Despite same-sex marriage not being officially recognised in Hong Kong, a male civil servant successfully overturned the decision of the Secretary for Civil Service (Secretary) for denying spousal benefits to his same-sex spouse on the ground of unlawful discrimination based on sexual orientation in the High Court (HC) in Leung Chun Kwong v. Secretary for the Civil Service & Commissioner of Inland Revenue HCAL 258/2015 (Judgment handed down on 28/04/2017). The decision could have significant impact on the welfare and housing policies of the Government. Note nonetheless that the Secretary is now appealing the HC’s decision.

Background

  • Mr. Leung, a male Senior Immigration Officer of the Government, married another male in New Zealand, where same-sex marriage is legally permissible.
  • Under the Civil Service Regulations (CSR), Mr. Leung and his “family”, including an “officer’s spouse”, were entitled to medical and dental benefits provided by the Government. When Mr. Leung sought to apply for such benefits for his spouse, the Secretary rejected the application, stating that same-sex marriage was not recognised as a “marriage” under Hong Kong law (the Benefits Decision).
  • Separately, Mr. Leung sought to include his spouse for joint assessment of income tax purposes, but the Commissioner of Inland Revenue rejected the application and replied that same-sex marriage was not a valid marriage for the purposes of the Inland Revenue Ordinance (Cap. 112) (IRO) under which “marriage” and “spouse” were only so defined to cover heterosexual marriage (the Tax Decision).
  • Mr. Leung applied to the High Court for judicial review against the Benefits Decision and Tax Decision based primarily on constitutional grounds under the Basic Law, Hong Kong Bill of Rights and the common law for discrimination against his right to equality on the ground of his sexual orientation.

High Court decision

  • In determining whether one’s right to equality has been infringed, the court adopted a four-step proportionality test to assess whether a difference in treatment pursues, is rationally connected and is no more than necessary to pursue a legitimate aim, and whether a reasonable balance has been struck between the societal benefits of the encroachment and inroads made into the individual’s constitutionally protected rights.
  • As regards the Benefits Decision, the HC held that:

(i) the Decision manifested a difference in treatment to Mr. Leung based on his same-sex marriage as compared to other civil servants who have entered into heterosexual marriages recognised under Hong Kong law;

(ii) such difference was based at least indirectly on Mr. Leung’s sexual orientation as Mr. Leung, due to his sexual orientation, cannot be expected to enter into a heterosexual marriage and that same-sex marriage is not recognised under Hong Kong law; and

(iii) the differential treatment based on sexual orientation cannot be justified by, amongst others, the protection of the institution of traditional family – the distinction between heterosexual and homosexual couples may only be aimed at discouraging homosexual relationships in general which however cannot be regarded as a legitimate aim.

Therefore, the Benefits Decision unlawfully discriminated against Mr. Leung based on his sexual orientation.

  • As regards the Tax Decision, the HC determined that “marriage” in the IRO only covers heterosexual marriage as the IRO refers to “spouse” as “a husband or wife”. The Tax Decision thus correctly decided that Mr. Leung’s same-sex marriage was not a marriage for the purposes of the IRO as a matter of construction. The court therefore rejected Mr. Leung’s challenge of the Tax Decision.

Comment

The court seems to have treated the Benefits Decision and Tax Decision differently based on interpretation of the underlying source documents. For the Benefits Decision, the term “spouse” is not defined under the CSR and there has not been express incorporation of the definition of “marriage” under the Marriage Ordinance (Cap. 181) into the CSR. For the Tax Decision, on the other hand, the terms of “spouse” and “marriage” are defined under the IRO which the court narrowly construed.

While, as observed by the court, a complaint against discrimination based on sexual orientation under the Sex Discrimination Ordinance (Cap. 480) is untenable, employees may derive overarching protection against discrimination from the Basic Law and the Hong Kong Bill of Rights (which only binds the government and public authorities explicitly). Therefore, one may expect more of such similar benefits claims by same-sex spouses in the public sector.