LEUNG CHUN KWONG v. SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

CACV 126/2017

[2018] HKCA 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2017

(ON APPEAL FROM HCAL NO 258 OF 2015)

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J U D G M E N T

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Hon Cheung CJHC :

1.  I have invited Poon JA to give the main judgment in this appeal (and cross appeal), but would like to add a few observations of my own.

2.  Marriage is a social and legal institution worthy of full protection by the law.  I hope this is self-evident.  This proposition is no less self-evident, I also hope, where, as in Hong Kong, marriage means heterosexual marriage only.  Of course, if a person does not accept that marriage is restricted to heterosexual marriage, but also includes same-sex marriage, I can fully understand why he or she may not accept the second proposition above regarding the protection of heterosexual marriage.  However, this is not such a case.  The applicant, like the applicant in QT v Director of Immigration [2017] 5 HKLRD 166, accepts that in Hong Kong at least, marriage means heterosexual marriage.  He does not challenge that.  It follows, therefore, that for the purpose of this appeal, it is safe to proceed on the basis that in Hong Kong, heterosexual marriage is worthy of full protection under the law.

3.  The concept of core rights and obligations, developed in our earlier decision in QT,was precisely an attempt to protect and ring fence the institution and status of marriage, that is, heterosexual marriage, in Hong Kong.  As recognised from the outset, the concept of core rights and obligations unique to the status of marriage requires the court to determine in each case whether the relevant subject matter falls within this group of core rights and obligations, and the task may not be an easy one.

4.  In QT, that was all that was involved in terms of the protection of marriage as a social and legal institution.  The simple reason was that in that case, the Director of Immigration did not put forward the protection of the traditional concept of marriage (and the prevention of the undermining of the institution of marriage) as a reason to justify the immigration policy under challenge there.  We, therefore, deliberately refrained from saying what our views would be if that had been put forward as a justification, when considering the proportionality test.  Rather, we proceeded on the basis of the justifications relied on by the Director, and for the reasons we gave, we held against him.

5.  This appeal, however, brings to the forefront the question of justifying a differential treatment by reference to the legitimate aim of protecting the traditional concept of marriage and preventing the undermining of the institution of (heterosexual) marriage.  This question arises if the benefits and privilege under challenge in this appeal (that is, civil servant spousal benefits and joint assessment for tax purposes) are found by us not to constitute core rights and obligations unique to marriage.  Or, if this concept of a group of core rights and obligations unique to marriage is not accepted by the Court of Final Appeal in the forthcoming appeal in QT, and all differential treatments have to undergo the proportionality test.

6.  For these reasons, this appeal is of significant importance as regards what the law can and should do in terms of protecting the institution and status of marriage.

7.  First and foremost, one must bear in mind that in Hong Kong, unlike, say, the United Kingdom prior to the introduction of civil partnership and then same-sex marriage, we have the Basic Law which, at the constitutional level, favours heterosexual couples in terms of access to marriage.  As the law is and has always been understood in Hong Kong, article 37 constitutionally guarantees the right to heterosexual, but not, same-sex marriage.

8.  This, in my view, defines authoritatively the legal landscape for all discussions on protecting the traditional concept and institution of marriage.  Given that the Basic Law itself inclines toward heterosexual couples in terms of access to marriage, by definition, in Hong Kong one simply cannot say it is wrong or discriminatory for marriage to exclude homosexual people.  It is not necessary to ask what the traditional, social, moral or religious reasons or values that inform this preference in the Basic Law are.  Whatever they may be, these reasons or values are now embedded in our Basic Law and have found expression in article 37 in its constitutional preference for heterosexual marriage.

9.  In other words, in Hong Kong, when one says protecting the traditional concept and institution of marriage is a legitimate aim, one is not merely adopting or following what the European Court of Human Rights has said in Karner v Austria (2004) 38 EHRR 24 about the same question, which was also adopted in the United Kingdom. In Hong Kong, when we say the protection of the traditional concept and institution of marriage is a legitimate aim, there is a fundamental, constitutional backing to it.  Moreover, the preference in article 37 for heterosexual people over homosexual people in terms of access to marriage is there notwithstanding that the Basic Law also provides in article 25 that everybody is equal before the law.  In other words, the drafters of the Basic Law were fully aware of this important, fundamental human right to equality, when granting to heterosexual people only in the same Chapter III of the Basic Law a constitutional protection not shared by homosexual people, in terms of access to marriage.  If anything, this makes the preference for heterosexual marriage in article 37 stand out all the more starkly.

10.  It is against this constitutional backdrop, one that is not shared by jurisdictions like the United Kingdom, that one must examine this question of protecting the traditional concept and institution of marriage as a legitimate aim, and whether and how the reservation of the civil servant spousal benefits and the tax option for joint assessment to married (heterosexual) couples as opposed to same-sex couples married overseas, would serve to protect the traditional concept and institution of marriage.

11.  Here, I am acutely aware of observations made in authorities of high persuasive value which are discussed fully in Poon JA’s judgment, to the effect that withholding benefits and privileges from same-sex couples who cannot lawfully get married even if they want to will not serve to protect the traditional concept of marriage because it will not encourage heterosexual people to get married, or (and this is in itself an illegitimate aim in view of the right to private life) discourage homosexual people from remaining homosexual.  However, with great respect, this is only addressing one particular aspect of protecting the traditional concept and institution of marriage at the level of encouraging or discouraging people to get married or otherwise.  But there are other aspects and dimensions to the question.

12.  People who are opposed to same-sex marriage often say, when faced with situations such as that faced by the court in this appeal, that a relaxation of benefits and privileges which society has long chosen to reserve to the status of (heterosexual) marriage in favour of same-sex couples also, would be tantamount to recognising same-sex marriage in Hong Kong via the backdoor.  What are they really trying to say? No doubt, some of them may simply be expressing a gut feeling or an irrational prejudice. However, for some others, although they may not be able to articulate it clearly or at all, what they are trying to say, I believe, is something to this effect.  That is, by allowing same-sex couples to share in benefits or privileges that up till now have long been exclusively associated with or enjoyed by married couples, one is undermining the uniqueness of the status of marriage in society; one is in fact equating relationships which society does not recognise as a marriage relationship and is not prepared to accord the status of marriage to, with what society regards as constituting a marriage relationship and is prepared to accord the status of marriage to.  To do so, in the eyes of those holding the objection, is to offend, challenge, question, confuse, or subtly change society’s established understanding and concept of marriage, which, as explained, is rooted in its traditional, historical, social, moral or religious background and values, as embedded in article 37 of the Basic Law.  To do so, in other words, is to dilute or diminish the unique status of marriage in society.  That is why, I think, an unmarried person who is not thinking of getting married in future, may still hold a strong view against any relaxation of benefits and privileges exclusive to married couples in favour of same-sex couples.  His or her objection may have nothing to do with whether the relaxation would encourage or discourage him or her to get married in future.  Yet the objection is nonetheless real and substantive, and cannot be simply brushed aside as irrational or purely discriminatory.  After all, as mentioned, in Hong Kong, given the Basic Law’s inclination toward heterosexual people in terms of access to marriage, one may not call persons holding such views as being discriminatory without labelling the Basic Law as being discriminatory as well.  In my view, this is another material difference distinguishing the situation in Hong Kong from that in the United Kingdom.

