Court of Final Appeal: Government must provide alternative means of recognising same-sex partnership

On 5 September 2023, the Court of Final Appeal in Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28 ruled that the absence of alternative means of legal recognition of same-sex relationships in Hong Kong amounts to a violation of the constitutional right to privacy enshrined in the Hong Kong Bill of Rights. The HKSAR Government is to establish a new alternative legal framework to legally recognise same-sex partnerships to dispel any sense of them belonging to an inferior class of persons. 

Although the Court accepted that the HKSAR Government enjoys a flexible margin of discretion in deciding the rights and obligations under this new legal framework, a declaration was nevertheless made but suspended for 2 years. This imposes a timeline for the HKSAR Government to take steps to comply and establish a new alternative legal framework.

In the same Judgment, the Court ruled that there is no constitutional right to same-sex marriage in Hong Kong, nor is the non-recognition of foreign same-sex marriage a violation of the constitutional rights, as the current legislative framework does not provide such recognition.

The Appellant, Mr. Jimmy Sham, entered into a same-sex marriage in New York in 2013, which is not recognised in Hong Kong. Mr. Sham issued judicial review proceedings in 2018. His application was dismissed by the Court of First Instance and Court of Appeal, but subsequently leave to appeal was granted by the Court of Appeal. This Judgment brings a conclusion to his legal challenge.

While this is an important step forward for LGBTQ+ communities it will take time for its effect to be felt and there is still much work to do to create a fully inclusive and equal rights platform for the LGBTQ+ community.

Joanne Brown and Adrian Au

For specific advice on your situation, please contact:

Joanne Brown
Partner | E-mail

Adrian Au
Partner | E-mail

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.