Image source: Felix Wong, https://www.scmp.com/news/hong-kong/law-and-crime/article/3190065/court-appeal-against-hong-kong-refusal-recognise

Image Source: Sixth Tone Court Rules on LGBT Couple’s Landmark Child Custody Case (sixthtone.com)

AA v BB

Ariel Wong (Associate)

Ariel Wong is an HKU law student enrolled in the LLB programme.
Introduction

In the case, the parties involved are a same sex couple who co-parented two children (X and Y) during their relationship. AA gave birth to the children through donor sperm insemination. For X, who was born in Australia, both AA and BB were legally recognized as his guardians. For Y, who was born in Hong Kong, only AA was legally recognized as his guardian. 

After the couple’s separation, they reached a co-parenting agreement. Thus, AA sought for the grant of joint custody and joint care and control of the 2 children to both AA and BB. 

Despite the proceedings being uncontested, the Court called for a social welfare report. 

Ultimately, the court granted the orders for: 

1. BB to be made co-guardian of the 2 children; 
   
2. AA and BB to be granted joint custody and joint care and control of the 2 children: and 
   
3. the 2 children be made wards. 
   

CFI ruling on joint custody and joint care and control 

The Court confirmed that it had power to grant the orders under either its inherent jurisdiction or under section 10(1) of the Guardianship of Minors Ordinance (Cap. 3, “GMO”). 

In granting the orders, the Court held that the children’s best interests should be regarded as the first and paramount of all relevant considerations. In assessing a child’s best interest, the Court held that the fact of ‘natural parenthood’ is of significance. The Court went on to set out the 3 ways by which one can become a ‘natural parent’, namely: 

1. genetic parenthood: the provision of the gametes which produce the child; 
   
2. gestational parenthood: the conceiving and bearing of the child; and 
   
3. social and psychological parenthood: the relationship which develops through the child demanding and parent providing for the child’s needs.
   

The Court rejected that there was any presumption in favour of the natural parents of the child. Furthermore, the Court held that the granting of custody order is not limited to an order made in favour of a parent only and may extend to a non-parent or a third party having a non-biological relationship with the minor, but nonetheless in the child’s best interests.

For the present case, the Court also considered the Social Welfare Report, which found that the parties were able to share the parental responsibilities towards the children, and the children have been benefitting from both their parents’ love and care throughout their upbringing and expressed no preference over either of the parents. 

The Court concluded that it is in the best interests of X and Y for AA and BB to have their joint custody and joint care and control. 

CFI ruling on guardianship

Since both parties have already made the other testamentary guardian of the children by will, GMO Part 3 is inapplicable. The Court is asked to exercise its inherent jurisdiction in making BB the guardian of the children during the applicant’s lifetime. 

The Court held that although BB is not a legal parent of Y under the laws of Hong Kong, BB is a natural parent of Y by being a psychological and social parent in the third way mentioned above. The Court went on to state that it would be an anomaly if BB were to be a guardian of X under Australian laws, but not a guardian of Y, and such differentiation and/or discrimination cannot be in the children’s best interest. 

Thus, the Court concluded that it is in the best interests of the children that BB is to be appointed a guardian of both children.

​

Image source: Freepik (https://www.freepik.com/photos/tanzania-flag'>Tanzania flag photo created by www.slon.pics)

Mtangi Emily Mosses v Torture Claims Appeal Board and Anor
 
Kylie Chang (Associate)

Facts
 
Applicant refugee raised a non-refoulment claim on the basis that she will face persecution from both her family and her government due to her homosexuality upon repatriation.
 
She fled to Hong Kong after her homosexual relationship was discovered by her girlfriend’s father, who threatened to report her to the police; homosexuality is a criminal offence in Tanzania and the Applicant would be subject to harsh imprisonment.
 
The Director of Immigration reviewed and rejected the Applicant’s claim on the basis that there is insufficient credibility in support that her ill-treatment would continue, given that she had already ended her relationship and she left the country without any difficulty. The Director found that it would be possible for the Applicant to start a new life in a different region of Tanzania without being located by her former girlfriend’s father as Tanzania is a big country. 
 
