Gay activist and former district councillor Jimmy Sham has been given a final opportunity to get Hong Kong to recognise same-sex marriages registered overseas at the city’s top court, as the matter concerns “great general public importance,” a three-judge panel ruled on Thursday.

district council election 2019 november 24 (15) (Copy)
Jimmy Sham. File Photo: May James/HKFP.

In a short two-paragraph judgement, Chief Judge of the High Court Jeremy Poon and Vice Presidents Susan Kwan and Carlye Chu granted Sham the right to proceed with the legal challenge, but said “we do not consider the arguments to be particularly strong.”

The decision came around two months after the same justices rejected his judicial review bid.

Judiciary Court of Final Appeal
Hong Kong’s Court of Final Appeal. Photo: Supplied.

Sham, who tied the knot with his husband in New York in 2013, first challenged Hong Kong’s failure to recognise foreign same-sex marriages in 2018, arguing that it violated the city’s mini-constitution and bill of rights. That bid was rejected by the court in 2020. He made another attempt in July this year, but hit a wall again.

Violation of rights to equality

In previous hearings, Sham’s lawyer Hectar Pun argued that not recognising same-sex marriage was a violation of people’s right to equality, as guaranteed by Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights Ordinance.

LGBT rainbow pride flag
An LGBT pride flag. Photo: Sophe Enemy, via Unsplash.

Not recognising same-sex marriages registered overseas was also a violation of the right to privacy as protected by Article 14 under the Bill of Rights, the barrister said. It may also amount to discrimination.

The court has ruled against those arguments based on an overview that the “traditional” concept of marriage – that is between a man and a woman – shall be protected, and giving same-sex couples any recognition or rights could potentially harm it.

In detention

Sham, who was also the leader of disbanded protest group Civil Human Rights Fronts, is among the 47 democrats accused of conspiring to commit subversion under the national security law over organising or taking part in an unofficial democratic primary election in July 2020.

He has been held in custody since March 2020 and recently pleaded guilty to the charge. Sham and others who pleaded guilty are expected to be sentenced only after the trial of the 17 who pleaded not guilty is completed, which could potentially be next July.

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Almond Li is a Hong Kong-based journalist who previously worked for Reuters and Happs TV as a freelancer, and as a reporter at Hong Kong International Business Channel, Citizen News and Commercial Radio Hong Kong. She earned her Masters in Journalism at the University of Southern California. She has an interest in LGBT+, mental health and environmental issues.