Questions regarding same-sex marriage to be heard in the Court of Final Appeal

On 10 November 2022, the Court of Appeal granted leave to appeal against its judgment in Sham Tsz Kit (岑子杰) v Secretary for Justice [2022] HKCA 1247.

The Court of First Instance had dismissed Mr Sham’s application for judicial review, which argued that the (1) exclusion of same-sex couples from the institution of marriage, (2) the failure of the laws of Hong Kong to allow same-sex couples to marry and provide alternative means of legal recognition, and (3) the failure to recognise foreign same-sex marriage violate the rights to equality and privacy enshrined in the Basic Law (“BL”) and the Hong Kong Bill of Rights (“HKBR”).

The Court of Appeal affirmed the decision. The Court stated that BL 37 only provides access to the institution of marriage to heterosexual couples, but not same-sex couples, and further that HKBOR 14 “does not impose a positive duty on the Government to provide for an alternative framework for the recognition of same-sex unions that is equivalent to marriage such as civil partnerships.”

The Court of Appeal also thought that BL 37 grants access to marriage in Hong Kong for couples married locally and overseas.  If the same recognition is provided to same-sex couples married overseas, they would be able to circumvent the preference enshrined in BL 37.

However, the Court of Appeal granted leave to Mr Sham on the basis that the questions raised are of great general public importance, but noted that the arguments were not particularly strong.

The Court of Final Appeal’s decision will be binding on all courts and will affect the direction that the courts will take in the future regarding same-sex marriage.

Joanne Brown and Jamie Choy

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Joanne Brown
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.