NG HON LAM EDGAR v. THE HONG KONG HOUSING AUTHORITY

HCAL 2875/2019

[2021] HKCFI 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2875 OF 2019

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J U D G M E N T

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INTRODUCTION

1.  The principal issue which arises for determination in this application for judicial review is whether the polices of the Hong Kong Housing Authority (“HA”) to exclude same-sex spouses of owners of Home Ownership Scheme (“HOS”) flats from the definition of “family members” and “spouses” eligible:

(1)  for addition as authorized occupants of HOS flats (“the Addition Policy”); and

(2)  to be considered by HA, for its consent in the exercise of its discretion, to receive a transfer of ownership of HOS flats without the payment of a premium (“the Transfer Policy”, and collectively the “Spousal Policy”),

constitute unlawful discrimination on the ground of sexual orientation.  For reasons which I shall endeavour to explain in this judgment, I am of the view that they do.

2.  In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the Housing Ordinance, Cap 283 (“the Ordinance”).

BASIC FACTS

3.  The late Ng Hon Lam Edgar (“the Deceased”) was born and raised in Hong Kong, and was a Hong Kong permanent resident.  He was also a long-time tenant of public rental housing (“PRH”) provided by HA.  Since 2011, he had been living in a PRH flat in Choi Fook Estate, Hong Kong (“the PRH Flat”) with his family.  His father, who was the original tenant of the PRH Flat, passed away in 2014.  He then became substituted for his father as the registered tenant of the PRH Flat.

4.  In around November 2012, the Deceased met and started a romantic relationship with Mr Li Yik Ho (“Mr Li”), a Hong Kong permanent resident.  On 28 January 2017, the Deceased and Mr Li entered into a same-sex marriage in the UK, followed by a blessing service at a church in Hong Kong.  Since their marriage, they wished to live together as a family. However, due to HA’s policy which denied recognition of a same-sex spouse as a family member of a registered tenant of a PRH unit, Mr Li could not be registered as an authorised occupant of the PRH Flat.  The Deceased and Mr Li decided to purchase a HOS flat through the Home Ownership Scheme Secondary Market Scheme (“the HOS Secondary Market Scheme”) pursuant to §4(c) of the Schedule to the Ordinance to be used as their matrimonial home.

5.  As the existing tenant of the PRH Flat, the Deceased was eligible to apply as a “Green Form” applicant to purchase a HOS flat (see §23 below for an explanation of “Green Form” applicants).  By an application dated 24 November 2017, the Deceased applied for a “Certificate of Eligibility to Purchase” under the HOS Secondary Market Scheme.  On 12 December 2017, HA issued to the Deceased a Certificate of Eligibility to Purchase.

6.  On 10 April 2018, the Deceased entered into a formal sale and purchase agreement to purchase a HOS flat in Kam Fung Court, Ma On Shan, Hong Kong (“the HOS Flat”) in the HOS Secondary Market at the price of HK$5,450,000.  The Deceased completed the purchase of the HOS Flat on 11 June 2018, with the assistance of a mortgage loan.

7.  According to Mr Li, he was the sole breadwinner in his family with the Deceased, and contributed most of the financial costs (over 90%) of purchasing the HOS Flat, including but not limited to down payment, stamp duty, renovation costs and monthly mortgage payments.  However, for reasons which will be explained below, the Deceased could not purchase the HOS Flat as a Green Form applicant jointly with Mr Li.  If Mr Li wishes to be a joint owner of the Flat, he is required to pay a premium to HA, which would not be required if he and the Deceased were in a heterosexual marriage.

8.  Ownership and use of HOS flats are subject to conditions set by HA.  One of the conditions is that a HOS flat shall be used only for residential purposes and for self-occupation by the owner and family members listed in the application to purchase.  Since Mr Li, as the same-sex spouse of the Deceased, was not eligible to be considered as a family member of the Deceased under HA’s policy, he was not allowed to live in the HOS Flat with the Deceased.

9.  Based on the Court of Final Appeal’s judgment in QT[1], Daly & Associates (on behalf of the Deceased) wrote to HA on 9 April 2019 seeking answers to the following questions:

“1 Pursuant to the Family Member Policy[2], whether Mr. NG’s spouse would be recognised as a family member of Mr. NG and be allowed to co-own a HOS flat without payment of a premium?

2 If Mr. NG is cohabiting with his same-sex married spouse, would he be seen as breaching the conditions to own a HOS flat, in particular the condition that a HOS flat shall be used only for residential purposes and for self-occupation by the purchaser and the family members?

3 What remedial measures the Housing Authority will take to immediately ensure that our client is treated lawfully and in accordance with his rights[3] as set out above?”

Some further information relating to the Deceased and Mr Li’s situation was provided by Daly & Associates to HA in a letter dated 24 May 2019.

10.  HA answered Daly & Associates’ questions substantively by a letter dated 2 July 2019 confirming that Mr Li would not be treated as a family member, or the spouse of, the Deceased under its relevant policies (“the Decision”).  The following was stated in HA’s letter of 2 July 2019:

“ Based on the information provided, it appears that the subject matter of your Letters concerns the following two intended applications in respect of the flat purchased by your client under the Home Ownership Scheme (‘HOS’) (the ‘HOS Flat’), which, according to our records, have not yet been lodged:-

(1) the application to add Mr. LI Yik Ho (‘Mr. LI’), with whom your client celebrated their marriage in the United Kingdom, as the authorized occupant in the HOS Flat (the ‘Intended Application for Addition of Family Member’); and

(2) the application to add Mr. LI as one of the co-owners of the HOS Flat (the ‘Intended Application for Transfer of Ownership’).

With respect to the application for addition of family members as authorized occupant, the person(s) proposed to be added is/are confined to the spouse and children under the age of 18 of the owner/joint-owner(s). In this context, ‘spouse’ means either a ‘husband’ or a ‘wife’, and ‘husband’ means ‘a married man especially in relation to his wife’ and ‘wife’ means ‘a married woman especially in relation to her husband’. As such, Mr. LI is not considered as the spouse of your client; and the relationship between your client and Mr. LI falls outside the relationship acceptable for an application for addition of family member. Hence, the Intended Application for Addition of Family Member, if lodged, will not be acceded to.

To apply for a transfer of ownership in a HOS Flat before the payment of premium, it is a pre-requisite that the proposed assignee must be an authorized occupant (except in deceased cases) of the property concerned.

   Since Mr. LI cannot be added as the authorized occupant of the HOS Flat, the Intended Application for Transfer of Ownership, if applied for, will not be acceded to for failing to satisfy the pre-requisite aforementioned.”

APPLICATION FOR JUDICIAL REVIEW

11.  On 30 September 2019, the Deceased filed the Form 86 herein to challenge the Spousal Policy and Decision, and advanced 4 grounds of judicial review (at §§60-63):

(1)  The Spousal Policy and Decision are unlawful and unconstitutional because they violate the principle of equality before the law guaranteed under Article 25 of the Basic Law (“BL”) and Articles 22(1) and 1(1) of the Hong Kong Bill of Rights (“HKBOR”).  They amount to unjustified discrimination against the Deceased and Mr Li on the ground of sexual orientation.

