Introduction

The issue of sexual orientation discrimination is no doubt one surrounded by controversies. Currently, Hong Kong legislation does not recognize same-sex marriage. Many cases of judicial review regarding sexual orientation discrimination had failed in the past because section 40 of the Marriage Ordinance (Cap. 181) provides that marriage is the voluntary union for life of one “man” and one “woman” to the exclusion of all others; same-sex marriage is not recognized. This, however, was not the case in Leung Chun Kwong v Secretary for the Civil Service and Another HCAL 258/2015. In this case, the High Court granted employment benefits to the same-sex spouse of a civil servant in a same-sex marriage and held that denial of spousal benefits by the Civil Service Bureau (the “CSB”) to same-sex spouses of civil servants legally married under foreign laws amount to unlawful discrimination based on sexual orientation. This High Court’s decision has been considered a majority victory by LGBT activists and supporters.

Leung Chun Kwong v Secretary for the Civil Service and Another

Background

The is a judicial review brought by a senior immigration officer, Mr Leung Chun Kwong, who legally married his same-sex spouse, Mr Adams, on 18 April 2014 in New Zealand. Mr Leung applied to the CSB (1) for spousal benefits that the Hong Kong Government provides to the spouses of married civil servants and (2) to have his tax liability jointly assessed with Mr Adams as a married couple. The CSB informed Mr Leung his marriage with Mr Adams “fell outside of the meaning of marriage” according to the relevant government regulations. The CSB denied Mr Leung’s applications.

Despite Mr Leung’s effort in presenting his case to the CSB, the Equal Opportunity Commission and the Ombudsman, he and his husband were denied of the benefits. On 25 December 2015, Mr Leung commenced judicial review before the High Court, challenging both decisions of the CSB on a number of grounds, one of which was that the denials amount to a discrimination against him based on his sexual orientation.

The High Court’s Ruling

The Issues

At the judicial review, there were two major issues before the High Court:

1. Whether Mr Leung should be entitled to the same benefits and allowances that the Government provides to the “spouses” of other married civil servants whose marriages are to persons of the opposite gender (the “Benefits Issue”)?
2. Whether Mr Leung’s same-sex marriage with Mr Adams is a “marriage” for the purposes of the Inland Revenue Ordinance (Cap. 112) (the “IRO”) (the “Tax Issue”)?

The Benefits Issue

Senior Counsel representing Mr Leung submitted that the CSB’s decision to deny Mr Leung’s same-sex spouse of his spousal benefits is an unlawful act of discrimination, contrary to his rights to equality as conferred by Article 25 of the Basic Law (which provides that “all Hong Kong residents shall be equal before the law”) as well as Article1(1) (which provides that “the rights recognized in [the Hong Kong Bill of Rights] shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion …”) and Article 22 (which provides that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law …”) of the Hong Kong Bill of Rights.

Senior Counsel representing the Government argued that the decision made by the CBS in relation to the Benefits Issue was not discriminatory in nature, and that even if it were, it was justifiable and necessary in order not to “undermine the integrity of the institution of marriage” as understood in Hong Kong.

The Court rejected the Government’s argument and held that the difference in treatment in relation to spousal benefits accorded to Mr Leung was, at least, indirectly discriminating against his sexuality and was therefore unjustifiable. The Honourable Mr Justice Anderson Chow expressed that there is, in his view, nothing inherently wrong or impermissible for the Government to indirectly recognize an overseas same-sex marriage.  Further, His Lordship expressed that he fails to see how the denial of benefits to Mr Leung, his spouse and all other homosexual couples would serve to protect the institution of traditional marriage. He therefore allowed Mr Leung’s application for judicial review against the CSB.

The Tax Issue

Regarding the Tax Issue, the Court rejected Mr Leung’s application for judicial review against the Inland Revenue Department. The IRO expressly defines a “marriage” as between a “man” and a “woman” and Mr Leung was not challenging the law or constitutional order of marriage in Hong Kong.  In such event, the Court held that to construe “marriage” under the IRO as including same-sex marriages would be inconsistent with the meaning of this term under the Hong Kong statutes.

The Court further pointed out that, in any event, the refusal by the Commissioner of Inland Revenue to assess the tax liability of Mr Leung jointly with that of his spouse as a married couple did not and would not cause any prejudice to them because joint assessment would have made no difference to Mr Leung and his husband’s total tax liability. In the circumstances, the Commissioner’s refusal for Mr Leung to have his tax liability jointly assessed with that of Mr Adams as a married couple did not affect their rights to equality.

Conclusion

This case is seen by some human rights advocates as a rare judicial recognition of the city’s homosexual community; it marks an intriguing turn in law and in the attitude of the Court towards same-sex marriage in Hong Kong. Given the implications that such ruling may have on the administration of civil service regulations, the Honourable Mr Justice Chow made a direction in his judgment that any order to be made in accordance with the same will only take effect on or after 1 September 2017 to allow the parties to agree on how to give effect to the judgment.

Whilst this case, on the face of it, only affects the rights of civil servant to same-sex spousal benefits, it may lead to more and more litigations and disputes on LGBT rights whether in the private sector or in the public sector of Hong Kong. Interested or affected parties ought to keep an eye out for any further development and changes in this regard in order to ensure compliance with the law; we at ONC Lawyers will certainly be keeping an eye out.