The Hong Kong Housing Authority v. Infinger, Nick

FACV Nos 2, 3 and 4 of 2024

[2024] HKCFA 12

FACV No 2 of 2024

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 2 OF 2024 (CIVIL)

(ON APPEAL FROM CACV NO 81 OF 2020)

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FACV No 3 of 2024

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 3 OF 2024 (CIVIL)

(ON APPEAL FROM CACV NO 362 OF 2021)

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(HEARD TOGETHER)

FACV No 4 of 2024

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 4 OF 2024 (CIVIL)

(ON APPEAL FROM CACV NO 558 OF 2020)

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(By Order to carry on proceedings dated 8 April 2021

substituting Ng Hon Lam Edgar upon death)

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D E T E R M I N A T I O N

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Mr Justice Lam PJ:

1.These judicial reviews were brought by the applicants to challenge the policies of the Housing Authority (“HA”) for excluding same-sex couples from the eligibility criteria for public rental housing[1] and for registering as an authorized occupant in a Home Ownership Unit and for the transfer of such unit without the payment of a premium[2]. There was also a challenge brought by the same applicant in the Home Ownership policy case in respect of exclusion of same-sex couples from the definitions of “husband”, “wife” and “valid marriage” under the Intestates’ Estates Ordinance Cap 73 and the Inheritance (Provision for Family and Dependants) Ordinance Cap 481[3]. The Secretary for Justice (“SJ”) was the respondent in that challenge.

2.The applicants succeeded in the Court of First Instance[4] as well as the Court of Appeal[5].

3.The Court of Appeal granted leave to the HA to appeal to this Court on 26 February 2024 based on six questions of great general or public importance:

(1)  Does BL36 confer on opposite-sex married couples:

(a)  a constitutional right, as defined by the eligibility rules in existence as at 1 July 1997, to exclusively apply for PRH units as spouses under the “Ordinary Families” category;

(b)  a constitutional right, as defined by the eligibility rules in existence as at 1 July 1997, to exclusively apply to purchase HOS units under the spousal category.

(2)  Is the applicants’ reliance on BL25 and BOR22 precluded by a coherent and holistic interpretation of the Basic Law in line with BL36, BL37 and BOR19?

(3)  Are same-sex couples and opposite-sex couples proper comparators in relation to the differential treatment conferred by the PRH and HOS Spousal Policies under challenge, in circumstances where:

(a)  It is the HA’s policy decision to align with and support the broader and unchallenged governmental objective of promoting population growth by increasing housing availability.

(b)  Opposite-sex couples as a general category (and notwithstanding exceptions in individual cases) possess inherent procreative capacities not possessed by same‑sex couples.

(4)  Where it has already been found that there is a logical connection between the Family Aim and the HOS Spousal Policy, is it open to the court to nonetheless find that the connection is “de minimis”, especially where there is no affirmative evidence to that effect?

(5)  Where the HOS Spousal Purchase Policy has not been challenged or found unlawful, is the administrative coherence between the HOS Spousal Policy and the HOS Spousal Purchase Policy a relevant factor in assessing the proportionality of the HOS Spousal Policy?

(6)  In assessing the proportionality of the PRH and HOS Spousal Policies:

(a)  Should the court take into account the BL36 right to social welfare enjoyed by opposite-sex couples as set out in paragraph (1)(a) above, as well as more generally opposite-sex couples’ interest in being able to hitherto apply exclusively for PRH and/or HOS units under the spousal category?

(b)  Is empirical or statistical evidence necessary when considering whether the PRH Spousal Policy would increase the number of PRH units available to opposite‑sex couples, in circumstances where (i) it is undeniable that whenever a PRH unit becomes available and is allocated to a same-sex couple, at least one eligible traditional family will be unable to enjoy that unit for the duration of its occupancy; and (ii) the PRH Spousal Policy serves as a long term housing policy.

(c)  Is empirical or statistical evidence necessary when considering whether the HOS Spousal Policy would increase the number of HOS units available to opposite‑sex couples, in circumstances where (i) some same-sex couples are likely to be deterred by the HOS Spousal Policy to apply to purchase a HOS flat, and (ii) whenever a HOS unit becomes available and is allocated to a same-sex couple, at least one eligible traditional family will be unable to enjoy that unit for the duration of its occupancy.

