HCAL
258/2015
IN
THE HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT
OF FIRST INSTANCE
CONSTITUTIONAL
AND ADMINISTRATIVE LAW LIST NO 258 OF 2015
____________
BETWEEN
|
||
|
LEUNG
CHUN KWONG
|
Applicant
|
and
|
||
|
SECRETARY
FOR THE CIVIL SERVICE
|
Putative
1st Respondent |
|
COMMISSIONER
OF INLAND REVENUE
|
Putative
2nd Respondent |
____________
Before:
Hon Chow J in Court
|
Date
of Hearing: 15 - 16 December 2016
|
Date
of Judgment: 28 April 2017
|
___________________
J
U D G M E N T
___________________
INTRODUCTION
(1) whether Mr Leung, a civil servant who has entered into a same-sex marriage with Mr Adams in New Zealand, is 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; and
(2) whether Mr Leung’s same-sex marriage with Mr Adams is a “marriage” for the purposes of the Inland Revenue Ordinance.
BACKGROUND
FACTS
(a) Personal
background
3. Mr Leung
(the applicant) is a Chinese national and a permanent resident of the
Hong Kong Special Administrative Region.
4. He
joined the Government as an Immigration Officer on 2 January
2003, and is currently a Senior Immigration Officer.
5. According
to Mr Leung, throughout his adult life, he has self‑identified
as a gay person and has only ever engaged in same-sex romantic
relationships. In around 2005 he met Mr Adams,
in August 2013 they started living together, and in late
2013 they decided to marry each other.
6. In
view of the fact that the law regulating marriages in Hong Kong did
not allow or provide for persons of the same sex to celebrate or
contract a marriage in Hong Kong, Mr Leung and Mr Adams
decided to marry in Auckland, New Zealand, where such marriage was
legally permissible. On 18 April 2014, Mr Leung
and Mr Adams were married in New Zealand.
(b) The
Benefits Decision
7. As
a civil servant, Mr Leung’s contract of employment with the
Government is, and at all material times was, subject to the Civil
Service Regulations (“CSRs”).
8. Pursuant
to CSR 4, the Secretary for Civil Service (“the Secretary”) is
authorised to amend, supplement, apply, interpret and make exceptions
to the CSRs. For the purposes of administering the CSRs, it is
the policy of the Secretary to interpret and apply the CSRs in a
manner that is consistent with the existing relevant laws of Hong
Kong.
9. Under
CSRs 900 to 925 and 950 to 954, Mr Leung is entitled to certain
medical and dental benefits provided by the Government. Such
benefits are also extended to Mr Leung’s “family”, which
is defined in CSR 900(2) to mean –
“the
officer’s spouse and children (including children of
divorced/legally separated officers, step-children, adopted children
and illegitimate children) who are unmarried and under the age of 21.
In the case of children aged 19 or 20, they must also be in full time
education or in full time vocational training, or dependent on the
officer as a result of physical or mental infirmity.”
“Every
officer is required to inform his Department immediately of the
birth, adoption, marriage and death of each dependent child … and
of any change in his marital status, including marriage, divorce, or
the death of his wife…”
11. On
27 March 2014, Mr Leung wrote to the Civil Service
Bureau (“the CSB”) stating that he intended to enter into a
same-sex marriage in New Zealand, and asked whether he was required
to update his marital status under CSR 513 having regard to the fact
that “same sex marriage is not recognized in HKSAR”.
12. On
30 April 2014, the Secretary replied to Mr Leung
stating that his intended same-sex marriage in New Zealand fell
outside the meaning of “marriage” under the CSRs, and such
marriage would not constitute “a change in marital status” on his
part which would require reporting under CSR 513.
13. There
were further emails passing between Mr Leung and the Secretary
on this matter. It is not necessary to summarise the contents of
those emails in this judgment save to mention that by an email to the
Secretary dated 28 October 2014, Mr Leung stated as
follows:-
“… I
was shocked with the previous reply given by your Bureau that I do
not require to report my same sex spouse under the CSR. According to
your advice, not only that it denies my right to update my marital
status and having my spouse as emergency contact, it also denies my
access to benefits such as my spouse should be entitled to medical
and dental services [sic]. All of these are in violation of the [Code
of Practice against Discrimination in Employment on the Ground of
Sexual Orientation] promoted by the Government. The only ground for
the denial was merely on the ground of my sexual orientation, which
is morally wrong and irrational.”
14. Mr Leung
ended by asking the Secretary to look into the matter and advise (i)
whether he was required to update his marital status as stipulated
under CSR 513 as he was legally married with his same-sex spouse, and
(ii) whether his same-sex spouse was entitled to benefits which other
heterosexual spouses enjoyed.
15. Mr Leung’s
email of 28 October 2014 was substantively answered by the
Secretary by an email dated 17 December 2014, in which the
first decision (the “Benefits Decision”) under challenge in this
application for judicial review was embodied. The Secretary’s
reply, so far as material, was as follows:-
“We
would like to reiterate that for the purpose of administering CSR
513, ‘marriage’ refers to a ‘formal ceremony recognised by the
law as involving the voluntary union for life of one man and one
woman to the exclusion of all others’ as provided under section 40
of the Marriage Ordinance (Cap.181). Since the same sex marriage as
mentioned in your case falls outside the definition of ‘marriage’
as referred to under CSR 513, such marriage does not constitute a
‘change in marital status’ on your part for the purpose of the
CSR which requires reporting under CSR 513.
As
explained above, same sex marriage falls outside the scope of
‘marriage’ under the Marriage Ordinance (Cap.181) and is not
recognised for the purpose of administering staff benefits under CSRs
by the Government. In this respect, we wish to clarify that there is
no violation of the COP for not granting your same sex partner the
benefits since the ‘benefits’ under Section 5 of the COP
applicable to married persons refer only to the marriages as
recongised in Hong Kong.”
(c) The
Tax Decision
16. In
or around May 2015, Mr Leung sought to e-file his
income tax return for the year of assessment 2014/15 with the Inland
Revenue Department (“IRD”). However, when he sought to enter the
name of Mr Adams as his spouse in the IRD’s e-filing system,
an error message (namely, “Your spouse name prefix must be
different from your own name prefix [547-E-1039]”) appeared.
17. Mr Leung
raised this matter with the IRD by email on 1 June 2015,
claiming that (i) in the IRD’s guideline for completing tax returns
it was stated that “spouse” meant “lawful husband or wife under
a valid marriage recognized by Hong Kong law or other legal marriage
recognized by the law of the place where it was entered into”, (ii)
he and his spouse was legally married in New Zealand under their law
and their marriage were valid, and (iii) accordingly he met the
criteria of the IRD’s guideline.
18. An
assessor on behalf of the Commissioner of Inland Revenue (“the
Commissioner”) replied to Mr Leung by an email dated
9 June 2015, in which the second decision (the “Tax
Decision”) under challenge in this application for judicial review
was embodied. The reply, so far as material, was as follows:-
“Insofar
as same-sex marriage is concerned, the position of the Department can
be found in paragraph 5 of Departmental Interpretation and Practice
Notes No.18 (Revised) ‘Assessment of Individuals under Salaries Tax
and Personal Assessment’, which is reproduced below for your easy
reference:-
‘Same-Sex
Marriages
5.
A same-sex marriage is not regarded as a valid marriage for the
purposes of the (Inland Revenue) Ordinance. Although the definition
of ‘marriage’ in section 2(1) does not expressly oust one between
persons of the same sex, it does make reference to a marriage between
a ‘man’ and any ‘wife’. Under section 2, ‘husband’ means
a married man and ‘wife’ means a married woman. ‘Spouse’ is
defined under the same section as a husband or wife. Marriage in the
context of the Ordinance is thus intended to refer to a heterosexual
marriage between a man and a woman. Parties in a same-sex marriage
cannot be ‘husband/wife’ and they would be incapable of having a
‘spouse’.’
