When will the rainbow stretch again? The first LGBTQ+ case brought to the Court of Appeal court - Sham Tsz Kit v Secretary for Justice

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

Isabel Fung
​Author Isabel Fung is a penultimate year law student at HKU enrolled in the BBA(Law) & LLB programme.

Summary:
​The Court of Final Instance has ruled against same-sex marriage has been back in 2019 in MK v Government of HKSAR. In this subsequent appeal by Sham Tsz Kit after three years, is the Hong Kong Court willing to recognise same-sex marriage, or in the case if couples are married overseas, or do we still see a standstill in the Rainbow Battle?

Introduction
Recently, we have seen another bump in the road for LGBTQ+ marriage equality. In this blog, we will look at the judgments handed down by the Court of Appeal in Sham Tsz Kit v Secretary for Justice. [1] It is the first appeal case brought up to the Court of Appeal relating to the violation of fundamental rights and constitutionality of the two articles: Article 25 of the Basic Law (BL 25) and Article 22 of the Hong Kong Bill Of Rights 22 (BOR 22) (refer to the “Provisions”). It was also the first case of same-sex marriage since the defeat in the rainbow battle in MK v Government of HKSAR [2019] 5 HKLRD 259, concerning a judicial review on the violation of constitutionality in the denial of same-sex marriage (Ground 1 below) and the failure to provide an alternative legal framework to marriage (Ground 2 below). Sham relied on these two grounds but further argued that a violation of the right to equality due to the failure to recognise same-sex marriage registered in foreign countries. 

Relevant provisions mentioned in the current appeal are BL25 and BOR 22, which protect against equality before the law. The discussion also centred around two provisions on marriage and family:  Article 37 of the Basic Law (BL 37) on the freedom of marriage and Article 14 of the Hong Kong Bill of Rights (HKBOR 14) on protecting privacy and family.

Summary
In this appeal, the Applicant and the LGBT rights activist Sham (“Sham”), is a homosexual and Hong Kong permanent resident. In 2013, He got married with his partner in New York as they could not obtain a valid legal title of marriage under Hong Kong Law. 

Sham argued that the law depriving homosexual married couples of legal protection is highly unfair and discriminatory and relied on three grounds in his appeal. The Judge dismissed the Sham’s judicial review by the earlier High Court Case MK because the contention was the unsustainability of law. 

Rulings are elaborated on below.

Sham’s Arguments: Grounds of Constitutionally Challenge

1. Exclusion of same-sex couples from the institution of marriage violates the right to equality under BL 25 and HKBOR 22 (Ground 1)

1. By not recognising same-sex marriage and failing to provide any alternative means of legal recognition, there is a violation to the right to privacy under HKBOR 14; and/or the right to equality under BL 25 and HKBOR 22 (Ground 2); and

1. By not recognising foreign same-sex marriage, there is a violation to the right to equality under BL 25 and HKBOR 22 (Ground 3)

Concerning Grounds 1 and 2, the claimant also sought declarations on three issues. Firstly, the relevant statutory provisions on marriage are unconstitutional. Secondly, the correct statutory definition of marriage. Lastly, the violation of the Provisions by a failure to provide alternative means of legal recognition.  [4]

Concerning Ground 3, the claimant further sought an alternative declaration that the laws of Hong Kong violate BL 25 and HKBOR 22 as they do not recognise foreign same-sex marriage. [5]

Reasonings
Grounds 1 & 2 
In the earlier judgment in MK, the Judge held that the denial of the right to marriage to homosexual couples under the laws of Hong Kong did not violate their constitutional rights. On proper construction, BL 37 only protects heterosexual marriage [6]. The principle of lex specialis is referred to as a specific rule that will prevail over a more general one. Under BL 37, same-sex couples do not enjoy the right to marry, which is the lex specialis in the Basic Law concerning the right to marriage. 

In this regard, Sham cannot derive such right from other articles of the Basic Law or the HKBOR. [7]  The Judge drew upon judgements of the European Court of Humans Rights (“ECtHR”) and the decision of the United Nations Human Rights Committee (“HRC”) on the comparable articles in the International Covenant on Civil and Political Rights (“ICCPR”), including article 23(2). Support from the Court of Final Appeal’s judgment in Comilang v Director of Immigration (2019) 22 HKCFAR 59 also formed the basis of the reasoning.

As the Judge noted, the Counsel for Sham accepted that MK had effectively disposed of Grounds 1 and 2. [8]

Ground 3
The Judge held that it was unsustainable as a matter of law and principle.[9] Sham argues that the status of marriage is generally open to same-sex couples as long as they are lawfully married according to the place where the marriage is celebrated. The contention was rejected due to the inconsistency with the observation of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 324 at [25]. The case concerns a visa application in Hong Kong by a British national who got married in the UK with her partner.

BL 37 grants access to marriage in Hong Kong for couples married locally and overseas. However, it only prefers heterosexual marriage, which means that only heterosexual couples are entitled to recognition of their foreign marriage. Hence, if the same recognition is afforded to same-sex couples married overseas, they will succeed in that BL 37 is contrary to the intention of the drafters of the Basic Law.

Finally, the Judge found that Sham’s attempt to apply the four-step proportionality test in support of the case on discrimination was untenable in the absence and regardless of any specific subject matter and its relevant context [10]. The proportionality test is used to assess the restriction of rights under the statutes. Four matters are to be justified:

1. The restriction must serve a legitimate aim. 
2. A rational connection between the legitimate aim and the restriction must be present. 
3. The restriction must be no more than necessary to achieve the legitimate aim.

Conclusion
The rulings of the case are expected yet frustrating and disappointing. Significant advancements for the LGBTQ+ community are observations in Asia- from the recognition of same-sex marriage in Taiwan and the decriminalisation of gay sex in Singapore. Despite progress on housing benefits and dependent visas for same-sex couples in Hong Kong, other areas remain at a standstill. There is still a long journey until the rainbow can hang in the sky, and it is hoped that increasing social awareness in Hong Kong can foster the community to thrive and enjoy the rights they are entitled to. There could still be some hope in the rainbow if Sham proceeds to the Court of Final Appeal, but the ultimate ruling remains to be seen. 

References
[1] Sham Tsz Kit v Secretary for Justice (24 August 2022, CACV 557/2020, [2022] HKCA 1247)
https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=146704&currpage=T
[2] Judgment [3] - [4]
[3] Judgment [5]
[4] Judgment [6]
[5] Judgment [6]
[6] MK [14]-[31]
[7] MK [32]-[44]
[8] Judgment [9]-[10]
[9] Judgment [1] and [13]
[10] Judgment [18] - [26]