13.  In short, the protection of the traditional concept and institution of marriage in the Hong Kong context goes far beyond encouraging people to get married.

14.  Of course, one may for very understandable reasons disagree with all this (and many do), and say that the (supposed) preference for heterosexual marriage in the Basic law, and the traditional, historical, social, moral or religious reasons or values that inform it are all wrong, outmoded and discriminatory.  I have no difficulty with understanding that stance and the sentiments behind it.  But it can only mean that one should go for a direct, frontal challenge against the conventional understanding of the true interpretation and scope of application of article 37 of the Basic Law, based on arguments such as that the Basic Law is a living instrument and its interpretation should move with the times. Yet, there is no such challenge in this appeal.  Rather, there is an acceptance of the constitutional position as it is.  The inevitable consequence of this is that in applying the proportionality test, one must fully bear in mind the accepted constitutional position which for reasons I have been trying to explain, has an important bearing on how the proportionality test is applied.

15.  Returning to the proportionality test, the next question is whether in relation to the civil servant spousal benefits and joint assessment option, withholding them from same-sex couples married overseas is no more than is necessary – here, for the sake of argument, I would adopt the more stringent test for scrutiny – to pursue the legitimate aim regarding marriage, and the further question under the fourth stage of the proportionality test, that is, whether the measures under challenge are unduly harsh and disproportionate in terms of the inroads into the individual’s right, when compared with the legitimate aim that they are meant to pursue.

16.  Here, in the Hong Kong context, the court must accord substantial and adequate weight to the constitutional backing and preference for heterosexual marriage (embodied within which are the historical, traditional, social, moral and religious reasons or values of Hong Kong people as recognised by the drafters of the Basic Law), and should therefore be slow to conclude that the measures in question are more than is necessary, or that the inroads into the applicant’s right to equality are disproportionate to the gains in terms of protecting the traditional concept and institution of marriage.

17.  In this regard, there is an important dimension to the discussion under the third and fourth stages of the proportionality test that must be borne in mind, namely, the cumulative effect on the traditional concept and institution of marriage if the extension of benefits and privilege sought in this case is allowed.  In other words, even assuming, for the sake of argument, that withholding the benefits and privilege in question may not seem to be wholly “necessary” in terms of protecting the traditional concept and institution of marriage, and the inroads into the applicant’s right to equality in the present case may seem unduly harsh and disproportionate when compared with the gains in terms of the legitimate aim, yet it must be remembered that logic knows no bounds.  The extension in the present case of the benefits and privilege under challenge would lead, almost inevitably, to similar extensions in other areas concerning, for instance, public housing, social welfare, public medical benefits, employment benefits and protection, pensions and life insurance.  It would, quite probably, spill over to same-sex couples living in a stable and established relationship that can be reasonably verified, who for whatever reasons, financial and health included, cannot go abroad to get married.  In considering the third and fourth stages, one must not over-focus on the individual measure under challenge; nor on the hardship done to the individual in terms of his or her right, but must also bear fully in mind the implications of any relaxation in that individual’s favour in other logically indistinguishable or similar cases, before one can safely conclude that the measure under challenge is more than is necessary, or the inroads into the individual’s right in the case at hand cannot be proportionally justified by the legitimate aim.  It is one thing to develop case law incrementally.  It is another to disregard logical implications that, reasonably foreseeably, may follow from a decision in a particular way in the instant case.

18.  In Hong Kong, the applicant has to accept that the Basic Law as it is generally understood does prefer heterosexual couples to same-sex couples in terms of access to marriage.  Until it is changed either by an amendment to the Basic Law, or by a definitive court interpretation on the meaning of article 37 giving it an expansive scope of application, this is and remains the position.

19.  For these reasons and for those given by Poon JA not otherwise covered by this short judgment, I agree that this appeal should be allowed and the cross appeal dismissed in terms of what his Lordship proposes.

Hon Lam VP :

20.  My Lords, the debate on equality of treatment for homosexual couples in the context of rights and privileges defined by marriage has often been focused on a relationship-oriented analysis. The primary argument is that as many homosexual couples share in substance the same relationship between each other as do heterosexual couples, the differential treatment between these two kinds of relationship is discriminatory.

21.  However, as the Chief Judge highlighted in his judgment (a draft of which I have read and with which I agree), in the context of Hong Kong (and the present appeal, where the law of marriage in Hong Kong is not challenged) Hong Kong law only recognizes heterosexual marriage. In this context, I venture to suggest that the above debate is wrongly-focused.

22.  Marriage is more than an acknowledgement of a relationship between the couple. It is a commitment upon which a special and unique status is recognized in the eyes of the law and other social norms. By virtue of such status, privileges, rights and obligations are conferred by the law and other social norms irrespective of ups and downs in that relationship. Thus, even though one can end the status by divorce, the parties are required by law to resolve issues on outstanding legal rights and obligations notwithstanding that the actual relationship has ended.

23.  The unique status of marriage, as the laws in Hong Kong presently stand, is only confined to heterosexual marriages. It is important to bear this in mind in the application of the proportionality test in the present case where protection of marriage is put forward as the justification for the differential treatments of the Applicant.

24.  If a right or privilege (and the corresponding obligation and duty) is status‑based as opposed to relationship‑based, the mandatory extension of a similar right or privilege to some other relationships resembling marriage (be it homosexual relationship or other forms of similar relationship) would necessarily erode the uniqueness of the status. By such extension, it is inevitable that the conferment of such right and privilege would no longer be dependent upon the unique status. Rather they would be dependent upon the substantial relationship between the parties concerned. If that were so, the assessment would be transformed into a relationship-oriented exercise as opposed to a status-oriented exercise.

25.  Once it becomes a relationship-oriented exercise, the substance of the relationship has to be examined. As with many things in life, human relationship is complex, involving ever-changing dynamics. Whilst I acknowledge that there are homosexual couples enjoying relationships which are as enriching and stable as those enjoyed by heterosexual couples, it can also be said that there are many non-married couples enjoying the same or similar kind of relationship.

26.  Likewise, there are many people living together in a stable relationship providing support and care to each other. They may be parent and child, siblings or close relatives or good friends. From the point of interdependence of each other, the substance of their relationship may not be that different from some couples. Thus, if the benchmark for some rights and privileges is based on a relationship-oriented assessment, there may not be justification for treating them differently from a couple.

27.  Another difficulty with a relationship-oriented assessment is the elusiveness of such exercise. It is a fact of life that human frailties produce much challenges to human relationship. No matter how intimate and close two persons strive to be, there are couples with good relationship and couples with bad relationship. It is very difficult to have a set of objective, universally agreed and readily measurable criteria for the assessment of a relationship. A court of law or an administrative agency responsible for deciding whether a benefit or a right should be conferred is hardly in a position to undertake such assessment.

28.  In contrast, a status-oriented assessment is much more manageable and it is not surprising that in many areas of public policy marital status is adopted as a relevant criterion.

29.  In reality, in many instances, legal rights and obligations are most important when the relationship between the parties is not as good as they should be.

30.  For the reasons given above, if one replaces that with a relationship-oriented assessment, it would undermine the status of a marriage in the society.

31.  In so saying, I do not pre-empt changes in society to embrace homosexual marriages. But as far as core rights and obligations are concerned, I am of the view that it is a matter for the consensus of society to decide if the unique status of marriage should be expanded to provide for homosexual marriages. It is not a question to be decided by addressing if there should be equal treatment based on a relationship-oriented assessment.

32.  In this appeal, we are not dealing with core rights and obligations.  Adopting the approach in QT, supra, the differential treatments in Spousal Benefits and Personal Assessment have to be justified.

33.  For the reasons given by Poon JA (whose judgment I have read in draft and with which I also agree), these measures satisfied the proportionality test in the special context of the Hong Kong family law landscape.

34.  I therefore agree that the appeal should be allowed.

Hon Poon JA :

35.  The central issue arising from this appeal against the judgment of Chow J dated 28 April 2017 (“Judgment”) is whether the Benefits Decision[1] and/or the Tax Decision,[2] both of which are linked to marital status, constituted discrimination against the applicant, a homosexual, on account of his sexual orientation.  It raises, for the first time in our legal history, the very important question if a differential treatment purportedly based on marital status can be justified by the aim of protecting the institution of marriage as understood in Hong Kong.  As already alluded to by the Chief Judge, it may, potentially, have far-reaching implications going well beyond the immediate confines of this appeal.

A.  BACKGROUND

A1.  The applicant and his same-sex marriage

36.  The applicant is a Chinese national and a Hong Kong permanent resident.  He joined the Hong Kong Special Administrative Region Government as an immigration officer on 2 January 2003. When he took out the proceedings below, he had already been promoted to the rank of Senior Immigration Officer.

37.  The applicant is an avowed homosexual.  In 2005, he met his future husband, Mr Scott Paul Adams. They remained friends until 2012.  In August 2013, they started living together and had since been living as a couple.  Eventually, they were married in Auckland, New Zealand on 18 April 2014.  They chose to marry in New Zealand because the law there recognizes same-sex marriage whereas Hong Kong, as a matter of local law, only allows heterosexual marriage to be entered here.

A2.  The Benefits Decision

38.  The applicant’s employment contract with the Government is and was at all material times subject to the Civil Service Regulations (“CSRs”).  Under CSR 4, the Secretary for the Civil Service (“the Secretary”) is authorized to amend, supplement, apply, interpret and make exceptions to the CSRs.  In administering the CSRs, the Secretary has always been adopting the policy of interpreting and applying them in a manner that is consistent with the relevant laws of Hong Kong.

39.  Further, as a general policy, the Government adopts the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation (“the Code of Practice”). Relevantly for present purposes, Section 5 of the Code of Practice states :

“ 5. Terms and conditions of employment, benefits, facilities and services

5.1  Government is committed to the principle of equal pay for equal work and encourages all employers to share that commitment.  The principle does not mean that all employees should be paid the same wage/salary regardless of their performance or productivity. Rather, it means that – in principle – all employees are entitled to the terms and conditions of employment or access to employment or access to benefits, facilities or services commensurate with their rank, duties, seniority and experience and any other special circumstances of their employment, irrespective of their sexual orientation.”

40.  Under CSRs 900 to 925 and CSRs 950 to 954, a civil servant is entitled to various medical and dental benefits provided by the Government.  Such benefits are extended to the civil servant’s family, which are for present purposes compendiously referred to as “Spousal Benefits”.  And CSR 900(2) defines “family” to mean :

“ the officer’s spouse and children (including children of divorced/legally separated officers, step-children, adopted children and illegitimate children) who are unmarried and under the age of 21. In the case of children aged 19 or 20, they must also be in full education or in full time vocational training, or dependent on the officer as a result of physical or mental infirmity.”

41.  Separately, CSR 513 requires every civil servant :

“ … to inform his Department immediately of the birth, adoption, marriage and death of each dependent child … and of any change in his marital status, including marriage, divorce, or the death of his wife …”

42.  In anticipation of his marriage in New Zealand, the applicant on 27 March 2014 wrote to the Civil Service Bureau, inquiring if he was required to update his marital status under CSR 513 having regard to the fact that same-sex marriage is not recognized in Hong Kong.  The Secretary replied on 30 April 2014, stating that the applicant’s intended marriage in New Zealand fell outside the meaning of marriage under the CSRs and it would not constitute a change in marital status triggering the reporting requirement under CSR 513.

43.  Further emails between the applicant and the Secretary ensued, which cumulated in two emails :

(1)  In an email dated 28 October 2014, the applicant complained to the Secretary that he had been denied the right to update his marital status and access to medical and dental benefits which his spouse was entitled to on the only ground of his sexual orientation, which according to the applicant, was morally wrong and irrational.  The applicant repeated his earlier request whether he was required to update his marital status as stipulated in CSR 513 as he was legally married with his same-sex spouse; and whether Mr Adams, his same-sex spouse, was entitled to the benefits which other heterosexual spouses enjoyed.

(2)  In the reply email dated 17 December 2014, the Secretary wrote :

“ We would like to reiterate that for the purpose of administering CSR 513, ‘marriage’ refers to a ‘formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others’ as provided under section 40 of the Marriage Ordinance (Cap. 181). Since the same sex marriage as mentioned in your case falls outside the definition of ‘marriage’ as referred to under CSR 513, such marriage does not constitute a ‘change in marital status’ on your part for the purpose of the CSR which requires reporting under CSR 513.

  As explained above, same sex marriage falls outside the scope of ‘marriage’ under the Marriage Ordinance (Cap. 181) and is not recognized for the purpose of administering staff benefits under CSRs by the Government.  In this respect, we wish to clarify that there is no violation of [the Code of Practice] for not granting your same sex partner the benefits since the ‘benefits’ under Section 5 of [the Code of Practice] applicable to married persons refer only to the marriages as recognized in Hong Kong.”

In short, by the said email, the Secretary maintained that the applicant’s same-sex marriage with Mr Adams is not a marriage within the meaning of Hong Kong law; and that accordingly Mr Adams is not a spouse of the applicant entitling him to the Spousal Benefits.  This on the applicant’s case constituted the Benefits Decision which he sought to challenge by way of judicial review.

A3.  The Tax Decision

44.  In May 2015, the applicant sought to e-file his income tax return for the year of assessment 2014/2015 with the Inland Revenue Department (“IRD”).  When he tried to enter Mr Adams’s name as his spouse in the IRD’s e-filing system, an error message, namely, “Your spouse name prefix must be different from your own name prefix”, appeared.  He was therefore unable to enter Mr Adams’s name as his spouse in the e-form for his tax return.

45.  By an email dated 1 June 2015, the applicant raised the matter with the IRD.  He referred to the IRD’s guideline, which stated that “spouse” meant “lawful husband or wife under a valid marriage recognized by Hong Kong law or other legal marriage recognized by the law of the place where it was entered into”.  He claimed that since he and his spouse were legally married in New Zealand and their marriage was hence valid, he met the criterion of the IRD’s guideline on spouse.

46.  By an email dated 9 June 2015, the Commissioner of Inland Revenue (“the Commissioner”), through an assessor acting on his behalf, replied to the applicant thus :

“ Insofar as same-sex marriage is concerned, the position of the Department can be found in paragraph 5 of Departmental Interpretation and Practice Notes No.18 (Revised) ‘Assessment of Individuals under Salaries Tax and Personal Assessment’, which is reproduced below for your easy reference :-

‘ Same-Sex Marriages

5. A same-sex marriage is not regarded as a valid marriage for the purposes of the Inland Revenue Ordinance (‘IRO’). Although the definition of ‘marriage’ in section 2(1) does not expressly oust one between persons of the same sex, it does make reference to a marriage between a ‘man’ and any ‘wife’. Under section 2, ‘husband’ means a married man and ‘wife’ means a married woman. ‘Spouse’ is defined under the same section as a husband or wife. Marriage in the context of the Ordinance is thus intended to refer to a heterosexual marriage between a man and a woman. Parties in a same-sex marriage cannot be ‘husband/wife’ and they would be incapable of having a ‘spouse’.’

  As such, the Department’s online tax filing system is designed in such a manner that it will not accept a taxpayer to enter a person with the same sex as his/her spouse.”

In other words, by the said email, the Commissioner took the view that the applicant was not entitled to elect for joint assessment with Mr Adams because their same-sex marriage did not fall within the meaning of section 2(1) of the IRO.  This constituted the Tax Decision which the applicant sought to judicially review.

47.  On 14 September 2015, the IRD received from the applicant a completed Tax Return – Individuals for 2014/2015 in paper form.  There, the applicant elected for joint assessment with Mr Adams.  However, his election was refused by the Commissioner on the ground that the applicant and Mr Adams were not husband and wife for the purpose of the IRO.  The Commissioner therefore assessed the applicant’s salaries tax on individual basis.  However as confirmed by the Commissioner, the total salaries tax liability of the applicant and Mr Adams, separately assessed, had not been adversely affected by the Commissioner’s refusal to recognize their same-sex marriage as a valid marriage for the purpose of the IRO.  For even if they were allowed to elect for joint assessment as a married couple, they would not have obtained any reduction of total tax liability.

B.  PROCEEDINGS BELOW

B1.  Grounds of challenge

48.  The applicant contended that both the Benefits Decision and the Tax Decision constituted discrimination against him based on his sexual orientation and in breach of his right to equality under article 25 of the Basic Law (BL 25); articles 1(1) and 22 of the Hong Kong Bill of Rights (BOR 1(1) and BOR 22); and common law.

49.  Further, in respect of the Benefits Decision, the applicant relied on article 14 of the Hong Kong Bill of Rights (BOR 14); the Sex Discrimination Ordinance, Cap 480 (“SDO”); the Code of Practice; and article 37 of the Basic Law (BL 37).  And in respect of the Tax Decision, he also relied on section 2(1) of the IRO and BOR 14.

50.  The Judge ruled in favour of the applicant on the Benefits Decision but against him on the Tax Decision.

B2.  The Benefits Decision found to be discriminatory

51.  The Judge first set out the court’s approach to the right to equality as expounded by Li CJ in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 and Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409.[3] He next referred to the proportionality analysis explained by Ribeiro PJ in Hysan Development Company Limited v Town Planning Board (2016) 19 HKCFAR 372.[4]

52.  The Judge then determined that the Benefits Decision was intended, and understood, to be a decision that Mr Adams would be denied the Spousal Benefits because he was not a spouse for the purpose of the applicable CSRs since the same-sex marriage between the applicant and Mr Adams in New Zealand was not legally recognized as a marriage under Hong Kong law.  There was a difference in treatment accorded to the applicant on account of his same-sex marriage as compared to other civil servants who have entered into heterosexual marriages.[5]

53.  The Judge went on to observe that on its face, the differential treatment was based on marital status of the officer in question.  Although the special status conferred by marriage is well recognized (Re G (Adoption: Unmarried Couple) [2009] 1 AC 173; Bellinger v Bellinger (Attorney General intervening) [2002] Fam 150), the Judge reasoned that the applicant could not achieve that special status because Hong Kong does not recognize same-sex marriage and due to his sexual orientation, the applicant could not, or could not be expected to, enter into a heterosexual marriage.  Accordingly, the Judge held that the differential treatment should be regarded as being based indirectly on his sexual orientation.  He cited Rodriguez v Minister of Housing of Gibraltar [2009] UKPC 52; and Bull v Hall [2013] UKSC 73 in support.[6]

54.  The Judge then turned to examine the justification proffered by the Secretary.  He noted that three main reasons were advanced :

“ (1) in the absence of any legislation to recognize same-sex unions and regulate the rights and obligations of same-sex couples, it is legitimate and justified for the Secretary to act in line with the prevailing marriage law of Hong Kong in the administration of the CSRs;

(2) any decision to the contrary would require the Secretary to have regard to same-sex marriages despite their invalidity under Hong Kong law, or to at least indirectly recognize same-sex marriages as valid in Hong Kong ‘through the backdoor’, which cannot be right; and

   (3)  the Secretary’s policy is rationally connected to and is no more than reasonably necessary to achieve the legitimate aims of not undermining the integrity of the institution of marriage as understood in Hong Kong and of ensuring overall consistency with Hong Kong matrimonial laws hence safeguarding ‘public order (ordre public)’.”

55.  However, the Judge was not impressed.  He held that the purported justification did not pass the justification analysis.  He said :

“ 65. I am not persuaded that these reasons provide sufficient justification for the differential treatment in the present case. The first and second reasons can be taken together. The line as drawn by the Secretary between those who are legally married under Hong Kong law and those who are not begs the question of whether it is legitimate or justifiable to accord differential treatment based on sexual orientation, because homosexual couples are, by definition, unable to be legally married, or recognized as legally married, under Hong Kong law. There is, so far as I can see, nothing illegal or unlawful for the Secretary to accord the same spousal benefits to homosexual couples who are legally married under foreign laws. Neither can I see anything inherently wrong or impermissible, from a legal point of view, for the Secretary to have regard to, or indirectly recognize, an overseas same-sex marriage which is legally valid under the law of the place at which the marriage is contracted or celebrated. Wholly different considerations arise in respect of ‘unmarried’ couples which the court is not concerned with in the present case.

   66.  In so far as the third reason is concerned, I am unable to see how the denial of ‘spousal’ benefits to homosexual couples who are legally married under foreign laws could or would serve the purpose of not undermining the integrity of the institution of marriage in Hong Kong, or protecting the institution of the traditional family …”

56.  The Judge then discussed the two cases relied on by the Secretary, namely, Ghaidan v Godin-Mendoza [2004] 2 AC 557 and Au J’s judgment in QT v Director of Immigration [2016] 2 HKLRD 583.[7]  In doing so, the Judge relevantly made two observations :

(1)  He was unable to see how the differential measure in the present case would serve to protect the traditional family.[8]

(2)  He was unable to see how the aim of ensuring overall consistency with Hong Kong matrimonial laws can legitimately justify the imposition of discriminatory measures relating to conferral of civil service benefits based on sexual orientation.[9]

57.  In conclusion, the Judge held that the differential treatment having failed the justification test, the Benefits Decision unlawfully discriminated against the applicant on account of his sexual orientation.[10]

B3.  Right to equality found to be not engaged by the Tax Decision

58.  Turning to the Tax Decision, the Judge first held that the Commissioner was there making a determination that the applicant’s same-sex marriage was not a marriage for the purpose of the IRO.[11] For the reasons that he gave, the Judge further held that as a matter of construction of section 2(1) of the IRO, the Commissioner’s determination was correct.[12]

59.  According to his understanding of the applicant’s case, the Judge noted that his application for judicial review was directed at the Tax Decision and not the definition of “marriage” in the IRO or the provisions in the IRO that provided for joint assessment of married couples and the married person’s allowance, or any other provisions in the IRO.  The Judge went on to hold that since the Tax Decision was correct as a matter of construction of the IRO, the right to equality as asserted by the application, whether under BL 25, BOR 1(1), BOR 22 or common law, did not arise.[13]

B4.  Other grounds

60.  For the reasons that he gave, the Judge also rejected the other grounds relied on by the applicant based on (a) the SDO, BL 37 for the Benefits Decision; and (b) BOR 14 for the Tax Decision.[14]

C.  OVERVIEW OF PARTIES’ SUBMISSIONS

61.  In consequence, the Secretary appealed against the Judge’s judgment on the Benefits Decision and the applicant cross-appealed against the Judge’s judgment on the Tax Decision.[15]

C1.  In respect of the Benefits Decision

62.  Ms Monica Carss-Frisk, QC, with Mr Stewart Wong, SC and Mr Johnny Ma, for the Secretary and the Commissioner, argued that the Benefits Decision did not constitute discrimination against the applicant on account of his sexual orientation.  Ms Carss-Frisk took a number of points.  In gist, she argued that :

(1)  The applicant and Mr Adams’s same sex marriage is not valid as a matter of Hong Kong law.  They must for the purposes of Hong Kong law be regarded as unmarried.[16] However, the Judge in effect treated them as a married couple under the CSRs, thus effectively recognizing the validity of their same-sex marriage in Hong Kong, at least for the purposes of the CSRs.

(2)  Adopting the approach laid down by this Court in QT,supra, per Cheung CJHC at [8], [11], [14] and [17], marriage has a special legal status with a corpus of rights and obligations flowing therefrom in accordance with the particular society’s own culture, traditions, history and usage.  To give meaning and substance to such a notion about marriage, there must be certain core rights and obligations concerning some areas of life going with the legal status of marriage which require no justification or can be easily justified.  There are certain areas of life which are, by nature or by tradition or long usage, closely connected with marriage such that married couples should and do enjoy rights and shoulder obligations which are unique to them as married people.  In relation to such core rights and obligations, unmarried couples (including same-sex couples) are not in a comparable situation to married couples for the purposes of discrimination principles.

(3)  The Spousal Benefits fall within the area of rights which “whether by nature or by tradition or by long usage” flow from the status of marriage.  Thus for the purposes of the Spousal Benefits, the applicant and Mr Adams, being an unmarried couple, are not in a comparable situation to a married couple.  There is such an obvious, relevant difference between them and married couples that their situations cannot be regarded as analogous.

(4)  In any event, contrary to the Judge’s reasoning, the Benefits Decision satisfied the justification analysis.  In this regard, the court should apply the standard of “manifestly without reasonable foundation” and not the stricter standard of “no more than necessary”.  But even if the latter standard were applicable, the Benefits Decision would have satisfied the justification analysis anyway.

63.  For the applicant, Ms Karon Monaghan, QC, with Mr Nigel Kat, SC and Mr Azan Marwah, submitted that the Judge was correct in his analysis and conclusion that the Benefits Decision did constitute indirect discrimination against the applicant based on his sexual orientation.  She argued that the Spousal Benefits, being employment benefits, did not fall within the core rights unique to marriage and justification was hence required but the purported justification advanced by the Secretary did not withstand the scrutiny under the “no more than necessary” standard.

64.  Ms Monaghan further invited the Court to affirm the Judge’s decision on three additional grounds :

(1)  The Benefits Decision is contrary to the Secretary’s stated policy of prohibiting discrimination on the ground of sexual orientation in the provision of employment benefits, embodied in Section 5 of the Code of Practice.

(2)  The Secretary is wrong in equating the position of the applicant and Mr Adams with an unmarried couple for the reason that they cannot marry in Hong Kong unlike an unmarried heterosexual couple.

(3)  The Benefits Decision, in the absence of justification, also violates the applicant’s right to protection for his privacy and family under BOR 14 read together with BOR 1(1) and 22.

C2.  In respect of the Tax Decision

65.  Ms Monaghan submitted that the Judge had misunderstood the nature of the applicant’s challenge to the Tax Decision.  The applicant contended that the Tax Decision was (a) unlawful because it was contrary to the provisions of the IRO; and (b) unconstitutional as being based on the drawing of a distinction between same-sex and heterosexual marriages, so discriminating on the ground of sexual orientation. On (a), contrary to the Judge’s decision, on a proper construction, section 2(1) of the IRO includes same-sex marriage lawfully contracted outside Hong Kong. On (b), tax does not fall within the core rights and obligations linked to marriage, which means that justification is required.  But it does not pass the justification test by adopting the “no more than necessary” standard.

66.  Ms Carss-Frisk submitted that the Judge was correct in his construction of section 2(1) of the IRO and in his view that according to the applicant’s pleaded case in the Form 86, the applicant’s right to equality was not engaged.  If, however, the applicant’s right to equality were engaged, tax would fall within the core rights and obligations unique to marriage requiring no justification.  In any event, the Tax Decision satisfied the justification analysis for the reasons advanced.

D.  TAX DECISION – SCOPE OF CHALLENGE

67.  It is convenient at this stage to dispose of the parties’ arguments concerning the proper scope of challenge that the applicant levelled against the Tax Decision so as to pave the way to the discussion on the central issue identified at the outset.

D1.  Pleaded case in Form 86 now clarified

68.  In the course of oral submissions, the Court had been taken through the applicant’s pleaded case in Form 86 in some detail.  In my view, there were ambiguities which might have led the Judge to conclude that on his pleaded case the applicant’s right to equality was not engaged by the challenge against the Tax Decision.  I need not dwell on those ambiguities.  For Ms Monaghan has now very helpfully clarified the applicant’s stance.

69.  The applicant pleaded two alternative cases :[17]

(1)  The Tax Decision is contrary to the provisions of the IRO, which is purely a matter of statutory construction.

(2)  The Tax Decision is unconstitutional because it distinguishes same-sex and heterosexual marriages, thus unlawfully discriminating against homosexual taxpayers, that is, the applicant and Mr Adams, which is a constitutional challenge engaging the applicant’s right to equality.

In removing the ambiguities in the Form 86 as to the scope of the applicant’s constitutional challenge, Ms Monaghan expressly confined it to the denial of the right to elect joint assessment and nothing wider than that.  And the applicant sought, by way of proposed amendment to the Form 86, a declaration, which mirrors the two alternative pleaded cases, that :

(1)  The marriage between the applicant and Mr Adams is a marriage as defined by section 2(1) of the IRO; and/or

(2)  The applicant and Mr Adams are entitled to elect joint assessment.

70.  It is unfortunate that the Judge, through no fault of his, had misunderstood the applicant’s pleaded case as being limited to statutory construction only.  But it is no longer immaterial.  Both cases pleaded by the applicant, as clarified by Ms Monaghan, are now before this Court for our determination.

D2.  Statutory construction

71.  I first consider the meaning of “marriage” in section 2(1) of the IRO.

72.  As a cardinal principle of statutory construction, the court looks at the word to be construed within the entire context of the instrument.  That is what the Judge did in construing “marriage” in section 2(1).  This is also what I will do below.

73.  For the purpose of construing “marriage” in section 2(1), the relevant provisions in IRO are as follows.

(1)  Section 2(1) defines the terms “marriage”, “husband”, “spouse” and “wife” thus :

“ Marriage means –

(a) any marriage recognized by the law of Hong Kong; or

(b) any marriage, whether or not so recognized, entered into outside Hong Kong according to the law of the place where it was entered into and between persons having the capacity to do so,

but shall not, in the case of a marriage which is both potentially and actually polygamous, include marriage between a man and any wife other than the principal wife, and married shall be construed accordingly;

…

husband means a married man whose marriage is a marriage within the meaning of this section;

…

spouse means a husband or wife;

…

   wife means a married woman whose marriage is a marriage within the meaning of this section;”

(2)  Very relevantly, section 10 confers the right to elect joint assessment to a husband and a wife as a married couple thus :

“ 10. Salaries tax on spouses to be paid separately unless they elect to be jointly assessed

(1) In the case of a husband and wife, unless an election is made under subsection (2), salaries tax shall be payable on the net chargeable income of each spouse ascertained under this Part by the spouse to whom the income has accrued.

(2) Where in any year of assessment a husband and wife, not being a wife living apart from her husband, both have assessable income and –

(a) either the husband or wife is entitled to deductions under Part 4A and allowances under Part 5 which, in aggregate, are in excess of his or her net assessable income; or

(b) both also have a net chargeable income and the aggregate of the salaries tax which would be payable by them if subsection (1) applies exceeds the salaries tax which would be payable if an election is made under this subsection,

 an election may be made by them, subject to section 11, to be assessed to salaries tax in the manner specified in subsection (3).

 (3)  Where an election is made by a husband and wife under subsection (2) salaries tax shall be payable on their aggregated net chargeable income as ascertained under section 12B(2) and in the case of an election –

(a)  under subsection (2)(a), the spouse who would have been chargeable to salaries tax in the absence of such an election;

(b)  under subsection (2)(b), the spouse who is nominated by them,

 shall be chargeable to salaries tax in respect of such aggregated net chargeable income.

 (4)  Where a husband or wife is deceased an executor shall have the same right to make an election under subsection (2) as the deceased would have had if the deceased had not died.

 (5)  For the purposes of subsection (3), where an election is made under subsection (2) by a husband and wife who married one another in the year of assessment to which the election relates, they shall be deemed, for the purposes of ascertaining their aggregated net chargeable income for that year, to have married at the commencement of that year.”

(3)  Other relevant sections are :

 (a)  Section 26F which allows a person to nominate his or her spouse to claim the deductions under section 26E;

 (b)  Section 29 which deals with married person’s allowances;

 (c)  Section 31 which deals with child allowance in, among other cases, the case of a husband and wife;

 (d)  Section 41(1) which deals with election of personal assessment by an individual who, among other criteria, is married.

74.  When these provisions are considered together, it is plain and obvious that “marriage” for the purposes of the IRO is intended to mean only a heterosexual marriage between a husband and a wife, but not a same-sex marriage.  Such a construction is also consistent with the meaning of “marriage” as understood at all levels of Hong Kong laws.  As rightly pointed out by the Judge, to construe “marriage” as covering same-sex marriage would run counter against the well-established meaning of the word as a matter of Hong Kong law.[18]  There is simply no basis to suggest that the legislature would have intended to give “marriage” in section 2(1) of the IRO such a contrary meaning.