As
such, the Department’s online tax filing system is designed in such
a manner that it will not accept a taxpayer to enter a person with
the same sex as his/her spouse.”
19. On
14 September 2015, the IRD received from Mr Leung a completed 2014/15
Tax Return – Individuals in paper form, in which Mr Leung
elected for joint assessment with Mr Adams. The Commissioner
considered that Mr Leung was not entitled to elect for joint
assessment, as he and Mr Adams were not husband and wife for the
purposes of the IRO. The Commissioner therefore assessed Mr
Leung for salaries tax for the year of assessment 2014/15 on
individual basis.
20. As
confirmed by the Commissioner, the total salaries tax liabilities of
Mr Leung and Mr Adams (as separately assessed) have not
been adversely affected by the refusal of the IRD to recognize
Mr Leung’s same-sex marriage with Mr Adams as a valid
marriage for the purpose of the IRO, in that Mr Leung and
Mr Adams would not obtain any reduction of total tax liabilities
even if they were allowed to elect for joint assessment as a married
couple.
21. In
passing, I should mention that Mr Leung also raised his
aforesaid complaints with the Equal Opportunities Commission and the
Ombudsman. It is not necessary to set out the details of his
complaints to, or the responses given by, the Equal Opportunities
Commission and the Ombudsman in this judgment because they are not
relevant to the proper resolution of the legal issues raised in this
application.
(d) The
application for judicial review
22. On
25 December 2015, Mr Leung filed a Form 86 to apply
for leave to apply for judicial review of the Benefits Decision and
the Tax Decision. In his Form 86, Mr Leung also sought an
extension of time to bring the application.
23. On
17 March 2016, Au J directed that there be a rolled up
hearing of (i) the application for an extension of time to apply for
leave to apply for judicial review, (ii) the application for leave to
apply for judicial review (in the event that an extension of time was
granted), and (iii) the substantive application for judicial review
(in the event that leave to apply for judicial review was granted).
24. The
above applications came before this court on 15 and 16 December 2016.
As confirmed by Ms Lisa Wong SC (appearing, together with Mr Johnny
Ma, for the Secretary and the Commissioner) at the hearing,
Mr Leung’s application for an extension of time to apply for
leave to apply for judicial review was not opposed.
25. Mr Leung’s
challenges against the Benefits Decision and Tax Decision are based
primarily on constitutional grounds. In particular, it is
contended that those decisions are discriminatory against him based
on his sexual orientation and in breach of his right to equality
under (i) Article 25 of the Basic Law (“BL 25”), (ii)
Articles 1(1) and 22 of the Hong Kong Bill of Rights (“BOR 1(1)”
and “BOR 22” respectively), and (iii) common law.
(1) in support of his challenge against the Benefits Decision, Mr Leung relies on – (i) BOR 14 (protection of privacy, family, home, etc), (ii) the Sex Discrimination Ordinance, Cap 480 (“the SDO”), (iii) the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation (“the COP”) (see paragraph 4(1) of the Form 86), and (iv) BL 37 (freedom of marriage and right to raise a family) (see paragraphs 94 and 175 of the Form 86); and
(2) in support of his challenge against the Benefits Decision, Mr Leung relies on (i) Section 2(1) of the Inland Revenue Ordinance, Cap 112 (“the IRO”), and (ii) BOR 14 (see paragraph 4(2) of the Form 86).
27. In
what follows, I shall first examine Mr Leung’s case based
on the right to equality (or not to be discriminated against) which
lies at the heart of this application for judicial review.
I shall deal with the other grounds relied upon by Mr Leung
more briefly towards the end of this judgment.
THE
BENEFITS DECISION UNLAWFULLY DISCRIMINATES AGAINST MR LEUNG BASED ON
HIS SEXUAL ORIENTATION
(a) The
Court’s approach to the right to equality
28. The
constitutional right to equality is set out in the following
provisions in the Basic Law and the Hong Kong Bill of Rights:-
(1) BL 25
“All
Hong Kong residents shall be equal before the law.”
(2) BOR 1(1) (Entitlement to rights without distinction)
“The
rights recognised in this Bill of Rights shall be enjoyed without
distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status.”
(3) BOR 22 (Equality before and equal protection of law)
“All
persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.”
29. The
right to equality had been considered by the Hong Kong courts on a
number of previous occasions. In Secretary for Justice
v Yau Yuk Lung (2007) 10 HKCFAR 335, the constitutionality
of the offence of homosexual buggery between men otherwise than in
private under Section 118F(1) of the Crimes Ordinance,
Cap 200, was challenged on the ground that it amounted to
discrimination based on sexual orientation. At paragraphs 19
to 22 of the judgment of the Court of Final Appeal, Li CJ set out the
court’s basic approach for determining whether a person’s right
to equality (or not to be discriminated against) had been infringed,
as follows:-
“19
In general, the law should usually accord identical treatment to
comparable situations. As Lord Nicholls observed in Ghaidan
v Godin-Mendoza [2004]
2 AC 557 at 566C:
‘Like
cases should be treated alike, unlike cases should not to be treated
alike.’
20
However, the guarantee of equality before the law does not invariably
require exact equality. Differences in legal treatment may be
justified for good reason. In order for differential treatment to be
justified, it must be shown that:
(1)
The difference in treatment must pursue a legitimate aim. For any aim
to be legitimate, a genuine need for such difference must be
established.
(2)
The difference in treatment must be rationally connected to the
legitimate aim.
(3)
The difference in treatment must be no more than is necessary to
accomplish the legitimate aim.
The
above test will be referred to as ‘the justification test’. In
the present case, the Court has had the benefit of submissions on its
appropriate formulation. There is no material difference between the
justification test and the test stated in R v Man Wai Keung
(No. 2) [1992] 2 HKCLR 207 at 217 which was used by the
Court in So Wai Lun v HKSAR (2006) 9 HKCFAR 530 at
para. 20.
21
The burden is on the Government to satisfy the court that the
justification test is satisfied. Where one is concerned with
differential treatment based on grounds such as race, sex or sexual
orientation, the court will scrutinize with intensity whether the
difference in treatment is justified. See Ghaidan v
Godin-Mendoza at 568G (Lord Nicholls).
22
In requiring differential treatment to be justified, the view has
been expressed that the difference in treatment in question is an
infringement of the constitutional right to equality but that the
infringement may be constitutionally justified. See the Court
of Appeal’s judgment in the present case at 208B-C (Ma CJHC) and
in Leung v Secretary for Justice [2006] 4 HKLRD
211 at 234G-H. This approach is not appropriate. Where
the difference in treatment satisfies the justification test, the
correct approach is to regard the difference in treatment as not
constituting discrimination and not infringing the constitutional
right to equality. Unlike some other constitutional rights,
such as the right of peaceful assembly, it is not a question of
infringement of the right which may be constitutionally justified.”
30. As
subsequently explained by Ma CJ in paragraph 57 of his judgment
in the Court of Final Appeal in Fok Chun Wa v Hospital
Authority (2012) 15 HKCFAR 409, the above passages have
sometimes been taken as specifying a two-stage test:-
(1) The first stage is to identity the comparators: the person complaining is comparing his position with someone who is said to be in a comparable position. The question is asked: are these persons in comparable positions?
(2) The second stage assumes that the first stage is passed (in other words, the court regards the comparators as being in comparable or analogous positions), and the question is: can the differences in treatment between the comparators be justified using the Yau Yuk Lung justification test.
