While gay couples are welcome in Hong Kong, the city’s legal statues define “marriage” as the union of a man and a woman (as is true in communities which cover 80 per cent of humanity). So when one gay couple married overseas asked for legal “spousal rights” in Hong Kong, the answer could have been a simple restatement of the law. But judges wandered off into lengthy side avenues in which they pondered general issues such as human rights, and took the case all the way to the top of the Court of Final Appeal. One of the city’s top legal minds, Henry Litton, tells the story.
THE DEFINITION OF ONE little word can apparently “make history”.
The case of Leung Chun Kwong v Secretary for the Civil Service & Commissioner of Inland Revenue [CACV 126/2017, judgment 1/6/2018] was described by Poon J A in the Court of Appeal as making Hong Kong legal history.
And yet, the court was concerned with nothing more than the meaning of words in daily use: in particular the word “spouse” in the Civil Service Regulations, and the same word in the Inland Revenue Ordinance.
To most people, it must seem odd that such question should arise. Isn’t the answer obvious? To a married man, his wife is his spouse; to a married woman her husband is her spouse.
Obvious, Yes. But, as this essay will show, when the case eventually reached the Court of Final Appeal (CFA), it opened up a deep chasm between the law as pronounced by the court and the community’s experience of family life as lived on the ground. It was a total mismatch.
THE FAMILY
The family is “the natural and fundamental group unit in society” (Article 19, Hong Kong Bill of Rights).
Humans are tribal creatures since time immemorial. Day in, day out, people gather together, get married; separate families become united to a greater or lesser degree; new relationships are formed; births are celebrated; deaths are mourned.
New generations come into being, and so succession passes from generation to generation, obeying the most basic of human instincts. The Bible’s Old Testament shows how important kinships derived from marriage really are, since ancient times.
Marriage is more than a transaction between two people. It is an institution which has impact on much wider circles of relationships. It touches many aspects of social life. Hence words like “husband”, “wife”, “spouse”, “sister-in-law”, “brother-in-law”: all have particular meaning. Trust and kinship between relatives within a loose family circle develop from the nature of the relationship as well as transactions between individuals. All this comes from marriage in the traditional sense.
FACTS OF THE CASE
The applicant is a Senior Immigration Officer employed by the Government. He is an avowed homosexual person.
In 2005 he formed a relationship with a Mr. Scott Paul Adams. Eight years later they started living together. In April 2014 they contracted “marriage” in New Zealand: the law there recognized same-sex marriage. But not in Hong Kong.
CIVIL SERVICE REGULATIONS
Upon his return to Hong Kong, the applicant claimed that Mr Adams was his “spouse” under the Civil Service Regulations and he was thus entitled to claim medical and dental benefits for him in that capacity. The Secretary’s response was that “marriage” under the Regulations meant marriage as provided for under section 40 of the Marriage Ordinance: that excluded “same-sex marriage” as took place in New Zealand: Mr Adams was not his “spouse”, so the applicant could not claim benefits for him.
The applicant was dissatisfied. He claimed that this was “discriminatory”: the only ground for denial of benefits, he said, was his sexual orientation. This led to legal proceedings.
THE INLAND REVENUE ORDINANCE
In the financial year 2014/2015 the applicant sought to take advantage of the financial benefits arising from a joint tax return with Mr Adams, on the basis that Mr Adams was his “spouse”. This was rejected by the Commissioner of Inland Revenue. Hence the proceedings against the Commissioner.
The proceedings against (a) the Secretary for the Civil Service and (b) the Commissioner of Inland Revenue were combined into one suit and came before Anderson Chow J at First Instance in the High Court.
CHOW J’S JUDGMENT
Stripped of verbiage and obfuscating “law”, the basic issue in both cases was the same: was Mr Adams the applicant’s “spouse” for the purposes of (a) benefits under the Civil Service Regulations, and (b) tax treatment under the Inland Revenue Ordinance?
And yet, amazingly, the judge’s conclusion on the two cases differed.
SPOUSAL BENEFITS
Presumably, the applicant entered government service with his eyes open, knowing that the word “spouse” in the vernacular had a particular meaning. He must have known that, so long as Hong Kong did not recognize same-sex marriage, his live-in male friend could not be regarded as his “spouse”. His private life was his own business, of no concern to anyone else. But when he chose to claim benefits under the system, that was a different story. He had to comply with the regulations.
But Chow J never looked at the matter in this straightforward way. Instead of tackling the core issue – was Mr Adams the applicant’s “spouse” under the regulations – he slid sideways into mind-boggling European human rights law to answer a loaded question: was the regulation “discriminatory” against the applicant on account of his sexual orientation and, if so, could it be justified by the Secretary? This led to citation of copious European and other “authorities” on the subject of “discrimination”.
It serves no purpose to try to follow the judge’s reasoning, leading to his conclusion that the Regulation was “discriminatory” as against the applicant.
TAX TREATMENT
The question here was the same: whether, for the purposes of tax returns, the applicant could regard Mr Adams as his “spouse” and thus make a joint tax return?
But here the judge faced a major problem: it was not simply what “spouse” meant in ordinary speech: the Ordinance itself – in section 2 (1) – provided the answer. “Wife” means “a married woman whose marriage is a marriage within the meaning of this Ordinance”; “spouse” means a husband or a wife. And marriage is “any marriage recognized by the law of Hong Kong”.
