Ng Hon Lam Edgar v. Secretary for Justice
Read the full judgment text of CACV 558/2020 on BabelCite. This Court of Appeal judgment was delivered on 24 October 2023.
1. The original applicant Mr Ng Hon Lam Edgar (“ Mr Ng ”) married the substituted applicant Mr Li Yik Ho (“ Mr Li ”) in a valid same‑sex marriage in the United Kingdom and lived in a Home Ownership Scheme flat developed by the Hong Kong Housing Authority registered in the name of Mr Ng as their matrimonial home. Mr Ng was concerned that upon his death, the flat would not devolve upon his spouse Mr Li. This was because the Government does not recognize same‑sex marriage lawfully performed abroa
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CACV 558/2020, [2023] HKCA 1224 On Appeal From [2020] HKCFI 2412 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 558 OF 2020 (ON APPEAL FROM HCAL NO 3525 OF 2019) _______________
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_______________ J U D G M E N T _______________ Hon Cheung JA: I. THE CHALLENGE 1.The original applicant Mr Ng Hon Lam Edgar (“Mr Ng”) married the substituted applicant Mr Li Yik Ho (“Mr Li”) in a valid same‑sex marriage in the United Kingdom and lived in a Home Ownership Scheme flat developed by the Hong Kong Housing Authority registered in the name of Mr Ng as their matrimonial home. Mr Ng was concerned that upon his death, the flat would not devolve upon his spouse Mr Li. This was because the Government does not recognize same‑sex marriage lawfully performed abroad and Mr Ng was concerned that their same‑sex marriage will not be treated as marriage within the definitions of husband, wife and valid marriage (“the marriage provisions”) under section 3 of the Intestates’ Estates Ordinance (Cap 73) (“IEO”). The same definitions are also used in the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) (“IPO”). Judicial review was lodged against the Secretary for Justice (“the Secretary”) to challenge these marriage provisions in so far as they do not include persons that had entered into same‑sex marriages in foreign jurisdictions. Chow J (as he then was and now Chow JA) held that the marriage provisions are discriminatory and unconstitutional for being contrary to the equality provision under Article 25 of the Basic Law and Articles 1(1) and 22 of the Hong Kong Bill of Rights. He ruled against the Secretary both on the issues of differential treatment on a prohibited ground and justification in accordance with the well‑established two stage approach in considering discrimination. The Secretary now appeals. II. DIFFERENTIAL TREATMENT 2.The facts of this case are set out in the judgment of Au JA. I too agree with Au JA’s judgment and that the appeal should be dismissed with costs. In deference to the submission of counsel, I would like to express my view on the issue of differential treatment between a heterosexual marriage celebrated in Hong Kong and the single sex marriage of the applicants which is recognised as a valid marriage in the United Kingdom. III. THE SECRETARY’S CASE 3.The gist of the case of the Secretary, the respondent, is that these two types of marriages are not comparables for the purpose of gauging whether there is discrimination against the applicants by reason of their sexual orientation. MrChanSC (together with Ms Souza) for the Secretary first submitted that the constitutional recognition and protection of marriage under Article37 of Basic Law are confined to heterosexual marriages: MK v Government of HKSAR [2019] 5 HKLRD 259 at [47], [51] ‑ [54]; Sham Tsz Kit v Secretary for Security[2022] 4 HKLRD 368 at [24] ‑ [34], [51]; W v Registrar of Marriage (2013) 16 HKCFAR 112 at [63], [25] (which also aligns with international human rights law which affirms that the marriage confers a particular status and particular rights on the married couple). 4.Second, MrChan submitted that by reference to the statutory definitions of “valid marriage”, “husband” and “wife” in sections 2 ‑ 3 of the IEO and section 2 of the IPO and their legislative histories demonstrate that the laws of inheritance and matrimony are tightly intertwined and mutually reinforcing. Section 3 of the IEO and section 2 of the IPO respectively adopt the definitions of valid marriage in accordance with the definitions under the Marriage Ordinance (Cap181) and the Marriage Reform Ordinance (Cap178) (“MRO”). MrChan submitted that when considering the legislative background of the MRO, IEO, the Deceased’s Family Maintenance Ordinance (Cap129) (“DFMO”), (which was the predecessor of the IPO), these ordinances are to be approached and understood as a coherent package. 5.Third, MrChan submitted that under Hong Kong law there are a cluster of expectations and legal obligations that apply to married persons only, for example, section8 of the Matrimonial Proceedings and Property Ordinance (Cap192) (“MPPO”). IV. MY VIEW 1) Status of marriage 6.Mr Chan’s submission can be summarised as the status of marriage issue, coherent package issue and duty to maintain issue. In respect of the status of marriage issue, the Court of Final Appeal in Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127 observed:
7.In QT v Director of Immigration (2018) 21 HKCFAR 324, the Court of Final Appeal regarded the status of marriage argument to be circular in nature:
8.What is important is the features of publicity and exclusivity of such a marriage. The Court of Final Appeal in Leung Chun Kwong at [40] emphasised that the inquiry is whether “It is a relationship which has the same characteristics of publicity and exclusivity which distinguish a heterosexual marriage.” The marriage entered into by the same‑sex couple in that case in New Zealand is valid under the law of the place where it was entered into. The case is concerned with the conferment of financial benefits (in the contexts of employment and taxation) to which spouses are entitled. In that case, there was concession that there was differential treatment based on the sexual orientation of the parties but the Court of Final Appeal went on to hold that the concession was properly made. 9.The same view was reached earlier in QT where the Court of Final Appeal at [46] ‑ [52] held that, in the immigration context for the purposes of the dependency visa policy, there was no obvious difference between homosexual civil partners whose union was entered into in the United Kingdom and heterosexual married couples: each status was recognised under the United Kingdom law, and both homosexual and heterosexual couples were capable of having equivalent interdependent and interpersonal relationships. 10.The issue of differential treatment is context dependent: QT [45]; Leung Chun Kwong [38]. In this case, we are not concerned with the union of an unmarried couple. The applicants here had chosen to solemnize their union by entering into a same‑sex marriage in the United Kingdom. There is no dispute that this marriage is a valid marriage in the United Kingdom and it has the characteristics of publicity and exclusivity which distinguish a heterosexual marriage. This must be the starting point of the inquiry whether the applicants have been treated differently by reason of their sexual orientation. 