Court of Final Appeal declared lack of alternative framework for legal recognition of same-sex partnerships unconstitutional and gave the Government two years to fix it
On 5 September 2023, the Court of Final Appeal (“CFA”), the highest court in Hong Kong, handed down a landmark judgment in Sham Tsz Kit v Secretary for Justice  HKCFA 28. By a majority of 3 to 2, the CFA declared 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 (such as registered civil partnerships or civil unions) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation. The CFA directed that operation of the said declaration be suspended for a period of two years from the date of the final order to be made after receipt of the parties’ written submissions, to afford the Government to comply with its obligation.
The judgment did not go as far as recognising or legalising same sex marriage in Hong Kong. The decision has been described by some as a “giant leap forward” for LGBTQ+ rights in Hong Kong.
Sham Tsz Kit v Secretary for Justice
Sham is a homosexual and has entered into a same-sex relationship with his partner in Hong Kong in 2011. Not being able to get married locally, he married his partner in New York in November 2013. With this marriage not being legally recognised in Hong Kong, Sham sought determination on three questions:
1. whether he has 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”);
2. alternatively, whether the absence of any alternative means of legal recognition of same-sex partnership constitutes a violation of Article 14 of the Hong Kong Bill of Rights (on privacy) and/or Article 25 of the Basic Law and Article of 22 of the Hong Kong Bill of Rights (on equality) (“Question 2”); and
3. whether the non-recognition of foreign same-sex marriage constitutes a violation of Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (“Question 3”).
Sham’s application failed at the Court of First Instance (“CFI”) and so did his appeal to the Court of Appeal. He further appealed to the CFA.
The CFA unanimously ruled against Questions 1 and 3. The current Hong Kong laws do not provide for any constitutional right to same-sex marriages, the constitutional freedom of marriage covers opposite-sex marriage only.
On Question 2, by a majority of 3 to 2, the CFA accepted the existence of the need experienced by same-sex couples for access to an alternative legal framework conferring legal recognition on their relationship in order to meet basic social requirements and to provide them with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition. The CFA held that the right to privacy, as protected under Article 14 of the Hong Kong Bill of Rights, is engaged and is infringed by the arbitrary interference with the private life and dignity of same-sex couples resulting from (1) the real difficulties faced by them in the ordinary course of their private lives, and (2) their exposure to the publicity, stress, uncertainty and expense of litigation in judicial review proceedings. There is hence a need to effectively protect this fundamental right by adopting a framework that provides for legal recognition of same-sex relationships and the requisite rights and obligations attendant on such recognition. By failing to do so, the Government has failed to comply with the positive obligation in question, violating Sham’s constitutional rights.
A new alternative legal framework
The CFA’s ruling calls for an alternative legal framework for same-sex couples which allows them to meet basic social requirements and to have a sense of legitimacy which they deserve.
Recent court decisions have covered a variety of matters regarding same-sex couples’ rights such as same-sex married couples’ rights to be included in the Hong Kong Housing Authority’s Home Ownership Scheme (CFI’s judgment in Ng Hon Lam Edgar v Hong Kong Housing Authority  HKCFI 1812, please click here), employment-related spousal benefits (CFA’s judgment in QT v Director of Immigration (2018) 21 HKCFAR 324, please click here and CFA’s judgment in Leung Chun Kwong v Secretary for Civil Service (2019) HKCFAR 127, please click here), inheritance rights and parental rights (CFI’s judgment in AA v BB  HKCFI 1401, please click here), but there remains other issues that have been tackled. In its judgment in Sham, the CFA highlighted the real difficulty of hospitalization, where one same-sex partner may be denied visiting rights, medical information or participation in important decision-making regarding the other partner’s treatment as he or she does not have a recognized status, as opposed to “husband” and “wife”. Another example would be the difficulty in separating the mixed assets of a same-sex couple upon the termination of their relationship after a long period of cohabitation.
The alternative framework for legal recognition of same-sex partners may potentially address these difficulties and create a more systemized and structural framework, where, in the future, relevant authorities may no longer need to deal with each case or application involving same-sex partnerships on a case-by-case basis, and eventually resorting to expensive and time-consuming litigations or judicial reviews.
It is by no means certain what exactly will be protected under the new alternative legal framework. The Government has yet to issue any official statement or response up till the date on this issue. We have yet to see whether the Government will adopt a more conservative or liberal approach with the new alternative framework.
The CFA’s decision on same-sex marriage is a momentous step towards realizing the rights of same-sex couples in Hong Kong. By calling for a new legal framework to give legal standing to same-sex partnership, Hong Kong courts have taken a great step forward to foster a more progressive and inclusive society. That said, it is still uncertain to what kind of alternative framework will be rolled out in two years’ time, especially in light of the potential extensive changes to existing legal regimes.
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2023