Sham Tsz Kit v. Secretary for Justice

CACV 557/2020

[2022] HKCA 1690

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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Before:  Hon Poon CJHC, Kwan VP and Chu VP in Court

Date of Written Submissions:  5, 19 and 26 October 2022

Date of Judgment:  10 November 2022

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J U D G M E N T

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The Court:

1.This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of this Court in [2022] HKCA 1247 on the following questions:

“1. Whether the exclusion of same-sex couples from the institution of marriage constitutes a violation of the right to equality enshrined in Article 22 of the Hong Kong Bill of Rights (“BOR22”) and Article 25 of the Basic Law of the HKSAR (“BL25”)?

2. Whether the laws of Hong Kong (including the Marriage Ordinance, Cap 181), in so far as they do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnerships (such as civil unions or registered partnerships), constitute a violation of the right to privacy enshrined in BOR14 and/or the right to equality enshrined in BOR22 and BL25?

3. Whether the laws of Hong Kong, in so far as they do not recognise foreign same-sex marriage, constitute a violation of the right to equality enshrined in BOR22 and BL25?”

2.We are satisfied that these questions are of great general public importance that ought to be determined by the Court of Final Appeal. We do not propose to rehearse the arguments and counter-arguments of both parties on the three questions. Having considered their submissions, we are inclined to think that the applicant has met the threshold they are reasonably arguable, even though we do not consider the arguments to be particularly strong. We therefore grant the applicant leave to do so, with costs in the cause of the appeal and his own costs 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