31. As
further explained by Ma CJ, while the two-stage approach can in some
cases be neatly applied, it should not be regarded as if it were a
statute and treated as such. In particular, it should not give
rise to complicated and long-drawn out (but ultimately unproductive)
arguments as to whether this step or that step has been overcome, or
obscure the real issues in a case. There is no objection in
adopting the two-stage approach as long as one firmly bears in mind
the following (see paragraph 58 of Fok Chun Wah):
“(1)
The object of the exercise (when considering issues of equality) is
ultimately to ask a simple question and here, I would respectively
adopt the way in which this was put by Lord Hoffmann in Carson in
186H (para 31), ‘is there enough of a relevant difference between X
and Y [the comparators] to justify differential treatment?’
(2)
In the majority of cases where equality issues are involved, it will
be necessary for the Court to look at the materials which go to the
three facets of the justification test before this crucial question
is answered. It will be rare case, I daresay, where the court will
comfortably be able to answer this question without any recourse to
the issue of justification at all. Seen in this way, it may matter
not at all whether the court’s approach is seen as a two-stage one
or not.
(3)
Here, I associate myself with the approach of Lord Nicholls of
Birkenhead in Carson in 179C-E (para 3):-
‘3.
For my part, in company with all your Lordships, I prefer to
keep formulation of the relevant issues in these cases as simple and
non-technical as possible. Article 14 [of the European
Convention on Human Rights – the equipment of Article 22 of the
Bill of Rights] does not apply unless the alleged discrimination is
in connection with a Convention right and on a ground stated in
article 14. If this prerequisite is satisfied, the essential
question for the court is whether the alleged discrimination, that
is, the difference in treatment of which complaint is made, can
withstand scrutiny. Sometimes the answer to this question will be
plain. There may be such an obvious, relevant difference between the
claimant and those with whom he seeks to compare himself that their
situations cannot be regarded as analogous. Sometimes, where the
position is not so clear, a different approach is called for. Then
the court’s scrutiny may best be directed at considering whether
the differentiation has a legitimate aim and whether the means chosen
to achieve the aim is appropriate and not disproportionate in its
adverse impact.’”
32. In
other words, the question to ask is whether there is enough of a
relevant difference between the comparators to justify differential
treatment. In some cases, the relevant differences between the
comparators are so obvious that differential treatment can be
justified without going through the Yau Yuk
Lung justification test. Where, however, the relevant
differences between the comparators cannot be seen so clearly, the
three facets of the justification test should be considered.
33. Mr Nigel
Kat SC (appearing, together with Mr Azan Marwah, for Mr Leung)
further argues, in reliance on the recent judgment of the Court of
Final Appeal in Hysan Development Company Limited v Town
Planning Board, FACV 21 and 22 of 2015 (26 September 2016), that
there is a fourth element to the justification test, namely-
“whether
a reasonable balance has been struck between the societal benefits of
the encroachment and the inroads made into the constitutionally
protected rights of the individual, asking in particular whether
pursuit of the societal interest results in an unacceptably harsh
burden on the individual” (see paragraph 135 per Ribeiro
PJ).
34. The
rationale for adding the fourth element in the proportionality
analysis appears to be the concern that the traditional three‑step
inquiry is “anchored in an assessment of the law’s purpose” but
fails to take full account of the “severity of the deleterious
effects of a measure on individuals or groups” (see Alberta
v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, at
paragraph 76 per MaLachlin CJ, quoted by
Ribeiro PJ at paragraph 71 of his judgment in Hysan).
“While
in the great majority of cases the result arrived at after
undertaking the first three inquiries is unlikely to be changed by
it, a four-step analysis should, in my view, be explicitly adopted in
Hong Kong. Without its inclusion, the proportionality assessment
would be confined to gauging the incursion in relation to its aim.
The balancing of societal and individual interests against each other
which lies at the heart of any system for the protection of human
rights would not be addressed. This requires the Court to make a
value judgment as to whether the impugned law or governmental
decision, despite having satisfied the first three requirements,
operates on particular individuals with such oppressive unfairness
that it cannot be regarded as a proportionate means of achieving the
legitimate aim in question. But that should not cause the Court to
shy away from the fourth question since such a value judgment is
inherent in the proportionality analysis.”
36. Although
the Court of Final Appeal in Hysan was concerned
with the proper approach to the proportionality analysis in the
context of encroachment of private property rights protected under BL
6 and 105 by town planning laws and regulations, it seems to me that
the fourth element in the proportionality analysis is, in principle,
also relevant to the question of whether a differential treatment can
be justified when considering a discrimination complaint.
37. One
other matter should be borne in mind when considering the issue of
justification. As pointed out by Ma CJ in Fok Chun Wa, at
paragraphs 77 and 78, where the reason for unequal treatment
strikes at the heart of core-values relating to personal or human
characteristics (such as race, colour, gender, sexual orientation,
religion, politics, or social origin), the court will subject the
relevant legislation or decision to a particularly severe scrutiny.
(b) What
the Benefits Decision decided?
“what
the Benefits Decision decided is that the expression ‘the officer’s
spouse’ in the definition of ‘family’ in CSR 900(2) refers to
one’s wife or husband under a marriage recognised by the marriage
law of Hong Kong and that [Mr Leung] and Mr Adams’ marriage was not
such a marriage” (see paragraph 11 of her Note of Oral Submissions
dated 16.12.2016, “the Note”).
(1) The present application is an application for judicial review of the Benefits Decision, and not CSR 900(2) which, insofar as material, defines “family” as including “the officer’s spouse” only for the purposes of CSRs 900-925 and 950-954.
(2) The case presented by Mr Leung to the Secretary was that (i) he had entered into a marriage with Mr Adams that was lawful and Mr Adams had become his spouse under the law of New Zealand; and (ii) Mr Leung and Mr Adams should thereby be recognised as married, and Mr Adams as Mr Leung’s spouse, for the purposes of the CSRs that benefit an officer’s spouse.
(3) Mr Leung’s claim to “equal treatment” under the CSRs was essentially premised upon Mr Adams having attained the status of his spouse by virtue of their marriage in New Zealand.
(4) Hence, all that the Secretary was invited by Mr Leung to decide was whether Mr Adams had, for the purposes of the CSRs that benefit an officer’s spouse, become Mr Leung’s spouse by virtue of their marriage in New Zealand.
(5) By the Benefits Decision, the Secretary decided that (i) the expression “the officer’s spouse” in the definition of “family” in CSR 900(2) referred only to one’s wife or husband under a marriage recognised by the marriage law of Hong Kong, (ii) the marriage between Mr Leung and Mr Adams was not a marriage recognised by the marriage law of Hong Kong, and (iii) hence, Mr Adams was not to be regarded as Mr Leung’s spouse for the purposes of the CSRs that benefit an officer’s spouse (see paragraphs 2, 3, 4 and 11 of the Note)
40. In
short, the distinction sought to be drawn by the Secretary is between
a decision on “status” and a decision on “entitlement to
benefits”.
41. I accept
that, in his initial email to the CSB dated 27 March 2014,
Mr Leung was merely seeking a direction on whether he was
required to update his marital status under CSR 513 in view of his
impending same sex marriage in New Zealand, and the Secretary’s
response was that Mr Leung was not required to do so because his
impending marriage fell outside the meaning of “marriage” under
the CSRs. On the face of the matter, the focus of the inquiry
and response was on Mr Leung’s marital status after his
intended same-sex marriage and the status of his intended same-sex
marriage partner under CSR 513.
