Sham Tsz Kit v. Secretary for Justice

CACV 557/2020

[2022] HKCA 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 557 OF 2020

(ON APPEAL FROM HCAL NO. 2682 OF 2018)

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JUDGMENT

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Hon Poon CJHC (giving the judgment of the Court):

1.In this appeal from the judgment of Chow J (as he then was) in [2020] 4 HKLRD 930, it falls upon this Court to determine the constitutionality of the relevant laws of Hong Kong relating to the institution of marriage, which is hitherto understood to be confined to heterosexual marriage and does not extend to same-sex marriage: see W v Registrar of Marriages (2013) 16 HKCFAR 112, at [63], [65] and [165]; QT v Director of Immigration (2018) 21 HKCFAR 324, at [26]; Leung Chun Kwong v Secretary for Civil Service [2018] 3 HKLRD 84 (CA), at [2], [7], [23] and [89].

2.At the centre of the exercise is article 37 of the Basic Law (BL 37), the particular provision on marriage.  Together with it are three general provisions on fundamental rights relied on by the applicant, namely, article 25 of the Basic Law (BL 25) and article 22 of the Hong Kong Bill of Rights (HKBOR 22) (right to equality), and article 14 of the Hong Kong Bill of Rights (HKBOR 14) (right to privacy).

A.      Background

3.The applicant is a Hong Kong permanent resident in his early 30s.  He is a homosexual, having realized his sexual orientation when he was in primary school.  He has had a stable same sex partner since 2011, who is also a Hong Kong permanent resident.  They wished to marry in Hong Kong but it was impermissible because all the relevant statutory provisions define or refer to marriage as a voluntary union for life of one man and one woman to the exclusion of all others: see section 4 of the Marriage Reform Ordinance[1], section 40 of the Marriage Ordinance (“the MO”),[2] and section 20(1)(d) of Matrimonial Causes Ordinance (“the MCO”).[3]  That is also the common law position: see W, at [63].  So they had no other alternative but to marry outside Hong Kong, which they did in New York, the USA in November 2013.

4.The applicant says that had it been permissible under Hong Kong law, he and his same-sex partner would have married in Hong Kong.  There is no reason why they should be forced to marry outside Hong Kong because they are both permanent residents and Hong Kong is their home city.  The applicant complains that since his foreign same-sex marriage is not recognized under Hong Kong law, he and his same-sex partner do not enjoy the rights and benefits afforded to heterosexual married couples in Hong Kong, including but not limited to taxation and inheritance.  This, he contends, effectively deprives homosexual married couples of the legal protection that should follow from their marital status, which is highly unfair and discriminatory.

B.      Proceedings below

5.In the proceedings below, the applicant mounted three alternative grounds of constitutional challenge based on the right to equality and the right to privacy:

(1)  the exclusion of same-sex couples from the institution of marriage violates the right to equality under BL 25 and HKBOR 22 (Ground 1);

(2)  the laws of Hong Kong, insofar 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), violate the right to privacy under HKBOR 14; and/or the right to equality under BL 25 and HKBOR 22 (Ground 2); and

(3)  the laws of Hong Kong, insofar as they do not recognize foreign same-sex marriage, violate the right to equality under BL 25 and HKBOR 22 (Ground 3).

(collectively “the Grounds”)

6.The applicant correspondingly sought, in respect of Grounds 1 and 2, declarations that the relevant statutory provisions on marriage are unconstitutional; that the statutory definition of marriage must be read and given effect as “the voluntary union for life of two persons to the exclusion of all others”; and that the laws of Hong Kong, insofar 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 BL 25 and HKBOR 22 and/or HKBOR 14.  He further sought, in respect of Ground 3, a further or alternative declaration that the laws of Hong Kong, insofar as they do not recognize foreign same-sex marriage, constitute a violation of BL 25 and HKBOR 22.

B1.    MK disposing of Grounds 1 and 2

7.Earlier in MK v Government of HKSAR [2019] 5 HKLRD 259, the Judge held that 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 because under a proper construction, BL 37 only protects heterosexual marriage.[4]

8.Placing heavy reliance on the principle of lex specialis, the Judge further held that since same-sex couples do not enjoy the right to marry under BL 37, which is the lex specialis in the Basic Law concerning the right to marriage, they cannot derive such right from other articles of the Basic Law or the Hong Kong Bill of Rights.[5] He drew upon the judgments of the European Court of Human Rights (“ECtHR”) in Schalk and Kopf v Austria (2011) 53 EHRR 20 and Oliari v Italy (2017) 65 EHRR 26 on articles 12 and 14 of the European Convention on Human Rights (“ECHR”); and the decision of the United Nation Human Rights Committee (“HRC”) in Joslin v New Zealand (2003) 10 IHRR 40 on the comparable articles in the International Convenant on Civil and Political Rights (“ICCPR”), including article 23(2).  The Judge also derived support from the Court of Final Appeal’s judgment in Comilang v Director of Immigration (2019) 22 HKCFAR 59, at [30], [33], [35], [45] and [61].

