On 6 June 2019, the CFA unanimously allowed the appeal of Mr Leung Chun Kwong (the “Appellant”) in Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue [2019] HKCFA 19 (“Judgment“).

The appeal was against the unanimous decision of Cheung CJHC (as he then was), Lam VP and Poon JA in the Court of Appeal in [2018] 3 HKLRD 84; [2018] HKCA 318.  The CA accepted that the Appellant may have been subject of indirect discrimination as (i) his same-sex spouse was deprived of spousal benefits under the Civil Service Regulations and (ii) the Appellant and his same-sex spouse was prevented from applying for joint tax assessment under the Inland Revenue Ordinance (Cap 112) (together, the “Decisions”).  Nevertheless, the Decisions were found to be justified and rational.

In the CFA, it was made express that no issue arises as to whether the constitutional freedom to marry and raise a family should make marriage available to same-sex couples (Judgment, §27).

The issue was “whether the differential treatment of the appellant was rationally connected to [the] legitimate aim of the protection of the traditional family in the circumstances of the present case” (Judgment, §62).

The CFA firmly rejected as illegitimate/irrelevant the following purported aims put forward by the CA:

(1) The CFA dismissed the suggestion that there were so-called “core rights” unique to heterosexual marriage, such that differential treatment based thereon cannot be treated as discriminatory.  This line of argument has been definitively rejected by the CFA in QT v Director of Immigration (2018) 21 HKCFAR 324; [2018] HKCFA 28 (Judgment, §54).

(2) The CFA also gave short shrift to the suggestion that “prevailing views of the community on marriage are relevant to identifying a legitimate aim and justification of differential treatment”.  This line of argument has also been examined and rejected in the earlier CFA authority of W v Registrar of Marriages (2013) 16 HKCFAR 112; FACV 4/2012 (13 May 2013) (Judgment, §56).

In its main analysis, the CFA rejected the Respondents’ argument that differential treatment under the Decisions were rationally connected to the aim of promoting/not undermining the concept/institution of marriage:

(1) First, the CFA took the view that “[it] cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation.” (Judgment, §67).

(2) Second, proposing to “[restrict] financial benefits to opposite-sex married couples on the ground that heterosexual marriage is the only form of marriage recognized in Hong Kong law is circular… It amounts to a self-justifying reasoning process and denies equality to persons of different sexual orientation … without any further attempt to justify it.” (Judgment, §71).

(3) Third, the differential treatment under the Decisions are inconsistent with the purported policies of the Respondent departments.  In this regard, it was pointed out that the Government purports to be an equal opportunities employer (Judgment, §§73-74) whereas the Inland Revenue Department, to an extent, recognises polygamous marriage arrangements (Judgment, §75).

(4) Finally, there is no administrative necessity to speak of as same-sex marriage can be demonstrated without any difficulty and shares the same characteristics of publicity and exclusivity as heterosexual marriage (Judgment, §76).

Nigel Kat SC acted for the Appellant (with Karon Monaghan QC, leading Azan Marwah, and instructed by Daly & Associates, assigned by Director of Legal Aid).

The full text of the Judgment can be found here.