Ng Hon Lam Edgar v The Hong Kong Housing Authority [2021] HKCFI 1812

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. 

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