9.MK relied on several cases to counter the application of the doctrine of lex specialis.  One of them was the first instance judgment of Smellie CJ of the Grand Court of the Cayman Islands in Day & Bush v Governor of the Cayman Islands (GC), Civil Cause Nos 111 & 184/2018, 29 March 2019, which refused to apply the doctrine in a similar context.  The Judge however did not find the Chief Justice’s reasoning persuasive.[6]

10.The Judge went on to hold that on a proper reading of HKBOR 14, 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.  In so doing, he refused to follow the majority decision of the ECtHR in Oliari.[7]

11.As noted by the Judge,[8] Mr Hecter Pun SC, for the applicant, accepted that MK had effectively decided against him on Grounds 1 and 2.  He accordingly did not rely on them in support of Ground 3 for the purpose of the proceedings below, although the Grounds were, according to him, intertwined.[9]

B2.    Ground 3

12.In respect of Ground 3 and the declaration sought, the Judge held that it was unsustainable as a matter of law and principle.[10] He first applied the conflict of laws rules and ruled that the applicant’s same-sex marriage lacked essential validity and therefore could not be recognized as a valid marriage under Hong Kong law.[11]  Next, he rejected Mr Pun’s contention that the status of marriage is generally open to same-sex couples provided that they are lawfully married according to the place where the marriage is celebrated, because it is inconsistent with the observation of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 324 at [25].  Finally, he found that Mr Pun’s attempt to apply the four-step proportionality test in support of the applicant’s case on discrimination was, in the absence and regardless of any specific subject matter and its relevant context, untenable,[12] citing QT at [45], [54], [67] and [76]; and Leung Chun Kwong v Secretary for Civil Service (CFA) (2019) 22 HKCFAR 127, at [19], [22].

13.In consequence, the Judge dismissed the applicant’s application for judicial review.

C.      Overview of the applicant’s submissions

14.At the outset of his submissions before us, Mr Pun[13] makes it plain that he does not seek to rely on the right to marry under BL 37, although it is his submission that the language used in BL 37 does not restrict the right to marry to heterosexual marriage to the exclusion of same-sex marriage.

15.In respect of Ground 1, Mr Pun argues that the Judge erred in failing to recognize that the right to equality is autonomous, and free- standing, which may be engaged independently.  By giving the right to equality a generous interpretation, even if BL 37 only protects heterosexual marriage, it does not preclude the applicant from seeking equality of treatment in terms of having a right (at the statutory level as opposed to the constitutional level) to establish a same-sex legal relationship equivalent to heterosexual marriage.  The court is thus duty bound to apply the proportionality test to assess if the exclusion of same-sex couples from the institution of marriage violates the right to equality; and had the court done so, it would have found that the exclusion did not pass the test.

16.As to the doctrine of lex specialis, Mr Pun submits that despite the authorities cited in MK, his submissions are correct under Hong Kong’s constitutional framework.  He first harks back to his reading of BL 37, submitting that it does not expressly limit “the freedom of marriage of Hong Kong residents” to heterosexual couples, which is a special feature rendering Schalk, Oliari and Joslin distinguishable.  Noting that Schalk was a closely split 4:3 decision, Mr Pun next emphasizes that unlike BL 25 and HKBOR 22, article 14 of the ECHR does not create a right independently of the other substantive provisions of the Convention.  Thirdly, he points out that Joslin was heavily criticized in various academic commentaries.[14] Fourthly, he submits that when a certain benefit is specifically protected by a certain article under the Basic Law, it does not preclude protection of the same or similar benefit under the right to equality, citing Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950 in support.  Lastly, Mr Pun relies on Smellie CJ’s judgment in Day & Bush (GC), at [159] – [160] and [163], accepting however that it had been overturned on appeal firstly by the Court of Appeal in [2019] CICA No 9 of 2019 and then by the Privy Council in [2022] UKPC 6.

17.In wrapping up his submissions on the doctrine of lex specialis, Mr Pun argues that it is only one of the principles of construction and as such it does not detract from the unmitigated application of the constitutional provisions on equality and, for that matter, those on privacy as well, to the present context, as they are autonomous, free-standing and must be generously interpreted to protect those rights enjoyed by same-sex couples.

18.Turning to Ground 2, Mr Pun submits that contrary to the Judge’s construction, HKBOR 14 gives rise to a positive obligation on the Government to provide for legal recognition of same-sex union alternative to marriage.  The Judge failed to give the right to privacy a generous interpretation, thus departing from authorities such as HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371.  In his oral submissions, Mr Pun also seeks to rely on his reading of BL 37 to reinforce his argument that HKBOR 14 gives rise to such a positive obligation.

19.Mr Pun further complains that the Judge erred in failing to follow the majority decision in Oliari, contrary to the approach laid down by the Court of Final Appeal in W, at [116] and Leung Chun Kwong, at [57]; and Fedotova v Russia (2022) 74 EHRR 28, at [52].