Appeal Board Decision
 
The Applicant then lodged an appeal to the Torture Claims Appeal Board against the Director’s decision and was again dismissed. The Board decided on the basis that she had lived discreetly in Tanzania and had successfully avoided any persecution for a long time. Since the Applicant was not in part of any public LGBT groups in Tanzania, she would still be able to hide her homosexuality after repatriation and built a new life free from any prosecution or persecution from her previous girlfriend’s father. The Board found that the Applicant would not face any real or substantial risk of persecution after repatriation and confirmed the Director’s decision.
 
Judicial Review
 
The Applicant again filed an appeal for judicial review to the Court of Appeal on the decisions above. The Court refused to overturn the decisions above in the absence of any procedural unfairness or irrationality or any abuse of powers. The Court applied the HJ and HT v Secretary of State for the Home Department and held that her choice to hide her homosexuality was her chosen way of life due to social pressure and has nothing to do with her fear for any sort of persecution.
 

Summarised by Linyue Zhong, Roselyn (Associate).
 
Image source: Pexels (https://unsplash.com/photos/ck-UftftEGs)
 
 
Facts
 
The Ministry of Defence had the policy that homosexuals would be administratively discharged from the armed force because homosexuality was incompatible with the military service. The applicants were serving members of the military force who had been discharged solely because of their sexual orientation. They challenged the decision of the Ministry on the grounds that it was Wednesbury irrational and violated article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and article 2 of the Equal Treatment Directive (“the Directive”).
 
Issues
 
1) Whether the challenge, with human rights dimension yet involving military judgment and had been debated in the Parliament, was justiciable?
2) If justiciable, whether there is an important competing public interest which is reasonably sufficient to justify the restriction on human rights?
 
Holdings and rationale

The court dismissed the challenge: 
1) The case was justiciable because it does not involve national security as it does not require the determination of how to dispose of the military force and therefore the court does not lack the expertise or material to judge on the case. Although the merits of the case are considered in the Parliament, it is not essentially a political judgment and its human rights dimension is prominent. Hence, the conventional Wednesbury approach should be adopted.
2) The public interest objective of the policy is to guarantee an efficiently-operating and effectively-fighting armed force. Because the court cannot trespass beyond the constitutional bounds on its function, it will only intervene in the issue which is within the discretion of the military and the government if there is no manifest impairment to the function of the armed force. Hence, the court is only exercising a secondary judgment and has to show judicial deference in regard to this issue, which touches upon national defence and involves continuous supervision from the Parliament.  
3) From the plain and unambiguous language of the Directive, it only talks about gender discrimination rather than orientation discrimination.
 
Comment
 
As the court has recognized, none of the applicants had performed any worse because of their homosexuality. Therefore, the dismissal of application could be viewed as unjust to some extent. However, within the constitutional limit, the court did confirm the justiciability of this line of cases despite their political and military sensitivity. The court also hinted that “the days for the policy are numbered” and pointed out the need for Parliamentary review. As this case was decided more than 20 years ago, we could see that there had been a lot of progress in the polices concerning relevant issue in response to the changing societal attitudes towards homosexual people.  

Summarised by Kairos Chu (Associate).

Image Source: South China Morning Post by courtesy of the Applicant.

Introduction

In a further step forward for LGBT+ rights in Hong Kong, the High Court in Ng Hon Lam Edgar v The Hong Kong Housing Authority held that the Housing Authority’s (“HA”) policies to exclude same-sex spouses from the definition of “family members” and “spouses” amounted to unlawful discrimination on the grounds of sexual orientation. The Court described both policies to be “disproportionate and oppressively unfair”, which violated the equality provisions in the Basic Law and the Bill of Rights. 

Facts

The applicant of this judicial review case, Edgar, and his husband, Henry, were both born and grew up in Hong Kong with permanent citizenship. After being in a relationship for a number of years, they decided to get married in the United Kingdom in 2017.  Since Edgar became a registered tenant under the Public Rental Housing Scheme after his father passed away in 2014, the couple subsequently decided to purchase a Home Ownership Scheme (“HOS”) flat through the Secondary Market Scheme using the “Green Form” with Edgar’s eligibility. With plans for the HOS flat to become their matrimonial home, the purchase was almost entirely funded by Henry. 

However, after the purchase was completed, they found out Henry was not considered within the definition of “family members” and “spouses” under the relevant HA policies. This meant Henry could not be added as an authorised occupant of the HOS flat and could not become joint owner of the property without paying a premium, in the way heterosexual married couples are allowed to do so. With regard to this specific HOS flat, the purchase price of the HOS flat was HK$5.45 million while the premium itself would have amounted to HK$2.4 million. 

Subsequently, Edgar brought judicial review proceedings against the relevant HA policies and the application was heard before the Honourable Mr. Justice Chow in the Court of First Instance on April 19, 2021. 

Analysis

In considering whether there is unlawful discrimination, the Court adopted the general two-stage test of considering (1) whether there is differential treatment on a prohibited ground, such as gender, sexual orientation, race etc,; and then (2) if deferential treatment can be demonstrated, whether differential treatment can be justified. Only unjustified differential treatment on a prohibited ground will constitute unlawful discrimination. 

At the first stage of the test, the Court pointed out both homosexual and heterosexual couples share the need for affordable housing and the wish to achieve home ownership on a joint-name basis. This puts them in a comparable position in relation to matters of occupation and ownership of the HOS flats, and it is clear that the relevant HA policies have accorded differential treatment based on a prohibited ground, namely sexual orientation. 

Proceeding to the second stage, the Court considered if the differential treatment was justified. The Court accepted relevant HA policies had a legitimate aim in supporting traditional families formed by heterosexual couples in the allocation of scarce housing resources to meet housing needs and to encourage them to bear children (“the Family Aim”). 

However, the Court was not satisfied that denying eligibility to same-sex couples was rationally connected to the Family aim. It was questioned whether traditional couples would be encouraged to marry or have children simply by the knowledge that same-sex couples are prevented from purchasing HOS flats. The Court was also not satisfied that denying eligibility to same-sex couples was a proportionate means of achieving the Family Aim, with the HA failing to produce evidence that demonstrate how the relevant policies would affect overall availability of HOS flats to traditional families. 

As the differential treatment could not be justified, the Court concluded that the relevant HA policies constituted unlawful discrimination and were unconstitutional for being in violation of Article 25 of the Basic Law and / or Articles 22(1) and 1(1) of the Hong Kong Bill of Rights. 

Commentary

In recent years, there has been a proliferation of cases that challenge government policies on the grounds of discrimination regarding same-sex marriages, including but not limited to dependent visas, spousal benefits, tax assessments and inheritance rights. The propensity to rely on the judicial system to determine the rights of same-sex couples in various fact-specific circumstances not only runs the risk of developing an incoherent state of the law, it will also create an enormous time and cost burden on all parties involved. It is suggested that the HKSAR government should take a more proactive role in reviewing its existing policies and their application to the LGBT+ community. 

​

​Summarised by Tsang Zi Kan (Associate)

Executive Summary

General evidence of adversity faced by gay people in the location to be refouled to is on itself insufficient to establish the applicant will personally face a real risk of ill-treatment for his sexual identity upon return. The long time passed since the last abuse, the lack of consistent pattern of abuse, and improvements of the local situation on LGBT support are relevant to indicate a small risk of personal harm upon return. 

Facts

The applicant, a 36-year-old gay Filipino, arrived in Hong Kong with permission to remain as visitor on 22 October 2014 until 5 November 2014, but overstayed until 18 August 2016.  While being detained by the Immigration Department for suspended sentence for the offence of breaching the condition of stay, he raised his non-refoulement claim on the ground that his family members and the Bago tribe would harm or kill him for being gay if he is refouled to the Philippines.

