Legal update: Two equality rights cases ruled on by High Court on 18 September 2020

The High Court today handed down two decisions concerning same-sex rights in Hong Kong.

Ng Hon Lam Edgar v Secretary for Justice [2020] HKCFI 2412

In the Judgment of the Honourable Mr Justice Anderson Chow, the High Court today ruled in favour of Mr Edgar Ng’s judicial review application in respect of intestacy rights of same-sex spouses in Hong Kong. The current drafting of the Intestates’ Estates Ordinance (Cap. 73) and the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) leaves same-sex spouses without the legal right to inherit each other’s estates in the absence of an executed will or other estate planning provisions leaving them in an unequal and undeniably more vulnerable position compared with opposite-sex couples. Paragraphs 1 and 2 of the Judgment state the Court’s position clearly and summarise the decision:

“1. The principal issue which arises for determination in this application for judicial review is whether the exclusion of spouses to same-sex marriages from legal entitlements and benefits under the Intestates’ Estates Ordinance, Cap 73 (“the IEO”) and the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the IPO”) constitutes unlawful discrimination on the ground of sexual orientation.

2. In my view, the answer is “yes”.”

This is a significant step forward for equality rights in Hong Kong, affording to same-sex spouses equal rights under laws designed to assist people in ensuring their future financial security at a time of great vulnerability through grief.

Sham Tsz Kit (岑子杰) v Secretary for Justice [2020] HKCFI 2411

Mr Justice Chow also ruled on Mr Jimmy Sham’s judicial review application seeking to challenge the constitutionality of two statutory provisions contained within the Marriage Ordinance (Cap. 181) and the Matrimonial Causes Ordinance (Cap. 179). Mr Sham’s application argued that the exclusion of same-sex couples from the institution of marriage in Hong Kong constitutes and violation of the rights to equality and privacy (on three grounds). This application was unsuccessful with the Court finding that the government does not have a positive obligation to provide an alternative legal framework to marriage (such as civil unions or registered partnerships) and the denial of same-sex couples the right to marry in Hong Kong is not unconstitutional. This application had been previously stayed pending the determination of MK v Government of HKSAR [2019] 5 HKLRD 259 which raised similar issues and was ultimately unsuccessful. You can read more about the MK case here.

Elizabeth Seymour-Jones

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

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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