Following the cases of QT v Director of Immigration (2018) 21 HKCFAR 324 (see our Quarterly Review here) and Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127 (see our Legal Update here), the case of Ng Hon Lam Edgar v Hong Kong Housing Authority [2021] 3 HKLRD 427 marked another welcomed legal victory for same-sex married couples.
The judicial review challenge was originally brought against the Hong Kong Housing Authority (HA) by Mr. Edgar Ng. It was continued after he died by his husband, Mr. Li Yik Ho.
Following their marriage in the UK, Mr. Ng had bought a flat under the HA's subsidised "Home Ownership Scheme" (HOS). Under HOS conditions only the owner and "authorised occupants" could occupy the flat. HA policies precluded same-sex spouses of HOS flat owners from (1) being recognised as authorised occupants, and (2) being transferees of those flats without having to pay a premium.
The Court of First Instance (Court) agreed with the late Mr. Ng and Mr. Li that those policies, and their application to the couple, were unlawful discrimination on the ground of sexual orientation.
In so holding, the Court reiterated that questions for determination were whether the challenged practices constituted differential treatment, and whether the differential treatment was justified?
Answering the first question in the affirmative, the Court followed the Court of Final Appeal's observation in Leung Chun Kwong that just like heterosexual couples, homosexual couples are capable of equivalent interdependent and interpersonal relationships – and their marriage shares the same characteristics of publicity and exclusivity. Homosexual and heterosexual couples also do not intrinsically differ in their need for affordable housing, a family home to live together in, and their wish or desire to own a home jointly.
The Court went on to find the differential treatment unjustified. The judicial scepticism seen in Leung Chun Kwong of the idea that the traditional family can be promoted through denying benefits to same-sex couples reappeared in Edgar Ng. The Court emphasised the need to scrutinise the evidential basis of justifications of differential treatment against same-sex couples.
What would from any view be at most a very limited increase in the number of available HOS flats was also found disproportionate to the unfairness and unreasonableness of barring a same-sex married couple from living together as a family in an HOS flat.
Therefore, the Court declared the HA policies and their application to Mr. Ng and Mr. Li were unlawful and violated constitutional equality guarantees – and struck them down.
What Does This Mean for The Future of Same-sex Married Couples?
Although only public authorities can be challenged by judicial review, Edgar Ng is another desirable judicial step adding momentum towards social acceptance of the LGBT community and relationships in Hong Kong. This momentum will likely continue to impact on the private sphere as well.
Mr. Li also lodged a separate application for judicial review against The Secretary for Justice and the Director of Health, arguing that the prevailing laws and government policies discriminate against same-sex married couples by excluding people in same-sex marriage from handling their spouse's after-death arrangements. However, that application was disposed of after the respondents to the application clarified their position in respect of treatment of same-sex married couples.
The HA is meanwhile appealing the Court's ruling in Infinger v Hong Kong Housing Authority [2020] 1 HKLRD 1188 that it was unlawful discrimination for the HA to preclude same-sex married couples from applying for public rental housing as a family. We will watch this space as the law continues to make equality inroads on same-sex marriages.
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