Incidents of ill-treatment to the applicant for his sexual identity

In his teens, he was frequently teased by his brother and schoolmates for his feminine behaviour. Most of his neighbours were of the Bago tribe which was said to be homophobic. 

One day in 1996, when he admitted to being gay at his father’s demand, his father hit him in front of the family and hang him upside down for half an hour with a warning that he would kill him if he did not change. 

One day in 2011 or 2012, he and his gay friends were teased and thrown at for being gay by others on the street in Manila. He was not injured but became fearful for his safety, and came to Hong Kong in 2014. 

Decision of the Director of Immigration (“The Director”)

The Director rejected his claim on all grounds: 

(i) ​risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(ii) risk of absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 including right to life under Article 2, risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3; and

(iii) risk of persecution referencing the non- refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees.

The Director decided that there is low future risk of harm to him upon his return to the Philippines for the following reasons:

(i) the past ill-treatment from the applicant’s family and the Bago tribe were of low intensity and low frequency;

(ii) findings based on objective Country of Origin Information (“COI”) showed that reforms are on-going in the Philippines in providing support to LGBT people; and

(iii) it is not unduly harsh or unreasonable for the applicant to relocate to other parts of the Philippines, since he is an able-bodied adult.

Decision of the Torture Claims Appeal Board (“the Board”)

​The applicant’s appeal to the Board was dismissed for the following reasons, confirming the Director’s decision that there is no real or substantial risk to the applicant to return to the Philippines:

(i) his fears are not well-founded since the incidents arising from the applicant being gay were all isolated incidents with no consistent patterns of threats or harms; and 

(ii) there is no evidence to suggest the Bago tribe people intended to cause any harm to him. 

Issue

On 15 November 2017 the applicant applied for leave for judicial review of the decision of the Director and the Board, on the following grounds: 

(i) failure to find he as a gay man would face great risk of being rejected, humiliated and harmed in the Philippines; 

(ii) failure to properly consider COI to support such risks to the applicant if he is to return; 

(iii) failure to properly assess from the COI whether reforms by the Philippines government are effective in protecting gay people there; and 

(iv) wrongly focus on the risk of physical harms instead of assessing psychological harms to him as a gay man there.

Held

Leave to apply for judicial review was refused. 

General evidence of adversity faced by gay people in the Philippines itself is insufficient to establish the applicant will face a real risk of ill-treatment upon his return. He must show he himself will be personally at risk. The Board’s decision was based on precedents in the United Kingdom, the European Court of Human Rights and Hong Kong’s Court of Appeal. 

The court’s ruling echoed that of the Director and the Board. There was no regular pattern of abuse by his brother or father while living together 20 years ago. Now, his father had already passed away and nothing suggests his brother and the Bago tribe neighbours would still hold the same attitude. It is also unlikely he will return to live in his home town since both his mother and sister have already moved. The applicant could not even establish he is at risk of facing ill-treatment, physically or mentally, at a minimum level. Thus he would not fall within the scope of Article 3 of HKBOR. 

The court ruled that the Director and the Board already properly considered the relevant COI in objectively assessing the alternatives of internal relocation. Relevant considerations include the members of the applicant’s family and the Bago tribe are not state agents, the tribe people constitutes only a relatively small population in the Philippines, and there are recent improvements for protection of gay people there.

It is suggested that when deciding non-refoulment claims of LGBT people on grounds including torture, courts should consider more thoroughly the social stigma LGBT people face, and their psychological fears from past ill-treatment incidents, despite  a lack of consistency in the events. This would extend more protection to the potentially vulnerable group especially when the locality is still developing in terms of LGBT awareness and support. 

Comments

It is suggested that when deciding non-refoulment claims of LGBT people on grounds including torture, courts should consider more thoroughly the social stigma LGBT people face, and their psychological fears from past ill-treatment incidents, despite  a lack of consistency in the events. This would extend more protection to the potentially vulnerable group especially when the locality is still developing in terms of LGBT awareness and support. ​

​

Summarised by Ko Sum (Associate)

Background
​
In Hong Kong, transgender persons can change their legal gender by an application to the Commissioner of Registration to change the gender entry on the ID card. To date, the Commissioner adopts a strict policy which makes completion of sex reassignment surgery (SRS)[1] a necessary[2] condition (the “Policy”).
 
