A gay widower is taking the Hong Kong government to court over its refusal to recognise him as his partner’s surviving spouse. The decision prevented the widower from identifying his spouse’s body and from attending to administrative arrangements as a next-of-kin without having authorisation from the spouse’s mother.
Edgar Ng, who took his own life in early December, had brought two other judicial review proceedings against the government seeking equal rights for non-heterosexual couples. One case involved a rule that prevented him from living with his husband Henry Li Yik-ho in a government-subsidised flat they bought together a year after they married in the UK in 2017. The other case was related to intestate inheritance laws.
Three months before his death, the High Court handed down a judgement in favour of Ng, stating that same-sex married couples can inherit the estate of their spouse without a will. The government is currently appealing against the judgement.
But last December 7, Ng, who long suffered from depression, sent Li – the applicant in the present case – a final WhatsApp message asking him to scatter his ashes into the sea. He then took his life at home.
Final wishes
Li has been unable to carry out Ng’s final wishes, as his status as a same-sex spouse is not recognised under existing laws governing the administrative arrangements after a person’s passing: “Edgar’s mother is now demanding that I be excluded from the scattering of Edgar’s ashes, and that I move out from our matrimonial home,” Li told HKFP on Monday.
A government forensic pathologist told Li a day after his partner’s death that, because their marriage was not recognised in Hong Kong, he could not be designated as the “official identifier” of Ng’s body without authorisation from Ng’s mother.
“Many same-sex widows and widowers not only lost their loved ones, but they also lost their homes or the opportunity to make after-death arrangements for their loved ones, simply because the law currently does not protect LGBT+ people such as the Applicant.”
HENRY LI
“This was particularly hurtful and offensive to the Applicant,” read an application for leave to apply for judicial review submitted to the High Court on Monday afternoon. “The Forensic Pathologist’s statement demeaned, disrespected and diminished the dignity of the marriage between the Applicant and his husband.”
Ng’s mother – who met the pathologist along with Li at the time – authorised him to be the official identifier and to deal with Ng’s after-death arrangements, according to the court document acquired by HKFP.
Li was also prevented from making an application for a waiver of the autopsy of his spouse’s body at the Coroner’s Court at West Kowloon Law Courts, unless it was made jointly with Ng’s mother and his younger brother, the document read.
Li’s relationship with the mother deteriorated in the days that followed. Li’s family was disinvited from the funeral mass, the document read, and – in January – she informed him in a WhatsApp message that she had revoked her authorisation for him to deal with Ng’s after-death arrangements.
She also requested that Li return all relevant documents and personal possessions relating to her deceased son, which included Ng’s bank and MPF documents, identification card, mobile phone, keys, and condolence money received at the funeral.
“[I feel] deeply hurt, but hopeful for justice to be done,” Li said over text message with HKFP. “When your spouse dies, you expect dignity for your spouse and yourself. You expect that you will be allowed and empowered to carry out your duties to your spouse such as identifying their body, arranging their funeral, and arranging their cremation or burial.”
“All of these rights are protected by law but they are denied to married same-sex couples. This kind of discrimination is not acceptable in our society,” he said.
‘Unconstitutional’
Li argued in the case that the term “spouse” under various legal provisions administering the disposal of the dead – such as the Coroners Ordinance and the Coroners Rules, as well as policies of the Forensic Pathology Service – should include same-sex spouses who legally married overseas.
The government’s refusal to recognise him as the spouse of a deceased person and the decision to bar him from identifying Ng’s body were unconstitutional and contrary to the Basic Law and the Hong Kong Bill of Rights, Li’s application to the court stated. He has applied for legal aid.
“Mourning the loss of a spouse is undoubtedly one of the most difficult times in one’s life,” read a statement accompanying the case. “Many same-sex widows and widowers not only lost their loved ones, but they also lost their homes or the opportunity to make after-death arrangements for their loved ones, simply because the law currently does not protect LGBT+ people such as the Applicant. In view of this, the Applicant is filing this judicial review in order to continue his husband’s legacy in pursuing LGBT+ equality in Hong Kong.”
Li is also in the process of applying to be the applicant in place of his late husband in order to carry on with the other two judicial review cases, “as Edgar would have wanted me to,” he said.
There are are no laws forbidding discrimination on the grounds of sexual orientation and gender identity in Hong Kong. However, last March, the government’s policy of denying legally married same-sex couples the right to apply for public housing was found to be unconstitutional by the High Court. And in 2018, the city’s highest court ruled that immigration authorities must grant same-sex partners spousal visas, just as they do for heterosexual couples.
If you are experiencing negative feelings, please call: The Samaritans 2896 0000 (24-hour, multilingual), Suicide Prevention Centre 2382 0000 or the Social Welfare Department 2343 2255. The Hong Kong Society of Counselling and Psychology provides a WhatsApp hotline in English and Chinese: 6218 1084. See also: HKFP’s comprehensive guide to mental health services in Hong Kong
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