Leung Chun Kwong v. Secretary for the Civil Service and Another [2019] HKCFA 19

It is fitting that World Pride Month 2019 brings with it an important victory for Hong Kong's LGBT community. On 6 June, the Hong Kong Court of Final Appeal ruled in favour of Angus Leung's bid to grant him and his same-sex husband the right to government spousal benefits and their election for joint tax assessment. The judgment is the latest in a string of decisions focused on the rights of same-sex couples in Hong Kong, coming as it does less than a year following a similar high profile decision on the right of same-sex partners to apply for a dependent's visa (QT v Director of Immigration [2018] HKCFA 28).

Two key decisions

Mr. Leung commenced employment as an immigration officer with the Hong Kong government in 2003. In 2014, he married his same-sex partner, Scott Adams, in New Zealand where same-sex marriage is legally recognised. The couple were issued with a New Zealand Marriage Certificate.

The judgment centres around two key decisions taken by the government:

  1. The Benefits Decision. Under the Civil Service Regulations, civil servants such as Mr. Leung are entitled to various medical and dental benefits that extend to his/her "spouse". In anticipation of his marriage in New Zealand, Mr. Leung sought to update his marital status so that Mr. Adams could gain access to these spousal benefits. The Civil Service Bureau replied that Mr. Leung’s marriage was not formally recognised under Hong Kong law, which only recognises heterosexual and monogamous marriage. Accordingly, Mr. Adams was not regarded as a spouse and had no entitlement to claim spousal benefits.
  2. The Tax Decision. In 2015, Mr. Leung attempted to elect for joint assessment when filing his salaries tax return - a benefit that is commonly available to married tax payers. However, the Inland Revenue Department's e-filing system was not designed to accept two "Mr" or two "Mrs" - the prefixes had to be gender variant. After raising what he considered to be a technical issue with the Inland Revenue Department, they replied that Mr. Leung and Mr. Adams were not "spouses" within the meaning of Hong Kong law and therefore could not avail themselves of joint assessment.

Mr. Leung challenged the Benefits Decision and the Tax Decision by way of judicial proceedings. He claimed that the decisions unlawfully discriminated against him on the ground of his sexual orientation.

The Court of First Instance ruled in favour of Mr. Leung on the Benefits Decision but against him on the Tax Decision. This was later overturned by the Court of Appeal and, as a result, Mr. Leung’s challenges to both decisions failed.

Mr. Leung was finally granted leave to appeal to the Court of Final Appeal.

Discrimination Law 101: Justification

In all discrimination cases, the correct approach is to determine whether there is differential treatment on a prohibited ground and, only if this can be demonstrated, then, to examine whether it can be justified.

The justification test consists of four steps or elements: (i) does the differential treatment pursue a legitimate aim; (ii) is the differential treatment rationally connected to that legitimate aim; (iii) is the differential treatment no more than necessary to accomplish the legitimate aim; and (iv) has a reasonable balance been struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights.

There was no dispute with respect to (i). It was accepted by the government that its policies had treated Mr. Leung and his husband differently when compared with other opposite-sex spouses. It was also common ground and accepted by Mr. Leung that the government's stated aim in implementing the Benefits Decision and the Tax Decision was in principle legitimate. Although the aim had been articulated in various ways, generally speaking the government said in both cases that it was to protect and/or not undermine the concept and institution of marriage - being the voluntary union for life of one man and one woman to the exclusion of all others, as understood in and under the laws of Hong Kong.

The real battleground between the parties lay in ground (ii) - whether the differential treatment was "rationally connected" to the government's stated aim of protecting or not undermining the institution of marriage in Hong Kong. It is here that the government ran into difficulty. In a nutshell, the Court asked:

"How is it said that allowing Mr. Adams medical and dental benefits weakens the institution of marriage in Hong Kong? Similarly, how does permitting the appellant to elect for joint assessment of his income tax liability under the [Inland Revenue Ordinance] impinge on the institution of marriage in Hong Kong? It cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation."

In other words, the Court could not agree with the lower court's analysis that the difference in treatment received by Mr. Leung was rationally connected to the stated aim underlying the Benefits Decision and the Tax Decision. This finding was fatal to the government's case and rendered any consideration of the third and fourth steps unnecessary.

Mr. Leung’s appeal was allowed accordingly.

Circular reasoning and hypocrisy

The Court held that it was circular and fallacious to argue that restricting financial benefits to opposite-sex married couples was necessary given that heterosexual marriage is the only form of marriage in Hong Kong law (an argument that had been rejected previously by the same Court in QT).

The Court also threw a spotlight on the government's stated claim as being an equal opportunities employer. When Mr. Leung applied for his position with the government, the advertisement came with a note stating: "As an Equal Opportunities Employer, the Government is committed to eliminating discrimination in employment. The vacancy advertised is open to all applicants meeting the basic entry requirement irrespective of their…sexual orientation". In addition, the government had adopted a Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation. This irony was not lost on the Court. It found it difficult to see how the government could on the one hand adhere to published employment policies that claimed to be dedicated to the elimination of discrimination on the ground of sexual orientation, while at the same time deny to a married same-sex couple the same employment benefits that are available to a married opposite-sex couple.

In a final jab, the Court commented on the Inland Revenue Department's apparent willingness to recognise polygamous marriage for the purposes of joint assessment. Here, the government's policy is to allow a polygamous man to choose which of his spouses he would prefer to designate as his "principal" wife. Query how such a policy can be viewed as serving the government's stated aim of promoting "traditional" marriage in Hong Kong, which is not only heterosexual but monogamous.

What next for same-sex rights in Hong Kong?

On the one hand, the decision in Leung is more impactful and far-reaching than QT. Whereas the scope of QT was fairly narrow and focused on the right of same-sex couples to apply for a dependent's visa, Leung invokes the question of extending spousal benefits more generally and could have implications for other areas including public housing, social welfare and public medical benefits. Indeed, this was a concern expressed by the Court of Appeal at the lower stage, which was reluctant to open the floodgates to future claims.

On the other hand, the decision only applies to government benefits/government employees and not to those in the private sector. And in practice, most multinational corporates tend to already have in place progressive benefits policies on a global or regional basis that provide similar or equal protections for same-sex employees, recognising as they do that the need to attract talent is king/queen.

Similarly, while last month Taiwan became the first Asian country to recognise same-sex marriage, the Hong Kong Legislative Council does not have a reputation for being fast-moving or responsive to public attitudes. Take the comments made by the recently appointed Chairperson of the Equal Opportunities Commission, Ricky Chu, who last month said that the debate over legalising same-sex marriage in Hong Kong “will not yield practical results”. An amendment to the Marriage Ordinance is probably some way off.

There is no arguing, however, that the decision in Leung is a truly landmark decision, and will surely pave the way for similar cases going forward.