20.Finally, Mr Pun relies on Fedotova, at [48], and [54] – [55] to support his contention that the lack of any means of legal recognition of same-sex partnerships fails to satisfy the proportionality test.

21.As to Ground 3, Mr Pun emphasizes that sexual orientation is one of the personal characteristics which an individual cannot change.  Same-sex marriage which is valid under the law where it was entered into is a relationship which has the same distinguishing characteristics of publicity and exclusivity as a heterosexual marriage. Same-sex couples are in a relevantly similar situation to heterosexual couples as regards their need for formal acknowledgment and protection of their relationship.  Thus if a foreign marriage of a heterosexual couple validly entered into is recognized in Hong Kong but a valid foreign same-sex marriage is not, the difference in treatment amounts to discrimination.  He complains that the Judge had misread the Court of Final Appeal’s observation in QT, at [25].

D.      The applicant’s core case

22.Stripped of the legal niceties, the applicant’s core case is that although BL 37 enshrines the institution of marriage for heterosexual couples, it does not preclude same-sex couples to have access to (1) marriage, under BL 25 and HKBOR 22 or its equivalent as an aspect of their right to equality; or (2) its equivalent, under HKBOR 14 as an aspect of their right to privacy.  The correctness of this contention depends on the interpretation of BL 37 and the rights relied on.

D1.    The right to marry under BL 37

23.BL 37 protects the institution of marriage in these terms:

“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

24.It is trite that the courts adopt a purposive and contextual interpretation of the Basic Law: see Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4, at pp.28-29; Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, at p 224D-G; Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, at [76] – [77]; Comilang Milagros Tescon v Director of Immigration (2019) 22 HKCFAR 59, at [60]. The purpose and context of a provision of the Basic Law is to be ascertained at the time when they were established, that is, when the Basic Law was enacted in April 1990: Chong Fung Yuen, ibid, Kwok Cheuk Kin v Director of Lands (CA) [2021] 1 HKLRD 737, at [33].  As rightly identified by the Judge, there are three contexts that powerfully inform the interpretation of BL 37.[15]  And they all point to the same conclusion.

25.First, the constitutional context, referring to the other provisions of the Basic Law and the provisions of ICCPR as applied to Hong Kong which must be read as a coherent whole: Comilang, at [60] – [61].  This is what Li CJ described in Chong Fung Yuen, ibid, as one of the internal aids to interpretation.

26.For marriage, the only other relevant provision is HKBOR 19(2).  It stipulates:

“The right of men and women of marriageable age to marry and to found a family shall be recognized.”

27.HKBOR 19(2) is modelled on article 23(2) of the ICCPR, which came into force in March 1976, verbatim. In Joslin, the HRC said at [8.2]:

“… Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term ‘men and women’, rather than ‘every human being’ ‘everyone’ and ‘all persons’. Use of the term ‘men and women’ rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.”

28.Since BL 37 must be read in congruence with HKBOR 19(2), it strongly suggests that the freedom to marriage thereunder is granted to heterosexual couples only.

29.The other two contexts, legal and historical, provide external aids to interpreting BL 37.

30.The legal context in the present instance refers to the state of the domestic law on marriage in April 1990.  Like their current forms, all the relevant statutory provisions at the time defined or referred to marriage as a voluntary union for life of one man and one woman to the exclusion of all others.[16]  The same definition has always been adopted for common law purposes too: see W, at [63].  There exists no reason, arising either from the Basic Law and the HKBOR internally or any extrinsic materials, why the drafters of the Basic Law would give “marriage” in BL 37 a definition other than its legal meaning then understood in Hong Kong.

31.The historical context is always important to the understanding of a constitutional document.  In Schalk, the ECtHR at [55] explained why heterosexual marriage is preferred in the comparable article 12 of the ECHR[17] as a matter of interpretation.  After referring to the actual language used, the Court emphasized:

“Moreover regard must be had to the historical context in which the Convention was adopted. In the 1950s, marriage was clearly understood in the traditional sense of being a union between partners of different sex.”

As pointed out by the Judge, same-sex marriage was only recognized legally for the first time in the world when the Netherlands provided for it in 2001.[18]  Self-evidently, the drafters of the Basic Law must have only used the term “marriage” in BL 37 in the traditional sense of being a union between a heterosexual couple.  Any suggestion otherwise is divorced from reality.

32.In conclusion, when properly interpreted, BL 37 only provides access to the institution of marriage to heterosexual couples.  It does not include same-sex couples.

33.Mr Pun argues that since BL 37, unlike article 23(2) of the ICCPR or article 12 of the ECHR, does not use the term “men and women” but adopts a general term of “Hong Kong residents”, it does not exclude same-sex couples from the institution of marriage.  That argument does not sit well with his avowed position that the applicant does not seek a right to marry under BL 37.  In any event, it is an attempt to isolate the language used from its constitutional, legal and historical contexts.  It is plainly wrong and must be rejected.

34.As will be elaborated further, the fact that BL 37 enshrines the right to marry for heterosexual couples exclusively must inform the interpretation of the rights relied on by the applicant.  To this we now turn.

