Leung Chun Kwong v Secretary For The Civil Service And Another

HCAL 258/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 258 OF 2015

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J U D G M E N T

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INTRODUCTION

1. Two questions arise for determination in this application for judicial review, namely:-

(1) whether Mr Leung, a civil servant who has entered into a same-sex marriage with Mr Adams in New Zealand, is entitled to the same benefits and allowances that the Government provides to the “spouses” of other married civil servants whose marriages are to persons of the opposite gender; and

(2) whether Mr Leung’s same-sex marriage with Mr Adams is a “marriage” for the purposes of the Inland Revenue Ordinance.

BACKGROUND FACTS

2. The basic facts giving rise to the present application can shortly be stated as follows.

(a) Personal background

3. Mr Leung (the applicant) is a Chinese national and a permanent resident of the Hong Kong Special Administrative Region.

4. He joined the Government as an Immigration Officer on 2 January 2003, and is currently a Senior Immigration Officer.

5. According to Mr Leung, throughout his adult life, he has self‑identified as a gay person and has only ever engaged in same-sex romantic relationships. In around 2005 he met Mr Adams, in August 2013 they started living together, and in late 2013 they decided to marry each other.

6. In view of the fact that the law regulating marriages in Hong Kong did not allow or provide for persons of the same sex to celebrate or contract a marriage in Hong Kong, Mr Leung and Mr Adams decided to marry in Auckland, New Zealand, where such marriage was legally permissible. On 18 April 2014, Mr Leung and Mr Adams were married in New Zealand.

(b) The Benefits Decision

7. As a civil servant, Mr Leung’s contract of employment with the Government is, and at all material times was, subject to the Civil Service Regulations (“CSRs”).

8. Pursuant to CSR 4, the Secretary for Civil Service (“the Secretary”) is authorised to amend, supplement, apply, interpret and make exceptions to the CSRs. For the purposes of administering the CSRs, it is the policy of the Secretary to interpret and apply the CSRs in a manner that is consistent with the existing relevant laws of Hong Kong.

9. Under CSRs 900 to 925 and 950 to 954, Mr Leung is entitled to certain medical and dental benefits provided by the Government. Such benefits are also extended to Mr Leung’s “family”, which is defined in CSR 900(2) to mean –

“the officer’s spouse and children (including children of divorced/legally separated officers, step-children, adopted children and illegitimate children) who are unmarried and under the age of 21. In the case of children aged 19 or 20, they must also be in full time education or in full time vocational training, or dependent on the officer as a result of physical or mental infirmity.”

10. CSR 513 provides as follows:-

“Every officer is required to inform his Department immediately of the birth, adoption, marriage and death of each dependent child … and of any change in his marital status, including marriage, divorce, or the death of his wife…”

11. On 27 March 2014, Mr Leung wrote to the Civil Service Bureau (“the CSB”) stating that he intended to enter into a same-sex marriage in New Zealand, and asked whether he was required to update his marital status under CSR 513 having regard to the fact that “same sex marriage is not recognized in HKSAR”.

12. On 30 April 2014, the Secretary replied to Mr Leung stating that his intended same-sex marriage in New Zealand fell outside the meaning of “marriage” under the CSRs, and such marriage would not constitute “a change in marital status” on his part which would require reporting under CSR 513.

13. There were further emails passing between Mr Leung and the Secretary on this matter. It is not necessary to summarise the contents of those emails in this judgment save to mention that by an email to the Secretary dated 28 October 2014, Mr Leung stated as follows:-

“… I was shocked with the previous reply given by your Bureau that I do not require to report my same sex spouse under the CSR. According to your advice, not only that it denies my right to update my marital status and having my spouse as emergency contact, it also denies my access to benefits such as my spouse should be entitled to medical and dental services [sic]. All of these are in violation of the [Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation] promoted by the Government. The only ground for the denial was merely on the ground of my sexual orientation, which is morally wrong and irrational.”

