comparable, or analogous, position, and that the reason for the differential treatment is based on the prohibited ground.  In QT, at §38, the Court of Final Appeal explained that:

“A person complaining about discrimination generally has in mind one or more comparators. The question asked is: Why is the complainant being treated less favourably than individuals in a relevant comparator group?”

35.In Leung Chun Kwong, at §20, the Court of Final Appeal further explained the comparison exercise that is involved:

“Accordingly, the initial step must be for the complainant to demonstrate that he or she has been treated differently to a person in a comparable position and that the reason for this difference in treatment can be identified as a prohibited ground, such as race, religion or sexual orientation. Only after this is demonstrated does it then become necessary to consider whether such differential treatment is lawful. If the treatment is held to be unlawful, then the complainant will be entitled to remedies.”

36.Mr Chan argues that same-sex married couples and opposite-sex married couples are not in a comparable position for the purposes of the IEO and the IPO for three reasons:

(1) The general law of marriage in Hong Kong, which accords special status to heterosexual life unions[5].

(2) In the Hong Kong context, there are particular legal obligations that apply to married persons, but not others, which begin in married life and continue after death - in particular a legal obligation of one party to a marriage to maintain the other[6].

(3) The practical position of the Applicant and his partner must be considered in the light of Hong Kong’s overall inheritance regime - in particular, same-sex couples are free to exercise their wide testamentary freedom to make a will so that their dependants, including their same-sex partners, are provided for in whatever way they wish[7].

37.I do not accept the three arguments raised by Mr Chan to justify the proposition that same-sex married couples and opposite-sex married couples are not comparable in the present context:

(1) The first argument that because the general law of marriage in Hong Kong accords special status to heterosexual life unions, same-sex married couples and opposite-sex married couples are therefore not in a comparable position is circular.  This argument is essentially the same one that was rejected by the Court of Final Appeal in QT:

“[38] A person complaining about discrimination generally has in mind one or more comparators. The question asked is: Why is the complainant being treated less favourably than individuals in a relevant comparator group? Here, QT asks: ‘Why am I denied a dependant visa which would be granted to a married spouse of a sponsor?’ The Director’s answer is essentially simply to state: ‘Because she is married and you are not’. As we have seen, the Director recognises someone as married only if he or she is a party to a marriage which, if celebrated here, would be valid under Hong Kong law, in other words, a party to a monogamous and heterosexual marriage, wherever it might have been contracted…

[42] The first unsatisfactory aspect of the Director’s first argument is its circularity.  It puts forward the challenged differentiating criterion as its own justification.  It is hardly satisfactory to answer the question: ‘Why am I treated less favourably than a married person?’ by saying: ‘Because that person is married and you are not’.”

(2) In respect of the second argument, as pointed out at §45 in QT,

“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]

The present context concerns the provision of benefits to persons who were either related to a deceased person, or maintained by the deceased immediately before his death. As earlier noted, the purpose of the IEO is to give effect to the presumed intention of an intestate, while the purpose of the IPO is to prevent a deceased person avoiding his “duty” to his dependants and provide an overriding system of discretionary family provision outside the code established for distribution of the deceased’s estates to deal with exceptional circumstances.  Although the classes of eligible beneficiaries under the IEO and IPO undoubtedly include those whom the deceased were under a legal obligation to maintain during his lifetime, they are not confined to such persons.  For example, a person is generally under no legal obligation to maintain his parents, brothers or sisters, but these are all potential beneficiaries under the IEO and IPO.  It is also clear that one of the purposes of the IPO is to benefit persons whom the deceased had no legal, but only a moral, obligation to maintain[8]. It is, in my view, wrong to treat same-sex married couples and opposite-sex married couples as being not relevantly comparable for the purposes of the IEO and IPO on the ground that only opposite-sex married couples are legally obliged to maintain their partners during their lifetime.

(3) In respect of the third argument, the fact that same-sex married couples can avoid the differential treatment by making a will is relevant to the question of whether the differential treatment would result in an unacceptably harsh burden on same-sex married couples (ie, the fourth step of the justification test), but not whether opposite-sex married couples and same-sex couples are comparable for the purposes of the IEO and IPO.

38.In all, I am of the view that there is differential treatment on a prohibited ground in the present case.