D2.    Interpreting the rights

35.It is well-established that fundamental rights in the Basic Law should be generously interpreted so that individuals are given the full measure of their protection.  However, it is equally well-settled that fundamental rights must be derived from the language used in the Basic Law, properly interpreted in the light of its context and purpose: see ZN v Secretary for Justice (2020) 23 HKCFAR 15, per Fok PJ at [29(2)].  It is impermissible to ignore the language used, which must be properly interpreted, in favour of a general resort to the concept of “rights” or “values”.  For the result is not interpretation but divination: Matadeen v Pointu [1999] 1 AC 98, per Lord Hoffmann at p108C-G; Day & Bush (PC), per Lord Sales at [46].

D2.1  No right to marry arising from the rights

36.A proper interpretation of the fundamental rights requires them to be read together with other relevant provisions of the Basic Law as a coherent, internally consistent whole.  In so reading, if there is a specific provision on a particular subject matter constituting a lex specialis, it will prevail over some other general provisions.  As the Court of Final Appeal in Kwok Cheuk Kin v Director of Lands (No 2) (CFA)(2021) 24 HKCFAR 349, at [44(2)], explained:[19]

“It is a principle of statutory construction that the specific prevails over the general. This is simply one aspect of the more general principle that legislative instruments must be read as a coherent whole:

‘The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.’

The same principle applies to constitutional interpretation. …”

In a similar vein, Lord Sales in Day & Bush (PC), at [38], said:

“The Board regards it as trite law that [the Cayman Islands Constitution] should be read as a coherent whole … [The] approach to interpretation of an instrument which includes a provision which constitutes a lex specialis in relation to a particular subject matter is not a technical rule of treaty interpretation … Rather, like the maxim generalia specialibus non derogant, it is a consequence of the principle that an instrument should be interpreted as a coherent whole and ‘represents simple common sense and ordinary usage’…”

37.The doctrine of lex specialis has been applied by the Court of Final Appeal in different contexts.  For example:

(1)  In Comilang, the Court held that the scheme of constitutional rights laid down by the Basic Law, both in its Chapter III and in the HKBOR incorporated via article 39 of the Basic Law, must be interpreted as a coherent whole, consistently with section 11 of the Hong Kong Bill of Rights Ordinance.[20] Therefore, section 11 is not confined to rights in the HKBOR but extends by necessary implication to cognate rights in the Basic Law in the specific immigration context, excluding reliance on the rights to raise a family freely under BL 37 by the mother applicants, and reliance on the cognate rights in the Basic Law by the children applicants, whether they were invoked directly or in connection with the enjoyment of another right.

(2)  More recently, in Kwok Cheuk Kin (CFA), the Court held that in respect of the lawful traditional rights and interests of indigenous inhabitants of the New Territories, article 40 of the Basic Law (BL 40)[21] as the dominant provision qualifies and limits the application of BL 25 and HKBOR 22 when they are read together.  The constitutional challenge by the applicant, a non-indigenous inhabitant, against the Small House Policy, which falls within BL 40, on the ground of discrimination was rejected.

38.Turning specifically to the right to marry, BL 37 is undoubtedly the lex specialis on the subject.  It prefers heterosexual marriage and must correspondingly qualify and limit the rights on equality and privacy relied on by the applicant.  In this respect, the observation by Cheung CJHC (as the Cheung CJ then was) in Leung Chun Kwong v Secretary for Civil Service (CA) [2018] 3 HKLRD 84, at [9] is most pertinent:[22]

“… [The] preference in [BL 37] for heterosexual people over homosexual people in terms of access to marriage is there notwithstanding that the Basic Law also provides in [BL 25] that everybody is equal before the law. In other words, the drafters of the Basic Law were fully aware of this important, fundamental human right to equality, when granting to heterosexual people only in the same Chapter III of the Basic Law a constitutional protection not shared by homosexual people, in terms of access to marriage. If anything, this makes the preference for heterosexual marriage in [BL 37] stand out all the more starkly.”

39.Applying the doctrine of lex specilais, within the scheme of fundamental rights contained in Chapter III and the HKBOR, BL 25, HKBOR 22 and HKBOR 14, which are general provisions and do not stipulate a right to marry, must take account of BL 37, the dominant provision on access to marriage, and cannot be developed, even by way of a most generous interpretation, to circumvent the express preference for heterosexual marriage in BL 37.  They cannot establish indirectly by implication a right to marry for same-sex couples which is not provided for in BL 37.  Were such an interpretation possible, as Mr Pun has advocated, it would render the preference over heterosexual marriage in BL 37 redundant.  It would be clearly contrary to the intention of the drafters of the Basic Law.

40.The above conclusion is well supported by international jurisprudence which unanimously applies the doctrine of lex specialis to deny access to marriage to same-sex couples who rely on general rights when there is a specific provision in the constitutional document that creates a right to marry for heterosexual couples only.  The latest authority on the subject is the decision of the Privy Council in Day & Bush (PC).

