Read the full judgment text of FACV 14/2022 on BabelCite. This Court of Final Appeal judgment was delivered on 5 September 2023 before Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Keane NPJ.
Constitutional law – Basic Law – Hong Kong Bill of Rights – right to marry – right to privacy – right to equality – same-sex marriage – same-sex civil partnership – foreign same-sex marriage – lex specialis – interpretation of constitutional instruments – comparison with European Court of Human Rights jurisprudence on ECHR8, ECHR12 and ECHR14 – relationship between ICCPR and ECHR – whether European jurisprudence on same-sex partnerships is transposable to Hong Kong's BOR14 (based on ICCPR17) – positive obligations on the State to recognise same-sex partnerships – whether non-recognition of same-sex partnership by itself constitutes interference with privacy – Human Rights Committee's interpretation of ICCPR17 – margin of appreciation/discretion of government and legislature. The appellant, a Hong Kong permanent resident in a stable same-sex relationship since 2011, married his partner in New York in November 2013. That marriage is not recognised in Hong Kong. The appellant sought declarations (i) that there is a constitutional right to enter into a same-sex marriage in Hong Kong; (ii) alternatively, that the authorities are constitutionally obliged to provide a legal framework (such as civil partnership) to enable his relationship to be officially recognised; and (iii) that his foreign same-sex marriage must be recognised under Hong Kong law. The Court of First Instance (Anderson Chow J) and the Court of Appeal (Poon CJHC, Kwan VP and Chu JA) dismissed the application/appeal, and the Court of Final Appeal granted leave to appeal. On Question 1, the Court unanimously held that Article 37 of the Basic Law read with BOR19(2) (which mirrors ICCPR23(2)) is the lex specialis on the right to marry and guarantees only opposite-sex marriage; the general equality rights in BL25 and BOR22 cannot be used indirectly to establish a constitutional right to same-sex marriage (following the lex specialis principle applied in Kwok Cheuk Kin v Director of Lands (No 2), Schalk and Kopf v Austria, Oliari v Italy, Day v Governor of the Cayman Islands and Joslin v New Zealand). On Question 3 (foreign same-sex marriage), the appeal was unanimously dismissed, as it stood or fell with Question 1; to recognise foreign same-sex marriages would unjustifiably discriminate in favour of same-sex couples who could marry overseas. On Question 2, by a majority of three to two, the Court held that Article 14 of the Hong Kong Bill of Rights (like ICCPR17) imposes positive obligations on the State and that the absence of any legal framework for recognising same-sex partnerships in Hong Kong constitutes a violation of that provision by reason of the arbitrary interference with the privacy of same-sex partners caused by the practical and legal disadvantages they face (including in medical/dying situations, post-relationship property disputes, and the need to litigate repeatedly to claim individual rights). The majority followed Strasbourg jurisprudence (Oliari, Fedotova) on the positive obligations of Contracting States under ECHR8 in relation to same-sex partnerships. The minority (CJ Cheung and Lam PJ) held that BOR14, based on ICCPR17, is focused on non-interference rather than the broader 'right to respect' under ECHR8, and that European jurisprudence should not be mechanically transposed, given the HRC's silence on any such duty and the absence in Hong Kong of the European trends and developments relied on by the Strasbourg court. The Court declared that the Government is in violation of its positive obligation under Article 14 to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions), and suspended the operation of the declaration for two years to allow the Government time to comply. Costs were ordered to be paid by the respondent to the appellant (Order Nisi).
Legal issues: Whether there is a constitutional right to same-sex marriage under Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (Question 1) · Whether the absence of any alternative means of legal recognition of same-sex partnership (such as civil partnership) violates Article 14 of the Hong Kong Bill of Rights on privacy and/or Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights on equality (Question 2) · Whether the non-recognition of foreign same-sex marriage violates Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (Question 3)
Outcome: Appeal unanimously dismissed in relation to Question 1 (constitutional right to same-sex marriage) and Question 3 (recognition of foreign same-sex marriages). On Question 2 (legal recognition of same-sex relationships), the appeal was allowed by a majority (Ribeiro PJ, Fok PJ and Keane NPJ; CJ Cheung and Lam PJ dissenting in part). The Court of Appeal's judgment on Question 2 was set aside, and a declaration was made that the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships. Operation of the declaration was suspended for two years from the date of the final order. Order Nisi that costs here and below be paid by the respondent to the appellant.
Cited by 9 cases · Cites 1 case