14. Mr Leung ended by asking the Secretary to look into the matter and advise (i) whether he was required to update his marital status as stipulated under CSR 513 as he was legally married with his same-sex spouse, and (ii) whether his same-sex spouse was entitled to benefits which other heterosexual spouses enjoyed.

15. Mr Leung’s email of 28 October 2014 was substantively answered by the Secretary by an email dated 17 December 2014, in which the first decision (the “Benefits Decision”) under challenge in this application for judicial review was embodied. The Secretary’s reply, so far as material, was as follows:-

“We would like to reiterate that for the purpose of administering CSR 513, ‘marriage’ refers to a ‘formal ceremony recognised by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others’ as provided under section 40 of the Marriage Ordinance (Cap.181). Since the same sex marriage as mentioned in your case falls outside the definition of ‘marriage’ as referred to under CSR 513, such marriage does not constitute a ‘change in marital status’ on your part for the purpose of the CSR which requires reporting under CSR 513.

As explained above, same sex marriage falls outside the scope of ‘marriage’ under the Marriage Ordinance (Cap.181) and is not recognised for the purpose of administering staff benefits under CSRs by the Government. In this respect, we wish to clarify that there is no violation of the COP for not granting your same sex partner the benefits since the ‘benefits’ under Section 5 of the COP applicable to married persons refer only to the marriages as recongised in Hong Kong.”

(c) The Tax Decision

16. In or around May 2015, Mr Leung sought to e-file his income tax return for the year of assessment 2014/15 with the Inland Revenue Department (“IRD”). However, when he sought to enter the name of Mr Adams as his spouse in the IRD’s e-filing system, an error message (namely, “Your spouse name prefix must be different from your own name prefix [547-E-1039]”) appeared.

17. Mr Leung raised this matter with the IRD by email on 1 June 2015, claiming that (i) in the IRD’s guideline for completing tax returns it was stated that “spouse” meant “lawful husband or wife under a valid marriage recognized by Hong Kong law or other legal marriage recognized by the law of the place where it was entered into”, (ii) he and his spouse was legally married in New Zealand under their law and their marriage were valid, and (iii) accordingly he met the criteria of the IRD’s guideline.

18. An assessor on behalf of the Commissioner of Inland Revenue (“the Commissioner”) replied to Mr Leung by an email dated 9 June 2015, in which the second decision (the “Tax Decision”) under challenge in this application for judicial review was embodied. The reply, so far as material, was as follows:-

“Insofar as same-sex marriage is concerned, the position of the Department can be found in paragraph 5 of Departmental Interpretation and Practice Notes No.18 (Revised) ‘Assessment of Individuals under Salaries Tax and Personal Assessment’, which is reproduced below for your easy reference:-

‘Same-Sex Marriages

5. A same-sex marriage is not regarded as a valid marriage for the purposes of the (Inland Revenue) Ordinance. Although the definition of ‘marriage’ in section 2(1) does not expressly oust one between persons of the same sex, it does make reference to a marriage between a ‘man’ and any ‘wife’. Under section 2, ‘husband’ means a married man and ‘wife’ means a married woman. ‘Spouse’ is defined under the same section as a husband or wife. Marriage in the context of the Ordinance is thus intended to refer to a heterosexual marriage between a man and a woman. Parties in a same-sex marriage cannot be ‘husband/wife’ and they would be incapable of having a ‘spouse’.’

As such, the Department’s online tax filing system is designed in such a manner that it will not accept a taxpayer to enter a person with the same sex as his/her spouse.”

19. On 14 September 2015, the IRD received from Mr Leung a completed 2014/15 Tax Return – Individuals in paper form, in which Mr Leung elected for joint assessment with Mr Adams. The Commissioner considered that Mr Leung was not entitled to elect for joint assessment, as he and Mr Adams were not husband and wife for the purposes of the IRO. The Commissioner therefore assessed Mr Leung for salaries tax for the year of assessment 2014/15 on individual basis.

20. As confirmed by the Commissioner, the total salaries tax liabilities of Mr Leung and Mr Adams (as separately assessed) have not been adversely affected by the refusal of the IRD to recognize Mr Leung’s same-sex marriage with Mr Adams as a...