4.The Court of Appeal also granted leave to the SJ to appeal to this Court on 26 February 2024 based on three questions of great general or public importance:

(1)  Question 1: Is the status of marriage a distinguishing characteristic in the context of the Marriage Provisions, rendering same-sex married couples and opposite-sex married couples not relevantly comparable in this context, given the interrelationship between the laws of inheritance and matrimony, which also impose expectations and legal obligations that apply to married persons only, namely the Lifetime Marital Maintenance Duty.

(2)  Question 2: Is the legitimate aim of having consistent and coherent definitions of “valid marriage” across legislative schemes which touch on the subject of marriage rationally connected to the difference in treatment between same-sex married couples and opposite-sex married couples, taking into account the Government and the Legislature’s prerogative (and now duty following the judgment of the Court of Final Appeal in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28) to review Hong Kong’s social, policy and legislative context for the purposes of establishing an alternative framework for legal recognition of same-sex partnerships.

(3)  Question 3: If the answer to Question 2 above is “yes”, whether in all the circumstances the non-inclusion of same‑sex married couples in the Marriage Provisions is (a)  proportionate; and (b) implements a reasonable balance between societal benefits and individual rights, given inter alia the comparatively limited interference with rights by reason of the availability of alternative means for same-sex married couples to exercise their rights outside of the intestacy scheme under the IEO and IPO.

5.Pursuant to the practice set out in Practice Direction 2.3, final leaves to appeal in FACV 2 & 3 of 2024 were deemed to be granted on 11 March 2024 and final leave to appeal in FACV 4 of 2024 was deemed to be granted on 15 March 2024.

6.Shortly after the filing of the Notices of Appeal, the Registrar wrote to the solicitors for the parties on 22 March 2024 (in respect of FACV 2 & 3 of 2024) and 25 March 2024 (in respect of FACV 4 of 2024) informing them the dates for the hearing of the appeals. For FACV 2 & 3 of 2024 (“the HA appeals”), the Registrar indicated that these two appeals will be heard on 4 October 2024 with one day reserved. For FACV 4 of 2024 (“the SJ appeal”), it will be heard on either 7 or 8 October 2024 with one day reserved. Further directions were given for the preparation of the appeals.

7.On 19 April 2024, HA took out two summonses in the HA appeals seeking the adjournment of these appeals to a date to be fixed in consultation with leading counsel’s diaries or such other date as the Court deems appropriate taking into account leading counsel’s diaries.

8.On the same date, a similar summons was taken out by the SJ in the SJ appeal.

9.All the summonses are supported by affidavit/affirmation evidence setting out the grounds for the applications and the relevant background leading to the same. The SJ as well as the HA intend to engage Lord Pannick KC as leading counsel in the appeals. However, Lord Pannick will be heavily engaged in another substantial matter from September to November 2024 and would not be able to appear on the scheduled dates for the hearing of the HA appeals and the SJ appeal.

10.The HA had in fact engaged the services of Lord Pannick after the handing down of the first instance judgment. Though Lord Pannick did not appear in the Court of Appeal, he had provided inputs on the preparation of the grounds of appeal as well as the skeleton submissions. After the CA judgment, Lord Pannick was also involved in the preparation of the application for leave to appeal.

11.In the SJ appeal, the SJ only started to involve Lord Pannick in the case after the handing down of the CA judgment.

12.The summonses are opposed by the applicants. They also intended to instruct specialist leading counsel to appear at the substantive appeal hearings. They obtained approval from the Director of Legal Aid to brief Mr Timothy Otty KC and Mr Otty indicated that he could represent the applicants on the scheduled dates of the hearing of the HA appeals as well as the SJ appeal.

13.With the agreement of the parties, the Registrar directed that the summonses be determined on the papers. Solicitors for the parties put in their submissions on the summonses in their letters to the Registrar. On 30 April 2024, the Registrar referred the summonses to a single Permanent Judge for determination.

14.As explained by Fok PJ in Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [6], the fixing of date for the hearing of an appeal in this Court affects the distribution of the Court’s business. It is court-driven rather than party-driven because of the importance attached to the appropriate allocation of resources and division of labour including the distribution of work between individual overseas non-permanent judges. Hence, litigants can have no legitimate expectation that the convenience of the Court will yield to their personal circumstances and the convenience of their legal representatives.

