Bittersweet day for HK LGBT community as court rules in favour of inheritance rights between gay couple, but rejects foreign same-sex marriage bid

19-Sep-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong’s High Court ruled in favour of a gay homeowner seeking equal inheritance rights for his partner, but rejected a bid to recognise foreign same-sex marriages in a bittersweet day involving two important judgments on the rights of sexual minorities in the city.

Justice Anderson Chow Ka-ming ruled on two separate cases on Friday, a year after he concluded the government had no positive obligation to provide an alternative legal framework for equal treatment as it was not unconstitutional to deny their right to marriage.

Edgar Ng Hon-lam won his challenge targeting the marriage provisions in ordinances on intestacy and financial provision for dependants, following earlier successes in other fields such as taxation, civil servants’ benefits or application of dependant visas.

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Ng, who was not in court on Friday, had applied for judicial review out of concern that his husband would not be able to inherit his estate in the absence of a will or other estate planning because their union in London was not considered a valid marriage in Hong Kong.

Campaign group Hong Kong Marriage Equality (HKME) said Ng’s case was an important victory, serving as “a clear signal to society that unequal treatment of same-sex couples is not justified”.

But the group also expressed disappointment with the outcome of the broader challenge from Jimmy Sham Tsz-kit, saying the court had “missed its chance to advance the legal status of overseas married same-sex couples”.

Sham, the Civil Human Rights Front convenor, lost his bid for a general declaration that Hong Kong laws violated the constitutional right to equality when they recognised foreign heterosexual marriages but not homosexual ones, such as his, registered in New York.

“Hong Kong aspires to be a leading world city in the world but we are dragging our feet when it comes to LGBT+ equality,” the HKME statement added.

In the Ng case, the judge ruled there was an unjustified differential treatment accorded to same-sex married couples dealing with legal entitlements and benefits relating to inheritance, which constituted unlawful discrimination on the ground of sexual orientation.

He also recognised that many of the government’s current policies and statutory provisions were “vulnerable to challenge” on the same grounds and might be held unconstitutional upon analysis.

But he found Sham’s attempt to achieve complete parity of legal recognition “too ambitious” and “fundamentally flawed” when the basic question of whether there was differential treatment “cannot be answered in a vacuum”, without subject matter or context. “There cannot be a general rule applicable in all circumstances,” Chow explained. “It remains open to the applicant to challenge any particular decision (including a matter of policy or a statutory provision) which accords differential treatment based on sexual orientation as a violation of his constitutional right to equality.”

Outside court, Sham called Chow’s rulings ridiculous and lacking in courage for not correcting the systemic discrimination he recognised in one go.

“They won’t sell you the entire strip of barbecue pork but once chopped in pieces they’ll let you purchase one by one,” Sham said.

“Why should we homosexuals have to mount 10, or 100 judicial reviews, to fight for the rights that we are entitled to? This approach in itself is unjust.”

Sham said he would consult his lawyers on whether to appeal.

Parties in Ng’s case have 21 days to formulate a remedial interpretation for terms such as “valid marriage”, “husband” and “wife” under the Intestates’ Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance.

His lawyers had previously suggested that “husband and wife” shall be read as “a married person and his or her spouse”.


Category: Hong Kong

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