42. However,
in Mr Leung’s email to the Secretary dated 28 October 2014,
he made it clear that he was seeking to update his marital status so
that his same-sex marriage partner (ie Mr Adams) would be
entitled to receive benefits, including medical and dental benefits,
provided by the Government which formed part of his (Mr Leung’s)
service entitlements under the CSRs. Mr Leung also
expressly complained that the denial of benefits to his same-sex
marriage partner was on the ground of his sexual orientation, which
he considered to be in violation of the COP and morally wrong and
irrational.
43. It
is equally clear from the Secretary’s reply email dated
17 December 2014 that the Secretary understood that
Mr Leung’s concern was not just the updating of his marital
status, but whether his same-sex marriage partner would be entitled
to receive benefits provided by the Government under the CSRs.
In that email, the Secretary, while reiterating that Mr Leung’s
same sex marriage was outside the definition of “marriage” as
referred to in CSR 513, also stated that the denial of “benefits”
to Mr Leung’s same-sex marriage partner did not violate the
COP.
44. In
other words, the Secretary was, by the email dated 17 December 2014,
communicating to Mr Leung his decision that Mr Leung’s
same-sex marriage partner would not be entitled to receive benefits
provided by the Government under the CSRs. Although the
Secretary’s reason for coming to that decision was that Mr Leung’s
same‑sex marriage was outside the definition of “marriage”
as referred to in CSR 513, it would, in my view, be too narrow a
reading of that email to regard it as being merely a decision on (i)
the meaning of the expression “the officer’s spouse” in the
definition of “family” in CSR 900(2), (ii) whether Mr Leung’s
same-sex marriage was a “marriage” for the purposes of the CSRs
that benefit an officer’s spouse, and (iii) whether Mr Leung’s
same-sex marriage partner was to be regarded as his “spouse” for
the purposes of the CSRs that benefit an officer’s spouse.
45. In
my view, having regard to the background and exchange of emails
leading to the Secretary’s email dated 17 December 2014,
the Benefits Decision as embodied in that email was intended, and
understood, to be a decision that Mr Adams would be denied the
benefits available to an officer’s spouse under CSRs 900-925 and
950-954 because the same‑sex marriage between Mr Leung and
Mr Adams in New Zealand was not legally recognised as a marriage
under Hong Kong law and therefore Mr Adams was not recognised as
Mr Leung’s spouse for the purposes of those regulations.
(c) The
differential treatment is based on sexual orientation
46. The
Benefits Decision manifests a difference in treatment accorded to
Mr Leung, who has entered into a same-sex marriage with Mr Adams
in New Zealand, when compared to other civil servants who have
entered into valid and legally recognised heterosexual marriages
(whether in Hong Kong or overseas) under Hong Kong law. On the
face of the matter, the differential treatment is based simply on the
marital status of the officer in question.
47. On
behalf of the Secretary, Ms Wong argues that the true eligibility
criterion for the spousal benefits under the relevant CSRs is a legal
marital status (see paragraph 15 of the Note). It is
further argued that the special status conferred by marriage is well
recognised and it is legitimate to use the status of marriage as a
criterion in relation to benefits and fiscal treatment (see
paragraph 16 of the Note).
(1) In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, which raised the question of the constitutionality of a fixed rule which denied unmarried couples from the process of being assessed as potential adoptive parents, Lord Hoffmann stated the following at paragraph 7:-
“It
is clear that being married is a status. In Salvesen
or von Lorang v Administrator of Austrian Property [1927] AC 641,
653 Viscount Haldane said: ‘the marriage gives the husband and wife
a new legal position from which flow both rights and obligations with
regard to the rest of the public. The status so acquired may vary
according to the laws of different communities.’”
(2) In the joint judgment of Dame Elizabeth Butler-Sloss P and Robert Walker LJ in Bellinger v Bellinger (Attorney General intervening) [2002] Fam 150, a case concerning the validity of a marriage between a transsexual female and a male person, the following was said at paragraph 99:-
“We
are however concerned with legal recognition of marriage which, like
divorce, is a matter of status and is not for the spouses alone to
decide. It affects society and is a question of public policy. For
that reason, even if for no other reason, marriage is in a special
position and is different from the change of gender on a driving
licence, social security payments book and so on. Birth, adoption,
marriage, divorce or nullity and death have to be registered…
Status is not conferred only by a person upon himself; it has to be
recognised by society.”
(3) When that case reached the House of Lords ([2003] 2 AC 467), Lord Hope of Craighead observed, at paragraph 58 of the judgment, that “… the law of marriage exists in order to define the circumstances in which the public status that follows from a valid marriage may be acquired.”
(4) In his recent judgment in QT v Director of Immigration [2016] 2 HKLRD 583, Au J referred to the above cases in footnote 9 and stated in paragraph 26 that being married is a special legal status which gives the married couple new legal rights and obligations with regard to the rest of the public.
49. A
combination of two factors means, however, that the special legal
status of being married as recognised by Hong Kong law would not be
achievable by Mr Leung.
50. First,
it is clear, and not in dispute, that Hong Kong law does not
recognise same-sex marriages. This can be seen clearly from the
following statutory provisions:-
(1) Section 40 of the Marriage Ordinance (Cap 181) –
“(1)Every
marriage under this Ordinance shall be a Christian marriage or the
civil equivalent of a Christian marriage.
(2)
The expression ‘Christian marriage or the civil equivalent of a
Christian marriage’ implies a formal ceremony recognized by the law
as involving the voluntary union for life of one man and one woman to
the exclusion of all others.”
(2) Section 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179) –
“A
marriage which takes place after 30 June 1972 shall be void on any of
the following grounds only –
(d)
that the parties are not respectively male and female.”
51. In
the joint judgment of Ma CJ and Ribeiro PJ in W v Registrar
of Marriages [2013] 3 HKLRD 90, at paragraph 63,
reference was made to the common ground that “a marriage for
constitutional as for common law purposes is the voluntary union for
life of one man and one woman to the exclusion of all others” (see
also paragraph 25 of that judgment). Further, at
paragraph 65, it was stated that “[i]t is in the nature of the
institution of marriage that it must be subject to legal regulation,
for instance, as to marriage having to be monogamous and between a
man and a woman …”.
52. For
the purpose of the present discussion, it is not necessary to
consider the fact that, in some contexts and for certain specific
purposes, a polygamous heterosexual marriage to which a male person
is a party and valid under his personal law may be recognised under
various statute laws in Hong Kong (for example, Section 2(1) of
the Pension Ordinance (Cap 89), Section 2(1)
of the Pension Benefits Ordinance (Cap 99), and
Section 2(1) of the Surviving Spouses’ and Children’s
Pension Ordinance (Cap 79)), because no such marriage
is involved in the present case.
53. Second,
due to his sexual orientation, Mr Leung cannot, or cannot be
expected to, enter into a heterosexual marriage.
54. Seen
in this light, the difference in treatment accorded to Mr Leung
should, in my view, be regarded as being based, at least indirectly,
on his sexual orientation. Support for this view can be found
in:-
(1) the decision of the Privy Council in Rodriguez v Minister of Housing of Gibraltar [2009] UKPC 52; and
(2) the decision of the UK Supreme Court in Bull v Hall [2013] UKSC 73.
(1) The tenant of a government flat who lived there with her same-sex partner challenged a Gibraltar government policy under which joint tenancies in respect of a government flat would only be granted to couples if they were married to one another or had a child in common.
(2) The challenge was advanced on the basis that the policy was contrary to (i) Section 7 of the Constitution of Gibraltar (protection of privacy of home and other property), and (ii) Section 14 thereof (protection from discrimination on prohibited grounds, including race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex, creed, properly, birth or other status, or such other grounds as the European Court of Human Rights might, from time to time, determine to be discriminatory).