41.There, the principal issue was whether the Bill of Rights (which forms Part 1 of the Cayman Islands Constitution) provides for a right for the appellants, a same-sex couple, to marry when section 14 (1) of the Bill of Rights provides for the right to marry a person of the opposite sex in these terms: “Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family”.  The applicants relied on general provisions in the Bill of Rights, namely, section 9 (right to respect private and family life), section 10 (right to freedom of conscience) and section 16 (right against discriminatory treatment) in support of their cases.

42.Before the Grand Court, Smellie CJ held that the fact that section 14(1) enshrines the right to marry for opposite-sex couples does not exclude a similar right existing for same-sex couples under the general provisions of the Bill of Rights.  He particularly emphasized that section 14(1) did not use exclusionary words such as “only” before “a person of the opposite sex” to deny same-sex couples the right to marry.[23] He further held that notwithstanding the lex specialis argument, the refusal to license the marriage of the applicants constituted unjustified discrimination.[24]

43.On appeal, the Court of Appeal held that in the scheme of the Bill of Rights section 14 is the provision which governs the right to marry as a lex specialis, and which does not cover same-sex marriage.  Hence, the general rights could not be interpreted to include a right for same-sex couples to marry for which the lex specialis in section 14 did not provide.

44.In dismissing the appellants’ appeal, the Privy Council rejected their argument that their right to marry arose from the general rights which should be given a generous interpretation to give the individuals the full measure of the fundamental rights and freedoms.  In giving the judgment for the Privy Council, Lord Sales held at [32]:

“In the context of the Bill of Rights, section 14(1) is a lex specialis dealing with the right to marry. That right is confined to opposite-sex couples. Sections 9, 10 and 16 have to be interpreted in the light of that lex specialis, so none of them can be construed as including a right for a same-sex couple to marry.”

His Lordship then went on at [32] – [44] to expound on and apply the doctrine of lex specialis.  He also drew support from the jurisprudence of the ECtHR including Schalk and Oliari; and other jurisprudence, including Joslin at [45] – [50] and [51] – [54] respectively.  Specifically, he at [52] highlighted the well-established proposition by Strasbourg jurisprudence that because the lex specialis does not recognize the right to same-sex marriage, no question of justification arises at all, disapproving the judgment of the Court of Appeal of Northern Ireland in Re Close’s Application for Judicial Review [2020] NICA 20. 

45.In Attorney General for Bermuda v Roderick Ferguson & others [2022] UKPC 5, Lord Sales at [146] summarized the review that he did in Day & Bush (PC) thus:

“Both the ECHR and the ICCPR contain an express right for individuals to marry, drafted in terms which cover only opposite-sex couples: article 12 and article 23, respectively. … As explained in detail in the Board’s judgment in the Day case, paras 45-54, in the scheme of these instruments those provisions constitute a lex specialis in relation to the right to marry which precludes such a right being found to be inherent in other, general provisions set out in them. As regards the position under the ECHR, it is on the basis that in the scheme of the Convention article 12 is the lex specialis on the right to marry that the Strasbourg Court has rejected the submission that general rights in article 8 (right to respect for family and private life) and article 14 (right to protection against discrimination) include a right for same-sex couples to marry … The ECtHR made the point in this way in Schalk at para 101:

‘Insofar as the applicants appear to contend that, if not included in article 12, the right to marry might be derived from article 14 taken in conjunction with article 8, the Court is unable to share their view. It reiterates that the Convention is to be read as a whole and its articles should therefore be construed in harmony with one another. Having regard to the conclusion reached above, namely that article 12 does not impose an obligation on contracting states to grant same-sex couples access to marriage, article 14 taken in conjunction with article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either.’

By the same reasoning, no right of marriage for same-sex couples can be derived under the ECHR from article 9 (freedom of thought, conscience and religion), whether taken by itself or together with article 14: Parry v United Kingdom (Application No 42971/05), admissibility decision, 28 November 2006.”

46.In light of our conclusion on interpretation and the weight of authorities, both local and international, Mr Pun’s submissions on the doctrine of lex specialis are simply untenable.  They can be disposed of briefly.

47.First, there is no merit in Mr Pun’s argument that because of the difference in language, the Hong Kong constitutional framework for marriage under BL 37 is different from that under article 12 of the ECHR and article 23(2) of the ICCPR, thus rendering Schalk, Oliari and Joslin distinguishable.  As seen, despite the difference in language, BL 37 on a proper interpretation enshrines the right to marry for heterosexual couples exclusively in the same way as article 8 of the ECHR and article 23(2) of the ICCPR do.

48.Second, Mr Pun’s attempt to criticize Schalk and Joslin as unsound must fail in the absence of any authority in support and more importantly, in light of the survey of cases on the doctrine of lex specialis by the Privy Council in Day & Bush (PC).

