Leung Chun Kwong v Secretary for Civil Service & Anor: A Victory for Legal Same-sex Married Couples’ Financial Benefits

Leung Chun Kwong v Secretary for Civil Service & Anor

Summarised by Yoyo Lau (Associate)

Facts

L, an Immigration Officer, and S, his same-sex partner, were married legally in New Zealand. L applied for spousal medical and dental benefits under the Civil Service Regulations, and joint assessment of salaries tax under the Inland Revenue Ordinance. However, the applications were refused by the Secretary for the Civil Service and the Commissioner of Inland Revenue respectively. Therefore, L argued that the decisions unlawfully discriminated against him on the ground of his sexual orientation. The Court of First Instance held in favour of L but the Court of Appeal overturned the decision. Eventually, L appealed to the Court of Final Appeal.
 
Issues

1. Whether the local legal landscape and societal circumstances, including prevailing socio-moral values on marriage, were relevant to the issue of justification;
2. Whether the difference in treatment was rationally connected to the legitimate aim of protecting and not undermining the institution of marriage in Hong Kong; and
3. Whether such difference in treatment could be justified.

 
Decision and Reasonings

The court held, unanimously allowing the appeal, that:

1. L and S were in a valid and legal same-sex marriage in New Zealand. With the same characteristics of publicity and exclusivity as an opposite-sex marriage, they were distinguished from a mere relationship. Regarding spousal financial benefits, a same-sex married couple is relevantly analogous with an opposite-sex married couple; and
2. Applying the justification test, denying L’s benefits relating to employment and taxation and the objective of safeguarding or not undermining the marriage institution in Hong Kong were not rationally connected. Firstly, it was illogical to argue that any person would be encouraged to enter into an opposite-sex marriage in Hong Kong due to the refusal of L’s applications of spousal financial benefits. Secondly, it was circular to claim that the spousal financial benefits were only applicable to opposite-sex married couples as it was the sole admitted form of marriage in Hong Kong. Thirdly, it was noted that there was an internal inconsistency with the government’s own equal opportunities employment policy, and that the Inland Revenue Ordinance did not target at promoting marriage as defined under Hong Kong law. Finally, there was no administrative difficulty because L could produce their marriage certificate to prove that he and S were legal same-sex married couples and make a distinction with a mere unmarried relationship.

 
Comments

The judgment of the Court of Final Appeal gives recognition to same-sex marriage in situations regarding spousal financial benefits as the court held that legal same-sex married couples were relevantly analogous with the opposite-sex ones. However, it is noted that the court considered the protection of the marriage institution of Hong Kong as a legitimate aim and accepted that differential treatments for achieving this aim might be justified. It is worrying that courts might still support the traditional opposite-sex marriage only, which probably hinders the development of LGBT+ community.