(2)  They are also Wednesbury unreasonable since they violate the principle of equality.

(3)  They are unlawful and unconstitutional as unjustified restriction of the Deceased’s right, and that of Mr Li, to respect for their private and family life without distinction as to sexual orientation under HKBOR 14, read with HKBOR 1(1).

(4)  They are unlawful and unconstitutional as unjustified restriction of the Deceased’s right, and that of Mr Li, to respect and protection for their property rights under BL 6 and 105, read with BL 25.

12.  On 21 October 2019, with the consent of the parties, the court granted a temporary stay of the proceedings herein pending the outcome of another application for judicial review in HCAL 2647/2018 (Infinger, Nick v The Hong Kong Housing Authority).  On 4 March 2020, the court handed down its judgment in the Infinger case ([2020] 1 HKLRD 1188).  On 5 August 2020, the court granted leave to the Deceased to apply for judicial review herein.  On 22 October 2020, the court refused HA’s application for a stay of the present application pending the Court of Appeal’s determination of HA’s appeal in the Infinger case (scheduled to be heard on 29 July 2021).

13.  On 7 December 2020, the Deceased passed away in Hong Kong.

14.  On 22 March 2021, Mr Li applied to be made a party in substitution for the Deceased for the purpose of carrying on this application.  As informed by the parties at the hearing on 19 April 2021, the application for substitution was not objected to by HA[4].  Accordingly, I make an order that Mr Li be made a party in substitution for the Deceased for the purpose of carrying on the present application.

HOME OWNERSHIP SCHEME

(i)     The aims of HOS

15.  HA is established pursuant s 3(1).  Under s 3(2), HA shall consist of the Director of Housing and such other persons and public officers as the Chief Executive may appoint.

16.  By s 4(1), HA shall exercise its powers and discharge its duties under the Ordinance so as to “secure the provision of housing and such amenities ancillary thereto as the Authority thinks fit for such kinds or classes of persons as the Authority may, subject to the approval of the Chief Executive, determine”.

17.  The HOS is a form of subsidized housing scheme for sale first introduced by the Government in 1978.  Since its beginning, there have been two main aims of the HOS, as stated in the Minutes of the First Meeting of the Working Party on Home Ownership held on 5 August 1976:

(1)  “The original concept aimed at making up for slippage in the production of public housing units, by inducing existing tenants who can afford it to move out of rented public housing accommodation into flats which they would purchase, thereby enabling those in greater need of the low-rent public housing accommodation to move in”;

(2)  “The present concept, however, was that the Government should seek to promote home ownership; the absence of such a scheme was thought to be a serious social defect in Hong Kong and its introduction was seen to be of considerable political significance.” [emphasis original]

18.  These two aims of the HOS, namely, (i) to encourage better-off PRH tenants to move out of their existing PRH units for reallocation to the less well-off families, and (ii) to promote home ownership amongst the lower income groups, were also stated in an internal “Memorandum for the Housing Authority - Working Party on Home Ownership” dated 5 October 1976:

“ Members will recall the direction given to the Housing Department in February to devise a viable plan for selling purpose-built flats to better-off tenants now living in the Authority’s estates, so releasing their flats for reallocation to less well-off families…

2.  Members will now wish to know that the Governor wishes to promote home-ownership as a desirable social objective for the lower income groups.  Because of the substantial resource implications, particularly as to land construction funds and mortgage availability, the Governor has appointed a Working Party, chaired by the Financial Secretary, to study various aspects of home-ownership, including the provision of mortgage funds…”

19.  Similarly, in an Ex-Co Memorandum on “Home Ownership” dated 3 November 1976, the following was stated:

“ In this year’s Budget Speech, the Financial Secretary said that the plans for building further public housing accommodation during the second five years of this decade for 620,000 persons fell short of the likely requirement by the end of the decade. Accordingly he announced the Government’s intention to augment the production programme by building an additional 30,000 flats, at an average rate of 5,000 flats a year, to provide accommodation for some 180,000 persons. The original intention was to try to sell these flats largely to existing tenants of the Housing Authority who would require to have access to suitable mortgage facilities. The ‘flats-for-sale’ scheme would have the twofold effect of enabling better-off tenants to become home owners and, by so doing, to make room for others more in need of rented low-cost accommodation to move in.

2.  While the original flats-for-sale scheme definitely envisaged a degree of home ownership this was seen as a means to an end, not an end in itself.  Since then, official thinking has come to the view that home ownership is a social objective which ought to be pursued, even within the public sector.  Thus the Governor decided that the feasibility of developing a large-scale non-profit-making scheme of home ownership should be examined and, to this end, he set up the Working Party on Home Ownership under the Chairmanship of the Financial Secretary at the end of July.” [emphasis added]

20.  The HOS was formally launched by the Government in 1978 with the passage of the Housing (Amendment) (No 2) Ordinance (Ord No 33 of 1978).  As recorded in the Official Report of Proceedings of the Legislative Council on 26 April 1978, the main purpose of the Housing (Amendment) (No 2) Bill 1978 was to afford HA powers in order to be able to discharge effectively the responsibilities which it had accepted under the Government’s HOS to build, sell and manage flats.  The then existing Housing Ordinance, under which HA was set up in 1973, dealt with the provision of flats for tenancies only, not flats for sale.

21.  Over the years, HA’s policies in respect of the HOS have been revised and adjusted in line with the development of Government policies in response to contemporary economic conditions and other societal factors in Hong Kong, as explained in §29 of the 2^nd Affirmation of Leung Tak Yan, Assistant Director (Housing Subsidies) of the Housing Department, the details of which it is not necessary to set out in this judgment. Nevertheless, in §19 of his 2^nd Affirmation, Mr Leung stated that the following two “founding aims” of HOS have remained essentially unchanged throughout the years:

“(1) to encourage better-off tenants of PRH to vacate their flats for re-allocation to families in greater housing need; and

(2) to provide an opportunity for low to middle-income families, as traditionally conceived, to achieve home ownership.”

I have italicized the words “as traditionally conceived” because, if those words are intended by Mr Leung to mean that only “traditional families”, in the sense of families constituted by heterosexual couples, in the low to middle-income bracket were the target under the second aim of the HOS (namely, achievement of home ownership), it seems to me that this qualification is a gloss put on that aim by Mr Leung.  It does not appear to me, from reading the background materials relating to the HOS adduced before the court, that there was any specific intention by the Government or HA to differentiate between families constituted by heterosexual couples and families constituted by homosexual couples when the HOS was launched in 1978. Bearing in mind the prevailing social and legal[5] situations in Hong Kong in the mid to late 1970s, it was hardly likely that families constituted by homosexual couples were thought of as requiring any special treatment or consideration.

22.  In all, the main aims of the HOS have always been 2-fold: (i) to encourage better-off PRH tenants to vacate their flats for re-allocation to families in greater housing need, and (ii) to assist families in the low to middle-income bracket to achieve home ownership.

