Ng, Hon Lam Edgar v Secretary for Justice
By a judgement handed down by Honourable Chow J this morning, the Court of First Instance declared that the exclusion of same-sex couples from entitlement to their partners’ estate under the current intestacy and inheritance laws in Hong Kong is unconstitutional. This marks a milestone in the long fight of equality for LGBTQI+ community in Hong Kong following our success in the landmark case of Leung Chun Kwong v SCS and CIR in 2019.
This case involves a challenge to the exclusion of same-sex couples, including those who are married, from accessing and benefiting from the inheritance and intestacy laws on the basis of their sexual orientation. It is the Applicant’s case that this exclusion based on sexual orientation amounts to unlawful discrimination and therefore is in violation of Article 25 of the Hong Kong Basic Law and Article 22 of the Hong Kong Bill of Rights Ordinance and cannot be justified by the Government.
Our client, Mr. Ng (the Applicant) and his husband, Mr. Li, were born and raised in Hong Kong and got married in the United Kingdom in 2017. After purchasing their matrimonial home, Mr. Ng became concerned that if he were to die without a will (i.e. intestate), his husband, Mr. Li, would not be entitled to inherit the estate.
While Mr. Ng is aware of the option of preparing a will, Mr. Ng objects to the unequal treatment under the laws of intestacy on the basis of their sexual orientation. In this context, he seeks in these proceedings to obtain equal treatment and dignity for himself, his husband and other same-sex married couples in Hong Kong, who may either die without a will or whose wills may be subject to legal challenge after the death of his/her same-sex spouse. In these scenarios, the surviving spouse is not entitled to the estate of his/her partner under the current intestacy laws in Hong Kong.
Upon the success of the Applicant’s judicial review, the Court has ruled in favour of a remedial interpretation of “valid marriage”, “husband” and “wife” under local intestacy and inheritance laws so as to include same-sex married couples.
In the judgement, the Court expressly recognized that the current intestacy and inheritance laws impose differential treatment on same-sex couples, among other things,
“37(2)…It is, in my view, wrong to treat same-sex married couples and opposite-sex married couples as being not relevantly comparable for the purposes of the IEO (Intestates’ Estates Ordinance, Cap 73) and IPO (Inheritance Provision (Provision for Family and Dependants) Ordinance, Cap 481) on the ground that only opposite-sex married couples are legally obliged to maintain their partners during their lifetime.”
Further, the Court viewed that such differential treatment is not justified:
“44. …It is illogical to suggest that the denial of benefits under the IEO or IPO to same-sex couples would promote the Marriage Aim, Family Aim or Coherence Aim. There is also no basis to suggest that any person would be encouraged to enter into an opposite-sex marriage, or the traditional institution of marriage would be undermined, or the workability of the overall scheme of Hong Kong legislation which rests upon the traditional institution of marriage would be adversely and substantially affected by giving to same-sex couples the same benefits under the IEO or IPO as accorded to opposite-sex couples.
- In short, I am of the view that the differential treatment is not rationally connected to the legitimate aims identified by the Secretary for Justice in this case.”
Statement from Daly & Associates, solicitors for the Applicant:
“We welcome the judgement which lines up with overseas jurisdictions in according equal rights of intestacy to same-sex marriages, such as Taiwan, South Africa, the UK, Australia, New Zealand, Canada (Ontario), etc. This significant step towards equality for same-sex couples is a victory for the entire LGBTQI+ community in Hong Kong. We will continue fighting for the fundamental human rights of sexual minorities including the right to equality and non-discrimination on the basis of sexual orientation.”