The case

This judicial review application concerns the right to change the gender entry on their ID card of the transgender persons who have not undergone SRS, i.e. pre/ non-operative transgender[3]. The applicants are three transgender men who have removed their breasts, received hormonal treatments to attain certain male outward attributes and lived a life as a male. They, however, do not wish to undergo the SRS and thereby failed to change the gender entry on their ID card under the Policy. Therefore, they sought to challenge the strictness of the Policy in court, yet regrettably, the court rejected their applications.
 
The reasoning and its fallacy

Two major arguments were run by the applicants: the imposing of SRS requirement under the Policy violates (1) their right to gender identity[4] and/ or (2) their right not to be subjected to cruel, inhuman or degrading treatment[5].
 
Right to gender identity

Although modern day medical evidence predominantly categorizes transgenderism as a psychiatric disorder as opposed to physical illness, the court said the Policy is the only proportionate and workable model to secure a certain and objective administrative guideline governing the change in gender entry on ID.
 
The court said any other model short of requiring SRS would amount to “self-definition” models which essentially leave it up to the individual to decide if the gender entry on their ID should be changed. Such models will fail to ensure physical congruity, in particular that regarding sex organs, between transgender persons and their cisgender counterpart.
 
But why is it a problem to allow transgender persons to change their legal gender by way of a solemn declaration that they will for the rest of their lives live the life of the gender they identify as? And why is physical congruity so important?
 
In justifying the Policy, the court resorts to practical difficulties arising out of the “self-definition” models.  The court pointed to a few practical problems if a transgender person’s gender entry on ID does not correspond with their physical appearance. These practical difficulties could be categorized into two groups:
 

1. Embarrassment and discomfort – For example, in cases of emergency where the citizens would be grouped according to their gender and assisted by officers of the same gender. During evacuation and other rescue measures, there could be physical contact between the citizens and occasions where citizens would need to strip off their clothing, etc. If the physical appearance of the transgender persons does not correspond with their gender entry on ID, the other citizens of the same gender might feel embarrassed, uncomfortable or even violated in these occasions.    
2. Frustration of the purposes of certain policies or practices – For example, in activities like sports or education where persons of different gender are sometimes separated into two groups for the sake of fairness or other policy purposes. Allowing transgender persons to “self-define” their legal gender might unset these policy purposes.

 
Author’s view

The reasons grounding the court’s rejection of “self-definition” models cannot stand.
 
First, instances of alleged embarrassment and discomfort are not statistically supported but are no more than sworn statements from the government officials. Even if they are true, the source of such embarrassment and discomfort arguably lies within society’s lack of readiness to accept that transgender people sometimes need not have their sex organs removed and reassigned. Such lack of readiness, if true, arguably is also a kind of public opinion which the Court of Final Appeal has rejected as a reason for denying a group of minorities’ rights since the case of W v. Registrar of Marriages[6].
 
Second, so-called frustration of policies could be more easily disposed of. There is no obstacle to refine the rules for sports in order to ensure fairness while accepting the participation of transgender persons. Also, to say that the policy purposes are frustrated, e.g. in the context of single-gender schools, one excludes transgender persons who have not completed SRS from the gender they identify themselves as, and therefore falls into the public opinion fallacy above. The duty to resolve policy difficulties rests on the government and the respective institutions, not the transgender individuals.
 
Lastly, it is quite hard to understand why the court would consider such “embarrassment and discomfort” or “frustration of policy” to be outweighing the tremendous social prejudice and discrimination transgender people face because they could not have their gender entry on ID changed.
 
Right to physical integrity

The Policy requires the transgender persons to undergo an intrusive SRS in order to change their legal gender even when they do not have the need nor desire to do so. Therefore, the Policy essentially forces transgender persons to undergo unwanted and involuntary invasion surgical procedures if they want to have their right to gender identity recognised. The applicants argued that such coercion amounts to a violation of their absolute right not to be subjected to cruel, inhuman or degrading treatment.
 