(ii)     Green Form and White Form applicants

23.  The current framework of the HOS is set out in Chapter 6, titled “Home Ownership Scheme”, of Section A of the Information Booklet on General Housing Policies (“the General Housing Policies”) issued by HA.  Under the current framework, applicants for HOS flats may broadly be divided into two groups:

(1)  Green Form applicants, consisting mainly of households of PRH who, upon successful application, are required to give up their existing PRH units; and

(2)  White Form applicants, consisting mainly of (i) households living in private housing, and (ii) family member(s) of households living in PRH.

24.  There are some common, and some different, eligibility requirements applicable to Green Form applicants and White Form applicants respectively.  For example, is a common requirement of both Green Form and White Form applicants that “[t]he applicant and all family members, if married, must apply together with their spouses (with the exception of divorcee(s), or spouses who do not have the right to land in Hong Kong or are deceased)”[6]. On the other hand, White Form applicants are subject to specific income and assets limits (which do not apply to Green Form applicants), while Green Form applicants must satisfy the requirement that the applicant or any member of the family has not breached any clause of the tenancy agreement of their PRH unit (which does not apply to White Form applicants)[7].

25.  Green Form applicants may purchase a new HOS flat when HOS developments are put up for sale by HA, or an existing HOS flat under the HOS Secondary Market Scheme without having to pay a premium, as the Deceased did.

(iii)    Usage and alienation restrictions

26.  HOS flats purchased under the HOS Secondary Market Scheme are subject to various usage and alienation restrictions in accordance with the terms and conditions contained in the Schedule to the Ordinance and any amendments thereto (“the Schedule”) and/or the relevant Government lease or application criteria.  The main restrictions include[8]:

(1)  Usage - the flat shall be used only for residential purposes and for self-occupation by the purchaser and the family members listed in the application or subsequently added by way of application.

(2)  Assigning or letting -

(a)  the purchaser may without being required to pay a premium sell the flat in the HOS Secondary Market to eligible applicants confirmed by HA (from the third year from the date of the first assignment for flats sold subject to the Schedule, and from the date of the first assignment for other flats); and

(b)  the purchaser may after payment of a premium assign or let the flat in the open market after a specified period from the date of the first assignment (5 years for flats sold subject to the Schedule, and 10 years for other flats).

27.  HOS flats purchased under other schemes (eg sale of new HOS flats by HA) are subject to similar restrictions, with slight modifications in terms of, amongst other matters, specific details on alienation restrictions.

28.  An applicant is required to disclose in the application form the persons with whom he/she would occupy the HOS flat as his/her “family members” upon successful application.  There are 8 categories of familial relationship recognized by HA for the purpose of eligibility for occupation of a HOS flat, namely:

(1)  Husband/Wife;

(2)  Father/Mother;

(3)  Son/Daughter;

(4)  Father-in-law/Mother-in-law;

(5)  Son-in-law/Daughter-in-law;

(6)  Brother/Sister;

(7)  Grandfather/Grandmother; and

(8)  Grandchild.

29.  In the application form, there is a 9^th category of familial relationship known as “Other Relative”[9].  Whatever may be the scope of this category, it is not in dispute that, under HA’s current policy, a same-sex spouse of an applicant is not recognised as a family member of the applicant, whether under the category of “Husband/Wife” or the category of “Other Relative”, so as to be eligible to be an authorised occupant of a HOS flat.

(iv)    The Spousal Policy - Addition and Transfer Policies

30.  HA permits an owner of a HOS flat to apply to add certain categories of family members as authorized occupants of the HOS flat.  Its policy relating to addition of family members (“the Addition Policy”) is outlined in a document titled “Application for Addition / Deletion of Family Member(s)”, Form HD771E (Rev 05/2018), published by HA, under which the person(s) proposed to be added is/are confined to “the spouse and children under the age of 18 of the owner/joint-owner(s)”.

31.  HA also permits an owner of a HOS flat to apply to transfer the HOS flat to an authorized occupant without payment of premium. Its policy relating to transfer of HOS flats without payment of premium (“the Transfer Policy”) can be found in a document titled “Information for Application for Transfer of Ownership”, HD7-e (Revised in Apr 2019) published by HA, which states, so far as relevant, as follows:

“Introduction

1. Pursuant to the Housing Ordinance, change of ownership is restricted except for disposal (i) in the Secondary Market after two years has elapsed since the first assignment, or (ii) in the open market upon payment of premium. However, the Hong Kong Housing Authority (HA) may at its discretion and on the merit of each case give consent to a request for change of ownership under special circumstances.

Pre-requisite for the application

(A) The change of ownership must be by way of a Deed of Assignment at nil consideration (except in bankruptcy cases); and

(B) The proposed assignee must be an authorized occupant (except in deceased cases) of the property concerned.

The usual grounds for change of ownership

2. Generally, grounds for applying for consent to a change of ownership are as follows -

(A) Inclusion of spouse as joint owner

….

(F) Change of ownership reflecting financial contribution towards downpayment/mortgage repayment by authorized occupant;

…

(K) Reasons other than (A) to (J) will be considered only in exceptional circumstance.”

32.  According to Mr Leung, for the purpose of determining who may qualify as the spouse of an owner of a HOS flat under the Addition and Transfer Policies, HA has always followed the common understanding of “husband and wife” in a traditional family unit constituted by heterosexual married couples[10]. Thus, under HA’s current policies, a same-sex spouse in the position of Mr Li:

(1)  is not recognized as a family member of the owner of a HOS flat, and is not eligible to be included as an intended occupant of the HOS flat at the time of the owner’s initial application for purchase;

(2)  is not eligible to be added as a family member of the owner, and thus become an authorized occupant, of the HOS flat under the Addition Policy; and

(3)  is not eligible to become a joint owner of the HOS flat as the spouse of the owner under the Transfer Policy (unless a premium is paid).

THREE PRELIMINARY MATTERS

33.  Before I consider the substantive grounds of judicial review, there are three preliminary matters that I should mention or deal with.

34.  First, HA originally contended that the present judicial review was academic because Mr Li’s entitlement to the HOS Flat depended on the outcome of the appeal in Ng Hon Lam Edgar v Secretary for Justice (CACV 558/2020)[11].  As I understand it, this contention is no longer maintained by HA.  In any event, the present application arose from real facts which were in existence at the time when the Deceased made the application for leave to apply for judicial review, and raises issues of general or public importance which are relevant to other same-sex couples in a similar situation to that of the Deceased and Mr Li.  Following the well-established principles in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, at §20, I consider this to be a clear case where the court should, in the proper exercise of its discretion, entertain the application.