2) Coherent package 11.In terms of the coherent package issue, first, it is clear that the provisions of IEO and IPO are not confined to monogamous heterosexual marriage. As Mr Pao SC (together with Mr Marwah) for the applicants submitted, in terms of the definition of husband, wife and valid marriage, sections 2 and 3 of the IEO and section 2 of the IPO are intentionally drawn wider than marriage under the laws of Hong Kong. They specifically allow for marriages “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”. MrPao submitted that in Leung Chun Kwong dealing with section 2(1) of the Inland Revenue Ordinance (Cap112) (“IRO”) which recognizes a polygamous marriage by extending the definition of marriage to that between a man and his principal wife, the Court of Final Appeal accepted at [75] that the inclusion of such marriages, otherwise not recognised in Hong Kong, suggests that the IRO “simply does not serve the purpose of promoting traditional heterosexual monogamous marriage”. I agree that the same logic applies here. 12.Second, specifically, in respect of the intertwining relationship of inheritance and matrimony, Mr Chan referred to authorities such as Volks v Robinson [2005] ZACC 2 at [39] and Re G [2009] 1 AC 173 at [108] which showed the right to inherit under the statutory equivalents of IEO and IPO is a right tightly intertwined withthe obligation assumed on marriage, for spouses to maintain each other. He further submitted that:
Mr Chan submitted that where there are concerns as to whether distribution of an estate by will or intestacy is reasonable, the IPO provides for persons recognized under the statutory scheme as dependants of the deceased to apply for financial provision. By these features the present case is distinguished from QT and Leung Chun Kwong where the same‑sex spouse or partner is deprived on “entitlement and benefits” on the basis of sexual orientation. 13.Chow J had in the court below addressed the application of the IEO and IPO:
14.I respectfully agree with Chow J’s view. It has to be pointed out that Re G and Volks deal with situations where the couples are living together but not married. In any event, in my view the fact that a same‑sex married couple like the applicants here could have taken advantage of testamentary freedom and made wills during their lifetime does not provide an answer to the difference in treatment in respect of their entitlement to the IEO and IPO. They are excluded wholly from taking the benefits of the provisions of the IEO and IPO because they had entered into a same‑sex marriage and the difference in treatment is, in my view, based on their sexual orientation. In this case, MrNg had not made a will. But his testamentary freedom might not necessarily assist this couple because assuming MrNg had made a will but for some reason it is found to be invalid, the devolution of his estate upon his death would be governed by the intestacy rules under the IEO under which his spouse MrLi would not be entitled to benefit. In practical terms, since MrLi is not recognized as a spouse under a heterosexual marriage celebrated in Hong Kong, he would not be entitled as a spouse under the IEO to the matrimonial home registered in the name of Mr Ng. In respect of the IPO, the limited right that MrLi has is only to seek benefits from the estate of MrNg as his dependant which entails proving that MrLi had been maintained by Mr Ng during his lifetime: section 3(1)(ix), whereas if he is a spouse in a heterosexual marriage, he would be entitled to the benefit simply as a spouse: section 3(1)(i). Again, the differential treatment based on sexual orientation is apparent. Mr Pao has also submitted that for a surviving spouse in a heterosexual marriage, the financial provision is what is “reasonable in all the circumstances of the case for such a person to receive, whether or not that provision is required for his maintenance”: section 3(2)(a). Further, section 3(1)(ix) of the IPO also serves to benefit persons whom the deceased had no legal, but only a moral, obligation to maintain. This further undermines the suggested correlation of the duty of maintenance under a heterosexual marriage in the context of the IPO. 15.It is of note that the Court of Final Appeal in Leung Chung Kwong has addressed the “coherence of law” argument when it dealt with the issue of legitimate aim under the ambit of justification. Coherence of law is one of the three arguments advanced in support of the argument that the differential treatment in that case is pursuant to a legitimate aim. The other two being protecting and not undermining the institution of monogamous heterosexual marriage in Hong Kong and protecting and not undermining the unique status of marriage as understood and recognised in Hong Kong. The Court of Final Appeal referred to the concession by counsel for the appellant that these three aspects are not different in substance and they are complementary and variations on a theme. In any event, it held there is no rational connection between the differential treatment and the legitimate aim of the traditional family because the argument is circular and self‑serving:
16.It further held:
17.In my view, while these statements are made in context of justification for the differential treatment, they are equally appropriate on the issue of comparability. The matters canvassed under these two topics are not in separate watertight compartments. They are fluid in nature and have relevance to and impact on both topics. The “coherence of law” argument is in substance based on a circular self‑justifying reasoning process that a same‑sex marriage, notwithstanding that it is a valid marriage, is not in an analogous position as a heterosexual marriage conducted in Hong Kong. I also agree that the coherence of law in respect of marriage will not be undermined by the applicants having recourse to the IEO and IPO. 18.I will briefly deal with R (Elan-Cane) v Secretary of State for the Home Department (Human Rights Watch Intervening) [2021] UKSC 56 referred to by MrChan, where the United Kingdom Supreme Court specifically recognised the distinct policy objective of maintaining an administratively coherent system as being a legitimate aim deserving of independent and significant consideration. In my view, that statement must be considered in its proper context, namely, it is concerned with the recognition of non‑gendered persons and transgender persons and there was an ongoing review by the United Kingdom government of its policy towards this group of persons. In Hong Kong, there is no evidence of review by the government pertaining to same‑sex marriage and its consequences, although Mr Chan informed the court that the Government’s position is that if there is a consensus on same‑sex marriage, it will conduct a review of the matters arising from such marriage. In my view, it is instructive to refer to Leung Chun Kwong which has addressed the problem of using consensus as part of an argument against the Court intervening in this issue. It adopted what was said in QT:
19.In any event, the situation here is a long way away from the situation in Elan-Cane in terms of review of this area of the law. 3) Duty to maintain 20.In terms of the duty to maintain issue and the argument that the expectations and obligations only apply to heterosexual married persons only, this is in substance based on the premise that the responsibilities and rights of a married couple are confined to those under a heterosexual marriage in Hong Kong. This is a variation of the theme on the first issue of status of marriage. I would respectfully suggest that the decisions of Leung Chun Kwong and QT which confer the same benefits that a heterosexual married couple are entitled to on a same‑sex partner in a civil union and the spouse in the same‑sex marriage in essence undermines the notion that only heterosexual marriage in Hong Kong carries with it the concept of spousal responsibility and right. The duty to maintain argument is also a circular argument as discussed earlier by reference to [71] of Leung Chun Kwong. 4) Conclusion 21.In my view, Chow J was correct on the issue of comparables and the differential treatment is based on a prohibited ground, namely, the sexual orientation of the applicants. Hon Yuen JA: 22.I agree with the judgments of Cheung JA and Au JA. Hon Au JA: A. INTRODUCTION 23.This is the appeal brought by the Secretary for Justice (“SJ”) against the order made by Chow J (as he then was) (“the Judge”) dated 18 September 2020 (“the Order”). 24.By the Order, the Judge after a rolled-up hearing allowed the applicant’s judicial review in holding that the definitions of “valid marriage” under s 3(d) of the Intestates’ Estates Ordinance (Cap 73) (“the IEO”) and s 2(1) of the Inheritance (Provisions for Family and Dependants) Ordinance (Cap 481) (“the IPO”) are discriminatory and inconsistent with equality provisions under Article 25 of the Basic Law (“BL”) and Articles 1(1) and 22 of the Hong Kong Bill of Rights (“BOR”), insofar as they do not include the spouses in foreign same-sex marriages. He further granted a declaration of remedial interpretation to the effect that those definitions do include such foreign marriages where the persons are of the same sex. B. BACKGROUND 25.The background to this matter has been set out succinctly by the Judge in his written judgment dated 18 September 2020 (“the Judgment”) at [3] ‑ [25]. For the present purpose, it is not necessary for me to repeat it save as to highlight the following. B1. The IEO and the IPO 26.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 trusts mentioned in that section. 27.The following definitions of “husband”, “wife” and “valid marriage” appear in the IEO:
28.The meanings of “husband” and “wife” are relevant and important in 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). 29.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. 30.The IPO 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. 31.S 3(1) of the IPO provides for the classes of surviving persons of a deceased who 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 the law, is not such as to make reasonable financial provision for the applicant. The classes are:
32.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. 33.The definitions of the expressions “husband”, “wife” and “valid marriage” in the IPO are materially the same as those in the IEO[1]. In this respect, 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). As noted by the Judge, there are, however, two major differences between these two classes of applicants:
34.It is also common ground before the Judge and this court that, as a matter of statutory construction, the definition of “valid marriage” under both the IEO and IPO only covers an opposite-sex marriage, but not same-sex marriage. In other words, 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 or the right to make an application respectively under the IEO or the IPO. This in turn means that same-sex spouses who are married overseas do not enjoy the same relevant rights and entitlements as that of their counterparts of opposite-sex marriages under the IEO and IPO. B2. The applicant and the application for judicial review 35.The applicant (“Mr Ng”), a male, was born and raised in Hong Kong, and is a Hong Kong permanent resident. 36.In or around November 2012, Mr Ng met Li Yik Ho (“Mr Li”), 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, Mr Ng and Mr Li married in London, followed by a blessing service at a church in Hong Kong. 37.According to Mr Ng, he and Mr Li wished to live together as a family unit, emotionally, socially and financially reliant on each other. They also intended to share their properties and support each other’s livelihood after the death of one of them. 38.On 10 April 2018, Mr Ng purchased a Home Ownership Scheme (“HOS”) flat under the Housing Ordinance, Cap 283, to be used as his matrimonial home with Mr Li. 39.Under the relevant HOS policy of the Housing Authority, Mr Li cannot be a joint owner of the HOS flat because his same-sex marriage with Mr Ng is not recognized. Mr Ng is concerned that should he die intestate, his properties, including the HOS flat, will not be passed to Mr Li under the IEO. 40.On 25 June 2019, Mr Ng, through his solicitors, wrote to the SJ 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, Mr Ng’s solicitors also contended that since Mr Ng’s marriage with Mr Li was lawfully performed in the United Kingdom, Mr Li should be regarded as his spouse for the purpose of the IEO and other statutes including the IPO. By a letter dated 28 August 2019 to Mr Ng’s solicitors, the SJ 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. 41.Thereafter, Mr Ng applied for leave to apply for judicial review to challenge 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. 42.As summarized by the Judge, Mr Ng raised the following three grounds of judicial review in the Form 86:
43.Mr Ng sought the following declaratory relief:
44.The SJ opposed the application on the following principal bases:
45.In these respects, the SJ argued before the Judge that the differential treatment under the Marriage Provisions serve the following three legitimate aims:
C. THE JUDGMENT 46.As mentioned above, the Judge rejected all of the SJ’s grounds of opposition and allowed the judicial review on the BL25 Ground. He did not then find it necessary to deal with the BOR14 and BL105 Grounds[4]. 47.In relation to the BL25 Ground, there is no dispute that the well-established proper approach in deciding whether a public policy or statutory provision constitutes unlawful discrimination is as follows[5]:
48.In adopting this approach[6], the Judge rejected all of the SJ’s grounds of opposition. His reasons can be summarized as follows. 49.First, the Judge found that it is clear that there is differential treatment under the Marriage Provisions between same-sex couples and opposite-sex couples, which is accorded to on the prohibited ground of sexual-orientation[7]. 50.Second, the Judge held that same-sex married couples and opposite-sex couples are in comparable position for the present context:
51.Third, although holding that the three aims advanced by the SJ are legitimate aims under Step 1[11], the Judge concluded that the differential treatment is not justified for the primary reason that it is not rationally connected to those aims under Step 2. This is so as it is illogical to suggest that the denial of benefits under the IEO or the IPO to same-sex couples would promote the Marriage Aim, Family Aim or Coherence Aim[12]. 52.Fourth, the Judge also observed that given his conclusion under Step 2, it would not be necessary for him to deal with Steps 3 and 4. But had it been necessary to do so, he further would have held that:
53.The Judge therefore allowed the judicial review, and made the Order, with the following declaration at its paragraph 1:
54.On 16 October 2020, the SJ lodged its Notice of Appeal seeking to appeal the Order. 55.On 7 December 2020, Mr Ng passed away in Hong Kong. By a consent order dated 8 April 2021, Mr Li was made a party in substitution for Mr Ng for the purpose of carrying on these proceedings. D. THIS APPEAL D1. Grounds of Appeal 56.The SJ has raised a number of grounds of appeal in the Notice of Appeal which effectively challenge all the Judge’s relevant conclusions as summarized above. It is convenient to group them into three broad branches (as advanced by Mr Abraham Chan SC for the SJ) relating to the Judge’s holdings on the issues of (a) comparability and differential treatment[15] (“the Comparability and Differential Treatment Grounds”), (b) legitimate aims and rational connection[16] (“the Legitimate Aims and Rational Connection Grounds”) and (c) proportionality and reasonable balance[17] (“the Proportionality Grounds”). 57.I will now look at these grounds in turn. D2. The Comparability and Differential Treatment Grounds 58.These grounds challenge the Judge’s holding that same-sex married couples and opposite-sex married couples are in a comparable position in the context of the IEO and IPO, such that the differential treatment requires justification. 59.The Judge’s reasons for coming to this conclusion are set out at [36] and [37] of the Judgment as follows:
60.Mr Chan has advanced the following arguments to say why the Judge erred in his holdings. 61.Mr Chan first submits that the question of comparability is context-based as rightly recognised by the Judge at [37(2)]. As such, the proper question on comparability that should be asked in the present case is whether there is sufficient difference between same-sex married couples and opposite-sex married couples in the context of the intestacy regime in Hong Kong. 62.In this respect, Mr Chan says it is important in the assessment to have regard to the following relevant broader statutory and policy context of the intestacy regime:
63.When the SJ’s contentions are properly understood as above, Mr Chan further says that the Judge erred at [36] and [37] of the Judgment in the following ways:
64.With respect to Mr Chan, I am not persuaded by his submissions. 65.Stripped to their core, and as said by Mr Chan himself at the hearing, the fundamental underlying premise of his above submissions is that the intestacy scheme under the IEO and IPO is “rooted in” and to reflect the LifetimeMarital Maintenance Duty which is imposed on opposite-sex married couples only. However, this is incorrect. I will explain why. 66.First, as rightly submitted by Mr Pao SC for the applicant, since the present judicial review challenge is made against the relevant statutory definitions in the IEO and IPO, the starting point as to the proper context must be to examine objectively the language used in the relevant provisions. 67.In this respect, the applicant’s challenge is in relation to the meaning of “valid marriage” under s 3(d) of the IEO and s 2(1) of the IPO relating to “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”, ie, a foreign marriage. As pointed out by Mr Pao, under this definition, the only requirement for a foreign marriage to be recognised as valid is that it was entered into “in accordance with the law in force at the time and place where the marriage was made”. There is no requirement that it must also be shown that the relevant foreign law has imposed inter vivos obligations on the married couples to maintain their partners. 68.In this respect, as asked pertinently by Yuen JA at the hearing and accepted by Mr Chan, insofar as an opposite-sex couple who is married overseas is concerned, under the definitions of “valid marriage” of the IEO and IPO, it would not be necessary for the couple to show that the relevant foreign law also imposes lifelong obligations upon married spouses to maintain the others. All they have to show is that the marriage was contracted or celebrated in accordance with the law in that place. This demonstrates that inter vivos legal obligations of maintenance cannot be the proper context in which the IEO and IPO schemes are “rooted”. 69.Second, as rightly observed by the Judge at [10] of the Judgment, the purpose of s 4(1) of the IEO 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. This, as examined by the Judge, is plainly supported by the LRC Report at paragraphs 7.2, 7.3 and 7.6 which explained the underlying assumption of the rules relating to the overall intestacy law in Hong Kong:
70.Similarly, as also rightly analysed by the Judge at [16] ‑ [22] of the Judgment, in light of its long title and the relevant objective legislative history, the objective 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. Such duty is the moral but not legal duty imposed on the deceased. 71.Third, Mr Chan’s contention that the IEO and IPO intestacy schemes as a whole are premised upon and rooted in the Lifetime Marital Maintenance Duty is simply inconsistent with the fact that the statutory schemes also include other classes of eligible beneficiaries whom the deceased had no legal obligations to maintain in his life time[25]. 