Leung Chun Kwong v Secretary for Civil Service

[2018] 3 HKLRD 84
Court of Appeal
Civil Appeal No 126 of 2017
Cheung CJHC, Lam V-P and Poon JA
1 June 2018

Employment law - employees' benefits - civil servant - civil servant entered into same-sex marriage overseas - denial of "spousal" benefits provided to spouses of heterosexual civil servants - did not constitute unlawful discrimination on ground of sexual orientation

Taxation - joint assessment by married couple - on proper construction of "marriage" under s.2(1), right to elect joint assessment only available to couple under heterosexual marriage and not to same-sex couples married overseas - did not constitute unlawful discrimination on ground of sexual orientation - Inland Revenue Ordinance (Cap.112) ss.2(1), 10

Human rights - equality before the law - right not to be discriminated against - discrimination based on sexual orientation - same-sex couples married overseas - denial of civil service "spousal" benefits and right to elect joint tax assessment with spouse - did not constitute unlawful discrimination on ground of sexual orientation - justification on basis of upholding status of marriage as understood in Hong Kong, namely heterosexual marriage - Basic Law art.37

Family law - marriage - constitutional protection of marriage in Hong Kong - confined to heterosexual marriage - Basic Law art.37

Words and phrases - "marriage" - Inland Revenue Ordinance (Cap.112) s.2(1)

L, a Senior Immigration Officer and Hong Kong permanent resident, legally married his same-sex partner, S, in New Zealand in 2014. When L sought to update his marital status and apply for medical and dental benefits provided by the Government under the Civil Service Regulations (CSRs) available to an "officer's spouse" (Spousal Benefits) for S, the Secretary for the Civil Service (Secretary) replied that L's same-sex marriage was not recognised as a "marriage" under Hong Kong law, S was not a spouse and thus was not entitled to spousal benefits under the CSRs (the Benefits Decision). Subsequently, L was unable to include S as his spouse when e-filing his income tax return. Section 10 of the Inland Revenue Ordinance (Cap.112) (IRO) confers the right to elect joint assessment on "a husband and wife" as a married couple. The Commissioner of Inland Revenue (Commissioner) stated that a same-sex marriage was not regarded as a valid marriage for the purposes of the IRO; s.2(1) of the IRO referred to a marriage between a man and woman; and so L was incapable of having a "spouse" and not entitled to elect for joint assessment with S as a married couple (the Tax Decision, and collectively with the Benefits Decision "the Decisions"). On L's application for judicial review of the Decisions, the Judge ruled in his favour on the Benefits Decision holding that the differential treatment failed the justification test and L was unlawfully discriminated against because of his sexual orientation; but against him on the Tax Decision since, as a matter of construction of s.2(1) of the IRO, the Commissioner's determination was correct and therefore, the right to equality was not engaged. The Secretary appealed against the Judge's ruling on the Benefits Decision and L cross-appealed against the Judge's ruling on the Tax Decision.

Held, unanimously allowing the appeal by the Secretary and dismissing L's cross-appeal, that:

(1) (Per Cheung CJHC) Article 37 of the Basic Law constitutionally guarantees the right to heterosexual, but not same-sex, marriage. In Hong Kong, protection of the traditional concept and institution of marriage was a legitimate aim. The Court must accord substantial and adequate weight to the constitutional backing and preference for heterosexual marriage (embodied within which were the historical, traditional, social, moral and religious reasons or values of Hong Kong people as recognised by the drafters of the Basic Law). Extending Spousal Benefits and the right to joint assessment to same-sex couples married overseas would lead, almost inevitably, to similar extensions in other areas including public housing, social welfare and public medical benefits. It would, quite probably, spill over to unmarried same-sex couples. (See paras.7, 9, 16-17.)

(Per Poon JA )

Tax Decision - proper construction of s.2(1) of IRO

(2) On a proper construction of s.2(1), read with ss.10, 26F, 29, 31 and 41(1), "marriage" for the purposes of the IRO was intended to mean only a heterosexual marriage between a husband and a wife, and not a same-sex marriage, and was also consistent with its meaning under all of Hong Kong laws. Thus, the right to elect joint assessment under s.10 was only available to a husband and a wife of a heterosexual marriage, not to the parties of a same-sex marriage. (See paras.73-74, 80.)

Constitutional challenge to Decisions

Protection of marriage in Hong Kong context

(3) Marriage was a most important social and legal institution and carried a special status with a corpus of rights and obligations. In Hong Kong, with the constitutional backing and preference for heterosexual marriage under the Basic Law, it deserved the full protection of the law to safeguard its status from any impermissible encroachments lest the very institution of marriage be eroded or collapse. On any challenge alleging discrimination based on marital rights and obligations, it was the status of marriage and its protection which mattered most, having proper regard to society's own history, traditions, culture, core values, beliefs and prevailing socio-moral values on marriage held by the local community generally (Shackell v United Kingdom(Application No 45851/99, 27 April 2000), Burden v United Kingdom (2008) 24 BHRC 709, Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, Lendore v Attorney General of Trinidad and Tobago [2017] 1 WLR 3369 applied). (See paras.87, 89-91, 93, 96-97.)

Whether Spousal Benefits and right to joint assessment core rights unique to marriage in Hong Kong

(4) There were core rights and obligations unique to marriage such that the entailing privileged treatment of married couples as compared with unmarried couples was obvious and should be considered as requiring no justification. In doing so, the law was protecting the special status of marriage. However, when the differential treatment fell outside such core rights and obligations, and if the reason for the difference was the homosexual applicant's sexual orientation, the right to equality was engaged. Unless the treatment satisfied the justification test, it amounted to discrimination based on sexual orientation (QT v Director of Immigration [2017] 5 HKLRD 166 applied). (See paras.83, 95.)

(5) Spousal Benefits, as contractual employment benefits, were not by their nature unique to marriage. However, the Government was not an ordinary employer. It was the custodian of the community's socio-moral values and, acting consistently with the prevailing view of the community on marriage, had always adopted marital status as the benchmark for entitlement to Spousal Benefits. It was arguable that through such long and uninterrupted practice and usage, Spousal Benefits had been accepted and perceived by society as unique to marriage and that by granting same-sex married couples access to them, the very status of marriage would diminish significantly in the eyes of the public and might be seen as a recognition of same-sex marriages by the back door. Notwithstanding, it was not plain and obvious that Spousal Benefits were core rights and so they needed to be justified (QT v Director of Immigration [2017] 5 HKLRD 166 applied). (See paras.106, 110-111.)

(6) Joint assessment under s.10 of the IRO entailed a husband and wife being treated as one for taxation purposes and was based on the fundamental concept that marriage was a union between a man and a woman. However, it was not plain and obvious that within the statutory regime of the IRO, joint assessment must be based on a married couple's marital status and so it also had to be justified (QT v Director of Immigration [2017] 5 HKLRD 166 applied). (See paras.115-116.)

Justification/whether unlawful discrimination

(7) The Decisions did not constitute direct discrimination against L, since the Spousal Benefits and the right to elect joint assessment were not available to all unmarried persons and therefore did not target same-sex marriages. However, homosexual couples in same-sex marriages could never be eligible for the same and so the Decisions might constitute indirect discrimination if not justified. (See paras.118, 124, 130.)

(8) Applying the four-stage justification test, first, protecting and not undermining the status of marriage was plainly a legitimate aim given the prevailing views of the local community on marriage. Second, using marital status to differentiate treatment for Spousal Benefits and joint assessment was rationally connected to that aim in the societal context of Hong Kong, because including homosexual couples would undermine or be perceived to undermine the status of marriage (R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 applied; Rodriguez v Minister of Housing of Gibraltar [2009] UKPC 52 distinguished). (See paras.124-126.)

(9) Third, applying the stringent "no more than necessary" standard of scrutiny, given that: (a) our law, including the Basic Law, only recognised heterosexual marriage; and (b) the prevailing socio-moral views of our society still regarded heterosexual marriage as the only acceptable form of marriage, the immense public interest in protecting marriage weighed heavily in the assessment. Since Spousal Benefits and joint assessment had long been closely and exclusively associated with heterosexual marriages, not extending them to same-sex married couples was no more than necessary to protect the status of marriage as understood and accepted in the local context. (See paras.127-128.)

(10) Fourth, the denial of Spousal Benefits to L and the right to elect joint assessment and resultant inroads into his right including financial prejudice that he might suffer, was reasonably balanced by the public interest in protecting the status of marriage. The spill-over effect (as explained by Cheung CJHC) was also a strong factor tilting the balance in favour of upholding the status of marriage in Hong Kong (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied). (See paras.17, 100, 129.)

(11) Accordingly, the Decisions did not constitute indirect discrimination against L on the ground of sexual orientation. Upholding the status of marriage was, in the present context, a sufficient and weighty justification. (See paras.130, 137.)


This was an appeal by the Secretary for Civil Service against the judgment of Anderson Chow J on 28 April 2017 allowing the application for judicial review of the decision by the Secretary that the applicant's same-sex marriage was not recognised as a "marriage" under Hong Kong and his same-sex spouse was not entitled to spousal benefits (see [2017] 2 HKLRD 1132). This was also a cross-appeal by the applicant against the Tax Decision. The facts are set out in the judgment.


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