35.  Second, HA suggests that the court should defer giving judgment in this application until after the Court of Appeal has determined the appeal in the Infinger case (scheduled to be heard on 29 July 2021).  I am not prepared to adopt this suggested course of action, for the following reasons.  First, the present application has already been delayed once pending the outcome of the court’s determination in the Infinger case at first instance (see §12 above).  Second, on 22 October 2020, the court rejected HA’s application for a further stay of these proceedings pending the outcome of the appeal in the Infinger case (see §12 above).  Third, while there are some overlaps of issues between the Infinger case and the present case, there are also significant differences.  In particular, although both cases relate to what may be regarded as scarce public resources, namely, PRH flats and HOS flats, Infinger concerns the initial allocation of PRH flats whereas the present case concerns the addition of authorized occupants, and transfer of, secondary HOS flats which have already been allocated.  This difference is relevant to the issue of justification (which will be considered below).  Fourth, generally speaking, applications for judicial review ought to be heard and disposed of as soon as practicable.

36.  Third, HA argues that the equality provisions (ie BL 25, and HKBOR 22 and 1(1)) must be read subject to and coherently with the “Traditional Family Provisions” (ie BL 37 and HKBOR 19) which, it is said, “accord differential constitutional treatment to opposite-sex marriage over other pairings including same-sex marriage, and special protection to traditional family formations”.  Accordingly, it is said, the “Challenged Policy” (ie the Spousal Policy) “does not fall for review within the ambit of the Equality Provisions.  It is impermissible to use generally expressed rights as a side door to demand that same-sex couples be granted positive rights or benefits enjoyed by opposite-sex couples due to their distinct married status, when the Traditional Family Provisions have deliberately elevated opposite-sex over same-sex formations by special constitutional protection”.

37.  This argument of HA is directly contrary to the judgments of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 324, and Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127.  In QT, the Court of Final Appeal said, at §§54 and 76 of its judgment, the following:

“[54] It is no doubt true that in some cases, it may be appropriate to confine certain benefits to married persons but this would generally be on the basis that the difference in treatment can be justified on fact-specific grounds, such as in connection with parental rights where the best interests of a child are involved or where certain biological issues arise. But the authorities cited do not support an approach which eschews the need for justification simply on the basis of an asserted difference in status.

[76] This is not to suggest that a person’s marital status is irrelevant as a condition for the allocation of rights and privileges. Such status may in some circumstances be highly important or even decisive. The point we make is that the relevance and weight to be attributed to that status is taken into account in considering whether a particular difference in treatment is justified as fair and rational, and that a person’s marital condition cannot determine presumptively that discrimination does not exist.” [emphasis added]

The above passage at §76 in QT was quoted by the Court of Final Appeal in Leung Chun Kwong (at §37).

38.  There is no inconsistency between the constitutional recognition and protection of heterosexual marriage in areas where it is due, and the protection of the fundamental constitutional right not to be subjected to unlawful discrimination based on sexual orientation in situations where the status of heterosexual marriage is not material or relevant.  HA’s argument, if accepted, would mean that the Government and other public bodies are generally at liberty to accord differential treatment in favour of opposite-sex couples vis-à-vis same-sex couples on the basis of their sexual orientation.  I have no hesitation in rejecting this argument of HA as being contrary to both principles and authorities.

PROPER APPROACH TO DETERMINING WHETHER A GOVERNMENT OR PUBLIC BODY’S POLICY OR DECISION CONSTITUTES UNLAWFUL DISCRIMINATION

39.  The proper approach to determining whether a Government or public body’s policy or decision constitutes unlawful discrimination is well established.  The court’s general approach is “first, to determine whether there is differential treatment on a prohibited ground and, only if this can be demonstrated, then, to examine whether it can be justified.  Differential treatment which is justified does not constitute unlawful discrimination.  However, where differential treatment is not justified, it is unlawful discrimination” (see Leung Chun Kwong, at §19, and QT, at §§81-83).

DIFFERENTIAL TREATMENT ON A PROHIBITED GROUND

40.  In order show a differential treatment on a prohibited ground in any case, the complainant must establish that he has been treated differently to a person in a comparable, or analogous, position, and that the reason for the differential treatment is based on the prohibited ground.  In QT, at §38, the Court of Final Appeal explained that:

“A person complaining about discrimination generally has in mind one or more comparators. The question asked is: Why is the complainant being treated less favourably than individuals in a relevant comparator group?”

41.  In Leung Chun Kwong, at §20, the Court of Final Appeal further explained the comparison exercise that is involved:

“Accordingly, the initial step must be for the complainant to demonstrate that he or she has been treated differently to a person in a comparable position and that the reason for this difference in treatment can be identified as a prohibited ground, such as race, religion or sexual orientation. Only after this is demonstrated does it then become necessary to consider whether such differential treatment is lawful. If the treatment is held to be unlawful, then the complainant will be entitled to remedies.”

42.  The question of whether two persons or groups of persons are in a comparable or analogous position is context dependent.  The notion of being “analogous” for the present purpose is elastic both linguistically and conceptually.  In QT, at §§44-45, the Court of Final Appeal said:

“[44] The second major objection to the Director’s first argument is that the identification of comparators does not of itself permit a proper conclusion to be reached as to whether a given difference in treatment is or is not discriminatory. As Lord Walker pointed out in the Carson case[12], the real issue in the case at hand was

‘... why the complainant had been treated as she had been treated. Until that question was answered, it was impossible to focus properly on the question of comparators’.

[45]  The notion of whether the comparators are analogous or relevantly similar is elastic both linguistically and conceptually.  As his Lordship pointed out in the same judgment: ‘Some analogies are close, others are more distant’.  It is therefore generally unprofitable to debate in the abstract whether a given comparator is or is not sufficiently analogous to require like treatment.  The context of the question is crucial.”

43.  In Leung Chun Kwong, the Court of Final Appeal further said:

“[37] … there might well have been some scope for debate as to the true boundaries of the analogous situations existing between same-sex couples and opposite-sex couples. Not all couples are in a truly analogous situation and the use of the status of marriage itself as a distinguishing characteristic may or may not be determinative of the question of whether there is relevant differential treatment in any given case. As the Court held in QT:

‘This is not to suggest that a person’s marital status is irrelevant as a condition for the allocation of rights and privileges. Such status may in some circumstances be highly important or even decisive. The point we make is that the relevance and weight to be attributed to that status is taken into account in considering whether a particular difference in treatment is justified as fair and rational, and that a person’s marital condition cannot determine presumptively that discrimination does not exist.’

[38] The question of whether treatment is relevantly different such as to require justification is always a matter that is context dependent…

[39] In QT, the relevant context was immigration control and the issue of dependency visas to persons from overseas who were dependents of those who had been admitted to live and work in Hong Kong. QT and SS had entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004. In the context of that case, the relevant comparison was between QT and her same-sex partner SS and a heterosexual married couple from overseas since it was the differential application of the dependency visa policy to both couples that gave rise to the differential treatment of QT on the basis of her sexual orientation. The Court held that, in the immigration context for the purposes of the dependency visa policy, there was no obvious difference between homosexual civil partners and heterosexual married couples: each status was recognised under UK law, and both homosexual and heterosexual couples were capable of having equivalent interdependent and interpersonal relationships.

[40] The present case is concerned with the conferment of financial benefits on spouses in the contexts of employment and taxation. Those benefits are conferred on the basis of marriage. The nature of the relationship between the appellant and Mr Adams is one of same-sex marriage valid under the law of the place where it was entered into. It is a relationship which has the same characteristics of publicity and exclusivity which distinguish a heterosexual marriage.