72.In this respect, Volks and the LRC Report relied upon by Mr Chan do not assist him. 73.Volks concerns an equality challenge by a cohabitee on the constitutionality of s 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 (“the Act”) in South Africa. That section confers on surviving married spouses the right to claim maintenance from the estate of their spouses if they are not able to support themselves. The 1st respondent Mrs Robinson was a cohabitee of the late Mr Shandling under a long term permanent relationship and Mr Volks was the executor of his will. In this action, Mrs Robinson argued that the survivor of a stable permanent relationship between two persons of the opposite sex who had not been married to each other during their lifetime, but lived a life akin to that of husband and wife, should be afforded the same protection that is afforded to the survivor of a marriage under the provisions of s 2(1) of the Act. The central question for the court to consider was whether the protection which the Act affords to a “survivor” should be withheld from permanent life partnerships. S 1 of the Act defines “survivor” as “the surviving spouse in a marriage dissolved by death”. The High Court found the exclusion of surviving partner of a permanent life partnership from the Act unconstitutional as this violated the anti-discrimination provision in s 9(3) of the Constitution. Mr Volks appealed the decision to the Constitutional Court of South Africa. 74.The Constitutional Court by majority allowed the appeal. Relevant for the present purposes, Skweyiya J in his leading judgment for the majority observed and held at [57] and [60] as follows:
75.Mr Chan submits that these observations lend support to his contention that the posthumous schemes in Hong Kong under the IEO and IPO are also premised and built upon the lifetime legal obligations of the deceased towards their spouses. 76.This is misplaced. Leaving aside the fact that this authority relates to the intestacy scheme and legislations in a foreign jurisdiction and there is nothing to show that they are similar to ours in Hong Kong, as pointed out by Skweyiya J at [49], that casewas concerned with the distinction drawn by the Act between married people and unmarried people, and the court was not concerned with “the exclusion of survivors of gay and lesbian relationships” nor “survivors of polygamous relationship”. Indeed, he went on to say at [50] that the differentiation under the Act amounted to discrimination based on marital status which would be presumed to be unfair in terms of s 9(5) of the Constitution. But he stated that for the challenge raised in that case, the question was whether it was “indeed unfair discrimination”. It was on these bases that the learned justice at [51] ‑ [56] focused his analysis on and examined the relevant distinction between married spouses and unmarried spouses in South Africa in terms of legal obligations imposed on them during their lifetime and concluded that it was not indeed unfair for the posthumous scheme under the Act to be modelled upon and follow those lifetime legal obligations imposed on married spouses without providing the same for unmarried partners. 77.Volks is therefore clearly distinguishable from the present case:
78.In relation to the LRC Report, Mr Chan relies on its paragraphs 15.5 and 15.6 which state as follows:
79.Again, these parts of the LRC Report do not advance Mr Chan’s case:
80.For the above reasons, I reject Mr Chan’s principal submission that the IEO and IPO schemes are rooted in the Lifetime Marital Maintenance Duty which is imposed only on opposite-sex married couples and that that should be the proper context under which the question of comparability should be considered in the present challenge. 81.Mr Chan then also submits that the Judge erred in restricting (at [37(3)] of the Judgment) his consideration of the SJ’s point about the possibility of a same-sex married couple to make a will (rather than relying on the intestacy provisions) as relevant only to Step 4. He says this is wrong as the court should adopt a global assessment of whether same-sex and opposite-sex married couples are in a truly comparable position of differential treatment requiring justification. In failing to consider this at the comparability stage, the Judge therefore further:
82.There is nothing in this submission. The question of whether the subjects are proper comparators is context-specific. The proper question to be asked is what is the context and purpose as to why someone is treated differently from the other person and whether there are sufficient relevant differences between the two of them to support that difference in treatment: QT at [44] and [45]. Once considered as such, the Judge is plainly correct in saying that this factor is irrelevant to this question as the freedom to make a will applies equally to same-sex spouses and opposite-sex spouses. 83.Finally, Mr Chan’s contention that the court should give significant weight to the Government’s own view as to what are the important features in the comparison exercise is similarly not arguable. This is so as there is no question of “relative institutional competence” or deference to the decision-maker at that stage of the analysis. This submission conflates the question of the margin of discretion which might be applied in the context of proportionality, with the logically prior question of comparability which is a matter for the court to determine having regard to the relevant context. 84.In the premises, I reject the Comparability and Differential Treatment Grounds. D3. The Legitimate Aims and Rational Connection Grounds 85.As mentioned above, under Step 1, the SJ has submitted that the relevant differential treatment under the Marriage Provision seeks to pursue three legitimate aims, namely, the Marriage Aim, the Family Aim and the Coherence Aim (see [45] above). 86.The Judge was content to treat these three as legitimate aims, but found them not to be rationally connected to the differential treatment. He explained his reasons at [41] ‑ [45] of the Judgment, which can be summarized as follows:
87.Mr Chan argues that the Judge erred in his conclusion. Counsel’s submissions run as follows. 88.First, he says the Judge was in error in treating the Coherence Aim as merely a reformulation or variation of the Marriage Aim. This is so as it has been well established that the objective of maintaining an administratively coherent system across related government areas and legislation itself is a legitimate aim: R (Elan-Cane) v Secretary of State for Home Department (Human Rights Watch Intervening) [2021] UKSC 56 at [51] ‑ [63]; Q v Commissioner of Registration [2022] 1 HKLRD 803 (CA) at [46]; and MK v Government of HKSAR [2019] 5 HKLRD 259 at [24]. 89.Having fallen into this error, the Judge therefore further failed to specifically consider the importance of this aim for each later step in the justification test, and to accord to the legislature and government the margin of judgment in this regard in ensuring that all laws pertaining to the primary social institution of marriage to operate as a coherent and consistent whole. 90.Second, the Judge wrongly restricted the assessment of rational connection to that of “whether the denial of the same benefit to the group to which the complainant belongs would promote such legitimate aim”, instead of a more holistic consideration of whether the espoused legitimate aims are logically furthered and supported by the alleged differential treatment concerned. 91.The Judge ought to have had regard to all the circumstances of this case in applying the test of logic and common sense to determine whether the differential treatment will tend to benefit or support the legitimate aims concerned[26]. Had he done so, he would have recognised that the Marriage Provisions support and promote the particular status of traditional opposite-sexual marriage by providing, amongst other public entitlements and benefits, inheritance rights between spouses in valid marriages recognized under Hong Kong matrimonial law. 92.Third, the Judge also erred in concluding that the denial of benefits under the IEO and IPO to same-sex married couples would not promote the Coherence Aim because:
93.I will first dispose of these arguments insofar as they relate to the Judge’s conclusion that there is no rational connection between the differential treatment and the Marriage Aim and Family Aim at [42] ‑ [44] of the Judgment. 94.Central to these arguments is the complaint that the Judge wrongly adopted at [42] of the Judgment the approach that the court is to examine whether the subject differential treatment will further or advance the subject legitimate aim by focusing only on the effect of the denial of the benefits to the complainant in pursuing the legitimate aims. Mr Chan submits that this is too restrictive and narrow and the proper approach should be that the court should look at all the circumstances to see as a matter of logic and common sense whether the differential treatment will tend to benefit or support the legitimate aims concerned. 95.In this respect, Mr Chan contends that the Judge ought to have considered the question in a more holistic and global manner by taking into account a wider perspective of the circumstances as follows:
96.I am unable to accept these submissions. Mr Chan’s arguments in essence amount to saying that there are certain core rights and obligations that are attached and unique to traditional opposite-sex marriage to give it a special status. This is similar to the observations and approach adopted by the Court of Appeal in QT v Director of Immigration [2017] 5 HKLRD 166 (“QT (CA)”)that there are such core rights unique to a relationship of opposite-sex marriage (such as divorce, adoption and inheritance) so much so that entailing privileged treatment of married couples as compared with unmarried couples (including same-sex couples) should simply be considered as treatment that requires no justification[29]. 97.After its decision in QT (CA), the same Court of Appeal relying on the same core rights approach further allowed the Government’s appeal in Leung Chun Kwong v Secretary for Civil Services [2018] 3 HKLRD 84 (“Leung Chun Kwong (CA)”). In that case, the applicant, a civil servant in Hong Kong, entered into a same-sex marriage with his partner in New Zealand. He brought a judicial review to challenge as unjustified discrimination the non-recognition of his partner as a “spouse” under (a) the Civil Services Regulations for entitlement to various spousal benefits under his employment, and (b) the relevant sections of the Inland Revenue Ordinance (Cap 112) (“the IRO”) as to the right to elect joint assessment as a married couple. He succeeded in the Court of First Instance, but failed in the Court of Appeal upon the Government’s appeal. Relevant for the purposes, the same Court of Appeal held that[30], given the core rights attached to traditional marriage (which rights included the subject civil service employment spousal benefits), using marital status to differentiate treatment for spousal benefits and election for joint assessment was rationally connected to the legitimate aim of protecting the institution of traditional opposite-sex marriage, because including same-sex couples would undermine or to be perceived to undermine the status of marriage. 98.However, the proposition that traditional marriage carries such core rights to make it distinct has been rejected on appeal in QT by the Court of Final Appeal, where the court said at [66] ‑ [68] as follows:
99.After looking at various authorities which show that the approach of core rights cannot be supported, the Court of Final Appeal further emphasized these at [75] and [76]:
100.The Court of Final Appeal thus rejected the core and unique rights approach as untenable for the reasons that (a) it amounts to a circular argument that a person is discriminated because he or she is not in an opposite-sex marriage, (b) what amount to such purported core rights are debatable and uncertain, and (c) such approach is not supported by authorities. 101.Later, the Court of Final Appeal in allowing the appeal by the applicant in Leung Chun Kwong again rejected the Court of Appeal’s reliance on the core rights approach in finding a rational connection between the differential treatment there and the aim of protecting the institutions of traditional marriage and family. The court explained this at [70] ‑ [72] as follows:
102.The Court of Final Appeal’s reasoning in Leung Chun Kwong and QT in rejecting the finding of rational connection applies with equal force in the present case in relation to Mr Chan’s above core rights arguments. 103.In the premises, the Judge is therefore correct in holding that there is no rational connection between the differential treatment under the IEO and IPO and the Marriage Aim and Family Aim. 104.Turning to the Coherence Aim, leaving aside the question of whether it is in substance the same as the Marriage Aim as found by the Judge, I am satisfied that, as submitted by Mr Pao, even if it is by itself a standalone and independent aim, it is not rationally connected to the differential treatment under the IEO and IPO in any event. My reasons are these. 105.The Coherence Aim is expressed as an aim “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 BL37”. Mr Chan has emphasized in his submissions that the underlying aim is effective governmental administration. This is said to be achieved by having the same and consistent form of marriage (ie, the traditional opposite-sex marriage as protected under BL37) recognised under the matrimonial law in Hong Kong[31] to be adopted, whenever a marriage is relevant, in the other legislations in Hong Kong. 106.However, as rightly pointed out by Mr Pao, the contention that the differential treatment by excluding same-sex marriage under the IEO and IPO is to pursue the Coherence Aim is not borne out by the marriages recognised under the IEO and IPO themselves for the following reasons:
107.In response to these exceptions found in the IEO and IPO, Mr Chan submits as follows:
108.With respect, the mere fact that counsel may be able to offer explanations as to why those exceptions are included in the IEO and IPO is neither here nor there. The central and underlying plank of the Coherence Aim contention rests fundamentally on showing that the IEO and IPO adopt the same one and consistent meaning of marriage as recognised under the matrimonial laws in Hong Kong. It is through this that the purported administrative efficiency is to be achieved as it is not necessary for various government organs or schemes to have to decide which marriage is to be recognised as valid in different contexts. However, for the above reasons, this is simply not made out. On this basis, it also cannot be shown that there is rational connection between the differential treatment under the IEO and IPO (by excluding only same-sex married spouses from entitlements thereunder) and the Coherence Aim. 109.Further, if as submitted by Mr Chan that exceptions with good reasons can be accommodated even under the Coherence Aim, there is no reason why foreign same-sex marriages cannot be similarly admitted as a matter of principle for the reason of equality of treatment. Thus, Mr Chan’s submission on exceptions taken to the core amounts to effectively saying that, despite the inequality of treatment, overseas same‑sex marriages are not recognised under the IEO and IPO as valid because same-sex couples cannot be married in Hong Kong. This must be rejected as being a circular argument to justify discrimination based on marital status simpliciter as repeatedly said by the Court of Final Appeal in QT and Leung Chun Kwong. 110.Given this conclusion, it is unnecessary to deal with Mr Chan’s submissions as to whether the Judge was wrong in treating the Coherence Aim as effectively a reformulation or variation of the Marriage Aim. 111.The Legitimate and Rational Connection Grounds therefore also fail. D4. The Proportionality Grounds 112.These grounds relate to the Judge’s holding under Steps 3 and 4 and the question of the standard of review. The Judge dealt with them briefly at [46] ‑ [48] of the Judgment as follows:
113.Mr Chan now challenges the Judge’s adoption of the higher end of the intensity of review, and his holding that the differential treatment cannot pass Step 3. He also submits that this court should also hold that the differential treatment will satisfy Step 4. 114.Given that I have upheld the Judge’s conclusion on the question of comparability and rational connection under Step 2, as with the Judge, it is strictly speaking unnecessary for me to deal with these grounds as they are irrelevant and academic for the purpose of this appeal. In my view, it is also inappropriate to deal with them as any discussions on the outcome of Steps 3 and 4 would only be a result of an unrealistic consideration of the relevant factors in vacuum since the court has already concluded that the impugned measure is not rationally connected to the three aims. 115.For these reasons, I hope I will be forgiven in dealing briefly below with Mr Chan’s relatively substantive submissions made under these grounds, just for completeness. 116.Mr Chan’s main submissions to say why the Judge was wrong are premised fundamentally on the contention that the subject differential treatment has only a limited interference with the same-sex married couple’s equality rights. The extent of interference is limited because the complainants have the freedom and thus a reasonable alternative means to make a will in this respect. 117.Counsel says the Judge as a matter of principle ought to have taken into account the complainants’ freedom to make a will in considering the question of the standard of scrutiny and the proportionality assessment under Steps 3 and 4. 118.Hence, insofar as the standard of review conclusion is concerned, counsel submits that the Judge had erred in narrowly focusing his consideration only on the basis that the impugned measure connects with matters of sexual orientation. As a result of this error, the Judge had further:
119.Similarly, in relation to the proportionality exercise, counsel argues that, after taking into account the limited extent of interference with the complainants’ equality right, it is clear that the impugned measure is a proportionate one to achieve all of the three legitimate aims (under Step 3), and the overall benefit to society as a whole in achieving the three aims outweighs the limited adverse impact on the complainants (under Step 4). 120.I am unconvinced by these arguments. 121.First and foremost, in my view, the limited interference argument is a misplaced one. The present challenge is about the differential treatment accorded in the specific context of intestacy. By definition, this concerns the scenario where there is no will. In relation to that, same-sex married couples are completely denied the entitlements relevant to the differential treatment when compared with their opposite‑sex counterparts. There is therefore no question of a limited interference in this specific context. The argument is a red-herring. 122.Once the limited interference argument is disposed of as above, it is clear (as the Judge said) that the impugned measure is not a proportionate measure to achieve any of the three aims (under Step 3), especially given the court’s high intensity of scrutiny as rightly held by the Judge (see [124] below). 123.Insofar as Step 4 is concerned, as Ribeiro PJ observed at [78] of Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, this step requires the court to make a “value judgment” as to whether the impugned measure, despite having satisfied the first three requirements, operates on particular individuals with such “oppressive unfairness” that it cannot be regarded as a proportionate means of achieving the legitimate aim in question. Given the complete denial of the relevant entitlements under the IEO and IPO by reason of the differential treatment, it is plainly an unacceptably harsh burden on same-sex couples lawfully married overseas which cannot be justified by the overall benefits said to be achieved by the three aims. 124.In relation to the standard of review, in my view, the Judge’s adoption of the high end of the level of review is consistent with well‑established principles and correct in the circumstances of the present case:
125.Finally, there is also no substance in Mr Chan’s submissions about giving margin of appreciation to the legislature’s choice, as there is no evidence to show that it had taken into consideration the rights of the spouses to same sex-marriages at the time of considering the enactments. 126.For these reasons, I also reject the Proportionality Grounds. E. DISPOSITION 127.The SJ has failed in all the grounds of appeal. I will dismiss the appeal with costs to the applicant, to be taxed if not agreed, with certificate for two counsel. I further order that the applicant’s own costs be taxed in accordance with legal aid regulations. 128.It remains for me to thank counsel for their helpful assistance.
