MK v. GOVERNMENT OF HKSAR

HCAL 1077/2018

HCAL 2648/2018 &
HCAL 2682/2018

[2019] HKCFI 55

HCAL 1077/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1077 OF 2018

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AND

HCAL 2648/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2648 OF 2018

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AND

HCAL 2682/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2682 OF 2018

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(Heard together)

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D E C I S I O N

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1.  There are before the court 3 applications for judicial review raising the same or similar issues, namely, the marriage, or similar or equivalent, rights of homosexuals in Hong Kong.

2.  In HCAL 1077/2018, the applicant (“MK”), 29 years old, is a female Hong Kong permanent resident.  She is a lesbian and has been co-habiting with her same-sex partner, also a Hong Kong permanent resident, for around 2 years.  In her Form 86 filed on 11 June 2018, she seeks, inter alia, a declaration that the laws of Hong Kong, in so far as they do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnership (such as civil union or registered partnership), constitute a violation of HKBOR 14 (right to privacy) and/or HKBOR 22 and BL 25 (right to equality).  Leave to apply for judicial review was granted by the court on 13 June 2018.  The Government of the HKSAR, as the respondent, is currently due to file its evidence on or before 14 January 2019.  Notwithstanding the court’s direction given on 24 August 2018 for the parties to provide their counsel’s diaries to the court to fix the hearing dates of the substantive application, those dates have not yet been fixed because, as I understand it, of an outstanding request by MK to the Director of Legal Aid for re-assignment of senior counsel.  The parties are currently due to submit their counsel’s available dates to the court on 11 January 2019.

3.  In HCAL 2648/2018, the applicant (“TF”), 21 years old, is a male Hong Kong permanent resident.  He is student in a university in Hong Kong, and met his current same-sex partner during his first year in the university.  They wish to get married after TF’s graduation, and have discussed the possibility of doing so in Taiwan should there be a legal framework for same-sex marriage there, but prefer to do so in Hong Kong if legally permissible.  In his Form 86 filed on 22 November 2018, he seeks, inter alia, (i) a declaration that section 20(1)(d) of the Matrimonial Causes Ordinance, Cap 179, is inconsistent with BL 25 and HKBOR 22, (ii) a declaration that the definition of marriage in Section 40 of the Marriage Ordinance, Cap 181, to the extent that it refers to “one man and one woman”, is inconsistent with BL 25 and HKBOR 22, and (iii) a declaration that, consistently with BL 25 and HKBOR 40, Section 40 of the Marriage Ordinance should be read and given effect so as to reformulate the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others” (ie remedial interpretation).  He further seeks, alternatively, a declaration that the laws of Hong Kong, in so far as they do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnership (such as civil union or registered partnership), constitute a violation of HKBOR 14 and 22 and BL 25.  The court has not yet dealt with the application for leave to apply for judicial review.

4.  In HCAL 2682/2018, the applicant (“STK”), 31 years old, is a male Hong Kong permanent resident.  He is a homosexual, and got married with his same-sex partner in New York in 2013.  In his Form 86 filed on 26 November 2018, he seeks, inter alia, the same declarations as those sought by TF in HCAL 2648/2018.  In addition, he seeks a further or alternative declaration that the laws of Hong Kong, in so far as they do not recognize foreign same-sex marriages, constitute a violation of HKBOR 22 and BL 25.  The court has not yet dealt with the application for leave to apply for judicial review.

5.  On 23 November 2018, the court gave the following direction in HCAL 2648/2018:

“The Applicant shall fix a 30-minute inter-partes hearing for consideration of the further conduct of this application, including possible stay of this application pending the outcome of another application for judicial review currently before the court (namely, HCAL 1077/2018) raising the same or similar issues, or consolidation with that other application.”

6.  On 26 November 2018, the court gave the following direction in HCAL 2682/2018:

“The Applicant shall fix a 30-minute inter-partes hearing for consideration of the further conduct of this application, including possible stay of this application pending the outcome of two other applications for judicial review currently before the court (namely, HCAL 1077/2018 and HCAL 2648/2018) raising the same or similar issues, or consolidation with those other applications.”

7.  TF and STK have accordingly each issued a summons seeking further directions from the court regarding the further conduct of their respective applications.

8.  On behalf of TF and STK, Mr Hectar Pun, SC submits that the two applications should be heard one after the other, with STK’s application being heard first in view of the additional issue raised by him (ie recognition of foreign same-sex marriages in Hong Kong), alternatively TF’s application being stayed pending the determination of STK’s application.  Mr Pun argues that the relief sought by TF and STK go further those sought by MK, in that TF and STK ask the court to interpret Section 40 of the Marriage Ordinance remedially so as to legalise same-sex marriages, whereas MK only asks the court to declare that the failure to allow homosexuals to marry or enter into legally recognized same-sex partnership is inconsistent with various fundamental rights guaranteed by the Basic Law and Hong Kong Bill of Rights. Pausing here, I should mention that Mr Pun is currently leading counsel for all three applicants, although for the purpose of today, MK is represented by his junior, Ms Tina Mok.

9.  On behalf of MK, Ms Mok submits that MK’s application should proceed first in the event that the court is minded to allow only one of the 3 applications to proceed.

10.  On behalf of the Government of the HKSAR and the Secretary for Justice, Mr Stewart Wong, SC submits that TF and STK’s applications should be stayed pending the final determination of MK’s application (and any and all appeals therefrom).  Alternatively, if the court is of the view that one of TF and STK’s applications should be chosen to proceed, the other two applications should be stayed on the same terms.

11.  In a decision given on 11 July 2018 in HCAL 425 of 2017, I had the opportunity to consider the question of a stay of an application for judicial review (in that case concerning the legality of the “live-in requirement” imposed on foreign domestic helpers) pending the outcome of an appeal to the Court of Appeal (CACV 112/2018) against the Court of First Instance’s decision given in an earlier application in HCAL 210/2016 raising substantially the same issues.  I set out the applicable principles in paragraphs 12 to 15 of that decision.  In particular, at paragraph 15, I stated that:

“It is clear from the above authority that a stay of proceedings in an action may be granted if the outcome of a pending appeal in another action has, or is likely to have, a critical impact on the action even if it cannot be shown that the outcome of that appeal would be decisive or determinative of the action. This having been said, the power to stay must be exercised cautiously. Ultimately, the court has to perform a balancing exercise to further the ends of justice as between the parties to the action, as well as the due administration of justice generally.”

12.  Although the question now before me is slightly different, namely, stay of parallel proceedings as opposed to stay pending an appeal in another action raising the same or similar issues, essentially the question remains a case management decision.  Ultimately, the court has to perform a balancing exercise to further the ends of justice as between the parties to the action, as well as the due administration of justice generally. Having regard to the huge increase in the number of applications for judicial review seen in recent years, the court must carefully consider the use of its available resources to fairly and economically deal with all such applications.

13.  In the present cases, notwithstanding the fact that STK has raised an additional issue (ie recognition of foreign same-sex marriages in Hong Kong), I consider that the court’s determination of the principal issues raised in MK’s application, namely (i) whether a homosexual in her position is legally entitled to “marry” a person of the same sex in Hong Kong, and (ii) if the answer is “no”, whether such person is legally entitled to an alternative means of legal recognition of same-sex partnership (such as civil union or registered partnership), will likely have a critical impact on the other 2 applications.

14.  In term of progress, MK’s application is at the most advanced stage.  As earlier noted, the Government’s evidence is due to be filed within 2 weeks from now, and it is the court’s intention to fix the hearing dates on or shortly after 11 January 2019.  In so far as the other two applications are concerned, leave to apply for judicial review has not yet been granted, and the Secretary for Justice is entitled to the normal period provided for under the rules to file evidence, there being no compelling reason to shorten the period that I can see.

15.  In all the circumstances, I consider the fair and efficient course would be to hear MK’s application first, with the other two applications being stayed pending the outcome of MK’s application at first instance, and I so order.  It would not be appropriate to stay those applications pending the final determination of any and all appeals in MK’s case (as suggested by Mr Wong).  That is a matter which can be considered after the court has determined his application at first instance.

16.  I shall grant leave to apply for judicial review in TF and STK’s cases, but shall otherwise stay those proceedings as mentioned above.

17.  I shall now hear the parties on the question of costs.