Given the SRS being an internationally recognized, accepted and legitimate procedure, the court considered the true issue to be whether the transgender persons freely and voluntarily give informed consent to such treatments.
 
The court simply finds the consent to be informed as transgender persons are informed adequately on the health and medical risks involved in SRS even if they only undertake such treatment to change their legal gender.
 
The court also finds the consent to be given freely and voluntarily. The applicants extensively submitted on the prejudice and discrimination a transgender person faces before their legal gender is changed in daily life and these jeopardies coerced them to opt for SRS even if it is not what they want. In rejecting the applicants’ submission, the court compared non-operative trans seeking to change legal gender by way of undergoing SRS to the general situation where a person consents to an optional but legitimate surgery to eradicate a condition which is not life threatening in order to be free from certain prejudices or discrimination[7].
 
Author’s view

The court arguably did not expressly address the applicants’ submissions as to prejudices and discrimination they face. In finding the consent to be voluntary, the court compared to the general situation where one chooses to undergo an optional treatment to alleviate prejudices and discrimination. But what does the general situation refer to?
 
I take the view that the court was referring to situations such as skin or body part removal and reconstruction for persons disfigured by serious physical harm[8]. However, such situations are hugely different from what the non-operative trans face. First, the unfortunate persons in those situations want to undergo the surgery themselves but non-operative trans do not. Second, for such unfortunate persons, the prejudice and discrimination they suffer are only, though still regrettably, created by a small group of members in our society. The government has no direct participation in it (despite maybe only to the extent of not doing enough to educate the public). On the other hand, the prejudice and discrimination non-operative trans suffer are largely due to their failure to get their gender entry on ID changed before undergoing SRS. Essentially, the government, in strictly upholding the Policy, creates and magnifies the jeopardies non-operative trans face.
 
Upon this analysis, the court’s comparison cannot in any way support the rejection of the applicants’ argument. Such consent by non-operative trans to SRS is simply coerced by the unimaginably tremendous prejudice and discrimination they suffer because of the Policy.
 
Epilogue

The case is probably pending an appeal[9] but it is noteworthy that the court should be the last resort for minorities to have their rights protected and vindicated. The government has the very resources and responsibility to accommodate the transgender persons who form a part of our diverse and colourful community.


[1] A complete SRS normally includes removal of original genital organs and construction of genital organs of the person’s chosen gender.

[2] Save only for the cases where the transgender individual is medically unsuitable to undergo SRS.

[3] “Non-operative transgender”, as opposed to “pre-operative transgender” used by the court, would be a better term for reference to the applicants of this case since the former term denotes the transgender person having no intention to undergo an SRS at all as opposed to the latter which denotes transgender persons who have intention to undergo SRS but have yet to do so.

[4] Guaranteed under Hong Kong Bill of Rights Art. 14.

[5] Guaranteed under Hong Kong Bill of Rights Art. 3.

[6] (2013) 16 HKCFAR 112. Interestingly, the court in the present case, at [44], acknowledged that it must not take into account “the lack of a consensus as to whether the completion of the relevant SRS should be required for recognising the change of [legal gender]” but instead took into account the public opinion as to “when should a transgender person’s transition deemed complete”.

[7] Judgment paras. 100-104.

[8] Although arguably appearance enhancement surgery such as cosmetic surgery probably would fall into what considered to be the general situation by the court, I refuse to assume that our courts would compare trans people to persons who are simply not feeling happy enough with the inborn minor flaws on their appearance.

