Hong Kong’s High Court ruled on Friday that same-sex couples should enjoy equal rights under the city’s inheritance laws. The decision was welcomed by campaigners as a victory for the LGBT+ community in a city which still does not permit equal marriage.

Justice Anderson Chow said the differential treatment accorded to same-sex couples under two inheritance ordinances was unjustified.

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High Court. File photo: Rachel Wong/HKFP.

“In all, the differential treatment accorded to same-sex married couples and opposite-sex married couples…cannot be justified, and constitutes unlawful discrimination,” he said in his written judgement.

The traditional institution of heterosexual marriage would not be undermined by offering same-sex couples the same benefits, the judge said in his ruling on an application for a judical review.

Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.

Applicant Edgar Ng and his husband – both Hong Kong permanent residents – married in London in 2017. Ng purchased a subsidised Home Ownership Scheme flat in Hong Kong in 2018 but his husband was not recognised as joint owner under existing Housing Authority policy.

Amid concerns that his spouse would not be able to inherit the flat in the absence of a will, Ng filed the legal challenge.

In March, a Housing Authority policy that barred same-sex couples who had married overseas from applying for public housing was ruled unconstitutional and unlawful by the Court of Appeal.

Chow, who also heard that case, said public housing was intended to address the needs of low-income families and there was no reason to believe that same-sex couples had lesser needs than childless heterosexual couples.

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Choi Hung Estate. File photo: Wikimedia Commons.

Another legal challenge to Hong Kong’s policies on gay marriage came in June last year, when the Court of Final Appeal ruled in favour of a homosexual civil servant applying for spousal benefits for his partner.

Concern group Hong Kong Marriage Equality applauded Friday’s judgement as another important victory for LGBT+ equality.

“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 government should seize this opportunity to work with the
LGBT+ community to implement marriage equality in the city,” it said in a statement.

Taiwan legalised same-sex marriage in 2019 and Thailand is set to be the second place in Asia to do so.

Human rights lawyer Mark Daly, who represented Ng, welcomed Friday’s judgement as in line with overseas jurisdictions in giving same-sex couples equal rights to inherit: “We will continue fighting for the fundamental human rights of sexual minorities, including the right to equality and non-discrimination on the basis of sexual orientation,” he added.

Second judgement seen as setback

Another separate judgement on the issue was also handed down on Friday but this one went against the LGBT+ community.

Pro-democracy activist Jimmy Sham filed for a judicial review, maintaining that Hong Kong’s failure to recognise foreign same-sex marriages violates the city’s mini-constitution and bill of rights.

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Jimmy Sham receives the judgement at High Court. Photo: Stand News.

Hong Kong citizens are guaranteed equality before the law under Article 25 of the Basic Law. Article 22 of the Bill of Rights entitles all persons to equal legal protection and bans discrimination on any grounds.

Sham – who married his same-sex spouse in New York in 2013 – argued that it was unfair and discriminatory that homosexual couples did not enjoy the same rights and benefits as heterosexual married couples.

Justice Chow wrote that it remains open for Sham to challenge any particular decision regarding policies and statutory provisions that accords differential treatment based on sexual orientation, as a violation of his constitutional right to equality.

“[T]he applicant’s attempt in the present case to achieve complete parity of legal recognition of foreign same-sex marriages and foreign opposite-sex marriages (or, indeed, local opposite-sex marriages) is too ambitious,” the judgement read.

Sham, who appeared at the court to receive the judgement, criticised its implication that same-sex couples must file dozens of judicial reviews to resolve injustices they face.

He told reporters that Justice Chow recognised the unjust and discriminatory treatment that homosexuals face but was not courageous enough to rule conclusively in favour of the community.

Pro-LGBT+ lawmaker Ray Chan wrote on Twitter that he has mixed feelings about the two rulings on Friday.

“If we sue, we may progressively win more rights, but at a prohibitive cost. We need an institution once & for all,” he tweeted.

Rachel Wong previously worked as a documentary producer and academic researcher. She has a BA in Comparative Literature and European Studies from the University of Hong Kong. She has contributed to A City Made by People and The Funambulist, and has an interest in cultural journalism and gender issues.