Faced with this, the judge concluded that the Commissioner was correct. The applicant could not claim Mr Adams to be his “spouse” for the purpose of his tax return.
The matter went on appeal.
COURT OF APPEAL
From the start, as mentioned earlier, Chow J did not deal with the straightforward issue “who is my spouse?”. He slid sideways into asking himself whether the Regulation was “discriminatory”. This could only arise if same-sex marriage was, in some relevant way, equivalent to traditional heterosexual marriage. This theme was tossed around in different ways in the Court of Appeal, piling on the complications. This was how Andrew K N Cheung (then Chief Judge of the High Court and now Chief Justice) posed the issue:
“This appeal … brings to the forefront the question of justifying a differential treatment by reference to the legitimate aim of protecting the traditional concept of marriage and preventing the undermining of the institution of (heterosexual) marriage. This question arises if the benefits and privilege under challenge in this appeal (that is, civil servant spousal benefits and joint assessment for tax purposes) are found by us to constitute core rights and obligations unique to marriage…”.
The Chief Judge then referred to Article 37 of the Basic Law as a constitutional “preference” for heterosexual marriage, excluding same-sex marriage; he took into account the very general statement in Article 25 which says that everyone is equal before the law. In essence, what the Chief Judge said was that to allow same-sex couples to share in the benefits hitherto enjoyed by heterosexual couples was “subtly to change society’s established understanding and concept of marriage which, as explained, is rooted in its traditional, social, moral or religious background or values, as embedded in Article 37 of the Basic Law. To do so, in other words, is to dilute or diminish the unique status of marriage in society.”
This theme was enlarged upon and tossed around by Poon J A in a massively long judgment.
The outcome was that, with the spousal benefits, the court found that they were “firmly based on the community’s prevailing socio-moral values on marriage” (para 109(1)); the institution of marriage itself must be protected and hence the “benefits” in issue, enjoyed by heterosexual couples only, cannot be extended to homosexual couples. The Secretary’s appeal was allowed, and the applicant’s cross-appeal dismissed.
One is inclined to say: “Oh dear, what a mountain of words to solve such a simple problem”.
The matter went on final appeal.
COURT OF FINAL APPEAL
When the matter reached the dizzy heights of the CFA, it was no longer attached to the realities on the ground. In abbreviation, what the court thought was in issue was this: “Is the legitimate aim of protecting the concept of marriage in the traditional sense rationally connected to the difference in treatment between a married person and one who is party to a same-sex marriage entered into outside Hong Kong?”
This very question presupposes that traditional marriage and same-sex marriage was comparable, and the burden fell on the government to justify discriminatory treatment.
The applicant Mr Leung’s basic proposition was this (para 28, CFA):
“My married relationship with my husband is in substance completely indistinguishable from that of a heterosexual married relationship. My marriage is characterized by life-long commitment, monogamy, sexual intimacy and interdependence, exactly like a heterosexual (monogamous) marriage”.
“My husband,” said the applicant. So would Mr Adams, referring to him, say: “My wife”?
The applicant claimed his relationship with Mr Adams was “in substance completely indistinguishable from that of a heterosexual married relationship”.
Really? Do basic facts of nature, biology, anatomy, sex not come into the equation?
Astonishingly, the CFA swallowed this whole. It referred to the formalities undertaken in New Zealand similar to a marriage in Hong Kong: publicity, notice, celebration by registered celebrant, the marriage entered in a register, with numbers etc., and a marriage certificate issued.
But none of these facts changed anything on the ground. To take this New Zealand scenario as “indistinguishable” from traditional marriage in Hong Kong was to take the shadow for the substance. To most people, the proposition is simply absurd.
THE OUTCOME
The CFA concluded that the government, in its spousal policy, did not treat like with like; that the benefits were discriminatory on the ground of sexual orientation and could not be justified. Hence the applicant’s appeal against the Court of Appeal’s determination was allowed.
As mentioned earlier, Poon J A, in the Court of Appeal, said the case made legal history: but alas, legal history in a very damaging way. Because of the complexity of language and of concepts in the Court of Appeal’s judgments, few would have read them and even fewer would have understood their content. But at least, in that court, the three judges (the Chief Judge, Johnson Lam VP and Poon J A) did no violence to ordinary words in the vernacular: words like “husband”, “wife”, “spouse” retained their traditional meaning.
But not so in the CFA. There, those words lost their certainty of meaning.
When two men choose to live together in Hong Kong in some degree of intimacy, form a household, go overseas to a jurisdiction such as New Zealand to get themselves “married”, they become each other’s “spouse” in the eyes of the CFA. And the one, somehow, is in the position of “wife”, and the other “husband”, or perhaps the other way round, or maybe interchangeably.
The judgment was handed down in June 2019. Few would have read it, and even fewer would have understood it. So, as far as the community is concerned, family life goes on untouched by the CFA. This opens up a gaping chasm between the law as laid down by the CFA and family life as led on the ground, unaffected by what the CFA said.
When fluidity of meaning gets into words like “husband”, “wife”, “spouse”, etc, the damaging effect flows on into other relationships. Soon, as is the fact, the word “woman” will lose its certainty of meaning, and politicians, even High Court judges, will be unable to say who is a woman, and who is a man.
But that is another story.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.