[46] For these reasons, the respondents’ concession of differential treatment requiring justification was properly made.  In the context of the present case, concerned with financial spousal benefits, a same-sex married couple and an opposite-sex married couple are relevantly analogous and the appellant was treated differently to a heterosexual married man in respect of the two challenged decisions on the ground of his sexual orientation.”

44.  As earlier noted, the twin aims of the HOS are (i) to encourage better-off PRH tenants to vacate their flats for re-allocation to families in greater housing need, and (ii) to assist families in the low to middle-income bracket to achieve home ownership.  The Addition Policy and Transfer Policy are specific policies of HA to further those aims:

(1)  The Addition Policy permits the spouse and children under the age of 18 of the owner of a HOS flat to be added as his/her “family members”, and thus to occupy and live with the owner in the HOS flat. The rationale behind such policy seems clear.  The spouse and children are persons whom the owner (i) would normally have the deepest affection for or greatest attachment to, (ii) would naturally want to live with in his/her home, and (iii) would have a social, moral and/or legal obligation to look after, including the provision of a home.

(2)  The Transfer Policy permits the owner of a HOS flat to transfer the HOS flat to, inter alia, his/her spouse to become joint owners thereof, or to an authorized occupant to reflect the financial contribution towards the downpayment/mortgage repayment by that occupant. Again, the rationale behind such policy seems obvious, having regard to the personal, emotional and/or financial relationship between the owner and the proposed transferee.

(3)  Without such policies, the attractiveness of a HOS flat to a prospective purchaser would or could be significantly affected or diminished.

45.  As observed by the Court of Final Appeal in Leung Chun Kwong, both homosexual and heterosexual couples are capable of having equivalent interdependent and interpersonal relationships (§37), and their marriage shares the same characteristics of publicity and exclusivity (§40).  Their need for affordable housing and a home to live together as a family, and their wish or desire to achieve home ownership on a joint basis, are not intrinsically different.  View in the proper context, I consider it to be clear that a same-sex spouse and an opposite-sex spouse are in a comparable or analogous position in relation to matters of eligibility (i) to be added as a family member and thus become an authorised occupant of a HOS flat owned by the other half, and (ii) to be transferred an interest in the HOS flat so as to become a joint owner thereof.

46.  Mr Chan argues that same-sex married couples and opposite-sex married couples are not in a comparable or analogous position in the context of their eligibility to occupy and own HOS flats because:

(1)  the relevant consideration is not just whether same-sex spouses are in a loving, public formal relationship, but includes “the couples’ propensity for opposite-sex marriage and traditional family formations”, which have special constitutional recognition[13]; and

(2)  due and significant weight should be given to HA’s own policy view on what is significant and distinctive between types of married couples for public housing purposes[14].

47.  I do not accept Mr Chan’s arguments:

(1)  The suggestion that a relevant consideration for the present purpose includes “the couples’ propensity for opposite-sex marriage and traditional family formations” is effectively the same circular argument that was roundly rejected by the Court of Final Appeal in QT (at §§38 and 42).  The fact that heterosexual marriage is constitutionally recognised and protected by BL 37 does not mean that it is permissible to discriminate against same-sex couples based on their sexual orientation in relation to matters where same-sex couples and opposite-sex couples are in a comparable or analogous position.

(2)  The suggestion that due or significant weight ought to be given to HA’s own policy view on what is significant and distinctive between types of married couples for public housing purposes is, in my view, contrary to principle.  It is a question of law for the court, not HA, to decide whether two persons or groups of persons are in relevantly similar or analogous situation for the purpose of a discrimination claim, having regard to the relevant context of the subject matter of differential treatment.

48.  In all, I am of the view that same-sex couples and opposite-sex couples are in a comparable or analogous position in relation to matters of occupation and ownership of HOS flats.  Having reached this conclusion, it is clear that the Spousal Policy and the Decision accord differential treatment between them based on a prohibited ground, namely, sexual orientation.

THE DIFFERENTIAL TREATMENT IS NOT JUSTIFIED

49.  The next issue is whether the differential treatment can be justified.  For this purpose, the well-established approach of the court is to apply what is commonly referred to as the four-step justification test, as explained by the Court of Final Appeal in Leung Chun Kwong, at §§21-22:

“[21] In order to determine whether differential treatment is unlawful, the courts apply the same test used to determine if incursions into constitutionally protected rights are lawful (QT at [84]-[86]). When applied in the context of an analysis of constitutionality, that test is usually referred to as the ‘proportionality’ test. When applied in the context of determining whether differential treatment is unlawful, that test is usually referred to as the ‘justification’ test.

[22]  The justification test consists of four steps or elements: (i) does the differential treatment pursue a legitimate aim; (ii) is the differential treatment rationally connected to that legitimate aim; (iii) is the differential treatment no more than necessary to accomplish the legitimate aim; and (iv) has a reasonable balance been struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights (QT at [86]-[87]).”

(i)     First step - legitimate aim

50.  The first step of the justification test is to ask whether the differential treatment pursues a legitimate aim.  Mr Chan argues that the Spousal Policy supports “traditional family formations in the HKHA’s allocation of scarce HOS resources to meet housing needs” (“the Family Aim”), which have three aspects:

(1)  supporting existing traditional families constituted by heterosexual married couples (in and of themselves);

(2)  supporting existing traditional families constituted by heterosexual married couples together with their existing children; and

(3)  supporting the institution of traditional family by protecting/prioritising HOS flats occupancy and ownership to (a) heterosexual unmarried couples whose marriage plans may be influenced by housing availability, and (b) heterosexual married couples whose plans to have children may be influenced by housing availability.

51.  Mr Jin Pao, SC (for Mr Li) accepts that the promotion of a traditional family and increasing childbirth may be regarded as legitimate aims, but points out, correctly, that there is an important distinction between encouraging a traditional family or childbirth and discouraging homosexual relationships[15]. The latter is clearly not a legitimate aim (see Leung Chung Kwong, at §69, quoting from the speech of Baroness Hale in the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557, at §143).

52.  For the purpose of the present discussion, I accept that the Family Aim, in the sense of supporting traditional families, including promoting their formation and encouraging childbirth, is a legitimate aim.

53.  In passing, I should mention that there is nothing in the historical materials produced by HA to show that the HOS itself, or the Spousal Policy (ie the Addition or Transfer Policies) under the HOS, were introduced or formulated with the intention of advancing or pursuing the Family Aim as formulated by Mr Chan.  Mr Pao has not argued that it is not open to HA to seek to justify the Spousal Policy by reference to the Family Aim in such circumstances.  I accept, as a matter of principle, that HA is not barred, as a matter of law, from seeking to rely on a “subsequently conceived”, or ex post facto, aim for the purpose of justifying the Spousal Policy.  However, as this court pointed out at the hearing, a public body seeking to justify a policy under challenge on the ground of discrimination by relying upon a subsequently conceived or ex post facto aim would often find itself in difficulty in satisfying the four steps of the justification test due to a lacuna, or an incongruence, of evidence to show, for example, that the impugned measure under the policy is no more than reasonably necessary to accomplish the aim.

