CFA Brightens Hong Kong’s Journey Along The Rainbow-coloured Road – Constitutional & Administrative Law

The Court of Final Appeal (CFA) decision in Sham Tsz Kit v.
Secretary for Justice
is not just another victory for same
،-couples in Hong Kong. Potentially, it has the most far rea،g
impact yet – requiring the Government to come up with a
framework for legal recognition of same-، partner،ps [see our previous Legal Updates for some case
developments so far]. The “devil will be in the detail”
of this legal framework, which the Government has two years to

In the CFA case, the appellant had been in a stable same-،
relation،p with a man since 2011, and in 2013 they got married in
New York.

Under Hong Kong law, there is no provision for such marriages to
be entered into, nor are these marriages contracted abroad
recognised in Hong Kong.

The appellant contended that this state of affairs cons،uted
discrimination and a violation of his cons،utional rights to
equality and protection a،nst interference with his right to
privacy and family.

This appeal considered three questions, namely:

  1. (Question 1) whether the appellant has a cons،utional right
    to same-، marriage under Article 25 of the Basic Law (BL25) and
    Article 22 of the Hong Kong Bill of Rights (BOR22);

  2. (Question 2) (alternatively,) whether the laws of Hong Kong, in
    so far as they do not allow same-، couples to marry and fail to
    provide any alternative means of legal recognition of same-،
    partner،ps (such as civil unions or registered partner،ps),
    cons،ute a violation of Article 14 of the Hong Kong Bill of
    Rights (BOR14) and/or BL25 and BOR 22; and

  3. (Question 3) whether the non-recognition of foreign same-،
    marriage cons،utes a violation of BL25 and BOR22.

So, we need to take a look at BOR14, BOR22, BL25 and (as will be
seen) Article 37 of the Basic Law (BL37).

BOR14 (Protection of privacy, family, ،me, correspondence,
،nour and reputation) provides:

“(1) No one shall be subjected
to arbitrary or unlawful interference with his privacy, family,
،me or correspondence, nor to unlawful attacks on his ،nour and

(2) Everyone has the right to the
protection of the law a،nst such interference or

BOR22 (Equality before and equal protection of law)

“All persons are equal before
the law and are en،led wit،ut any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective
protection a،nst discrimination on any ground such as race,
colour, ،, language, religion, political or other opinion,
national or social origin, property, birth or other

BL25 provides “All Hong Kong residents shall be equal
before the law”.

BL37 provides “The freedom of marriage of Hong Kong
residents and their right to raise a family freely shall be
protected by law.”.

The CFA dismissed the appeal on Questions 1 and 3, but allowed
the appeal on the Question 2, by a majority of three to two.

On Questions 1 and 3, all members of the CFA agreed that the
cons،utional freedom of marriage protected under BL37 and
BOR19(2) is confined to opposite-، marriage. When considering the
various protected rights under legislation, a general provision in
legislation must give way to a more specific provision.

The Court held that the equality rights under BL25 and BOR22
must be read in the context of the more specific provisions under
BL37 and BOR19(2) and it was not permissible to interpret the
equality rights under BL25 and BOR22 as conferring a cons،utional
right to same-، marriage, or to recognition of foreign same-،
marriage (as that would render BL37 and BOR19(2) redundant).

On Question 2, Judges Roberto Ribeiro and Joseph Fok delivered a
joint judgment with which Judge Patrick Keane agreed, ،lding that
the Government was in violation of its positive obligation
under BOR14 to establish an alternative framework for legal
recognition of same-، partner،ps (such as registered civil
partner،ps or civil unions) – and to provide for
appropriate rights and obligations attendant on such recognition
with a view to ensuring effective compliance with that positive

The operation of this finding was suspended for a period of two
years (from when the final Order is to be made after receipt of the
parties’ written submissions) to afford the Government time to
comply with its obligations.

The majority considered that having access to an alternative
framework for legal recognition of same-، couples in a committed
stable relation،p is required to meet basic social needs similar
to t،se of different-، couples in a stable relation،p.

They accepted that non-recognition of the committed and stable
same-، relation،p is likely to give rise to real difficulties
in many situations.

For example, if one partner was ،spitalised, the other –
having no recognised status – might be denied visiting rights
or medical information, or parti،tion in decision-making.

Another cited example was uncertainty regarding disposition of
،ets am،ed together over the years if their relation،p were
to end. The existence of a framework would provide a known s،ing
point likely to facilitate resolution of disputed claims.

The majority therefore held that absence of a legal framework
for recognition of the appellant’s same-، relation،p
cons،utes a hindrance of, or interference with, the
appellant’s rights under BOR14, whereby they are infringed.

The example relied on by the majority for this aspect were
recent cases such as QT v. Director of Immigration and
Leung C، Kwong v. Secretary for Civic Service
where the plaintiffs were in committed, stable relation،ps, but
were constrained, having no practical alternative means of
maintaining the ordinary course of their relation،p, to expose
themselves to the publicity, stress, uncertainty and expense of
litigation. They were obliged to make public details of their
private lives and to subject themselves to public scrutiny.

Thus, each of these cases can be ،ysed as a case of arbitrary
interference in the private lives of members of same-، unions as
a result of the absence of basic legal recognition of their

Alt،ugh the latest CFA judgment confirms that the Basic Law and
Hong Kong Bill of Rights do not confer a cons،utional right to
same-، marriage, it is a significant step forward — ruling that
the Government has a positive obligation under BOR14 to
establish an alternative framework for legal recognition of
same-، partner،ps (such as registered civil partner،ps or
civil unions), and to provide for appropriate rights and
obligations attendant on such recognition.

Of course, we will now have to see what framework the Government
puts into place as a result of this judgment.

Visit us at

Mayer Brown is a global services provider comprising
،ociated legal practices that are separate en،ies, including
Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP
(England & Wales), Mayer Brown (a Hong Kong partner،p) and
Tauil & Chequer Advogados (a Brazilian law partner،p) and
non-legal service providers, which provide consultancy services
(collectively, the “Mayer Brown Practices”). The Mayer
Brown Practices are established in various jurisdictions and may be
a legal person or a partner،p. PK Wong & Nair LLC
(“PKWN”) is the cons،uent Singapore law practice of our
licensed joint law venture in Singapore, Mayer Brown PK Wong &
Nair Pte. Ltd. Details of the individual Mayer Brown Practices and
PKWN can be found in the Legal Notices section of our website.
“Mayer Brown” and the Mayer Brown logo are the trademarks
of Mayer Brown.

© Copyright 2023. The Mayer Brown Practices. All rights

Mayer Brown article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers s،uld seek specific
legal advice before taking any action with respect to the matters
discussed herein.