(3) Under the legislation there in force, if one of a married couple died and the deceased was, prior to his/her death, a tenant of a government flat, the surviving spouse would have a statutory right to be granted a new tenancy in respect of the flat. However, this right was denied to the survivor of a same-sex couple who were unable to marry or enter into a civil partnership in Gibraltar (at that time).
(4) In so far as the granting of joint tenancies to couples was concerned, the relevant Gibraltar government policy was as follows:-
“Applications
for joint tenancies are generally approved if the application is made
by a married partner, parent, adult child or common law partner of
the tenant. The protection of the family and in particular children
is considered of prime importance… In the case of common law
partners approval is only granted if the common law partner of the
tenant and the tenant have at least one minor child in common living
with them … The reason for granting joint tenancies to common law
partners with children in common is to protect the interests of the
children by providing each of the parents with equal tenancy rights
and in the spirit of protection of the family… Similar applications
by common law heterosexual partners who do not have children in
common are not favourably considered.”
(5) It was held by the Privy Council that the policy was discriminatory. Delivering the opinion of the Board, Lady Hale stated at paragraph 19 as follows:-
“In
this case we have a clear difference in treatment but not such an
obvious difference between the appellant and others with whom she
seeks to compare herself. The appellant and her partner have been
denied a joint tenancy in circumstances where others would have been
granted one. They are all family members living together who wish to
preserve the security of their homes should one of them die. The
difference in treatment is not directly on account of their sexual
orientation, because there are other unmarried couples who would also
be denied a joint tenancy. But even if, as Dudley J found, these are
the proper comparator, the effect of the policy upon this couple is
more severe than on them. It is also more severe than in most cases
of indirect discrimination, where the criterion imposed has a
disparate impact upon different groups. In this case, the criterion
is one which this couple, unlike other unmarried couples, will never
be able to meet. They will never be able to get married or to have
children in common. And that is because of their sexual orientation.
Thus it is a form of indirect discrimination which comes as close as
it can to direct discrimination. Indeed, Mr Singh puts this as
a Thlimmenos case:
they are being treated in the same way as other unmarried couples
despite the fact that they cannot marry or have children in common.
As Ackermann J put it in the South African Constitutional Court
decision in National
Coalition for Gay and Lesbian Equality v Minister of Home
Affairs [2000]
4 LRC 292, at para 54, the impact of this denial ‘constitutes a
crass, blunt, cruel and serious invasion of their dignity’.”
(6) In short, the relevant policy amounted to a form of “indirect discrimination”, because homosexual couples would not be able to get married or have children in common and therefore the effect of the policy would be more severe on them than on other unmarried, heterosexual, couples.
(7) The Board also considered that the policy could not be “justified” and was therefore in contravention of Sections 7 and 14 of the Constitution of Gibraltar. I shall come back to the issue of justification later in this judgment.
(1) A same-sex couple who had entered into a civil partnership in the UK (which has been legally permissible since the coming into force of the Civil Partnership Act 2004 on 5 December 2005) complained that they were unlawfully discriminated against by devoted Christian hotel keepers who refused to rent a double-bedded room to them because they sincerely believed that “the only divinely ordained sexual relationship is that between a man and a woman within the bonds of matrimony”. Accordingly, their booking rule provided that double accommodation would be let to heterosexual married couples only, but twin bedded and single rooms would be let to any person regardless of marital status or sexual orientation.
(2) The issues were –
(a) whether there was direct or indirect discrimination on the ground of sexual orientation under Regulation 3 of the Equality Act (Sexual Orientation) Regulations 2007made under the Equality Act 2006;
(b)whether the discrimination, if indirect, could be justified; and
(c) whether the Regulations were incompatible with the hotel keepers’ right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights.
(3) The UK Supreme Court held (i) by a majority (Lord Neuberger and Lord Hughes dissenting) that there was “direct” discrimination on the ground of sexual orientation, notwithstanding the fact that the hotel keepers would apply the same policy to refuse to let double bedded rooms to unmarried opposite sex couples, and (ii) unanimously that there was (at least) “indirect” discrimination on the ground of sexual orientation.
(4) It was further held, unanimously, that (i) if hotel keepers’ policy amounted to indirect discrimination it could not be justified, and (ii) the limitation of the hotel keepers’ right to manifest their religious beliefs by the Regulations was a proportional means of achieving the legitimate aim of protection of the right of the same-sex couple not to be discriminated against on the ground of their sexual orientation.
57. Much
of the judgment of the UK Supreme Court concerned the distinction
between “direct” and “indirect” discrimination, and the
question of whether the fact that the same-sex couple had entered
into a civil partnership turned the case into one of direct
discrimination. The niceties of the distinction between direct
and indirect discrimination, which appears in Regulation 3 of
the Equality Act (Sexual Orientation) Regulations 2007 but
not in BL 25, BOR 1(1) or BOR 22, are not important for our present
purpose because those equality provisions in the Basic Law and Hong
Kong Bill of Rights could be violated by either direct or indirect
discrimination (see the opinion of Lady Hale in Rodriguez v
Minister of Housing of Gibraltar quoted in paragraph 55(5)
above).
58. The
practice of the hotel keepers in Bull v Hall was (at
least) indirect discrimination based on sexual orientation because,
as observed by Lady Hale at paragraph 33 of her judgment –
“It
is not disputed that, if this is not direct discrimination, it is
indirect discrimination within the meaning of regulation 3(3). The
policy of letting double-bedded rooms only to married couples, while
applied to heterosexual and homosexual people alike, undoubtedly puts
homosexual people as a group at a serious disadvantage when compared
with heterosexuals, as they cannot enter into a status which Mr and
Mrs Bull would regard as marriage. It undoubtedly put both Mr Preddy
and Mr Hall at a disadvantage.”
59. The
following observations of Lord Toulson at paragraph 68 of his
judgment in Bull v Hall also explain why it is not
an answer for the Secretary to say in the present case that Mr Leung
and Mr Adams are treated no differently from other unmarried
couples in the civil service: -
“…
it
is true that in the case of unmarried heterosexuals it is not their
sexual orientation which causes Mr and Mrs Bull to treat them
differently from married heterosexuals, but the fact that the couple
have not chosen to marry. But it is a non
sequitur to
reason from this that the differential treatment of persons in a
civil partnership from that of married heterosexuals (or, similarly,
of same sex married couples from opposite sex married couples) is not
due to their sexual orientation, when that is the very factor which
separates them.”
60. In
all, I am of the view that the differential treatment in the
present case is based, indirectly, on sexual orientation.
(d) The
differential treatment cannot be justified
(1) Mr Leung and Mr Adams should be treated as an “unmarried couple”;
(2) as such, they are not in an analogous, or relevantly similar, situation to a legally married couple;
(3) there is no requirement to treat non-analogous situations in the same or similar way; and
(4) anyhow, it is legitimate to accord differential treatment based on the special status of marriage in relation to benefits and fiscal treatment (see paragraphs 90 to 96 of the Skeleton Submissions for the Putative Respondents dated 12 December 2016, “the Respondents’ Submissions”).
62. The
above argument is premised on the contention that the true
eligibility criterion for the spousal benefits under the relevant
CSRs is the legal marital status of the officer in question according
to the law of Hong Kong (see paragraphs 88 to 89 of the
Respondents’ Submissions).
63. For
the reasons explained above, although the differential treatment is,
on the face of the matter, based on the legal marital status of the
officer, I consider that it should also be regarded as being
based, indirectly, on sexual orientation. The question which
arises is whether it is justifiable to accord differential treatment
in respect of the “spousal” benefits under the CSRs based on
sexual orientation.
