Ng Hon Lam Edgar v. Secretary for Justice: A Victory for Same-sex Married Couples’ Inheritance Rights

Ng Hon Lam Edgar v. Secretary for Justice

Summarised by Sam Ko (Associate)

The Decision

On 18 September 2020, the Court of First Instance ruled unconstitutional the exclusion of same-sex married couples under the Intestates’ Estates Ordinance (“IEO”) and Inheritance (Provision for Family and Dependents) Ordinance (“IPO”). The Court said same-sex married couples should be included under the IEO and IPO.
 
The Facts

Mr. Ng (the “Applicant”) and his same-sex partner, H, are both Hong Kong permanent residents. The couple intended to live together as a family unit in which they shall have properties shared and each other’s life supported after either one’s death. Unfortunately, since same-sex marriage is not recognised under the relevant Home Ownership Scheme (“HOS”) policy of the Housing Authority, rendering H unable to become a joint owner to a HOS flat the Applicant purchased, the Applicant became concerned that his properties, including the HOS flat, would not be passed to H under IEO and IPO if he died intestate.
 
Because of the worry, the Applicant, through his solicitors, wrote to seek a clarification on the status of the foreign same-sex marriages between H and himself under IEO and IPO from the Secretary for Justice, who later refused to clarify on the ground that the Department’s role does not include provision of legal advice to private individuals. The Applicant then applied for judicial review.
 
The Nature of IEO and IPO

IEO prescribes the distribution of intestates’ estates. For example, section 4 allows a surviving husband or wife to take all personal chattels such as clothing, furniture, domestic animals, etc., and defines the distribution of the residuary estate; section 7 of and Schedule 2 to IEO gives the surviving husband or wife a right to acquire the premises he/she was residing at the time of the intestate’s death.
 
However, IEO only imposes such rules of distribution to husband or wife of the intestate by a valid marriage [1], definition of which does not include same-sex marriage [2]. 
 
On the other hand, IPO grants the court an overriding power to order financial support from the deceased’s estate for his/her family and dependents, whether he/she dies intestate or has left a will. Similar to the scope of IEO, surviving husbands and wives in an opposite-sex marriage have a general entitlement to apply for reasonable financial provision under IPO [3] while those in a same-sex marriage have the right only if he/she was being maintained by the deceased immediately before the his/her death and the financial provision obtainable would be limited to the maintenance [4].
 
The Grounds

The core of the judicial review lies in whether the definitions of “valid marriage”, “husband” and “wife” under IEO and IPO which excluded persons in a same-sex marriage violates the constitutional rights to equality [5], to respect for private and family life [6] and to property rights [7].
 
The Reasoning

The court adopted the general test [8] that in any alleged case of discrimination, it has to  determine: (1) whether differential treatment is imposed on a prohibited ground, such as gender, sexual-orientation, race, etc, and then (2) whether such treatment can be justified. Only unjustified differential treatment of such would be unconstitutional.
 
At the first step, the court has had no difficulty in finding a differential treatment between same-sex and opposite-sex married couples who are clearly in an analogous position for the purpose of IEO and IPO based on the prohibited ground of sexual orientation [9].
 
Then, the court proceeded to assess the justification for such differential treatment. The court agreed with the Secretary for Justice that the differential treatment pursues legitimate aims of (1) supporting and upholding the traditional (and opposite-sex) institution of marriage and (2) encouraging heterosexual (or opposite-sex) unmarried couples to marry [10], but ruled that the differential treatment is not rationally connected to the pursuit of such aims. The court simply said that it sees no reason or logic how the denial of benefits under IEO and IPO to same-sex couples would encourage any person to enter into an opposite-sex marriage, achieving the two aims suggested by the Secretary [11].
 
With the lack of rational connection to the pursuit of legitimate aims, the court found the differential treatment denying same-sex couples the benefits under IEO and IPO unjustified and constituted unlawful discrimination.
 
However, the court refused to deal with whether the regime of IEO and IPO shall include same-sex civil partnerships and civil unions as the Applicant has not entered into any relationship of such kind [12].
 
The Remedy
The court ultimately ordered the definitions of “valid marriage”, “husband” and “wife” in IEO and IPO to be remedially interpreted to include same- sex married couples, formulation of which was left to the parties.
 
Epilogue
This decision is indeed a right and straightforward application of the principles laid down by the Hong Kong Court of Final Appeal in previous cases such as QT and Leung Chun Kwong, yet another episode of the HKSAR Government’s inaction to undergo a comprehensive review of laws and policies which treat same-sex couples differently.
 
Postscript: Despite the straightforward reasoning, the Secretary of Justice has regrettably decided to appeal against the judgment.  

[1] IEO, section 2(1).
[2] IEO, section 3.
[3] IPO, sections 3(1)(i) and (2)(a).
[4] IPO, sections 3(1)(ix) and (2)(b).
[5] Guaranteed by Basic Law Article 25 and Hong Kong Bill of Rights Articles 1(1) and 22.
[6] Guaranteed by Hong Kong Bill of Rights Article 14, read with Article 1(1).
[7] Guaranteed by Basic Law Articles 6 and 105, read with Article 25.
[8] Laid down in Leung Chun Kwong v. Secretary for Civil Service [2019] HKCFA 19, at para. 19
[9] Ng Hon Lam Edgar v. Secretary for Justice [2020] HKCFI 2412, at paras 33 – 38.
[10] ibid, at paras. 40 – 41.
[11] ibid, at paras. 42 – 45.
[12] ibid, at para. 51.