THE DIFFERENTIAL TREATMENT IS NOT JUSTIFIED

39.The next issue is whether the differential treatment can be justified.  For this purpose, the well-established approach of the court is to apply what is commonly referred to as the four-step justification test, as explained by the Court of Final Appeal in Leung Chun Kwong, at §§21-22:

“[21] In order to determine whether differential treatment is unlawful, the courts apply the same test used to determine if incursions into constitutionally protected rights are lawful (QT at [84]-[86]). When applied in the context of an analysis of constitutionality, that test is usually referred to as the ‘proportionality’ test. When applied in the context of determining whether differential treatment is unlawful, that test is usually referred to as the ‘justification’ test.

[22] 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 (QT at [86]-[87]).”

(i) First step - legitimate aim

40.The first step of the justification test is to ask whether the differential treatment pursues a legitimate aim.  Mr Chan argues that the Marriage Provisions serve three broad legitimate aims[9]:

(1) To support and uphold the integrity of the traditional institution of marriage in Hong Kong, being the voluntary union of one man and one woman to the exclusion of all others, by specially providing (amongst other public entitlements and benefits) inheritance rights between spouses to validly married men and women (“the Marriage Aim”).

(2) To encourage heterosexual unmarried couples to marry so as to ensure that their spouses will be afforded spousal status or priority under inheritance law (“the Family Aim”).

(3) To maintain and optimize the overall coherence, consistency and workability of the extensive and interlocking schemes of Hong Kong legislation that rest upon or otherwise involve the institution of marriage as recognised under domestic law and BL 37 (“the Coherence Aim”).

41.In respect of these three aims:

(1) The Marriage Aim is a legitimate aim (see Leung Chun Kwong, at §61).

(2) The Family Aim is accepted by Mr Jin Pao, SC to be a legitimate aim[10].

(3) The Coherence Aim is merely a different formulation of the Marriage Aim, or a variation of the same theme (see Leung Chun Kwong, at §§48-52).

I am content to proceed on the basis that the three aims identified by Mr Chan are all legitimate aims for the purpose of the justification analysis in this case.

(ii) Second step - rational connection

42.In relation to the second step of the justification test, it is important to appreciate that the question is not whether the conferment of benefit on the comparator group would promote the legitimate aim advanced by the party seeking to uphold the differential treatment.  The pertinent question is, instead, whether the denial of the same benefit to the group to which the complainant belongs would promote such legitimate aim.  In other words, what has to be justified is the difference of treatment.  Thus, in Leung Chun Kwong, at §66, the Court of Final Appeal identified the relevant question as follows:

“In these circumstances, having concluded that the appellant has been subject to differential treatment because he is in a same-sex marriage rather than an opposite-sex marriage, one looks to see how denying the appellant spousal employment benefits (the Benefits Decision) and the right to elect for joint assessment (the Tax Decision) is rationally connected to the legitimate aim of protecting or not undermining the institution of marriage in Hong Kong.”

43.At §§67, 71 and 72 of its judgment in Leung Chun Kwong, the Court of Final Appeal rejected the contention that the denial of employment and tax benefits would promote or advance the aim of protection of the institution of marriage in Hong Kong:

“[67] It is here that the respondents’ case faces great difficulty. How is it said that allowing Mr Adams medical and dental benefits weakens the institution of marriage in Hong Kong? Similarly, how does permitting the appellant to elect for joint assessment of his income tax liability under the IRO impinge on the institution of marriage in Hong Kong? It cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation.

[71] Restricting these financial benefits to opposite-sex married couples on the ground that heterosexual marriage is the only form of marriage recognised in Hong Kong law is circular and therefore proceeds on the fallacious basis rejected by the Court in QT at [42]. It amounts to the application of a self-justifying reasoning process and denies equality to persons of different sexual orientation who are accepted to be in a relevantly analogous position. Ultimately, a line is merely drawn without any further attempt to justify it.

[72] In any event, we are unable to accept the proposition that heterosexual marriage would be undermined by the extension of the employment and tax benefits to same-sex married couples.  Whilst the Court recognised in QT (at [76]) that a person’s marital status might well be relevant to the allocation of rights and privileges and 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’, we are satisfied that this is not such a case.  Heterosexual marriage is not promoted by the differential treatment in question.”

44.In my view, the same reasoning is applicable in the present case.  It is illogical to suggest that the denial of benefits under the IEO or IPO to same-sex couples would promote the Marriage Aim, Family Aim or Coherence Aim.  There is also no basis to suggest that any person would be encouraged to enter into an opposite-sex marriage, or the traditional institution of marriage would be undermined, or the workability of the overall scheme of Hong Kong legislation which rests upon the traditional institution of marriage would be adversely and substantially affected by giving to same-sex couples the same benefits under the IEO or IPO as accorded to opposite-sex couples.