(1) in the absence of any legislation to recognise same-sex unions and regulate the rights and obligations of same-sex couples, it is legitimate and justified for the Secretary to act in line with the prevailing marriage law of Hong Kong in the administration of the CSRs;
(2) any decision to the contrary would require the Secretary to have regard to same-sex marriages despite their invalidity under Hong Kong law, or to at least indirectly recognise same-sex marriages as valid in Hong Kong “through the backdoor”, which cannot be right; and
(3) the Secretary’s policy is rationally connected to and is no more than reasonably necessary to achieve the legitimate aims of not undermining the integrity of the institution of marriage as understood in Hong Kong and of ensuring overall consistency with Hong Kong matrimonial laws hence safeguarding “public order (ordre public)” (see paragraphs 104 to 109 of the Respondents’ Submissions).
65. I am
not persuaded that these reasons provide sufficient justification for
the differential treatment in the present case. The first and
second reasons can be taken together. The line as drawn by the
Secretary between those who are legally married under Hong Kong law
and those who are not begs the question of whether it is legitimate
or justifiable to accord differential treatment based on sexual
orientation, because homosexual couples are, by definition, unable to
be legally married, or recognised as legally married, under Hong Kong
law. There is, so far as I can see, nothing illegal or
unlawful for the Secretary to accord the same spousal benefits to
homosexual couples who are legally married under foreign laws.
Neither can I see anything inherently wrong or impermissible,
from a legal point of view, for the Secretary to have regard to, or
indirectly recognise, an overseas same-sex marriage which is legally
valid under the law of the place at which the marriage is contracted
or celebrated. Wholly different considerations arise in respect of
“unmarried” couples which the court is not concerned with in the
present case.
66. In
so far as the third reason is concerned, I am unable to see how
the denial of “spousal” benefits to homosexual couples who are
legally married under foreign laws could or would serve the purpose
of not undermining the integrity of the institution of marriage in
Hong Kong, or protecting the institution of the traditional family.
As stated by Lady Hale at paragraph 26 of the opinionof the
Board in Rodriguez v Minister of Housing of Gibraltar:
“No-one
doubts that the ‘protection of the family in the traditional sense’
is capable of being a legitimate and weighty aim: see Karner
v Austria (2003)
38 EHRR 528, para 40. Privileging marriage can of course have the
legitimate aim of encouraging opposite sex couples to enter into the
status which the State considers to be the most appropriate and
beneficial legal framework within which to conduct their common
lives. Privileging civil partnership could have the same legitimate
aim for same sex couples. But, to paraphrase Buxton LJ in the Court
of Appeal's decision in Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533,
[2003] Ch 380,
at para 21, it is difficult to see how heterosexuals will be
encouraged to marry by the knowledge that some associated benefit is
being denied to homosexuals. They will not be saying to one another
“let’s get married because we will get this benefit and our gay
friends won’t”. Moreover, as Baroness Hale said in the same case
in the House of Lords [2004] UKHL 30, [2004] 2 AC 557, at para 143:
‘The
distinction between heterosexual and homosexual couples might be
aimed at discouraging homosexual relationships generally. But that
cannot now be regarded as a legitimate aim. It is inconsistent with
the right to respect for private life accorded to ‘everyone’,
including homosexuals, by article 8 since Dudgeon v United Kingdom
(1981) 4 EHRR 149. If it is not legitimate to discourage homosexual
relationships, it cannot be legitimate to discourage stable,
committed, marriage-like homosexual relationships … Society wants
its intimate relationships, particularly but not only if there are
children involved, to be stable, responsible and secure. It is the
transient, irresponsible and insecure relationships which cause us so
much concern.’”
67. At
this juncture, I should also deal with two decisions relied upon
by Ms Wong in support of the Secretary’s case on justification,
namely:-
(1) the decision of the House of Lords in Ghaidan v Godin‑Mendoza [2004] 2 AC 557; and
(2) the recent decision of Au J in QT v Director of Immigration [2016] 2 HKLRD 583.
(1) The survivor of a homosexual (unmarried) couple challenged a law which denied him the entitlement to become a statutory tenant by succession upon the death of his partner who was, prior to his death, a protected tenant of a dwelling-house.
(2) Under paragraph 2(1) of Schedule 1 to the Rent Act 1977, the surviving “spouse” (if any) of the original tenant of a dwelling-house was entitled, after the death of the original tenant, to become the statutory tenant if and so long as he or she occupied the dwelling-house as his or her residence. Paragraph 2(2) of that schedule further provided that for the purpose of paragraph 2, a person who was living with the original tenant “as his or her wife or husband” was to be treated as the spouse of the original tenant. In other words, the benefit of a statutory tenancy was given not only to the “spouse” of the original deceased tenant, but extended to a person who, although not strictly a spouse, was living with the original tenant as his or her wife or husband.
(3) It was held by the House of Lords that paragraph 2(2) of Schedule 1 to the Rent Act 1977, on its ordinary meaning, treated survivors of homosexual partnerships less favourably than survivors of heterosexual partnerships without any rational or fair ground for such distinction, thereby infringing Articles 8 and 14 of the European Convention on Human Rights, and that (Lord Millet dissenting) paragraph 2(2) was to be read as extending the benefit of statutory tenancy to same-sex partners by reason of Section 3 of the Human Rights Act 1998.
69. Ghaidan
v Godin-Mendoza is, properly understood, a straight forward
case of discrimination based on sexual orientation. Parliament
expressly provided that the status of a “spouse” (as that term is
ordinarily understood) was not a pre-requisite to a statutory tenancy
arising in favour of the survivor of an unmarried couple. That being
the position, to differentiate between the survivors of homosexual
couples and heterosexual couples would plainly be differentiation
based on sexual orientation.
“138
We are not here concerned with a difference in treatment between
married and unmarried couples. The European Court of Human Rights
accepts that the protection of the ‘traditional family’ is in
principle a legitimate aim: see Karner
v Austria [2003] 2 FLR 623 ,
630, para 40. The traditional family is constituted by marriage. The
Convention itself, in article 12, singles out the married family for
special protection by guaranteeing to everyone the right to marry and
found a family. Had paragraph 2 of Schedule 1 to the Rent Act 1977
stopped at protecting the surviving spouse, it might have been easier
to say that a homosexual couple were not in an analogous situation.
But it did not. It extended the protection to survivors of a
relationship which was not marriage but was sufficiently like
marriage to qualify for the same protection. It has therefore to be
asked whether opposite and same sex survivors are in an analogous
situation for this purpose.
143
… What is really meant by the ‘protection’ of the traditional
family is the encouragement of
people to form traditional families and the discouragement of
people from forming others. There are many reasons why it might be
legitimate to encourage people to marry and to discourage them from
living together without marrying. These reasons might have justified
the Act in stopping short at marriage. Once it went beyond marriage
to unmarried relationships, the aim would have to be encouraging one
sort of unmarried relationship and discouraging another.”
71. It
is important to note, however, that when Baroness Hale said that the
protection of the traditional family was, in principle, a legitimate
aim which might justify differential treatment of “married” and
“unmarried” couples, she was there referring generally to married
and married couples. She was not saying that homosexual married
couples whose marriages were valid under foreign laws but not
recognised in the UK should be treated or regarded as “unmarried”
couples. In any event, whether a differential measure can be
regarded as contributing to the protection of the traditional family
must depend on the nature of the measure in question. As
earlier mentioned, I am unable to see how the differential
measure in the present case (namely, making available benefits to
spouses whose marriages are legally recognised under Hong Kong law
but denying the same to homosexual married couples whose marriages
are valid under foreign laws but not recognised here) would serve to
protect the traditional family.