49.Third, Mr Pun’s reliance on Kong Yunming is entirely misplaced.  That case concerned the right to social welfare enshrined under article 36 of the Basic Law (BL 36). The Government’s policy since 1 January 2004 was that persons residing in Hong Kong for fewer than seven years did not qualify for comprehensive social welfare assistance save in exceptional circumstances.  Previously since 1971, the residence requirement was one year.  The applicant, an immigrant from the Mainland, who did not qualify under the 2004 residence requirement challenged the policy on the ground that it was inconsistent with BL 25, BL 36, article 145 of the Basic Law (BL 145) and HKBOR 22.  As observed by the Court of Final Appeal,[25] in the courts below, the applicant’s case as argued centred on the right to equality under BL 25.  Before the Court of Final Appeal, although the case based on equality was not abandoned, her central complaint shifted to BL 36.   Focusing therefore on BL 36, the Court of Final Appeal held that the relevant right given constitutional protection by it in the present case was the right defined by the eligibility rules for CSSA in existence as at 1 July 1997.  Social welfare rights protected by BL 36 were subject to modification in accordance with BL 145, which did not preclude the elimination or reduction of particular welfare benefits if that proved necessary to develop, improve or maintain the welfare system as a whole.  However, any restriction of such rights was subject to constitutional review.  And the seven-year requirement did not satisfy the proportionality test.  In short, the applicant in Kong Yunming had an established right to social welfare under BL 36 which could only be restricted if the restriction satisfied the proportionality test.  Properly understood, the Court of Final Appeal’s decision in that case simply did not address BL 25, lending no support to the applicant’s reliance on it to overcome the operation of BL 37.

50.Fourth, Mr Pun asks us to follow the reasoning of Smellie CJ in Day & Bush (GC).  With respect, we are unable to subscribe to his Lordship’s view, which departs from the well-established jurisprudence.  We do not consider that giving effect to the drafters’ preference for heterosexual marriage enshrined constitutionally in a lex specialis amounts to any unjustified encroachment of the fundamental rights.

51.For the above reasons, we reject the applicant’s case to claim access to marriage or its equivalent based on BL 25 and HKBOR 22, and HKBOR 14.  Those provisions are not engaged and the question of justification does not arise.

D2.2  No obligation to provide alternative framework under HKBOR 14

52.We next come to the applicant’s alternative case that the Government is under a positive duty to provide for an alternative legal framework for recognition of same-sex relationships equivalent to marriage under HKBOR 14.  It is again a matter of interpretation.

53.HKBOR 14 provides:

“(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

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

HKBOR 14 is modelled on article 17 of the ICCPR verbatim.  Significantly, Mr Pun has not been able to cite any authority on article 17 to make good his submissions.  Instead, he primarily relies on the Strasbourg jurisprudence, in particular, Oliari in support of his construction of HKBOR 14.  In that case, the majority of the ECtHR found Italy to be in breach of article 8 of the ECHR by reason of its failure to provide any form of legal recognition for same-sex couples, such as by way of a civil partnership regime.

54.Article 8 of the ECHR is couched very differently from HKBOR 14.  It reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 

And it has long been the established view of the Strasbourg Court that article 8 imposes both positive and negative obligations.  In Marckx v Belgium (1979) 2 EHRR 330, the ECtHR at p.342 explained:

“By proclaiming in paragraph 1 the right to respect for family life, Article 8 signifies first that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2. As the Court stated in the BELGIAN LINGUISTIC CASE [in 1968], the object of the Article is ‘essentially’ that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.”

55.This view was reiterated by the majority of the ECtHR in Oliari:[26]

“159. While the essential object of art.8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a state certain positive obligations to ensure effective respect for the rights protected by art.8. These obligations may involve the adoption of measures designed to secure respect for private or family life even in the sphere of the relations of individuals between themselves.

160. The principles applicable to assessing a state’s positive and negative obligations under the Convention are similar.  Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of art.8 being of a certain relevance.”

The majority then embarked on an essentially proportionality analysis at [165] – [186] to arrive at the conclusion at [187] that there was a violation of article 8.

56.It is now well settled that under article 8 of the ECHR as interpreted by the Strasbourg Court, corresponding to the positive obligations on the states to ensure effective respect, there is a right to a legally recognized union for same-sex couples which is equivalent to marriage in substance though not in name, giving them the same rights and benefits that married couples have: see the Privy Council’s observation in Roderick Ferguson, at [21].  However, because of the crucial differences between the provisions, this line of Strasbourg cases resting on the state’s positive obligations in article 8 of the ECHR does not assist the interpretation of HKBOR 14.

57.Because HKBOR 14 is taken from article 17 of the ICCPR verbatim, the HRC’s view on the latter’s scope as contained in the General Comment No 16 (1988) on ICCPR 17 is instructive.  The relevant parts read:

“1. Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour or reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interference and attacks as well as to the protection of this right.”

…

9. States parties are under a duty themselves not to engage in interferences inconsistent with article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons.”  

58.As pointed out by the Judge,[27] the protection of “this right” at the end of [1], properly understood in context, refers to the right “not to be subject to arbitrary or unlawful interference with the rights protected”.  In fact, article 17(2) of the ICCPR expressly guarantees a right to protection of the law against such interferences.  The purpose of ICCPR 17 is thus clear:

(1)  It first enjoins the state authorities from arbitrarily or unlawfully interfering with the rights protected.