[9] SCMP, “Henry Tse, who lodged an unsuccessful judicial review, tells how living life as a transgender person can be difficult in Hong Kong”, (2 Feb 2019).
​

Atoo Zubeda v Department of Immigration & Anor [2020] HKCFI 98

Summarised by Zhong Linyue, Roselyn (Associate)

Facts

The Applicant is a national of Uganda who overstayed in Hong Kong and raised a non-refoulement claim for protection to the Immigration Department on the ground that she was in fear of the risk of being harmed or killed as a lesbian upon return to Uganda, where homosexuality was against the law and punishable by death or life imprisonment. Her fear also stemmed from an assault and gang rape that she suffered yet did not report to the police in Uganda in June 2008. After being rejected by the Director of Immigration for low assessed risk of harm, the Applicant appealed against such decision to the Torture Claims Appeal Board (“the Board”) which dismissed the appeal. The Applicant subsequently appealed to the Court of First Instance.

Issues

Whether the fear the Applicant claimed, i.e., to the risk she would face if she was returned to Uganda, was well-founded?

Holdings and rationale

The CFI agreed with the Board on the finding that it is unlikely for the gang who had previously assaulted and raped the Applicant to pose any risk to her after her departure from Uganda for three and half years because they could hardly know of her return nor locate her.

However, the CFI disagreed with the Board on its finding that the Applicant’s fear of risk of harm due to her sexual orientation was not well-founded:

1) Homosexuality is not only a criminal offence but also punishable by heavy imprisonments in Uganda. In addition, the homophobic sentiments had been rising in the society.

2) When determining any future risk the Applicant might encounter should she return to Uganda, the Board should take into account not only the risk of prosecution by the Ugandan government or authorities, but also risk of persecution from everyone with whom the Applicant may come into contact privately or in public.

3) The test set out in paragraph 35 of HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 could be of guidance for facts-finding determination of whether the fear is well-founded:

First, whether the applicant is a member of the particular social group of homosexuals.
Second, what his/her situation will be on return, in other words, how the Applicant will conduct herself upon return if she does not conceal her sexual orientation, and how others will act in response.

Third, if the Applicant will indeed conceal her sexual orientation on return, the reason for such concealment.

Last, whether there is a causative condition in terms of the Applicant’s having a well-founded fear of persecution upon return.

Comment
This case sets out the structured test for determining whether asylum seekers in Hong Kong have well-founded fear of persecution due to their sexual orientation if they are to be sent back to their home country. As this approach will guide future facts-finding on the issue, the prospect for homosexuals to seek legal protection in this regard in Hong Kong becomes clearer and possibly more optimistic due to the relatively broad criteria in assessing whether there is genuinely a risk of persecution. 

Photo source: https://www.google.com/imgres?imgurl=https://www.sydneycriminallawyers.com.au/app/uploads/2015/07/homosexuality.jpg&imgrefurl=https://www.sydneycriminallawyers.com.au/blog/homosexuality-and-the-law-how-far-have-we-come/&tbnid=ZnXMi2Weuwl1aM&vet=1&docid=4UsQVVCT5chFRM&w=960&h=640&source=sh/x/im
​

Summarised by Vanessa Chan (Associate) 

Facts
 
The respondents were charged and admitted the offence of homosexual buggery otherwise than in private, contrary to section 118F (1) of the Crimes Ordinance (Cap. 200). They challenged the constitutionality of the offence and argued that section 118F (1) had infringed the right to equality by targeting homosexuals. Both the magistrate and the Court of Appeal upheld that the charge against the respondents was unconstitutional. The Secretary for Justice made a further appeal to the Court of Final Appeal.
 
Issues
 
(1)Whether section 118F (1) was inconsistent with the Basic Law and the Hong Kong Bill of Rights by being discriminatory to an extent; and
(2)What was the proper order to be made when the charge against the defendants was found to be unconstitutional?
 
Background
 
Generally, legislation is held to be unconstitutional, if a right has been infringed, and the differential treatment has not been justified. A justification test has to be satisfied to justify differential treatment:
 

1. Whether the differential treatment has a legitimate aim;
2. Whether the differential treatment is rationally connected to the legitimate aim; and
3. Whether it is no more than necessary to accomplish the necessary aim.

 
Decision
 
(1)Section 118F(1) is discriminatory to an extent that it is unconstitutional.
 