72. QT
v Director of Immigration concerned the question of whether
it was permissible for the Director of Immigration to differentiate
between (i) a “heterosexual spouse” and (ii) a “homosexual
civil partner” of a sponsor who was working in Hong Kong under his
dependant policy which permitted a “spouse”, who did not have any
right of residence in Hong Kong, to join the sponsor in Hong Kong as
his/her dependent.
73. The
Director’s justification for the differential treatment in that
case was that “it pursues the legitimate aim of striking a balance
between (1) maintaining Hong Kong’s continued ability to attract
people with the right talent and skills to come to Hong Kong to work
(by giving them the choice of bringing in their closest dependants to
live with them in Hong Kong and to care for and support them in Hong
Kong); and (2) the need for a system of effective, strict and
stringent immigration control in the light of Hong Kong’s small
geographical size, huge population, substantial intake of immigrants,
relatively high per capita income and living standard, and local
living and job market conditions, which bring constant and high
pressure on Hong Kong’s society as a whole in particular the labour
market, social benefits system, housing, education and
infrastructure.”
74. Au
J held that the two classes of persons, namely, (i) unmarried parties
to a homosexual (or heterosexual) relationship, and (ii) married
persons were in sufficiently different positions considered in the
proper context and with reference to the Director’s justification
such as to justify differential treatment under the dependant
policy. In coming to this conclusion, Au J placed considerable
reliance on the fact that, in the context of immigration control, the
Director was entitled to draw a bright line, and in doing so, he was
also entitled to take into account considerations relating to
clarity, certainty of the line and administrative convenience of its
implementation, and have regard to Hong Kong’s matrimonial laws
which only recognised heterosexual and monogamous marriages (see
paragraphs 36 to 41 of the judgment in QT).
75. In
my view, QT is plainly distinguishable from the
present case because: (i) the differential treatment in QT is
in the context of immigration control in respect of which, according
to well established authorities, the Director has been entrusted with
a broad discretion under Article 145 of the Basic Law; and (ii)
of the particular justification advanced by the Director in that
case. No similar considerations arise in the present case.
76. I am
also unable to see how the aim of ensuring overall consistency with
Hong Kong matrimonial laws can legitimately justify the imposition of
discriminatory measures relating to conferral of civil service
benefits based on sexual orientation.
77. Having
reached the above conclusions, it is not necessary for me to deal
with the fourth element in the proportionality analysis which, as
earlier mentioned, must also be satisfied when considering whether a
differential treatment can be justified in the context of a
discrimination complaint.
78. In
all, I am of the view that the Benefits Decision unlawfully
discriminate against Mr Leung based on his sexual orientation.
THE
TAX DECISION DOES NOT ENGAGE THE RIGHT TO EQUALITY
(a) What
the Tax Decision decided?
79. It
is clear, from Mr Leung’s attempt to input Mr Adams’
name as his spouse in the e-tax return and also from his complaint to
the Commissioner as contained in his email dated 1 June 2015
(namely, that he could not enter his spouse’s name with a name
prefix that was the same as his), that what Mr Leung was seeking
was “recognition” of his same-sex marriage with Mr Adams as
a marriage for the purposes of the IRO. That was why, in that
email, Mr Leung relied on the Commissioner’s guideline for
completing a tax return, and in a subsequent email to the
Commissioner dated 9 June 2015 he relied on the definition
of “marriage” in Section 2 of the IRO, in support of his
contention that his same-sex marriage was a “marriage” for the
purposes of the IRO and should be recognised as such.
80. There
is, in my view, a real distinction between (i) a contention that
Mr Leung’s same-sex marriage with Mr Adams “is” a
marriage for the purposes of the IRO, and (b) a contention that the
same‑sex marriage should be “treated” as a marriage (even
though it is not) for the purposes of the IRO. The former
raises essentially a question of construction of statute, whereas the
latter raises essentially a question of right.
81. In
the Commissioner’s email to Mr Leung dated 9 June 2015
in which the Tax Decision was embodied, the Commissioner was making a
determination that Mr Leung’s same-sex marriage was not a
marriage for the purposes of the IRO. The Commissioner was not
saying to Mr Leung that his same-sex marriage could not, or
would not, be “treated” as a marriage, although I believe it
is pretty obvious that such would have been the Commissioner’s
response had Mr Leung directly raised that matter with the
Commissioner. This having been said, I do not consider
that it is permissible to reconstitute the Tax Decision in order to
read it as a decision refusing to treat Mr Leung’s same-sex
marriage as a valid marriage for the purposes of the IRO, however
desirable it may be for the court to reach a decision on whether such
(reconstituted) decision would amount to an unlawful discrimination
against Mr Leung.
82. Although,
as a consequence of the Tax Decision, Mr Leung was not permitted
to elect joint assessment with Mr Adams as a married couple for
the year of assessment of 2014/15, no prejudice was caused to them.
As mentioned in the evidence filed on behalf of the Commissioner and
as admitted by Mr Leung, it would have made no difference to
their total salaries tax liabilities for that year of assessment even
if such election could be made (see paragraph 45 of the affidavit of
Kung Chun Fai Frederick and paragraph 80 of the first
affirmation of Mr Leung).
(b) The
Tax Decision is correct as a matter of construction of statute
(a) any marriage recognized by the law of Hong Kong; or
(b) any marriage, whether or not so recognized, entered into outside Hong Kong according to the law of the place where it was entered into and between persons having the capacity to do so,
but shall not, in the case of a marriage which is both potentially and actually polygamous, include marriage between a man and any wife other than the principal wife.
84. The
above definition of “marriage” should be read together with, and
in the light of, the following definitions in Section 2(1) of
the IRO:-
(1) “husband” means “a married man whose marriage is a marriage within the meaning of this section”;
(2) “wife” means “a married woman whose marriage is a marriage within the meaning of this section”; and
(3) “spouse” means “a husband or wife”.
85. To
construe the expression “marriage” in the IRO as covering
same-sex marriages would run counter against the well established
meaning of that word for common law and constitutional purposes as
involving the voluntary union for life of one man and one woman to
the exclusion of all others (see W v Registrar of Marriages,
at paragraph 63 per Ma CJ and Ribeiro PJ).
86. In
my view, the Commissioner’s decision that Mr Leung’s
same-sex marriage with Mr Adams is not a marriage for the
purposes of the IRO is correct as a matter of construction of the
IRO. This was also the view reached by Au J in QT v
Director of Immigration (see paragraphs 77 to 83 of his
judgment).
(c) The
right to equality is not engaged
87. As
pointed out by Ms Wong, the present application is an application for
judicial review of the Tax Decision, not the definition of the word
“marriage” in the IRO, or the provisions in the IRO that provide
for joint assessment of married couples and the married person’s
allowance, or any other provisions in that Ordinance.
88. The
Tax Decision, to the effect that Mr Leung’s same-sex marriage
is not a “marriage” for the purposes of the IRO, is correct as a
matter of construction of that Ordinance. Whether the equality
provisions in the Basic Law or the Hong Kong Bill of Rights would
require a different interpretation to be given to that word in the
IRO, or the relevant provisions in the IRO to be struck down or
amended, do not arise for determination in Mr Leung’s present
challenge against the Tax Decision, and I express no view on those
questions.
89. I
accept Ms Wong’s submissions that the issue raised by Mr Leung
in his challenge against the Tax Decision is one of construction of
the definition of “marriage” in the IRO, and if the
Commissioner’s interpretation is correct that should be the end of
the matter (see paragraphs 22 and 23 of the Note).
90. In
all, Mr Leung fails in his challenge against the Tax Decision in
so far as it is contended that it violates his right to equality (or
not to be discriminated against based on sexual orientation) under
BL 25, BOR 1(1), BOR 22, or common law.