15.The guiding principle is this: where a date has been fixed for an appeal hearing in this Court, the Court must be satisfied that there are strong and cogent reasons pertaining to the administration of justice before such date can be vacated. Generally, non-availability of counsel by itself is insufficient to give rise to such strong reason for re-fixing an appeal hearing in this Court.

16.It is submitted on behalf of the HA and the SJ that these are public law cases involving questions of great general or public importance, the determination of which could have far-reaching implications in Hong Kong. It would be in the public interest that this Court should have the able assistance of Lord Pannick who is an acknowledged specialist in this field and who also has a wealth of experience in the development of Hong Kong law in this regard. They say it would be extremely difficult to find an alternative leading counsel with commensurable experience and familiarity with these cases.

17.I readily accept their submissions regarding the expertise and knowledge of Lord Pannick in public law and human rights cases. His familiarity with our legal regime is self-evident by his frequent appearances in our courts, including this Court, in many landmark constitutional cases. I have always found his assistance to the court valuable. I can well understand why the HA and the SJ would seek to be represented by Lord Pannick in these appeals notwithstanding that Mr Abraham Chan SC is already a member of their existing teams of counsel. I also accept that the solicitors acting for the HA and those in the Department of Justice representing the SJ have acted promptly in making the applications for re-fixing the dates.

18.However, I do not consider that they have made out a sufficiently cogent ground for re-fixing the hearing dates. Though representation by Lord Pannick is justified and desirable, it cannot be said that the lack of such representation would occasion any injustice to the HA and the SJ. Even though Lord Pannick had been involved in the cases at earlier stages, I do not think it is impossible or impracticable for the HA and the SJ, if they so wish, to approach other eminent overseas leading counsel in the same field to act in these appeals. Lord Pannick is not the only overseas leading counsel who has appeared in proceedings in Hong Kong to argue important constitutional or legal points of great difficulty. I cannot find anything in the materials placed before me to suggest that the HA or the SJ has made any efforts to approach other leading counsel. Nor am I satisfied that the previous involvement of Lord Pannick in these appeals would occasion great prejudice to the HA and the SJ if they have to get representation by a different leading counsel at this stage.

19.I therefore conclude that there is no sufficiently cogent ground for changing the hearing dates for these appeals.

20.I should also mention that the applicants submitted that they would suffer prejudice if the dates are re-fixed. In particular, it was said on behalf of Mr Infinger that the resolution of his challenge, thus his application for public rental housing, has been delayed for a time which is longer than the average waiting time in respect of applicants for such housing. The HA did not address this prejudice in its response other than arguing that the success in the challenge only required the HA to reconsider his application instead of providing him with public housing immediately. I do not regard this as a sufficient answer. It only shows that the effect of the delay in hearing the appeals would be compounded by a further delay in terms of the time taken for the processing of his application. The HA has not suggested that Mr Infringer’s application would not in any event be successful for other reasons.

21.I am less certain of the degree of prejudice allegedly suffered by Mr Li by reason of the delay. It has not been suggested in the submissions that he could not reside at Mr Ng’s Home Ownership unit in the meantime. However, as observed by Fok PJ in Tsit Wing, the absence of prejudice is not a factor of any relevant weight in the Court’s decision on whether to re-fix a hearing date of an appeal.

22.In coming to the conclusion that the hearing dates should not be re-fixed, I have not lost sight of the fact that the dates were fixed by the Registrar without any consultation with the parties (as he was not obliged to do so) and the summonses were taken out by the HA and the SJ soon after they were notified of the hearing dates. Even so, given the principles guiding the exercise of the discretion to re-fix a hearing as discussed in Tsit Wing, I am unable to accede to the applications of the HA and the SJ in the present instance.

23.The summonses by the HA in FACV 2 & 3 of 2024 and the summons by the SJ in FACV 4 of 2024 are dismissed with costs accordingly.

FACV 2/2024

Written submissions by Woo, Kwan, Lee & Lo, for the Respondent (Appellant)

Written submissions by Haldanes, for the Applicant (Respondent)

FACV 3/2024

Written submissions by Woo, Kwan, Lee & Lo, for the Respondent (Appellant)

Written submissions by Daly & Associates, for the Substituted Applicant (Respondent)

FACV 4/2024

Written submissions by the Department of Justice, for the Respondent (Appellant)

Written submissions by Daly & Associates, for the Applicant (Respondent)