Legal update: MK v Government of HKSAR – High Court holds marriage does not extend to same sex couples

The Hong Kong courts have had much cause to consider equality rights in a number of cases in the past two years, particularly in respect of the recognition of same sex rights in Hong Kong. The Court of Final Appeal (CFA) has recently handed down two significant decisions in QT v Director of Immigration [2018] HKCFA 28 and Leung Chun Kwong v Secretary for the Civil Service and Another [2019] HKCFA 34, both of which were successful. A number of new equality rights cases continue to move through the courts.

Most recently in the case of MK v Government of HKSAR [2019] HKCFI 2518 in the Judgment of Justice Anderson Chow on 18 October 2019 the High Court upheld the Government’s policy to deny both marriage to same-sex couples and recognition of their relationships with the provision of an alternative legal framework in Hong Kong.

Background

The Applicant, MK, is a lesbian who has been in a cohabiting relationship with her same sex partner for around two years. MK and her partner wanted to formalise their relationship whether that be to marry or enter into an otherwise recognised civil union or partnership in Hong Kong. Upon realising that no such options were available to them, MK launched a judicial review raising the two following issues for determination:

1. whether the Government’s denial of same-sex marriage in Hong Kong violates the constitutional rights of same-sex couples; and
   
2. whether the Government’s failure to provide an alternative legal framework to marriage (such as civil unions or registered partnerships) violates the constitutional rights of same sex couples.

MK’s application sought three declarations from the Court, being that the Marriage Ordinance (Cap. 181) and the Matrimonial Causes Ordinance (Cap. 179) are inconsistent with various articles of the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383) insofar as they deny same-sex couples the right to marry, as is the Government’s failure to provide an alternative legal framework for the formal recognition of same-sex relationships.

The main point of contention was the definition of the word “marriage” in article 37 of the Basic Law.

Judgment

Counsel for MK provided for the court’s consideration a summary of the significantly broad range of areas in which marriage affords rights to those who can access it but denies to those who cannot. This summary included the following, non-exhaustive list extracted from the Judgment:

“adoption, bigamy, compellability of spouse at criminal trial, damages for personal injuries, dispute between husband and wife as to the title to or possession of property, divorce, fatal accidents, inheritance, insurance benefits, maintenance, medical decision, no recognition of foreign same-sex marriage, organ transplant, paternity leave, pension for surviving spouses, private columbaria, public columbaria, public housing application, reproductive technology procedure, sex discrimination against married persons, spousal benefits for civil servants, tax benefits and working family allowance scheme.”

The Court acknowledged the importance of the status of marriage to any Hong Kong resident in light of this list.

The Court looked to the CFA’s Judgments in both QT and the Court of Appeal’s Judgment in Leung in respect of the definition of the word “marriage” in the Basic Law, as well as the Judgment in W v Registrar of Marriage [2013] 16 HKCFA 39. Although Justice Chow expressed the Court in this instance had taken a “strict legal approach” in its determination that the definition of “marriage” included only opposite sex couples, the Court also stated that article 37 of the Basic Law is protective, rather than prohibitive. That is, it is open to the legislature to pass legislation recognising same sex marriage if it chooses to do so.

What lies ahead for equality rights in Hong Kong?

The road to marriage equality in Asia has been relatively slow moving when compared with Europe, the Americas and Australasia. On 24 May 2019 Taiwan became the first and only nation in Asia to legalise same sex marriage.

Other than the MK case there are various other cases in the Hong Kong courts challenging the government’s position as to rights afforded to same-sex couples in Hong Kong including a challenge to the Government’s housing policy in Infinger Nick v Hong Kong Housing Authority [2019] HKCFI 557. It has been argued in this case that the policy excludes all same sex couples regardless of their financial or personal circumstances resulting on average in a 12 year longer waiting period for housing than is experienced by married couples. The Court of First Instance heard the application in September 2019 with Judgment still pending.

In an interesting postscript to his Judgment in MK, Justice Chow recognised the broad ranging views held in Hong Kong society in respect of what rights and recognitions same sex relationships should be afforded. In light of this Justice Chow made the following comment:

“…the court believes that there is much to be said for the Government to undertake a comprehensive review on this matter. The failure to do so will inevitably lead to specific legislations, or policies or decisions of the Government or other public bodies, being challenged in the court on the ground of discrimination (and possibly other grounds) on an ad-hoc basis, resulting in an incoherent state of the law at different times as well as much time and costs being incurred or wasted in the process.”

In light of the flurry of judicial reviews being brought before the courts seeking to level the playing field with opposite sex couples in Hong Kong, it remains to be seen whether the Government will conduct a review of its equality rights policies and their application to those in same sex relationships. This is a fast moving area within Asia where the law is playing an interesting part. For more information on equality rights in Hong Kong please contact Mark Side or Joanne Brown.

Joanne Brown and Elizabeth Seymour-Jones

If you would like to discuss any of the matters raised in this article, please contact: