The Court of Appeal has granted leave to gay civil servant Angus Leung to appeal his case at Hong Kong’s top court. Leung is challenging the government’s decision to deny spousal benefits to his husband.
Judge Jeremy Poon Siu-chor wrote on Monday that some of the questions raised by Leung are of great general or public importance, which means the case should be submitted to the Court of Final Appeal.
Leung is an immigration officer who married his husband in New Zealand in 2014. The Civil Service Bureau refused to change Leung’s marital status and grant benefits, such as medical coverage, to his husband, and Leung filed a judicial review in 2015.
In 2017, the Court of First Instance sided with Leung, with judge Anderson Chow writing that allowing benefits to same-sex partners would not constitute an indirect legalisation of same-sex marriage.
However the decision was overturned by the Court of Appeal on June 1, which said that the Basic Law favours heterosexual marriage and therefore it is not discriminatory for gay people to be excluded from marrying.
Tax and benefits
The Court of Appeal said on Monday that it would allow an appeal on some of the issues raised by Leung, but not all.
One of the issues approved was whether a difference in marital status between same-sex couples and heterosexual couples was rationally connected to the conferral of spousal benefits, or to joint assessment under tax law.
Another approved issue was whether the local legal landscape and societal circumstances – including the prevailing socio-moral values on marriage – were relevant to the case.
The Court of Appeal can decide which issues go to the top court, but its decision is not always final. The Court of Final Appeal has the authority to decide on its own whether to grant leave on specific issues, even after the Court of Appeal has turned them down.
Leung’s appeal comes after the landmark Court of Final Appeal decision in July regarding lesbian expat QT. In a unanimous judgment, the court said that the differential treatment towards QT – namely denying her a spousal visa on the basis of marital status – amounted to unlawful discrimination.