(2)  It further requires the state authorities to protect the rights from being arbitrarily or unlawfully interfered with.

However, it does not mandate the state authorities, as article 8 of the ECHR as interpreted by the Strasbourg Court does, to take positive steps, whether legislative or administrative, to give effect to the rights protected.  Indeed, Mr Pun has cited no authority to show that article 17 does impose such obligations on the state authorities.  HKBOR 14 must have the same purpose as article 17.

59.With respect, Mr Pun’s reliance on the Strasbourg authorities including Oliari in support of his interpretation of HKBOR 14 is misconceived.  In this regard, the caution sounded by Lam J (as he then was) highlighted in Comilang & others v the Commissioner of Registration & others, HCAL 28/2011, unreported, 15 June 2012, at [95] is worth repeating:

“It has to be borne in mind that there are discrepancies between the context and the language in different instruments and such discrepancies could be material to the proper construction of the applicable instrument in Hong Kong. Actually, there are differences between the protection afforded to family under the ICCPR and that afforded by the ECHR. It is not right to start with an assumption that simply because broadly speaking all these instruments refer to protection of family, the contents of the protection under all of them are the same. Indiscriminant citation of overseas authorities as modern trends in international human right laws very often fudges the proper analysis as to whether such overseas authorities are relevant in the Hong Kong context.”

60.The other points taken by Mr Pun can all be disposed of shortly.

61.First, Mr Pun complains the Judge erred in failing to give HKBOR 14 a generous interpretation.  But as said, a proper interpretation must begin with the language used.  Such a general proposition does not really help if the language used in HKBOR 14 cannot bear the interpretation as he has contended.

62.Second, there is no merit in Mr Pun’s complaint that the Judge had at [51] of MK erred in failing to give proper regard to same-sex relationship as required in W, Leung Chun Kwong and Fedotova when he declined to follow the majority in Oliari.  There, the Judge was dealing with the various factors then prevailing in Italy which were relevant to the ECtHR’s proportionality analysis.  And he rightly pointed out that they were neither present nor applicable in Hong Kong.  Mr Pun has mis-read his judgment.

63.Third, properly understood, the two local authorities cited by Mr Pun do not support his interpretation of HKBOR 14.

64.The first case is HKSAR v Au Kwok Kuen.  There, a group of protestors demonstrated outside the residential development where a government official lived.  When the metal gate to the development was opened by the caretaker, they went inside and the police officers present formed a “human chain” to prevent them from approaching the common area at the end of the driveway.  After about 45 minutes, some of the protestors charged the police cordon and eventually all of them reached the common space.  They were convicted of taking part in an unlawful assembly, contrary to section 18(3) of the Public Order Ordinance.[28]  They appealed and one of the grounds of appeal was that the police officers were not executing their duty inside the development when they formed the cordon and prevented them from moving down the driveway.  In rejecting this ground, A Cheung J (as he then was) held that the police officers were entitled to take the view that there could be a breach of the peace by the protestors after their entry into the development in the manner as they did.  The learned judge went on to say at [74]:

“Moreover, just like the positive duty of the government (including the police) to take reasonable and appropriate measures to enable lawful demonstration to take place peacefully … arts.6, 29 and 105 of the Basic Law and art.14 of the Hong Kong Bill of Rights would, in my view, require the Government (including the police) to take reasonable and appropriate measures to protect Hong Kong residents’ homes and other premises against intrusion and their privacy at home against interference, provided that the measures, if they are to be taken within private premises, must be taken with the permission of their owner or occupier. …”

65.Mr Pun says that A Cheung J was there recognizing the positive duty of the Government to take reasonable and appropriate measures to protect privacy rights under HKBOR 14.  We disagree.  Properly understood, the positive duty that his Lordship referred to is the duty on the Government to prevent the privacy rights under HKBOR 14 from arbitrary and unlawful interference.  This is exactly what we have identified as the second aspect of the purpose of HKBOR 14: see [58(2)] above.  It does not embrace a positive duty to take measures to give effect to the privacy rights, as Mr Pun has argued.

66.The second case is Q v Commissioner of Registration [2022] 1 HKLRD 803.  There, the applicants were female to male transgender persons.  Their applications to change the sex entry in their Hong Kong identity cards from female to male were rejected by the respondent on the ground that they had failed to complete the relevant sex re-assignment surgery according to their policy.  The respondent accepted that the applicants’ right of gender as an aspect of privacy rights under HKBOR 14 was engaged by the policy.  The Court of Appeal at [38] described the applicants’ case as follows:

“… What they seek is to identify themselves by their acquired gender on their identity card. In her oral submissions, Ms Dinah Rose QC, appearing for the applicants, referred to it as their social gender or lived gender, the way how they present themselves. Putting the applicants’ case in more precise terms, what is engaged under BOR 14 in the present context is their right to state their acquired gender in the sex entry on their identity card, thereby enabling them, when using or presenting their identity card, to express their acquired gender and conduct their life and affairs accordingly.”

