Legal update: Landmark decision by HK CFA to allow civil service spousal benefits and joint tax assessments to same sex couples

06Jun2019

On 6 June 2019 Hong Kong’s Court of Final Appeal handed down a landmark unanimous decision allowing same sex couples to enjoy equal spousal benefits in civil service and to file joint tax assessments in Hong Kong.

Facts

The Appellant, Leung Chun Kwong, a Hong Kong civil servant, married his husband Scott Adams in New Zealand in April 2014. Their marriage is valid and is recognised by New Zealand law.

After his wedding to Mr. Adams, Mr. Leung sought to update with the Civil Service Bureau his marital status as required under the Civil Service Regulations. Mr. Leung complained to the Secretary for Civil Service that he was denied the right to do so and that Mr. Adams was therefore denied access to spousal benefits he should be entitled to.

Mr. Leung later found that he was unable to enter Mr. Adams’ name in the tax e-filing option when electing to be assessed jointly for his tax assessment on the basis that they shared the same prefix and that marriage as defined in the Inland Revenue Ordinance (IRO) referred to heterosexual marriage only. This position was maintained by the Commissioner of Inland Revenue following a complaint by Mr. Leung to him. Mr. Leung later filed a paper tax return seeking to elect for joint assessment with Mr. Adams which was refused by the Commissioner on the ground that he and Mr. Adams were not husband and wife for the purposes of the IRO.

Court of First Instance (CFI)

In the High Court, Mr. Leung filed a judicial review of the decisions made by the Secretary for the Civil Service and Commissioner of Inland Revenue referred to as the “Benefits Decision” and the “Tax Decision” respectively on the basis that they unlawfully discriminated against him on the basis of his sexual orientation.

The CFI allowed the application in respect of the Benefits Decision but dismissed the application in respect of the Tax Decision.

Court of Appeal (CA)

The Secretary for Civil Service appealed to the CA the CFI’s decision in respect of the Benefits Decision, and Mr. Leung cross-appealed the decision in respect of the Tax Decision.

The CA allowed the Secretary’s appeal and dismissed Mr. Leung’s cross-appeal. The CA granted Mr. Leung leave to appeal to the CFA.

Court of Final Appeal (CFA)

The three questions considered in respect of both points of appeal were:

(1) was the differential treatment rationally connected to the legitimate aim of protecting and/or not undermining the concept and/or institution of marriage;

(2) are the local legal landscape and societal circumstances including the prevailing socio-moral values of society on marriage relevant to the issue of justification; and

(3) if so, was the difference in treatment justified?

The legitimate aim relied upon by the respondents was said to be “protecting and not undermining the concept and/or institution of marriage…

First question

In consideration of the first question, the CFA questioned the following: “How is it said that allowing Mr. Adams medical and dental benefits weakens the institution of marriage in Hong Kong? Similarly, how does permitting the appellant to elect for joint assessment of his income tax liability under IRO impinge on the institution of marriage in Hong Kong?” The CFA rejected the CA’s analysis, further finding that:

“…restricting these benefits to opposite-sex married couples on the ground that heterosexual marriage is the only form of marriage recognised in Hong Kong law is circular and therefore proceeds on the fallacious basis rejected by the [CFA] in QT. It amounts to the application of a self-justifying reasoning process and denies equality to persons of different sexual orientation who are accepted to be in a relevantly analogous position. Ultimately, a line is merely drawn without any further attempt to justify it”.

The CFA held on this point that it cannot be logically suggested that anyone would be encouraged to enter into an opposite-sex marriage by denying equal rights to same-sex as opposite-sex married couples. The CFA also described the Government’s argument on rational connection as “illogical” in light of the Hong Kong Government’s published policy as an equal opportunities employer.

Second question

The CFA concluded that while the local legal landscape and societal circumstances are relevant to the issue of justification, this does not include the prevailing socio-moral values of society on marriage, with the CFA questioning whether this could be accurately gauged in any event.  This is a significant point as it affirms that the views of a majority on the issue of marriage cannot influence whether a minority is afforded equal rights under the law. Societal consensus is simply not relevant to the justification of differential treatment.

Third question

Having found that both the Benefits and Tax Decisions could not be justified given the denial of these rights was not rationally connected to the legitimate aim of protecting the institution of marriage under Hong Kong law, it was not necessary for the CFA to complete the justification test. The judgment did however state that if it did consider them, the differential treatment would likely have been found to be disproportionate resulting in an “unacceptably harsh burden on [Mr. Leung]”.

Conclusion

This is a significant decision, the impact of which will no doubt have greater reach than just in respect of joint tax assessment and access to civil service spousal benefits for same-sex couples, and will fortify the legal avenues for the enforcement of equality rights for same-sex couples in Hong Kong.

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.

If you would like to discuss any of the matters raised in this article, please contact:

Mark Side
Partner | E-mail

Elizabeth Seymour-Jones
Registered Foreign Lawyer | 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.

To view the press summary, please click here.

To view the judgment, please click here.