Summary on Leung Chun Kwong v Secretary for the Civil Service & Anor (No 3) (2019)

image source: ​https://en.wikipedia.org/wiki/Court_of_Final_Appeal_%28Hong_Kong%29

Facts
In 2015, a Senior Immigration Officer Mr Leung Chun Kwong brought an action against the Civil Service Bureau and the Inland Revenue Department of the Hong Kong government on the claim that his British same-sex spouse Scott could not enjoy the same benefits and tax treatment as opposite-sex spouses. Mr Leung and Scott were married in New Zealand in 2014 where same-sex marriage is legal. Scott was rejected for the spousal medical and dental benefits under the Civil Service Regulations (“CSRs”) and he was neither able to elect for joint assessment of salaries tax under s 10 of the Inland Revenue Ordinance (Cap 112) (“IRO”). Both departments gave reasons that same-sex marriage was not a marriage within the meaning of Hong Kong law therefore cannot enjoy the welfare of a legitimate spouse.


The Decision of CFA and Comments
The case went all the way to the Court of Final Appeal where the court finally ruled in favour of the complainant. Key principles of the CFA’s decision are summarized as follows.

Nature of the relationship
The court first clearly defines the nature of the relationship between the appellant and his husband as a “same-sex marriage valid under the law of the place where it was entered into.” Such a relationship is regarded as enjoying “the same characteristics of publicity and exclusivity” as heterosexual marriage. In the context of financial welfare, a same-sex married couple has similar nature, in the eyes of the court, with an opposite-sex married couple but encountered different treatment merely on the ground of sexual orientation. 

Justification exercise
The court in Leung Chun Kwong applied the previous case QT v Director of Immigration and emphasized that the prevailing views of the community on marriage were irrelevant to a consideration of the justification exercise. Indeed, the court applied the traditional justification test to assess whether the differential treatment of the complainant is unlawful. 

Legitimate aim
The first question to ask is whether the differential treatments pursue a legitimate aim. The respondents argued that the differential treatment against same-sex spouses aimed to protect the traditional family constituted by heterosexual marriage in the Hong Kong community. The court agreed that “the voluntary union for life of one man and one woman to the exclusion of all others” pursues a legitimate aim in regard to the entrenched social values and legal landscape.

Re-write

Rational connection to the aim
Additionally, the differential treatment shall be rationally connected to that legitimate aim. In the current case, it was to be examined whether the Benefits and Tax Decisions were rationally connected to the legitimate aim of protecting the institution of marriage in Hong Kong. In short, the court was not satisfied with the proposition that heterosexual marriage would be undermined by the extension of the employment and tax benefits to same-sex married couples. In other words, people would not be encouraged to enter into a heterosexual marriage only because a same-sex spouse was denied benefits or to joint assessment to taxation. Alternatively, this was regarded as “a self-justifying reasoning process” which was circular and illogical.  

As not satisfied by the first two criteria, the court ruled it unnecessary to consider the remaining elements. 

Remedial Interpretation of Legislation
Having allowed the appellant’s appeal in respect of the Tax Decision, the CFA adopted a remedial interpretation of the Ordinance and ordered the declaration that the term “marriage” in section 2 of the IRO shall include a marriage between persons is of the same sex (even if entered into outside Hong Kong according to the law of the place where it was entered into and between persons having the capacity to do so).
Accordingly, after the remedial interpretation, same-sex marriage would now be regarded as a valid marriage for the purposes of the IRO. A married person, whether in a heterosexual marriage or same-sex marriage, is entitled to elect for joint assessment or personal assessment jointly with the person’s spouse; and is entitled to claim allowances or deductions under the IRO in respect of the person’s spouse. 

Conclusion
In general, the decision in Leung Chun Kwong represents an unequivocal and strong position of Hong Kong courts that the social welfare of same-sex couples shall be equally protected under Hong Kong law. Essentially the court considers homosexual marriage having “the same characteristics of publicity and exclusivity” with a heterosexual marriage and the prevailing views of the community on marriage were irrelevant when assessing differential or discriminatory treatments. This decision attaches great importance to the judicial acknowledgement of the equality of different sexual orientations, however, it still remains silent on the legitimacy of heterosexual marriage in Hong Kong on the constitutional level. A great step is to be envisaged in the future.

Reference
[1] Leung Chun Kwong v Secretary for the Civil Service & An [2019] HKCFA 19; FACV 8/2018 (6 June 2019) 
[2https://www.hk-lawyer.org/content/leung-chun-kwong-v-secretary-civil-service-and-others-%E2%80%93-lovers-dangerous-time-common-law 
[3] https://www.ird.gov.hk/chi/tax/samesex.htm