Infringing right
 
The protection of the right to equality is enshrined in Article 25 of the Basic Law and Article 22 of the Bill of Rights. The significance of the protection is to eradicate discrimination. According to the two articles, all persons are equal before the law thus no one should not be discriminated on grounds such as “other status”.
 
The effect of section 118F (1) essentially produces differential treatment by only criminalising homosexuals buggery otherwise than in private based on the ground of sexual orientation. Therefore, as sexual orientation falls within “other status”, homosexuals’ right against discrimination has been infringed in the present case. 
 
Justification test: whether the differential treatment pursued a legitimate aim
 
The need for differential treatment is not justified. Having considered the presence of a non-discriminatory common law offence of outraging public decency, there is no need for an additional discriminatory offence like section 118F(1).  Therefore, the matter has failed in the first stage of the justification test.
 
Therefore, section 118F(1) was discriminatory to the extent that it had not justified infringement of the right to equality and was unconstitutional.
 
(2)The magistrate should refer to section 27 of the Magistrates Ordinance (Cap. 227)
 
Amendment of information
 
Section 27 of the Magistrates Ordinance is triggered if there is “a defect in the substance or form of any complaint, information or summons”. Accordingly, as the information charged was held to be unconstitutional, it falls within a “defence in the substance of the information”. Hence, the magistrates should amend or dismiss the information subsequently (section 27(2), Magistrates Ordinance) according to the procedures provided in section 27(3)). Information shall be dismissed if injustice is observed in the amendment.
 
Constitutionality challenged
 
If the magistrate held that the provision is unconstitutional and the prosecution wishes to challenge the decision, the magistrates may accede to an application and adjourn the proceedings of information amendment, for the outcome of the appeal. This allows the examination of the challenge of constitutionality while preserving the position in the magistrates’ court.
 
Present case
 
There is no need for amendment of information by substituting an alternative charge as the Secretary for Justice had undertaken not to seek remittal of the case.
 

Photo source: https://images.app.goo.gl/ptfRhPUHXCehznfg8
​

​Summarised by James Li

​Background
F had lived with his partner, T, in a homosexual relationship for 18 years and sought to succeed to the residential tenancy on T's death. Under the Rent Act 1977, the right to succession upon the death of the original tenant was granted to the "surviving spouse" or "a member of the original tenant's family". Following later amendments, cohabitees were also brought under the definition of "surviving spouse" being granted the right to succeed if they could establish that they had lived with the original tenant "as his or her...wife or husband".
 
F contended that he falls within the definition of “surviving spouse” or “a member of the original tenant’s family” such that he has the right of succession.
 
Issues before the House of Lords

1. Whether F, being in a homosexual relationship with T, can be regarded as a “surviving spouse under the relevant provisions.
2. Whether F is “a member of the original tenant’s family”.

 
Decision and Reasoning

1. Persons in a same-sex relationship cannot be regarded as a “surviving spouse” under the relevant provisions. The relevant provisions of the Rent Act define the meaning of "spouse" also to include persons not legally married but who had been living with the original tenant "as his or her wife or husband". Since gender-specific words are used, connoting a relationship between a man and a woman, the relevant provisions do not apply to same-sex relationships.
2. F is “a member of the original tenant’s family”. The word “family” was left undefined in the statute in this context, and it is for the Court to attach a definition. Here, the word “family” was used because the Parliament had sought to protect from eviction those who had shared their lives with the original tenant in a single family unit. Having regard to changes in social habits and opinions on what can constitute a family, a same-sex partner of a tenant was now to be recognized as capable of being a member of the tenant's family for the purposes of the relevant provisions for succession.

 
Comments
Whilst Courts are in general reluctant to recognize homosexual partners as spouses due to it being inextricably linked to the recognition of homosexual marriage, it is great to see that Courts at least recognize homosexual relationships as a kind of companionship worthy of special protection by regarding it as a form of family ties. This recognition is very important in that homosexual partners are more likely to be eligible for various statutory protections in aspects such as succession or inheritance in the future.