6 June 2019
A milestone in the LGBT rights development in Hong Kong – A civil servant, represented by Daly & Associates, successfully challenged the Government’s discriminatory policies in refusing spousal benefits and tax assessments.
This is the appeal filed by the Appellant (see HCAL 256/2015 for case background) seeking to set aside the judgment of the Court of Appeal dated 1 June 2018.
Mr. Leung met his husband, Mr. Scott Adams in around 2005. The couple began living together in 2013 and have subsequently celebrated their marriage in New Zealand in 2014. Similar to all other married couples, no matter they are in heterosexual or same-sex marriages, Mr. Leung and Mr. Adams’ marriage is loving, monogamous, interdependent and a lifelong commitment.
In his position as the Senior Immigration Officer of the Immigration Department, Mr. Leung sought to assert (i) his employment and family rights provided by the Hong Kong Government under Civil Service Regulations (“the Benefits Decision”); and (ii) his rights to elect a joint assessment of tax under Inland Revenue Ordinance by virtue of his same-sex marriage contracted overseas (“the Tax Decision”). However, the aforesaid rights have been categorically denied by the Secretary for the Civil Service and the Commissioner of Inland Revenue (collectively “the Government”) on the basis that same-sex marriage is not recognized under the Hong Kong law.
After series of inquiries and discussion with the Government, to which received no favourable response, Mr. Leung commenced his judicial review proceedings on Christmas eve in 2015 to challenge, inter alia, the Government’s decision denying his legal entitlements which would have been afforded to heterosexual married colleagues under the same situation because of his sexual orientation.
At present, only heterosexual marriage between one man and one woman is legally recognized in Hong Kong. This statutory definition has discriminatorily deprived of the rights of the Hong Kong citizens, who are married to their same-sex partners, to enjoy their family life and enforce their spousal entitlements. Because of their sexual orientation, same-sex married couples were subjected to differential / discriminatory treatment under the current legal framework. Without any intention to challenge the existing institution or marriage, Mr. Leung and Mr. Adams are seeking equal treatment in respect of their marital status.
The present appeal marks another major milestone in the LGBT rights movement in Hong Kong. The ruling addresses the fundamental constitutional rights and freedoms of all human beings, which certainly include sexual minorities, guaranteed by various human fights legal provisions.
Mr. Leung’s legal team is comprised of Counsel Ms. Karon Mongahan QC of Matrix Chambers, Mr. Nigel Kat SC of Parkside Chambers and Mr. Azan Marwah of Gilt Chambers and Mr. Mark Daly, the principal of Daly & Associates, and Mr. Aaron Chan of Daly & Associates.
The Court of Final Appeal unanimously allowed the Appellant’s appeal this morning after hearing submissions from the parties on 7 May 2019.
In addressing the Government’s policy to deny conferment of spousal benefits in the context of employment and taxation in the name of protecting the institution of marriage, the Court specifically questions the basis of the Government’s claim:-
“How is it said that allowing Mr. Adams medical and dental benefits … [or] permitting to elect for joint assessment of his income tax liability … impinge(s) on the institution of marriage in Hong Kong?” (para. 67 of the judgment)
It is interesting to note that the Court reiterates the Government’s role as an “equal opportunities employer” and unhesitatingly rules that the Government’s position was “illogical” in respect of the Benefits Decision. The Court adds that it is difficult to envisage how the denial of employment benefits to a married same-sex couple would assist in its commitment to eliminating discrimination in workplace.
The Court further observes that Mr. Leung and Mr. Adams’ marriage “having the characteristics of publicity as a formal marriage and exclusively that distinguish it from a mere relationship” would be sufficient to overcome the “bright line” rule which the Government argues is necessary to achieve administrative workability. Such argument, the Court held, fails to provide any rational justification for the differential treatments given to Mr. Leung and Mr. Adams.
In conclusion, the Court holds that the discriminatory measures adopted by the Government cannot be legally justified.
Mr. Leung and Mr. Adams welcome the judgment. They add:-
“It is a small step for equality in Hong Kong. It was a long and stressful journey to get the result today. It is not right for any individual to go through such a process to get equality rights. We urge the government to review and amend all the discriminatory legislation and policies to prevent further legal battles, which are costly, time-consuming and unnecessary.”
“Lastly, we thank for all the support from the society. We earned a lot of friends and support in the process. They understand that our love is no different than others … Love wins!”
Mr. Mark Daly says “Today is a big step towards recognising the dignity of the LGBTQ+ community, one of the vulnerable communities which has long been disregarded by the Government.”
“Hong Kong LGBTQ+ community is now one step closer to achieving equality. It is hoped that today’s victory will prompt various departments to implement policies with a view to promoting diversity and genuine equality in society.”
For further enquiries, please contact:
Mr. Mark Daly / Mr. Aaron Chan
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