(ii)     Second step - rational connection

54.  The second step requires the court to consider whether the differential treatment is rationally connected to the legitimate aim as identified.  As mentioned by this court in Ng Hon Lam Edgar v Secretary for Justice [2020] HKCFI 2412, at §42, in relation to the second step of the justification test, the question is not whether the conferment of benefit on the comparator group would promote the legitimate aim advanced by the party seeking to uphold the differential treatment.  The pertinent question is, instead, whether the denial of the same benefit to the group to which the complainant belongs would promote such legitimate aim.  In other words, what has to be justified is the difference of treatment.  Thus, in Leung Chun Kwong, at §66, the Court of Final Appeal identified the relevant question as follows:

“In these circumstances, having concluded that the appellant has been subject to differential treatment because he is in a same-sex marriage rather than an opposite-sex marriage, one looks to see how denying the appellant spousal employment benefits (the Benefits Decision) and the right to elect for joint assessment (the Tax Decision) is rationally connected to the legitimate aim of protecting or not undermining the institution of marriage in Hong Kong.” [emphasis added]

55.  At §§67, 71 and 72 of its judgment in Leung Chun Kwong, the Court of Final Appeal rejected the contention that the denial of employment and tax benefits would promote or advance the aim of protection of the institution of marriage in Hong Kong:

“[67] It is here that the respondents’ case faces great difficulty. How is it said that allowing Mr Adams medical and dental benefits weakens the institution of marriage in Hong Kong? Similarly, how does permitting the appellant to elect for joint assessment of his income tax liability under the IRO impinge on the institution of marriage in Hong Kong? It cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits or to joint assessment to taxation.

[71] Restricting these financial benefits to opposite-sex married couples on the ground that heterosexual marriage is the only form of marriage recognised in Hong Kong law is circular and therefore proceeds on the fallacious basis rejected by the Court in QT at [42]. It amounts to the application of a self-justifying reasoning process and denies equality to persons of different sexual orientation who are accepted to be in a relevantly analogous position. Ultimately, a line is merely drawn without any further attempt to justify it.

[72] In any event, we are unable to accept the proposition that heterosexual marriage would be undermined by the extension of the employment and tax benefits to same-sex married couples.  Whilst the Court recognised in QT (at [76]) that a person’s marital status might well be relevant to the allocation of rights and privileges and that ‘the relevance and weight to be attributed to that status is taken into account in considering whether a particular difference in treatment is justified as fair and rational’, we are satisfied that this is not such a case.  Heterosexual marriage is not promoted by the differential treatment in question.”

56.  It seems to me that the same reasoning is applicable in the present case in relation to the first and second facets of the Family Aim as formulated by Mr Chan.  It is entirely illogical to suggest that the denial of eligibility of a same-sex spouse to apply to be added as a family member/authorised occupant, or become a joint owner (without having to pay a premium), of a HOS flat belonging to the other spouse would or could support existing traditional families constituted by heterosexual married couples (in and of themselves, or together with their existing children).

57.  In relation to the third facet of the Family Aim, Mr Leung says that “the Addition and Transfer Polices, which specifically prohibit same-sex married partners of HOS owners from being added as an occupant or from receiving a transfer of ownership of the subject flat, should be effective in preventing or deterring individuals in same-sex married couples from applying for the purchase of HOS flats, which by logical necessity will render more HOS flats available to heterosexual married couples.  This would obviously support and prioritise traditional families in accessing HOS resources”[16]. In Mr Chan’s skeleton submissions, it is similarly said that “[t]he policy is rationally connected and proportionate to this aim: on the evidence, it dissuades same-sex couples from purchasing HOS flats - correspondingly increasing the availability of such flats to opposite-sex couples”, and “[s]ince allocation of HOS flats is a zero-sum matter, excluding same-sex married couples from eligibility under the Challenged Policy, and thus deterring the significant number of same-sex partners from applying for finite HOS flats, will necessarily enlarge the pool of available HOS flats to traditional families”[17].

58.  Whether a measure is rationally connected to an aim is essentially a matter of logic and common sense.  In Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, at §92, Lord Sumption JSC referred to the following statement of Wilson J in Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, at 291 -

“The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt”,

and added the following -

“The words ‘furthered by’ point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective…”

59.  I should add that when considering the question of rational connection, the matter ought to be looked at from the point of view of a fair, broad-minded and reasonable person.  While I can see that the availability of housing is a consideration which may affect a heterosexual unmarried couple’s marriage plan or a heterosexual married couple’s plan to have children, I consider it to be extremely far-fetched to suggest they would be encouraged to marry or have children by the knowledge, or realisation, that because same-sex couples are prevented or deterred from applying to purchase HOS flats under the Addition and Transfer Policies, there would be more HOS flats available to them to purchase.  There is simply no basis to believe this sort of reasoning (or calculation) would enter into the equation when a heterosexual couple considers whether to marry or have children.

60.  In all, I am of the view that the differential treatment between opposite-sex married couples and same-sex married couples under the Spousal Policy is not rationally connected to the Family Aim.

(iii)    Third step - no more than reasonably necessary

61.  The third step requires the court to consider whether the differential treatment is no more than reasonably necessary to accomplish the legitimate aim.

62.  On the question of the appropriate standard of review, Mr Pao submits that the court should examine the Spousal Policy with “particular severe scrutiny” having regard to the fact that the differential treatment in the present case strikes at the heart of a core value, namely, the sexual orientation of a person (see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 406, at §§77-78; QT, at §§107-108; and Leung Chun Kwong, at §79).

63.  On the other hand, Mr Chan argues that the court should accord a due recognition of discretion to HA as policymaker, having regard to the following considerations:

(1)  the severe inadequacy of housing supply in Hong Kong, and the fact that many same-sex couples fall within the low to middle-income classes and seek HOS flats;

(2)  there are no other means more proportionate or less intrusive in achieving the Family Aim;

(3)  the need or desirability of achieving coherence with HA’s policy with respect to the definition of “spouse” as husband and wife for the purposes of eligibility to purchase HOS flats;

(4)  the possible interference with rights should be measured against the strength of the legitimate aim advanced, it being argued that protection of traditional family is a “weighty and legitimate reason” for a difference in treatment;

(5)  the indirect nature of any discrimination based on sexual orientation should be taken into account; and

(6)  the extent of any interference “is also obviously relevant.  A relatively trivial interference will be much easier to justify”[18].

64.  In respect of these points made by Mr Chan, my views are as follows:

(1)  The inadequacy of housing supply in Hong Kong affects opposite-sex and same-sex couples alike.  There is no basis to believe that, in terms of proportions, there are more opposite-sex couples, or same-sex couples, who fall within the low to middle-income bracket and would wish to purchase HOS flats.