Mr Abraham Chan SC and Ms Denise Souza, instructed by Department of Justice, for the Respondent Mr Jin Pao SC and Mr Azan Marwah, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the Applicant [1] In the IPO, the definition of “husband” or “wife” also includes a person who in good faith entered into a void marriage with the deceased save in some specified circumstances. This extended definition is not relevant for the purpose of this judgment. [2] BL25 states that “All Hong Kong residents shall be equal before the law.” [3] BOR1(1) provides that “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.”; and BOR22 states that “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.” [4] See [50] of the Judgment. [5] See Leung Chun Kwong v Secretary for Civil Service [2019] HKCFA 19, at [19] ‑ [22]; and QT v Director of Immigration (2018) 21 HKCFAR 324 at [38], [81] ‑ [83]. [6] See [32] ‑ [35] and [39] of the Judgment. [7] See [15] and [33] of the Judgment. [8] See [37(1)] of the Judgment. [9] See [37(2)] of the Judgment. [10] See [37(3)] of the Judgment. [11] See [40] and [41] of the Judgment. [12] See [42] ‑ [45] of the Judgment. [13] See [46] of the Judgment, applying Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 406 at [77] - [78]. [14] See [47] of the Judgment. [15] See paragraph 1 of the Notice of Appeal. [16] See paragraphs 2 ‑ 4 of the Notice of Appeal. [17] See paragraphs 5 ‑ 8 of the Notice of Appeal. [18] See MK v Government of HKSAR [2019] 5 HKLRD 259 at [47], and [51] ‑ [54] and W v Registrar of Marriage (2013) 16 HKCFAR 113 at [63]. [19] This exclusive legal duty of opposite-sex married spouses has been properly recognised by the Judge at [37(2)] of the Judgment. [20] For example, under s 8 of the Matrimonial Proceedings and Property Ordinance (Cap 192). [21] The Law Reform Commission of Hong Kong Report on Law of Wills, Intestate Succession and Provision for Deceased Persons’ Families and Dependants (1990). [22] Leung Chun Kwong at [37] ‑ [38], applying QT at [44] ‑ [45], [54] and [76]. [23] See: Yigit v Turkey (2011) 53 EHRR 25 at [72]; Aldeguer Tomás v Spain (2017) 65 EHRR 24 at [85] - [88] and [91]; Gas v France (2014) 59 EHRR 22 [68] - [71]; X v Austria (2013) 57 EHRR 14 at [105] - [109]; and Boeckel v Germany (2013) 57 EHRR SE3 at [28] - [31]. [24] At [37(2)] of the Judgment. [25] For examples, parents and siblings. [26] See: Bank Mellatt v HM Treasury (No 2) [2013] UKSC 39 at [93]; RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199 at [153] ‑ [154]; Nick Infinger v The Hong Kong Housing Authority [2020] 1 HKLRD 1188 at [51(2)]. [27] For example, such as the Marriage Ordinance (Cap 181) (“the MO”). [28] Cf: Obergerfell v Hodges 576 US 644 (2015)at pp16 - 17. [29] See [14] and [20] per Cheung CJHC (as the Cheung CJ then was), [36] per Lam VP (as Lam PJ then was) and [131] per Poon JA (as Poon CJHC then was). [30] At [12] perCheung CJHC (as he then was) and [90] and [126] perPoon JA (as he then was). [31] Such as the MO, the Marriage Reform Ordinance (Cap 178) (“the MRO”), and the Matrimonial Causes Ordinance (Cap 179) (“the MCO”). [32] S 40(1) of the MO provides “Every marriage under [the MO] shall be a Christian marriage or the civil equivalent of a Christian marriage.” [33] Ss 4 and 8 of the MRO provide respectively “Marriages entered into in Hong Kong on or after the appointed day shall imply the voluntary union for life of one man with one woman to the exclusion of all others and may be contracted only in accordance with the Marriage Ordinance (Cap. 181)” and “... every marriage celebrated in Hong Kong before the appointed day as a modern marriage by a man and a woman each of whom, at the time of the marriage, was not less than 16 years of age and was not married to any other person shall be a valid marriage...”. (emphasis added) [34] S 2 of MCO adopts “monogamous marriage” as a marriage, if it took place in Hong Kong, celebrated under the provisions of the MO or validated as a modern marriage under s 8 of the MRO, and if outside Hong Kong “... celebrated or contracted in accordance with the law in force at the time and in the place where the marriage was performed and recognized by such law as involving the voluntary union for life of one man and one woman to the exclusion of all others”. [35] See AG’s Speech at the Second Reading of the Intestate Estate Bill. [36] S 3(1)(ix) of IPO provides “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”. [37] See paragraphs 14.18-20 of the LRC Report. [38] See Official Transcript of Proceedings of the Hong Kong Legislative Council held on 16 December 1970 at p265. [39] See Affidavit of Kong Ka Man at paragraphs 27 ‑ 28. [40] See in particular Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2015] 5 HKLRD 881 at [42], where the CFA observed “political decisions or legislative provisions reflecting political judgments are often precisely those areas where the courts are likely to afford a large margin of appreciation”. [41] See in particular R (Elan-Cane) v Secretary of State for the Home Department (Human Rights Watch Intervening) [2021] UKSC 56 at [61]. | |||||||||||||||||||||||||||||||||||||||||||||
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