Mk v Government Of Hksar

HCAL 1077/2018

[2019] HKCFI 2518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1077 OF 2018

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J U D G M E N T

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INTRODUCTION

1. Two principal issues arise for determination in this application for judicial review:

(1) whether the denial of the right to marriage to same-sex couples under Hong Kong law constitutes a violation of their constitutional rights; and

(2) whether the Government’s failure to provide a legal framework for the recognition of same-sex relationships such as civil unions, registered partnerships or other legally recognised status for same-sex couples as an alternative to marriage also constitutes a violation of their constitutional rights.

2. For reasons which I shall explain in this judgment, I am of the view that the answers to both questions are “no”. Accordingly, the present application for judicial review stands to be dismissed.

BASIC FACTS

3. The basic facts of this case can be shortly stated. MK is a female Hong Kong permanent resident. She was born and raised in Hong Kong, and has reached the age of majority. She is a lesbian, having realised her sexual orientation since childhood. Throughout the years, she has had a few same-sex relationships. She has been co-habiting with her current same-sex partner, who is also a Hong Kong permanent resident, for around two years. According to her, they have been in a stable relationship ever since their co-habitation.

4. In May 2018, the Applicant and her same-sex partner discussed the possibility of establishing a legal relationship in Hong Kong or elsewhere. They wished to marry in Hong Kong, or enter into a form of legally recognised civil union or registered partnership should such framework be available in Hong Kong. However, the law of Hong Kong did not permit the Applicant and her same-sex partner to marry and, furthermore, did not provide any framework such as civil union, registered partnership or other legally recognised status for the recognition of the Applicant and her same-sex partner’s relationship.

5. It is MK’s position that:

(1) the denial of the right of same-sex couples to marry under Hong Kong law is unconstitutional; and

(2) the failure of the Government to provide a legal framework for the recognition of same-sex relationships such as civil unions, registered partnerships or other legally recognised status as an alternative to marriage is also unconstitutional.

6. On 11 June 2018, MK made the present application for leave to apply for judicial review. Leave to apply for judicial review was granted on 13 June 2018 on consideration of papers alone. On 6 May 2019, MK gave notice of intention to amend the Form 86. In the draft Amended Form 86, MK seeks the following declarations:

(1) a declaration that the Marriage Ordinance, Cap 181, to the extent that it denies the right to marry to same-sex couples, is inconsistent with BL 25, 32, 37 and/or 39[1] and/or BOR 1, 14, 15, 19 and/or 22 and is unconstitutional;

(2) a declaration that the Matrimonial Causes Ordinance, Cap 179, to the extent that it denies the right to marry to same-sex couples, is inconsistent with BL 25, 32, 37 and/or 39 and/or BOR 1, 14, 15, 19 and/or 22 and is unconstitutional;

(3) a declaration that the failure on the part of the Government of the HKSAR to provide a legal framework under Hong Kong law for the recognition of same-sex relationships such as civil unions, registered partnerships or other legally recognised status for same-sex couples as an alternative to marriage under the Marriage Ordinance and the Matrimonial Causes Ordinance, constitutes a violation of BL 25, 32, 37 and/or 39 and/or BOR 1, 14, 15, 19 and/or 22.

MARRIAGE AS A STATUS AND ITS CONSEQUENCES

7. Marriage has been said to be “perhaps the most important and sensitive of human relationships”[2]. It has also been said that the legal recognition of marriage is “a matter of status and is not for the spouses alone to decide. It affects society and is a question of public policy. Status is not conferred only by a person upon himself, it has to be recognised by society”[3]. Marriage has deep-rooted social and cultural connotations which may differ largely from one society to another[4], and thus the status acquired by marriage varies according to the laws of different places.

8. It is generally recognised that the status of marriage gives the husband and wife a new legal position from which flows both rights and obligations with regard to the rest of the public which unmarried couples do not have[5]. In Hong Kong, the status of marriage brings with it a broad range of personal, social, economic and legal consequences for the husband and wife. Ms Gladys Li, SC (for MK) has provided the court with a useful table summarising 23 specific, non-exhaustive, areas in which legal consequences flow from the status of marriage in Hong Kong, including 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. For the present purpose, it is not necessary to go into the details about the precise legal consequences flowing from the status of marriage, save to state that the ability to acquire such status is unquestionably a matter of singular importance to any Hong Kong resident.

THE RELEVANT CONSTITUTIONAL RIGHTS

9. MK relies on various articles in the Basic Law and the Hong Kong Bill of Rights in support of her application for judicial review. In particular, she relies on the following articles of the Basic Law:

(1) BL 25 – “香港居民在法律面前一律平等 (All Hong Kong residents shall be equal before the law).”

(2) BL 32 –

“(1) 香港居民有信仰的自由 (Hong Kong residents shall have freedom of conscience).

(2) 香港居民有宗教信仰的自由，有公開傳教和舉行、參加宗教活動的自由 (Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public).”

(3) BL 37 – “香港居民的婚姻自由和自願生育的權利受法律保護 (The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law).”

10. The articles of the Hong Kong Bill of Rights that MK relies on are:

(1) BOR 1(1) – “人人得享受人權法案所確認之權利，無分種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分等等 (The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status).”

(2) BOR 14 –

“(1) 任何人之私生活、家庭、住宅或通信，不得無理或非法侵擾，其名譽及信用，亦不得非法破壞 (No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation).

(2) 對於此種侵擾或破壞，人人有受法律保護之權利 (Everyone has the right to the protection of the law against such interference or attacks).”

(3) BOR 15(1) – “人人有思想、信念及宗教之自由。此種權利包括保有或採奉自擇之宗教或信仰之自由，及單獨或集體、公開或私自以禮拜、戒律、躬行及講授表示其宗教或信仰之自由 (Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching).

(4) BOR 22 – “人人在法律上一律平等，且應受法律平等保護，無所歧視。在此方面，法律應禁止任何歧視，並保證人人享受平等而有效之保護，以防因種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分而生之歧視 (All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status).”

HONG KONG MARRIAGE LAW DOES NOT PERMIT SAME-SEX COUPLES TO MARRY

11. Subject to the possibility of an “undated” interpretation (which will be considered below), it is clear that the current Hong Kong marriage law does not permit same-sex couples to marry in Hong Kong. The following provisions in our statute books put the matter beyond doubt:

(1) Section 4 of the Marriage Reform Ordinance, Cap 178, which states that:

“Marriages entered into in Hong Kong on or after [7 October 1971[6]] shall imply the voluntary union for life of one man with one woman to the exclusion of all others and may be contracted only in accordance with the Marriage Ordinance.”

(2) Section 40 of the Marriage Ordinance, Cap 181, which states that:

“(1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage.

(2) The expression Christian marriage or the civil equivalent of a Christian marriage (基督敎婚禮或相等的世俗婚禮) implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others.”

(3) Section 20(1)...