75.  Ms Monaghan took four points on construction.

76.  First, she argued that by the very definition in limb (b) in section 2(1), “marriage” includes “any marriage, whether or not [recognized by the law of Hong Kong], entered into outside Hong Kong according to the law of the place where it was entered into between persons having the capacity to do so”.  It thus includes a same-sex marriage entered into outside Hong Kong in a place whose laws recognize same-sex marriage, such as New Zealand.  However, such an argument suffers from the deficiency of isolating limb (b) without due regard to other relevant provisions and the context of the IRO as a whole.

77.  Next, she argued the Judge was wrong to extrapolate from the other provisions of the IRO that the concept was always to be confined to heterosexual couples.  But as said, it is axiomatic that the court is entitled and indeed obligated to construe a word in a statute in its entire context and refer to other relevant provisions if necessary.  The Judge made no mistake as contended.

78.  Third, she submitted that the sections referred to above can readily be construed as covering “husbands” in a marriage, thus covering two husbands in a same-sex marriage, especially given that statutory provisions ought continuously to be updated in their interpretation to allow for social changes since enactment. However, as rightly pointed out by Ms Carss-Frisk, the above sections clearly and explicitly refer to “a husband and a wife” in the same marriage.  As a matter of construction, there is simply no room for those provisions to be applied to a same-sex marriage on the basis of both parties to that marriage being “husbands” or “wives”.  The notion of an “updating construction” to allow for social changes since enactment does not assist as no purported update could possibly have the effect of allowing an impermissible construction under which the word “wife” is to be read as referring to a married “man” as opposed to a married “woman”.

79.  Fourth, by specifically referring to section 26F, Ms Monaghan submitted that it makes sense in the case of same-sex couples as it merely refers to “spouse”.  However, it begs the very question : what is the proper meaning of “spouse” in section 26F?  And it can only bear the meaning as defined in section 2(1) : a husband or a wife.  On a proper construction, it simply does not cover the parties to a same-sex marriage.

80.  In conclusion, I hold, as the Judge did, that as a matter of construction, “marriage” in section 2(1) of the IRO refers only to a heterosexual marriage and the right to elect joint assessment under section 10 is only available to a husband and a wife as parties to the same marriage.  Such a right is not available to the parties under a same-sex marriage.

81.  This leads me to the applicant’s constitutional challenge.

D3.  Constitutional challenge

82.  The primary question is whether denying the applicant the right to elect joint assessment under section 10 of the IRO constituted discrimination based on his sexual orientation.  As the issues to be canvassed are substantially the same as those for the challenge against the Benefits Decision, I will deal with them together in the discussion below.

E.  QT APPROACH

83.  After the Judge decided the applicant’s application for judicial review and while the present appeal was pending, this Court handed down its judgment in QT, supra.  In that case, under the policy maintained by the Director of Immigration, while a spouse of the sponsor might apply for a dependant visa, “spouse” referred only to husband and wife in a heterosexual marriage as it is the only form of valid marriage recognized under the law of Hong Kong.  In the circumstances, the applicant, who was a same-sex partner of her sponsor in a civil partnership they contracted in England, was not eligible to apply for a dependant visa.  We held that the Director’s policy amounted to indirect discrimination against the applicant on account of sexual orientation.  In so determining, we laid down a two-stage approach, which, purely for ease of reference, I will call the QT Approach :

(1)  There are core rights and obligations unique to marriage that the entailing privileged treatment of married couples as compared with unmarried couples, heterosexual and homosexual alike, should simply be considered as treatment that requires no justification because the difference in position between the married and the unmarried is self-obvious.

(2)  When the differential treatment falls outside such core rights and obligations unique to marriage, and if the reason for the difference is the homosexual applicant’s sexual orientation, the right to equality is engaged.  If the treatment does not pass the justification analysis, it amounts to discrimination on account of sexual orientation.

84.  In addressing why the QT Approach is preferred to requiring justification in all cases, the Chief Judge at [20] reasoned, among other things, that many of the perceived problems of retaining the concept of a group of core rights and obligations unique to marriage would disappear if one is to adopt the approach that unless the position is obvious, that is, unless a particular right or privilege conferred on a married couple clearly falls within this group of core rights and obligations, one should proceed on the basis that it does not and requires justification for its lawfulness.  His Lordship’s remark underscored the important point that by definition, core rights and obligations must be plain and obvious.  If after evaluating all the circumstances, the court has a doubt that the relevant rights and obligations might not be core rights and obligations even if some factors suggest that they might be, the court must act cautiously by proceeding to justification on the basis that they are not.

85.  In my view, given the similarity in nature of the issues under discussion, the QT Approach is equally apposite to the determination if the Benefits Decision and the Tax Decision constituted discrimination on account of the applicant’s sexual orientation. Indeed, the parties also adopted it in arguing the appeal before us.

86.  However, because in QT, the Director of Immigration did not raise the aim of protecting the institution of marriage as justification, we had not discussed how to apply the QT Approach in such circumstances.  It is therefore necessary to add a few words to elaborate the basis of the QT Approach and explain how to apply it when the justification proffered is the aim of protecting the institution of marriage, as is the case here.

F.  PROTECTION OF MARRIAGE IN HONG KONG CONTEXT

F1.  Status, rights and obligations

87.  It is universally acknowledged that marriage is a most important social and legal institution.  It is generally regarded as the basis of family, an essential unit of society.  The exact contents of the institution may vary from jurisdictions but its very essence remains the same.  Marriage is more than an interpersonal relationship.  It is a special status with a corpus of rights and obligations associated with it.  The European Court of Human Rights in Shackell v United Kingdom (Application No 45851/99) stressed the status of marriage thus :

“ marriage remains an institution which is widely accepted as conferring a particular status on those who enter it.”

See also the Grand Chamber’s confirmatory observation in Burden v United Kingdom (2008) 24 BHRC 709, at [63].

88.  From its special status a host of rights and obligations flow.  In Re G (Adoption: Unmarried Couple), supra, Baroness Hale at [107] explained :

“ In family law, marriage is not just a contract; it is also a status, bringing with it rights and responsibilities, not only as between the parties, but also as against third parties and the state. There is no comparable status of being an unmarried couple.”

See also Lord Hoffmann’s similar observation at [7].