67.Mr Pun seizes upon the word “enabling” and submits that the rights under HKBOR 14 are, according to the Court of Appeal, positive in nature.  Again, we disagree.  As an aspect of their privacy rights under HKBOR 14, the applicants in Q had the right to present themselves by their acquired gender, including their identity cards.  The policy adopted by the respondent prevented them from so doing by refusing to change the sex entry because they had not completed the requisite sex-reassignment surgery.  It amounted to an interference with their privacy rights that needed to be justified.  This aligns with the second aspect of the purpose of the HKBOR 14.  The applicants did not assert, and the Court of Appeal certainly did not hold, that HKBOR 14 imposed a positive duty on the respondent to protect the applicants’ privacy rights in terms of enabling them to present their acquired gender by their identity cards.

68.For the above reasons, we hold that on a proper interpretation, HKBOR 14 does not impose a positive duty on the Government to provide for an alternative framework for the recognition of same-sex unions that is equivalent to marriage such as civil partnerships. HKBOR 14 is not engaged and no justification, as what the Strasbourg cases like Fedotova have decided, arises.

E.      The applicant’s further alternative case on discrimination

69.We finally come to the applicant’s further alternative discrimination challenge against the non-recognition of his foreign same-sex marriage.

70.The applicant’s case is based on the proposition that a heterosexual couple and a same-sex couple, both married overseas, are in a relevantly similar situation so that both of them are equally entitled to have their foreign marriages registered in Hong Kong. Giving the former recognition of their foreign marriage but denying the latter the same treatment amounts to discrimination.

71.Put simply, what the applicant seeks is access to the institution of marriage by way of recognition of his foreign same-sex marriage.  This distinguishes his case from others, such as QT and Leung Chun Kwong, where the same-sex couples sought the benefits arising from their relationship, but not recognition or access to marriage.  However, he faces the insurmountable hurdle of BL 37.

72.Plainly, BL 37 grants access to marriage in Hong Kong for couples married locally and overseas as well.  And as the lex specialis, it only prefers heterosexual marriage, which means that only heterosexual couples are entitled to recognition of their foreign marriage.  If the same recognition is afforded to same-sex couples married overseas, they would be able to circumvent the preference enshrined in BL 37, clearly contrary to the intention of the drafters of the Basic Law.  That would also create an inherent incompatibility between them and those same-sex couples who wanted to marry in Hong Kong but could not do so in terms of gaining access to the institution of marriage.  That is self-evidently wrong.

73.Fedotova does not take Mr Pun’s argument any further.  There, the ECtHR held that Russia had failed to fulfil its positive obligation under article 8 of the ECHR to ensure that homosexual couples have available to them a specific legal framework providing for the recognition and protection of their same-sex unions.  However, there was no discussion of the prior question of comparability between heterosexual and same-sex couples in light of the doctrine of lex specialis on marriage.  Absent such critical analysis, Fedotova does not really assist the applicant who has to grapple with BL 37.

74.As noted by the Judge,[29] Mr Pun in effect contends that status of marriage is generally open to same-sex couples if they are lawfully married according to the law of the place where the marriage is celebrated.  The Judge was correct in noting that it is inconsistent with the Court of Appeal’s observation in QT, at [25], that by definition the status of marriage is not open to same-sex couples.  We too would reject this contention because whatever the position might be under the foreign law on marriage, it does not detract from the application of BL 37 in Hong Kong.

75.Mr Pun emphasises that it is unfair for the applicant to come to court to challenge a particular Government policy or decision which accords differential treatment based on his sexual orientation as a violation of his constitutional right to equality whenever it arises.  He should instead be granted access to marriage by recognition of his foreign marriage so that he could enjoy all the benefits flowing from his marital status.  We disagree.

76.In terms of access to benefits, it is trite law that whether any alleged differential treatment amounts to discrimination is subject and context specific.  The proportionality analysis invariably involves a careful balance of the complainant’s interest and any countervailing public interest that is engaged.  Focusing just on the former without considering the latter, as implied in Mr Pun’s submission, misses a most crucial aspect of the analysis.  Such a blanket but blinkered approach is wholly unjustified as a matter of law and principle, however burdensome the exercise might be.

77.In terms of access to the institution of marriage, it concerns the special status of marriage, which is a distinct concept from the benefits arising from it.  The difficulty or even perceived hardship involved in obtaining the benefits by means of legal challenges does not justify a short-cut bypassing BL 37 to access the institution of marriage. 

78.For completeness, we fully agree with the Judge’s reasoning summarized at [12] above in dismissing the applicant’s discrimination challenge.   We reject Mr Pun’s submissions to the contrary in their entirety.

F.       Dispositions

79.For the above reasons, the Judge was correct in rejecting the Grounds and dismissing the applicant’s judicial review.  We accordingly dismiss his appeal.

80.We further make an order nisi that the applicant is to pay the respondent’s costs, to be taxed if not agreed with a certificate for two counsel; and that the applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the applicant

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