Background

In MK v Government of HKSAR [2019] HKCFI 2518, the Applicant (“MK”), who is a female Hong Kong permanent resident and a lesbian, wished to marry in Hong Kong, or enter into a form of legally recognised civil union or registered partnership should such framework be available in Hong Kong with her same-sex partner. On 11 June 2018, MK made the application for leave to apply for judicial review challenging the laws of Hong Kong in violation of her rights under the Basic Law (“BL”) and the Hong Kong Bill of Rights (“HKBOR”). Leave to apply for judicial review was granted on 13 June 2018.

The principal issues

The two principal issues identified by the CFI are:

1.         whether the denial of the right to marriage to same-sex couples under Hong Kong law constitutes a violation of their constitutional rights; and

2.         whether the Government’s failure to provide a legal framework for the recognition of same-sex relationships such as civil unions, registered partnerships or other legally recognised status for same-sex couples as an alternative to marriage also constitutes a violation of their constitutional rights.

The CFI was of the view that the answers to both questions were “no”.

Hong Kong marriage law does not permit
same-sex couples to marry

Having considered the relevant statutes, the CFI pointed out 4 essential elements of a valid marriage under the current statutory definition of marriage in Hong Kong, namely:

1.         voluntary union;

2.         for life;

3.         of one man and one woman; and

4.         to the exclusion of all others. (emphasis added)

In short, Hong Kong law has never recognised or permitted marriages by same-sex couples, and same-sex couples have never been able to lawfully marry in Hong Kong.

BL 37 states generally that the freedom of “marriage” of Hong Kong residents shall be protected by law, without specifying whether the concept of marriage in that article refers to heterosexual marriage only or includes same-sex marriage. Nevertheless, the CFI took the view that the expression “marriage” in BL 37 is a reference to heterosexual marriage only, for the following reasons:

1.         At the time of the promulgation of the Basic Law on 4 April 1990 and at the time that the Basic Law came into effect on 1 July 1997, Hong Kong law did not provide for or recognise same-sex marriage.

2.         At the time of the promulgation of the Basic Law and at the time that the Basic Law came into effect, no country in the world provided for or recognised same-sex marriage. It would be unreal to attribute to the draftsman of the Basic Law an intention that the word “marriage” in BL 37 would include a same-sex marriage.

3.         The fundamental rights provided for in Chapter III of the Basic Law should be read together with the Hong Kong Bill of Rights, which is incorporated as part of the Basic Law and given constitutional effect by BL 39, as a coherent whole. BOR 19 states as follows:

“(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) The right of men and women of marriageable age to marry and to found a family shall be recognized.” (emphasis added)

It is clear that the Hong Kong Bill of Rights only protects the right of heterosexual couples to marry.

The CFI further held that although an updated interpretation of legislation may be made to meet the changing or contemporary needs and circumstances of the society and relevant international developments:

1.         there must be shown strong and compelling local reasons for the court to depart from what has been generally understood to be the law on a matter as fundamental as the marriage institution which has its basis in the social attitudes of the community;

2.         the court should not use the technique of updating interpretation to introduce or make a new policy on a social issue;

3.         the court should exercise the power of updating interpretation with great caution where the new interpretation has far reaching consequences or ramifications; and

4.         the court should not make an updated interpretation if the language of the legislation is not capable of bearing the new meaning sought to be given.

In the present case, the CFI accepted that there have been some international developments recognising same-sex marriage. However, the evidence about changing or contemporary social needs or circumstances in Hong Kong is far from clear. The evidence before the court was not sufficiently strong or compelling to demonstrate that the changing or contemporary social needs and circumstances in Hong Kong are such as would require the word “marriage” in BL 37 to be read as including a marriage between two persons of the same sex.

On the other hand, it is obvious that were the court to “update” the meaning of “marriage” to include a same-sex marriage, it would be introducing a new social policy on a fundamental issue with far reaching legal, social and economic consequences and ramifications. It is beyond the proper scope of the functions or powers of the court, in the name of interpretation, to seek to effect a change of social policy on such a fundamental issue.

In all, the CFI was not convinced that an updated interpretation of the word “marriage” in BL 37 to include a same-sex marriage is justified.

No positive obligation on government to provide legal framework
for recognition of same-sex relationships

MK argued that the Government is under a positive legal obligation to provide an alternative legal framework giving same-sex couples the same rights and benefits enjoyed by opposite-sex married couples. The CFI disagreed with such contention for the following reasons:

1.         In matters concerning rights, the court should look at “substance” and not “form”. If the Government is under no legal obligation to provide same-sex couples with the relevant rights and benefits through the institution of marriage, it would be wrong in principle for the court to seek to achieve the same result through the use of another label or institution.

2.         Whether there should, or should not, be a legal framework for the recognition of same-sex relationships is a matter for legislation. For the court to declare that the Government is under a positive obligation to provide an alternative legal framework to same-sex couples so that they can enjoy the same rights and benefits enjoyed by opposite-sex married couples would be very close to the court exercising legislative powers which are outside the proper province of judicial functions.

3.         It would also be wrong in principle, for the court to declare generally that the Government is under a positive obligation to provide to same-sex couples an alternative legal framework carrying all the rights and benefits enjoyed by opposite-sex married couples without examining whether any particular right or benefit ought to be available to same-sex couples, e.g. the right of same-sex couples to adopt a child may have to be restricted or modified in order to protect the interests of the child to be adopted.

The CFI was therefore not prepared to find that the Government is under a positive legal obligation to provide an alternative legal framework such as civil unions, registered partnerships or other legally recognised status giving same-sex couples the same rights and benefits enjoyed by opposite-sex married couples.

Conclusion

In the past decade, there has been a trend of increasing concern over the issue of LGBT rights across the globe. Although same-sex marriage, civil union or registered partnerships have been allowed in some overseas jurisdictions, however, in light of the above mentioned CFI’s judgment, such development is unlikely to take place in Hong Kong in a very near future.