W v. Registrar of Marriages

CACV 266/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 266 OF 2010

(ON APPEAL FROM HCAL NO. 120 OF 2009)

________________________

BETWEEN

________________________

Before: Hon Tang VP, Hartmann and Fok JJA in Court

Date of Hearing: 1 March 2012

Date of Judgment: 1 March 2012

________________________

J U D G M E N T

________________________

Hon Fok JA (giving the Judgment of the Court):

1.By notice of motion dated 21 December 2011, the applicant seeks leave to appeal to the Court of Final Appeal against our Judgment handed down on 25 November 2011 dismissing this appeal.

2.Leave is sought under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, namely on the ground that the questions involved in the appeal are matters of great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for determination.

3.The two principal issues raised in this appeal were the construction issue and the constitutional issue, as identified in paragraphs 26 and 27 of our Judgment.

4.In respect of the construction issue, we are satisfied that the following question (as set out in the applicant’s solicitor’s letter to the Court dated 29 February 2012) is of sufficient importance to warrant leave being granted to appeal to the Court of Final Appeal, namely:

“1. Whether on a true and proper construction of the Marriage Ordinance, Cap.181 (“MO”), the words ‘woman’ and ‘female’ in sections 21 and 40 of the MO include a post-operative male-to-female transsexual?”

5.We are likewise satisfied that the constitutional issue raised in the appeal gives rise to a question of sufficient importance to warrant leave being granted to appeal to the Court of Final Appeal.

6.Although we do not think the question as formulated in paragraph 2 of the applicant’s notice of motion or as reformulated in paragraph 3(2) of the applicant’s skeleton submissions on this application is the suitable way to pose the issue, we are satisfied that the following question (as now set out in the applicant’s solicitor’s letter to the Court) is of sufficient importance to warrant leave being granted to appeal to the Court of Final Appeal, namely:

“2. If the answer to Question 1 is ‘No’, whether sections 21 and 40 of the MO are unconstitutional having regard to the Applicant’s right to marry under Article 37 of the Basic Law and/or Article 19(2) of the Hong Kong Bill of Rights and/or her right to privacy under Article 14 of the Hong Kong Bill of Rights?”

7.We accordingly grant the applicant leave to appeal to the Court of Final Appeal pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance in respect of these two questions.

Mr Philip Dykes SC, Mr Hectar Pun and Mr Earl Deng, instructed by Vidler & Co., assigned by Director of Legal Aid, for the Applicant

Mr Stewart K M Wong SC, instructed by the Department of Justice, for the Respondent