For hearing before Hon. Chow J on 19 April 2021 at 10:00 am
Ng, Hon Lam Edgar v. Hong Kong Housing Authority
This case involves a challenge to the Addition and Transfer policies of the Housing Authority’s (“HA”) Home Ownership Scheme (“HOS”) to exclude same-sex spouses from the definition of “family members” and “spouses”. By doing so, the same-sex spouse of the HOS owner/resident would not be able to be added as an authorized occupant of the HOS Flat, and would not be able to become the joint owner of the same without the payment of a premium, the way heterosexual married couples can elect to do.
The case also challenges the decision of the HA confirming that the Applicant’s (NG, Hon Lam Edgar (“Edgar”)) same-sex spouse (Mr. LI, Yik Ho (“Henry”)) would not be treated as his spouse and/or family member under the Policy. It is argued that the prevailing addition and transfer policies of the HA discriminate against same-sex married couples, hence contrary to Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights.
Edgar and his husband, Henry were born and raised in Hong Kong. After being in a loving and romantic relationship for a number of years, they decided to commit to one another for life. They got married in the United Kingdom in 2017, and like many married couples, wished to share their lives in a matrimonial home of their own, to live and raise a family together.
As Edgar was substituted as the registered tenant of the PRH Flat after the passing of his father in 2014 and due to the couple’s limited financial resources, the couple’s original plan was to live together in the said PRH Flat. However, Henry’s regular overnight visits to Edgar’s PRH Flat led to complaints and harassment. As a result, the couple were placed under an immense amount of stress.
In the hopes of avoiding further harassment and discrimination for living together in the PRH Flat, and in light of the couple’s ongoing financial constraints, Edgar and Henry decided to seek housing under the HOS Secondary Market Scheme (“SMS”). As an existing registered tenant of a PRH unit, Edgar was eligible to apply as a Green Form applicant. As such, they proceeded to purchase a Flat under the HOSSMS, which was almost entirely financed by Henry, who was the main breadwinner of the family.
However, after purchasing the HOS Flat, Edgar and Henry were shocked to find that Henry would not be regarded as Edgar’s spouse or family member by the HKHA, and therefore could not be made a joint tenant of the HOS Flat without the payment of premium. Nor could Henry live with Edgar as an “authorized occupant” for the same reason, in the way they had always wanted to do. Their constant fear of being evicted from the HOS Flat for living together in what they considered their matrimonial home gave them enormous anxiety about their life together.
In light of the above, Edgar decided to bring forward with these judicial review proceedings to obtain equal treatment and dignity for himself, Henry and other same-sex married couples in Hong Kong.
Edgar battled with depression as a result of discrimination in multiple facets of his life, including the discriminatory policies of the HA. In December 2020, Edgar lost his battle with depression, leaving Henry as his surviving spouse. After taking time to grieve, Henry decided to continue with the proceedings as the Edgar would have wished. In order to do so, Henry applied to be made a party to the judicial review proceedings in substitution of Edgar.
On 19 April 2021, both the substitution application and the substantive judicial review proceedings were heard before the Honourable Mr. Justice Chow in the Court of First Instance. Amongst other arguments, the Housing Authority asserted that same-sex spouses are not comparable to married heterosexual spouses under the HOS policies, as they could not procreate or form “traditional families”. The Applicant’s position was made clear – the HA’s assertion would go against the stated objectives of the HA to provide subsidized housing to those in low-to-middle income brackets, and their discriminatory policies were not rationally connected, nor proportionate to their stated aims.
Home is the sanctuary to everyone’s private and family life, regardless of sexual orientation. Everyone should feel safe and be free from discrimination and harassment at their own home. It is important to both Edgar and Henry, as well as the wider LGBT+ community, that their fundamental human rights are protected in Hong Kong, including non-discrimination by reason of their sexual orientation.
For more information, please contact Mr. Mark Daly of Daly & Associates at phone number 9880 5466.