(2)  The question of whether there are, or are not, other means more proportionate or less intrusive in achieving the Family Aim is not susceptible of a simple answer.  As pointed out by Mr Pao, the Spousal Policy does not differentiate between heterosexual married couples who procreate or plan to do so, and those who do not or cannot (because of, for example, infertility, age, disability or preference).  Neither does it differentiate between same-sex couples who intend and are able to form a family with children (by artificial procreation, adoption or otherwise), and those who do not or are unable to do so.  This is not to suggest that HA should discriminate against heterosexual couples who do not or cannot procreate, or against same-sex couples who do not intend or are unable to form a family with children.  It is not the court’s function to fix the appropriate dividing line in a discrimination claim.  The court’s task is simply to determine whether the line as drawn by HA is lawful or unlawful.

(3)  The point about the need or desirability of achieving coherence with HA’s policy with respect to the definition of “spouse” as husband and wife for the purposes of eligibility to purchase HOS flats is problematic, because it begs the question of whether such policy also constitutes unlawful discrimination based on sexual orientation.

(4)  I accept that it is relevant to take into account the strength of the legitimate aim advanced when considering the appropriate standard of review.  However, as mentioned in §47 of the Infinger judgment, the European Court of Human Rights in Kozak v Poland (2010) 51 EHRR 16, at §98, continued to adopt a high standard of review in that case involving discrimination based on sexual orientation, notwithstanding the weighty consideration that might be accorded to the protection of the traditional family.

(5)  I remain unconvinced that less weighty justification, or a lower standard or intensity of review, should be applied in indirect discrimination cases (see Infinger, at §§45-46).  In any event, as stated by Baroness Hale in Rodriguez v Minister of Housing of the Government [2009] UKPC 52, at §19, an eligibility criterion (in that case for the grant of a joint tenancy of Government housing) applicable only to couples who were married to one another (in a place where same-sex couples could not lawfully marry) or had a child in common was “a form of indirect discrimination which comes as close as it can to direct discrimination”.

(6)  I do not accept that the extent of interference in the present case is trivial.  The Spousal Policy means that same-sex married couples like the Deceased and Mr Li cannot live together as a family in a HOS flat owned by one of them, or jointly own the HOS flat, unless a substantial premium is paid.  Such interferences are far from trivial.

65.  I take into account the fact that this case may be said to touch upon the allocation or distribution of scarce public resources (namely, HOS flats), and there are indisputably huge demands for HOS flats by eligible purchasers in Hong Kong.  However, the significance of this factor in the determination of the appropriate standard of review is lessened by the fact that the policy under challenge here does not relate to the initial allocation of HOS flats, but with the addition of, and transfer of title to, authorised occupants of HOS flats already allocated.  As correctly submitted by Mr Pao, “[t]he alleged justification is one step removed from Infinger and indirect because the HA relies on an alleged deterrence effect on a certain group of homosexual individuals in order to increase the overall availability of HOS flats for ‘traditional families’”[19].

66.  Overall, I am of the view that the appropriate standard of review in this case should be somewhere between the middle and high end of the intensity of review in the continuous spectrum of reasonableness.

67.  As in the Infinger case, HA has not produced any, or any reliable evidence, to show that the Spousal Policy would make a significant or real difference to the overall availability of HOS flats to traditional families constituted by heterosexual marriage.  There is no evidence as to the number of same-sex couples who are eligible to apply for HOS housing.  No attempt has been made to even estimate the number of such same-sex couples.  There is also no impact analysis, or anything concrete in terms of empirical or evaluative studies, to suggest that the differential treatment complained of would have any meaningful positive impact on traditional family formation or maintenance, and if so, to what extent.  Neither is there any evidence that HA has seriously considered less intrusive alternatives, or the impact which the Spousal Policy would or might have on same-sex couples.

68.  As earlier noted, HA’s case that the Spousal Policy would lead to an increase in the availability of HOS flats to heterosexual couples is an indirect one, based as it is on the deterrence effect on a particular group of same-sex couples who would otherwise be eligible to purchase and wish to live as a family in HOS flats and/or wish to jointly own HOS flats.  The number of such persons would, by definition, be less than the number of same-sex couples (married or unmarried) in Hong Kong, which in turn would be less than the number of persons with homosexual orientation in Hong Kong.  Mr Pao is, I consider, justified in describing them as “a minority in a minority”, and correct in his submission that “[b]ecause the impact is so indirect and remote, it is even more incumbent upon the HA to produce reliable evidence to substantiate the alleged advancement of the family aim”[20]. HA has singularly failed to do so.

69.  In his 2^nd Affirmation, Mr Leung says (in relation to HA’s appeal in Infinger) that HA is advised and believes “it is not the case that a policy can only be found to be proportionate if its impact can be discovered by reference to a detailed impact assessment, empirically tested assumptions, or elaborate theoretical models, and respectfully notes that many significant public polices … are not and cannot be legally contingent on such foundations”, and argues (in relation to the present case) that “there is no doubt given the current scarcity of HOS resources and its vast oversubscriptions, prioritising heterosexual married couples over same sex married couples is bound to make a significant and real difference to the overall availability of HOS flats to traditional families as a category”[21].  Mr Leung also contends that “the evidential approach in the Infinger judgment places an unreasonable burden on administrative authorities to require a public body, to justify and maintain … socio-economic policies involving matters such as the allocation of scarce resources (whether housing stock, medical supplies, economic support or the like), to commission surveys or other investigations to collect such empirical evidence every times it makes a policy, which often requires an estimation, forecast, prediction or judgment on matters for which no accurate data collection is possible (such as the number of same-sex persons who would have applied for a HOS flat but for the Addition/Transfer Policies), or on sociological and/or economic conditions in Hong Kong”[22].  These points are repeated and relied upon by Mr Chan[23].

70.  This is not the appropriate occasion to discuss the correctness of the Infinger judgment at the first instance, which will in due course be considered by the Court of Appeal.  However, in relation to the present case, as rightly submitted by Mr Pao, the burden of justification rests with HA.  There is no fixed rule on the types of evidence which may be acceptable and sufficient for a public body to discharge the burden of justification in any given case where its policy is challenged on the ground of unlawful discrimination.  The evidence necessary for such purpose must depend on the facts and circumstances of the case.  What is clear, however, is that justification cannot rest on bare assertions, as HA has sought to do in the present case.  It bears emphasis that the present case concerns a “core value” as explained by Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 406.  The court is entitled and, in my view, ought to subject the materials put forward by HA for the purpose of justification of the impugned policy to careful scrutiny.

71.  In all, I consider that there is no, or no sufficient, materials before the court which would permit it to conclude that the Spousal Policy would make any significant or real difference to the overall availability of HOS flats to traditional families constituted by heterosexual marriage, or would have any positive effect or impact on the plans of heterosexual unmarried couples to marry, or the plans of heterosexual married couples to have children.  Applying the appropriate standard of review referred to §66 in above, I am not satisfied that the differential treatment under the Spousal Policy is a proportionate means of achieving the Family Aim.

