Introduction

In recent years, the Hong Kong Courts have heard various legal challenges brought by same-sex couples for the recognition of their marital status or rights. On 25 June 2021, the Court of First Instance (“CFI”) handed down its judgment in Ng Hon Lam Edgar v Hong Kong Housing Authority [2021] HKCFI 1812, where the CFI ruled in favour of a homosexual applicant in his judicial review against the Hong Kong Housing Authority (“HA”) in relation to HA’s policy to exclude same-sex spouses of owners of Home Ownership Scheme (“HOS”) flats from being recognised as the owners’ “spouses” and “family members”.

Relevant facts

The late Ng Hon Lam Edgar (“Mr Ng”) was the registered tenant of a public rental housing flat (“PRH Flat”) provided by the HA. Mr Ng and Mr Li Yik Ho (“Mr Li”) entered into a same-sex marriage in the UK on 28 January 2017. Under the HOS, Mr Ng as a registered tenant of the PRH Flat is eligible for purchasing a HOS flat as a “Green Form applicant” without having to pay a premium. They therefore decided to purchase a HOS flat as their matrimonial home. On 10 April 2018, Mr Ng entered into a formal sale and purchase agreement to purchase a HOS flat (“HOS Flat”) and completed the purchase on 11 June 2018 with the assistance of a mortgage loan. However, it was actually Mr Li who contributed over 90% of the costs of purchasing the HOS Flat.

The use of HOS flats is subject to the condition that they shall be used only for residential purposes by the owner and family members listed in the application to purchase. One of the recognised categories of “family members” is “spouses”. However, Mr Li, being Mr Ng’s same-sex spouse, was not eligible to be considered as Mr Ng’s spouse or family member under the HA’s policy. Hence, he was not allowed to live in the HOS Flat with Mr Ng. Moreover, since Mr Li was not considered as Mr Ng’s family member, he could not be added as the authorized occupant of the HOS Flat, which was a pre-requisite for a transfer of ownership in a HOS Flat without payment of a premium. If Mr Li wishes to be a joint owner of the HOS Flat, he would be required to pay to the HA a premium. Mr Li would not be required to do so if he and Mr Ng were in a heterosexual marriage. Accordingly, Mr Ng’s solicitors wrote to the HA on 9 April 2019 seeking answers to, inter alia, the following questions:

1. Whether Mr Li would be recognised as a family member of Mr Ng and be allowed to co-own a HOS flat without payment of a premium; and
2. Whether Mr Ng would be seen as breaching the conditions to own a HOS flat if he is cohabiting with Mr Li, his same-sex married spouse?
   

By a letter dated 2 July 2019, the HA replied and confirmed that Mr Li would not be treated as a spouse and in turn a family member of Mr Ng eligible to be added as an authorized occupant of the HOS Flat (“HA’s Decision”). According to the HA’s policy, “family members” are confined to the spouse and children under the age of 18 of the owner. In particular, “spouse” means a “husband” or a “wife” in a traditional heterosexual marriage. Hence, Mr Li could not be added as an authorised occupant of the HOS Flat, without which, he also could not be a joint owner of the HOS Flat without first paying a premium to the HA. As such, Mr Ng, later substituted by Mr Li upon Mr Ng’s death, applied for judicial review against HA’s Decision.

The CFI’s ruling

The issue before the CFI is whether the policies of the HA constitute unlawful discrimination on the ground of sexual orientation by excluding same-sex spouses of owners of HOS flats from the definition of “family members” and “spouses” eligible:

1. for addition as authorized occupants of HOS flats; and
   
2. to be considered by the HA to receive a transfer of ownership of HOS flats without the payment of a premium
   

     (collectively, the “Policies”).

Differential treatment on a prohibited ground

A complainant seeking to prove unlawful discrimination must establish that he has been treated differently to a person in a comparable or analogous position based on a prohibited ground. The CFI found that both homosexual and heterosexual couples are capable of having equivalent interdependent and interpersonal relationships. Their marriage shares the same characteristics of publicity and exclusivity, with similar desire to achieve home ownership on a joint basis. Homosexual and heterosexual spouses are therefore in a comparable or analogous position in relation to matters of use and ownership of HOS flats. Hence, the Policies and HA’s Decision clearly constituted differential treatment based on the prohibited ground of sexual orientation.

Four-step justification test

The next issue before the CFI is to determine whether the differential treatment can be justified according to the well-established four-step justification test.

The first step asks whether the differential treatment pursues a legitimate aim. The HA argues that the Policies support “traditional family formations in the [HA]’s allocation of scarce HOS resources to meet housing needs” (“Family Aim”). The Family Aim has various aspects to it, namely, supporting existing traditional families constituted by heterosexual married couples with and without children, and to support the institution of such traditional family by prioritising HOS flats occupancy and ownership to heterosexual couples whose marriage or birth plans may be influenced by housing availability. In this regard, the CFI accepted the Family Aim as a legitimate aim.

The second step is to find a rational connection between the differential treatment and the Family Aim. While the CFI agreed that the availability of housing is a consideration which may affect a heterosexual couple’s marriage or birth plans, it would be extremely far-fetched to suggest that they would be encouraged to marry or have children, knowing that there would be more HOS flats available to them given that same-sex couples are prevented from purchasing HOS flats under the Policies. Accordingly, the differential treatment is not rationally connected to the Family Aim.

The third step is to consider whether the differential treatment is no more than reasonably necessary to accomplish the Family Aim. The CFI noted that the HA has not produced any, or any reliable evidence, to show that the Policies would make a significant or real difference to the overall availability of HOS flats to traditional families constituted by heterosexual couples. Further, there was no evidence that the HA has seriously considered less intrusive alternatives, or the impact which the Policies might have on same-sex couples. Given the insufficient evidence put before the CFI by the HA, the CFI was not satisfied that the differential treatment under the Policies is a proportionate means of achieving the Family Aim.

The last step requires the CFI to make a value judgment as to whether the Policies operate on same-sex couples with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the Family Aim. Considering the very limited increase in the availability of HOS flats which may become additionally available to heterosexual couples for purchase as a result of the Policies, and the unfairness of not allowing a same-sex married couple to jointly own and live together as a family in a HOS flat, the CFI ruled that a reasonable balance has not been struck.

In conclusion, the CFI allowed the judicial review and declared that the Policies and HA’s Decision are unlawful and unconstitutional for violating the rights to equality before and equal protection of law protected by Article 25 of the Basic Law and/or Articles 22(1) and 1(1) of the Hong Kong Bill of Rights.

Implications

This CFI judgment opens the door for same-sex married couples to be included in HA’s HOS policies that have previously been enjoyed by opposite-sex married couples to their exclusion. This decision marks progress on the recognition of LGBT rights in Hong Kong.