OTHER
GROUNDS
91. Having
reached the conclusion that the Benefits Decision amounts to unlawful
discrimination against Mr Leung based on his sexual orientation,
it is not necessary for me to consider his other grounds of complaint
against the Benefits Decision. I would merely observe
that:-
(1) The complaint based on the SDO cannot get off the ground, because the SDO is concerned with discrimination on the ground of “sex”, and not “sexual orientation” (see Smith v Gardner Merchant Ltd [1998] 3 All ER 852; MacDonald v Advocate General for Scotland [2003] UKHL 34, at paragraphs 6-7 per Lord Nicholls).
(2) The complaint based on BL 37 likewise has no substance –
(a) Whether to recognise same-sex marriages as legally valid marriages is, ultimately, a social policy decision for the legislature, and not for the court.
(b) There is, so far as I can see, nothing in either the Basic Law or the Hong Kong Bill of Rights which requires that Hong Kong law must recognise same-sex marriages as legally valid marriages. In this regard, Mr Kat has expressly confirmed, on behalf of Mr Leung, that he does not challenge the law or constitutional order of marriage in Hong Kong (see paragraph 4(f)(i) of his Supplemental Note – Further and Possible Contrary Arguments of Law dated 31 December 2015, and paragraph 4 of Mr Kat’s Skeleton Argument dated 8 December 2016).
(c) It may also be noted that it is clearly established, in the jurisprudence of the European Court of Human Rights, that neither Articles 8, 12 nor 14 of the European Convention on Human Rights (“ECHR”), relating respectively to the “right to respect for his private and family life”, the “right to marry and to found a family” and the “right to enjoyment of the rights and freedoms … without discrimination on any ground”, requires that a right to marry or form some other legal union be recognised for same-sex couples (see Schalk v Austria (2011) 53 EHRR 20 at paragraphs 61-64 and 99-109; X v Austria (2013) 57 EHRR 14 at paragraph 106; Boeckel v Germany(2013) 57 EHRR SE 3 at paragraph 28; Gas v France (2014) 59 EHRR 22 at paragraph 66; Hamalainen v Finland (2014) 37 BHRC 55 at paragraphs 71-75; Oliari v Italy (Application Nos 18766 and 36030/11, 21 July 2015) at paragraphs 177 and 189-194).
(d) In W v Registrar of Marriages, Ma CJ and Ribeiro PJ, at paragraphs 63 and 64 of their judgment in the Court of Final Appeal, referred to Article 12 of the ECHR which secured the fundamental right of a man and woman to marry and found a family, and said that the same plainly applied to Hong Kong under both BL 37 and BOR 19(2).
(e) I do not therefore consider that the Benefits Decision can in any way be said to infringe Mr Leung’s right to marry or raise a family under BL 37.
(1) I have already dealt with the issue relating to the true construction of Section 2(1) of the IRO.
(2) I do not see how the Commissioner’s decision that Mr Leung’s same-sex marriage with Mr Adams is not a “marriage” for the purposes of the IRO can be said to amount to an “arbitrary or unlawful interference with his privacy, family, home or correspondence, [or an] unlawful attack on his honour and reputation” under BOR 14.
DISPOSITION
93. In
the absence of opposition to Mr Leung’s application for an
extension of time to apply for leave to apply for judicial review of
the Benefits Decision and the Tax Decision, I grant the
necessary extension of time.
94. I also
grant Mr Leung leave to apply for judicial review of the
Benefits Decision and the Tax Decision, because I consider the
application to be reasonably arguable.
95. I allow
Mr Leung’s application for judicial review of the Benefits
Decision, but reject his application in respect of the Tax Decision.
I shall leave it to the parties to agree on the precise form of
the order to give effect to this judgment, with liberty to apply in
the event of disagreement. Given the implications of this
judgment on the administration of the CSRs in relation to spousal
benefits by the Secretary and to allow him sufficient time to
consider whether he wishes to make any application to this court or
make other interim arrangements as may be necessary, I would
direct that, subject to any further order of the court, the order to
be made in this application shall only take effect on 1 September
2017.
96. I make
an order nisi that the Secretary and the
Commissioner shall pay 60% of Mr Leung’s costs of this
application, to be taxed on a party and party basis if not agreed,
with certificate for two counsel. The deduction is made on
account of the following matters:
(1) Mr Leung has succeeded in his application in respect of the Benefits Decision, but failed in respect of the Tax Decision, based on his right to equality under BL 25, BOR 1(1), BOR 22, and common law; and
(2) Mr Leung has also failed in his challenge against the Benefits Decision and/or Tax Decision on various other grounds.
98. There
is one other matter that I must to say before ending this judgment.
The Form 86 in this case, as rightly criticised by Ms Wong, is
exceedingly lengthy, protracted, repetitive and convoluted. It
totally fails to satisfy the basic requirements of a proper form 86
as mentioned by Litton PJ in Lau Kong Yung v Director of
Immigration (1999) 2 HKCFAR 300 at 340E-G, whose
observations have recently been endorsed by the Court of Appeal
in Designing Hong Kong Limited v The Town Planning Board,
CACV 184/2015 (16 February 2017), at paragraph 68(2),
and is an unhelpful document.
99. Lastly,
it remains for me to thank counsel for the assistance that they
rendered to the court at the hearing of this interesting application,
as well as The International Commission of Jurists, who were granted
leave to intervene by the order of Au J dated 7 December 2016
and filed written submissions on 8 December 2016 relating
to the approach taken by the European Court of Human Rights on
various issues raised in this application.
(Anderson
Chow)
Judge of the Court of First Instance |
|
High
Court
|
Mr Nigel
Kat, SC and Mr Azan Marwah, instructed by Daly & Associates,
assigned by Director of Legal Aid, for the applicant
Ms
Lisa Wong, SC and Mr Johnny Ma, instructed by Department of
Justice, for the 1st and
2nd respondents
Hogan
Lovells, for The International Commission of Jurists
覆核同性配偶福利入境主任勝訴
公務員的同性配偶將可享與異性戀夫婦同等福利。高級入境事務主任與同性伴侶結婚後,不滿政府拒向其伴侶提供公務員配偶的醫療福利及拒絕他們共同評稅,遂入稟高院申請司法覆核。高院原訟庭昨裁決,指公務員事務局因申請人的性傾向而給予他較少福利,違反《基本法》和《人權法》下人人平等原則,故判此部分的覆核勝訴。至於針對稅務局的覆核,法官則指稅局對稅務法例中「婚姻」一詞的解釋無錯,故裁定申請人這部分的覆核敗訴。
判令延至九月生效
法官相信判決會影響公務員事務局運作,為預留時間予局方準備應對措施、或向法庭提出申請,他指示本案的判令延至今年九月一日才生效。法官並下令,政府要負責申請人六成訟費。
本案申請人梁鎮罡,昨透過律師回應稱,他與家人均對判決感到鼓舞,希望政府盡快執行法庭決定,並檢討其政策消除性傾向歧視。其代表律師則指,判決是對性小眾權益的一小進步,希望作為香港最大僱主的政府,可以身作則保障同志僱員權益,下一步他們將詳細研究判詞,以決定是否就敗訴部分提出上訴。
梁鎮罡於○三年加入政府,任職入境事務主任,現職高級入境事務主任。他○五年認識其英籍同性戀人,一三年開始同居並決定結婚。因香港未有同性婚姻,兩人於一四年在新西蘭註冊成婚。梁之後去信公務員事務局,要求把婚姻狀況改成已婚,並表示其伴侶應有權以配偶身份,享用公務員家人的醫療和牙醫福利,但局方指其婚姻不獲香港承認,拒絕其更改申請