72.  For the sake of completeness, I should mention that I would have reached the same conclusion even if the appropriate standard of review should be one of “manifestly without reasonable foundation”.  As is clear from the judgment of Lord Toulson JSC in R(MA) v Work and Pensions Secretary [2016] 1 WLR 4550, at §§29-30, even in those cases concerning state benefit where the normally strict test for justification of sex discrimination or disability discrimination (and, by parity of reasoning, sexual orientation discrimination) gives way to the manifestly without reasonable foundation test, the need for careful scrutiny of the reasons advanced in justification of the impugned policy is not lessened.

73.  In the more recent judgment of the European Court of Human Rights in JD and A v United Kingdom [2020] HLR 5 (24 October 2019), the following was stated (omitting citations):

“[87] In the context of Article 1 of Protocol 1 alone, the Court has often held that in matters concerning, for example, general measures of economic or social strategy, the States usually enjoy a wide margin of appreciation under the Convention. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.

[88] However, as the Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality. Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination.Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not ‘manifestly without reasonable foundation’ to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality.

[89] Outside the context of transitional measures designed to correct historic inequalities, the Court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced, and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified. The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention.”

74.  It is not necessary to decide in the present case whether the above approach (ie limiting the applicability of the “manifestly without reasonable foundation” test only to situations where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality) should be adopted in Hong Kong.  Applying the well-established approach referred to by Lord Toulson JSC in R(MA) and subjecting the Spousal Policy to careful scrutiny, I consider it to be clear that the differential treatment between opposite-sex couples and same-sex couples under the policy is manifestly without reasonable foundation.

(iv)    Fourth step - fair balance

75.  The fourth step requires the court to make a value judgment as to whether the impugned measure operates on particular individuals with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question.  As stated by Ribeiro PJ in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, at §78:

“While in the great majority of cases the result arrived at after undertaking the first three inquiries is unlikely to be changed by it, a four-step analysis should, in my view, be explicitly adopted in Hong Kong. Without its inclusion, the proportionality assessment would be confined to gauging the incursion in relation to its aim. The balancing of societal and individual interests against each other which lies at the heart of any system for the protection of human rights would not be addressed. This requires the Court to make a value judgment as to whether the impugned law or governmental decision, despite having satisfied the first three requirements, operates on particular individuals with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question. But that should not cause the Court to shy away from the fourth question since such a value judgment is inherent in the proportionality analysis.”

76.  Having regard to (i) what, on any view of the matter, would be a very limited increase in the number of HOS flats which may become additionally available to heterosexual couples for purchase as a result of the Spousal Policy, and (ii) the unfairness or unreasonableness of not allowing a same-sex married couple to live together as a family in a HOS flat owned by one of them, or jointly own the HOS flat (unless a substantial premium is paid, in this case in the region of HK$2.4 million[24]), I consider that the Spousal Policy operates on particular individuals like the Deceased and Mr Li with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the Family Aim.

77.  In conclusion, the differential treatment between same-sex married couples and opposite-sex married couples under the Spousal Policy cannot be justified, and constitutes unlawful discrimination. Since the Decision was based on the Spousal Policy, it is similarly vitiated.

78.  For the avoidance of doubt, I should mention that, for the purpose of this judgment, same-sex married couples refer to those who are legally and validly married in a foreign jurisdiction, but do not include cases where the foreign marriage may be objectionable on the ground of public policy, eg a marriage which is not voluntary, or between persons falling within prohibited degrees of consanguinity, or to which one or both parties are under the age of matrimonial capacity.  Mr Chan has not suggested that there is any particular feature of the foreign marriage between the Deceased and Mr Li in this case which is relevant to the issues to be determined in this application.

79.  Having upheld Ground 1 of judicial review, it is not necessary for me to consider the remaining grounds of judicial review.

DISPOSITION

80.  The court allows the present application for judicial review, and grants the following relief:

(1)  a declaration that the Spousal Policy and Decision are unlawful and unconstitutional for being in violation Article 25 of the Basic Law and/or Articles 22(1) and 1(1) of the Hong Kong Bill of Rights;

(2)  an order of certiorari to remove into the High Court and to quash the Spousal Policy and Decision; and

(3)  liberty to apply for such further or other relief as may be necessary to give effect to this judgment.

81.  The court further orders HA to pay the Deceased and Mr Li’s costs (including all reserved costs, if any), to be taxed on a party and party basis if not agreed, with certificate for 2 counsel.  The Deceased and Mr Li’s own costs are to be taxed in accordance with legal aid regulations.

[1] QT v Director of Immigration (2018) 21 HKCFAR 324 (4 July 2018).

[2] The “Family Member Policy” was defined in the letter to mean the policy of HA under which the concept of “spouse” is “limited to persons in a ‘heterosexual monogamous marriage’, explicitly excluding homosexual married couples”.

[3] The “rights” relied upon by Daly & Associates included equality before the law (Article 25 of the Basic Law), right to privacy, family and home (Article 14 of the HKBOR), rights in respect of marriage and family (Article 19 of the HKBOR), and equality before and equal protection of law (Article 22 of the HKBOR).

[4] See §3 of HKHA Skeleton for Hearing on 19 April 2021 dated 14 April 2021.

[5] As is well known, homosexual acts performed in private between two consenting adult males of 21 years of age or above were criminal conduct until the law was amended by the Crimes (Amendment) Ordinance 1991 following the recommendation contained in the Report by The Law Reform Commission of Hong Kong titled “Laws Governing Homosexual Conduct” dated 15 April 1983.

[6] See pp 2-3 of Chapter 6 of the General Housing Policies.

[7] See pp 2-3 of Chapter 6 of the General Housing Policies.

[8] See §§22.1 and 22.2 of the HOS Secondary Market Scheme (Green Form Status) Application Guide (Rev 9/2019).

[9] See, for example, the template application form attached to the Application Guide for Green Form Applicants for Sale of Hone Ownership Scheme Flats 2020 as “Annex A”.

[10] See §57 of the 2^nd Affirmation of Leung Tak Yan.

[11] See §2(1) of HKHA Skeleton.  In that case, this court held, at first instance, that the differential treatment accorded to same-sex married couples and opposite-sex married couples under the Intestates’ Estates Ordinance (Cap 73) and the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) could not be justified and constituted unlawful discrimination.

[12] [2006] 1 AC 173.

[13] See §17 of HKHA Skeleton.

[14] See §18 of HKHA Skeleton.

[15] See §22 of the Skeleton Argument for the Intended Applicant dated 9 April 2021.

[16] See §87 of the 2^nd Affirmation of Leung Tak Yan.

[17] See §§2(4) and 28 of HKHA Skeleton.

[18] See §§27-36 of HKHA Skeleton

[19] See §16 of the Reply Skeleton for the Intended Applicant dated 16 April 2021.

[20] See §16 of the Reply Skeleton for the Intended Applicant.

[21] See §§89-90 of the 2^nd Affirmation of Leung Tak Yan.

[22] See §92 of the 2^nd Affirmation of Leung Tak Yan.

[23] See §§29-30 of HKHA Skeleton.

[24] Based on the purchase price paid by the Deceased (HK$5,450,000), and the Initial Market Price and Purchase Price of the HOS Flat at the time when the vendor originally purchased it (ie a discount of approximately 43.8%).