45.In short, I am of the view that the differential treatment is not rationally connected to the legitimate aims identified by the Secretary for Justice in this case.

(iii) Third and fourth steps

46.Having reached the above conclusion, it becomes unnecessary to go into the question of the appropriate standard of review, which was much debated at the hearing.  Had it been necessary to do so, I would have no hesitation in coming to the conclusion that the appropriate standard of review should be towards the higher end of the intensity of review in the continuous spectrum of reasonableness, having regard to the fact that the differential treatment in the present case strikes at the heart of a core value, namely, the sexual orientation of a person (see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 406, at §§77-78; QT, at §§107-108; and Leung Chun Kwong, at §79). Unlike Fok Chun Wa or Infinger v Hong Kong Housing Authority [2020] 1 HKLRD 1188, the present case does not concern general socio-economic policy matters, or the allocation of highly scarce public resources, which would support a low standard of review being applicable.

47.For the same reason, it is not necessary to consider the third and fourth steps of the justification test.  Had it been necessary to do so, I would have found that the differential treatment cannot pass the third step of the justification test.  Whether it can pass the fourth step of the justification test is more debatable.

48.In all, the differential treatment accorded to same-sex married couples and opposite-sex married couples under the IEO and IPO cannot be justified, and constitutes unlawful discrimination.

49.For the avoidance of doubt, I should mention that, for the purpose of this judgment, same-sex married couples refer to those who are legally and validly married in a foreign jurisdiction, but do not include cases where the foreign marriage may be objectionable on the ground of public policy, eg a marriage which is not voluntary, or between persons falling within prohibited degrees of consanguinity, or to which one or both parties are under the age of matrimonial capacity.  Mr Chan has not suggested that there is any particular feature of the foreign marriage between the Applicant and H which is relevant to the issues to be determined in this application.

50.There are two other matters that I should deal with here.  First, having upheld the Applicant’s Ground 1 of the judicial review, it is not necessary for me to consider Grounds 2 and 3.  In my view, it is clear that the substance of the Applicant’s complaint in the present case is unlawful discrimination on the ground of sexual orientation (ie Ground 1).  If the Applicant succeeds on Ground 1, he does not need Grounds 2 and 3.  On the other hand, if the Applicant fails on Ground 1, it is unlikely that he can succeed on Grounds 2 or 3.  The latter grounds of judicial review add nothing of substance to Ground 1.  This is not the first time that applicants of judicial review have put in as many grounds of review as they can think of, and failed to focus on the real ground(s) of review, thereby resulting in unnecessary time and costs being spent or incurred.  In future, legal advisers to applicants should carefully consider what are the real grounds of judicial review and concentrate on those grounds only.

51.Second, the Applicant has not entered into any civil partnership or civil union.  He has no standing to ask the court to declare that for the purpose of the IEO and IPO, references to “marriage” shall be read to include civil partnerships and civil unions between persons of the same sex.  It would also be inappropriate for the court to deal with the position of civil partnerships and civil unions generally in the absence of evidence on the legal relationship and incidences arising from a civil partnership and civil union in any given country, and how such legal relationship and incidences may differ in different countries which permit these forms of partnership or union to be formed.

CONCLUSION

52.I grant the Applicant leave to apply for judicial review (including any extension of time as may be required by him to make the application for leave to apply for judicial review), and allow the substantive application for judicial review.

53.The proper remedy to be granted in the present case is a declaration and remedial interpretation of the expressions “valid marriage”, “husband” and “wife” in the IEO and IPO.  I shall leave it to the parties to formulate the appropriate form of relief and submit an agreed form of order for the court’s approval within 21 days of the date of this judgment. In the event that agreement cannot be reached within that period of time, the Applicant shall submit a combined draft order (with differences between the parties clearly marked) to the court for approval within 28 days of the date of this judgment.

54.I also order the Respondent to pay 90% of the Applicant’s costs of the application, to be taxed if not agreed with certificate for 2 counsel.  The reduction of 10% of the Applicant’s costs reflects the fact that he has failed in his challenge in relation to civil partnerships and civil unions.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

Mr Jin Pao, SC & Mr Azan Marwah, instructed by Daly & Associates, for the Applicant (Assigned by Legal Aid Department)

Mr Abraham Chan, SC & Ms Denise Souza, instructed by Department of Justice, for the Putative Respondent