The Hong Kong government intends to challenge equal inheritance rights for same-sex couples married overseas at the city’s top court, after losing an earlier appeal over its denial of those rights.

The move came less than a month after the city’s Court of Appeal ruled in favour of offering same-sex couples’ who got married overseas the same inheritance rights as heterosexual married couples, saying the government had “failed in all the grounds of appeal.”

Court of Final Appeal
Court of Final Appeal. Photo: Kyle Lam/HKFP.

Daly & Associates, a law firm that represents Henry Li, who with his late partner Edgar Ng brought the original challenge, told HKFP on Wednesday that it had received a notice from the Department of Justice about its intention to seek further appeal.

Replying to HKFP, an official spokesperson said the government was seeking permission from the Court of Appeal to take the case to the top court, the Court of Final Appeal, adding that it was “not appropriate” for the government to make any further comment.

Rights upheld

On October 24, the court upheld 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).

Henry Li and Edgar Ng gay couple gay marriage LGBT.
Henry Li and Edgar Ng’s wedding in 2017. Photo: Supplied.

The judgement was handed down to Li, three years after Ng began his legal challenge against local inheritance laws. The pair got married in the UK in 2017.

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 property and possessions might not be passed on to 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 ruled in Ng’s favour in September 2020, determining that the exclusion of same-sex couples from benefits guaranteed by inheritance law constituted unlawful discrimination.

LGBT gay rights flag rainbow
LGBT flags. File photo: Delia Giandeini/Unsplash.

But the secretary for justice then lodged an appeal against the ruling last December, with government lawyer Abraham Chan arguing that differential treatment could be justified as the two groups were “materially distinguished.”

The three-judge panel ruled unanimously in October that the lower court was correct in ruling that the differential treatment amounted to discrimination against same-sex couples.

Ng, who took his own life in 2020, also launched challenges against the city’s public housing operator’s refusal to recognise same-sex partners who had got married overseas as “spouses,” or other “family members” of subsidised flat owners.

Housing in Hong Kong. File photo: Kyle Lam/HKFP.
Housing in Hong Kong. File photo: Kyle Lam/HKFP.

Last week, the Housing Authority sought to take that case to the Court of Final Appeal.

Whilst same-sex sexual activity was legalised in 1991, Hong Kong has no laws to protect the LGBTQ community from discrimination in employment, the provision of goods and services, or from hate speech. Equal marriage remains illegal, although a 2023 survey showed that 60 per cent of Hongkongers support it.

See also: LGBTQ rights in Hong Kong – breakthroughs and bitter court battles against discriminatory laws

Despite repeated government appeals, courts have granted those who married – or who entered civil partnerships – abroad some recognition in terms of taxspousal visas and public housing.

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James Lee is a reporter at Hong Kong Free Press with an interest in culture and social issues. He graduated with a bachelor’s degree in English and a minor in Journalism from the Chinese University of Hong Kong, where he witnessed the institution’s transformation over the course of the 2019 extradition bill protests and after the passing of the Beijing-imposed security law.

Since joining HKFP in 2023, he has covered local politics, the city’s housing crisis, as well as landmark court cases including the 47 democrats national security trial. He was previously a reporter at The Standard where he interviewed pro-establishment heavyweights and extensively covered the Covid-19 pandemic and Hong Kong’s political overhauls under the national security law.