A Hong Kong court has ruled in favour of same-sex couples’ equal inheritance rights following a government appeal, marking a victory for the city’s LGBTQ community.
The Court of Appeal upheld on Tuesday a lower court decision that same-sex couples should enjoy equal rights under the city’s two inheritance laws – the Inheritance (Provision for Family and Dependants) Ordinance (IPO) and the Intestates’ Estates Ordinance (IEO).
A three-judge panel handed down the judgment to Henry Li. The decision came three years after his late partner, Edgar Ng, began his legal challenge against Hong Kong’s inheritance laws.
The judges said in the judgement that the Secretary for Justice, who lodged the challenge, had “failed in all the grounds of appeal.”
“I hope the Government will respect today’s judgement and at long last give Edgar the respect and dignity he’d always deserved,” Li wrote in a social media post after the ruling.
In a statement published after Tuesday’s ruling, NGO Hong Kong Marriage Equality said the exclusion of same-sex couples from the marriage system was “not only discriminatory but
also an affront to their dignity and well-being.”
“Same-sex couples are simply seeking access to the institution of marriage that is available to other committed heterosexual couples – and for the same mix of reasons, from affirming their love and commitment to providing security and protections for their family,” the NGO wrote, adding that it called on the government not to appeal the judgement.
‘Unlawful discrimination’
Ng applied for a judicial review relating to the city’s inheritance laws in 2019 as he was concerned that if he died without leaving behind a will, his properties might not be passed onto his same-sex partner.
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.
The Court of First Instance allowed the review and ruled in favour of Ng in September 2020, determining that the exclusion of same-sex couples from the benefits guaranteed by the two inheritance laws in the city constituted unlawful discrimination.
“In all, the differential treatment accorded to same-sex married couples and opposite-sex married couples under the IEO and IPO cannot be justified, and constitutes unlawful discrimination,” then-Court of First Instance judge Anderson Chow wrote in the judgement.
But the Secretary for Justice then lodged an appeal against the ruling. During the appeal hearing last December, government lawyer Abraham Chan told the court that treating heterosexual and same-sex couples differently under the city’s inheritance laws could be justified because the two groups were “materially distinguished.”
Chan also argued that the Court of First Instance erred in concluding that there is no “rational connection” between the differential treatment and the legitimate aim of upholding the integrity of heterosexual marriages.
Representing Li, who replaced Ng as the judicial review’s applicant, Senior Counsel Jin Pao said at the appeal hearing that the court should look at the definition of “valid marriage” listed in the two inheritance laws in question, which included “marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed.”
On Tuesday, Justice of appeals Peter Cheung, Maria Yuen, and Thomas Au ruled that the Secretary of Justice has failed on all grounds of appeal. The three-judge panel ruled unanimously that the lower court was correct in ruling that the differential treatment amounted to discrimination against same-sex couples.
“[Ng and Li] are excluded wholly from taking the benefits of the provisions of the IEO and IPO because they had entered into a same-sex marriage and the difference in treatment is, in my view, based on their sexual orientation,” Cheung wrote in the judgement.
LBGTQ rights in Hong Kong
Activists have often criticised Hong Kong’s limited rights and protection for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.
Ng, who took his own life in 2020, had brought two judicial review proceedings against the government seeking equal rights for same-sex couples.
The other involved same-sex couples’ rights relating to access to public housing. It was lodged after the Housing Authority refused to allow Ng to make the purchase with his partner Li as a same-sex spouse, nor did it consider Li as a family member of Ng.
The pair got married in the UK in 2017.
Similar to Tuesday’s inheritance laws challenge, the government appealed after the court ruled in favour of Ng. Last week, the Court of Appeal upheld the lower court’s decision that the spousal policies of the city’s Home Ownership Scheme were unlawful and unconstitutional. As part of the same case, the Court of Appeal also upheld another decision relating to the Public Rental Housing scheme.
In 2021, after Ng’s death, Li lodged a judicial review over the government’s refusal to recognise him as his partner’s surviving spouse. But he dropped the legal challenge after authorities confirmed that people in this situation will be treated equally when making after-death arrangements for their deceased partners, regardless of sexual orientation.
In September, the city’s top court handed down a partial victory to LGBTQ advocate Jimmy Sham, ruling that the government has an obligation to provide an alternative legal framework that recognises same-sex relationships. The ruling, however, stopped short of granting full marriage rights to same-sex couples in the city.
The government was given two years to develop a mechanism that recognises same-sex relationships before the court could say the government was in breach of the law.
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