F2.  Protecting the status according to local law

89.  In Hong Kong, with the constitutional backing of the Basic Law, our law favours heterosexual marriage.  Only heterosexual marriage is legally recognized at all levels of our laws.  Other forms of union between adults, including same-sex marriage, are not.  Heterosexual marriage, as the only form of marriage recognized in Hong Kong and deeply imbedded in our legal system, must for obvious reason deserve full protection of the law.

90.  Full protection of course does not mean absolute protection.  The protection must be full in the sense that the law must safeguard the special status of marriage from any impermissible inroads or encroachments lest the very institution of marriage, guaranteed by the Basic Law, would be shaken or would even collapse. In protecting marriage as an institution, the law is not just protecting the martial relationship or the rights and obligations associated with marriage.  The law is protecting the very status of marriage itself.  The law must therefore be vigilant to prevent any impermissible inroads into its status by challenges mounted against it on the purported ground of discriminatory treatment pertaining to certain rights and obligations.  The law must view with circumspect challenges which are, on their face, directed against the rights and obligations associated with marriage but in substance have the effect of encroaching on its status.

91.  In a given set of proceedings, the challenges may, on their face, be directed against the rights and obligations associated with marriage.  But when the protection of the institution of marriage is proffered as justification and hence its status is at stake, the focus must be on status over and above the rights and obligations under challenge.  Put very shortly, in such circumstances, it is the status of marriage that matters most.

92.  In Re G (Adoption: Unmarried Couple), supra, Lord Hoffmann at [7] observed that the status acquired by marriage might vary according to the laws of different communities.  The same must also be true for the protection to be given to the status of marriage.  It is the laws of the community that determine the protection to be afforded to the status of marriage.  So essentially we have to consult the Hong Kong laws in defining the scope and contents of protection.  Overseas authorities, including the Strasbourg cases, decided under different legal regimes and societal circumstances, valuable as they are, cannot be transplanted to Hong Kong without a critical examination to see if they also fit into the local legal landscape and societal circumstances.  In this regard, it is instructive to bear in mind Lord Hughes JSC’s observation in Lendore v Attorney General of Trinidad and Tobago (PC) [2017] 1 WLR 3369, at [60] :

“ It is inherent in this concept of fundamental rights that different jurisdictions may develop the law in ways that reflect their own constitutional traditions, legal procedures and collective values.”

93.  Lord Hughes’s observation resonates with the Chief Judge’s in QT, at [18], where his Lordship stressed that when enunciating the developing legal principles in this area of the law, the court must have regard to society’s own history, traditions, culture, core values and beliefs.  As explained by the Chief Judge in his judgment above and by me just now, the court must examine the scope of and contents protection for the status of marriage against our own legal landscape and local circumstances including prevailing socio-moral values on marriage.

F3.  Protecting core rights and obligations for upholding status

94.  In QT, we pointed out that there are certain core rights and obligations unique to marriage. Baroness Hale held a similar view in Re G (Adoption: Unmarried Couple), supra, at [108] :

“ [Being married] makes a great legal difference to their relationship. Marriage brings with it legal rights and obligations between the couple which unmarried couples do not have. There is, for example, the right to live in the family home irrespective of who is its owner or tenant; the right to financial relief and property adjustment should the marriage break down; the right to succeed to a substantial portion of the estate of a spouse who has died intestate; and the right to financial provision from the estate if the provision made in any will or on intestacy is insufficient.”

Her Ladyship’s examples are of course not exhaustive.

95.  Those rights and obligations, stemming exclusively from the special status of marriage, which are unique to it are, by definition, available to married couples exclusively.  In a very real and practical sense, those rights and obligations are synonymous with the status of being married.  In the Chief Judge’s words in QT, there are relevant, obvious differences between married and unmarried couples insofar as those rights and obligations are concerned.  If unmarried couples are granted the same access to such rights and obligations, their uniqueness to marriage is gone.  And the status of marriage in turn would be diminished.  The line between being married and unmarried would be blurred if not gone.  In ring-fencing such core rights and obligations from challenges, the law is effectively ring-fencing the status of marriage itself.  The immense public interests involved in protecting the status of marriage demand that the right to equality in terms of having same access to the core rights and obligations is not engaged.  It is with these considerations in mind that we in QT held that there are core rights and obligations unique to marriage which, when challenged, requires no justification.  In drawing an unassailable boundary to protect the core rights and obligations in such a way, the law is in substance protecting the status of marriage.  If the law does not do so, the special status of marriage would be fundamentally or substantially eroded and its core contents in terms of rights and obligations would be easily emptied out in the sense that they cease to be attributable exclusively to marriage recognised by our law.

F4.  Identifying core rights and obligations

96.  As seen, in Re G (Adoption: Unmarried Couple), supra, Baroness Hale at [108] gave some obvious examples of core rights and obligations unique to marriage.  Her Ladyship did not lay down any test for identifying them.  In QT, while fully recognizing that it is difficult to define core rights and obligations unique to marriage with precision, the Chief Judge at [14] observed that “[there] are certainly areas of life which are, whether by nature or by tradition or long usage, closely connected with marriage such that married couples should and do enjoy rights and shoulder obligations which are unique to them as married people.”  And as said, the Chief Judge at [18] emphasized that when developing and enunciating legal principles, the very exercise that the court is embarking on in cases of discrimination involving marriage, the court must have proper regard to “society’s own history, traditions, culture, core values and beliefs”.

97.  In my respectful view, the Chief Judge’s observations provide some useful indicia for identifying the core rights and obligations unique to marriage.  Simply put, there are rights and obligations which are so closely connected to marriage that they have been accepted or perceived by society at large to be unique to marriage.  The kind of close connection which gives rise to such uniqueness may be derived from nature, traditions, practice or long usage, having regard to Hong Kong’s own societal circumstances, including its history, traditions and culture, and core values and beliefs, and prevailing socio-moral values on marriage held by the local community generally.

98.  The matter may be viewed in this way.  By definition, core rights and obligations are those that are, or accepted or perceived by society at large to be, unique to marriage. Perception wise, they are synonymous with marriage in real and practical terms.  Given such uniqueness, they must be reserved for marriage only lest the special status of marriage would be fundamentally or substantially undermined. So as a test, one may ask : if the rights and obligations under consideration are not reserved for marriage only, would it tend to undermine, in a fundamental way or to a substantial extent, the status of marriage as a special legal and social institution in the societal context of Hong Kong?  If yes, then it is a good indicator that they are core rights and obligations unique to marriage in Hong Kong.

F5.  Non-core rights and obligations

99.  It does not follow from the above discussion on core rights and obligations that when what is under challenged is a non-core right, the court can be less vigilant in the protection of the status of marriage, when particularly the protection of the traditional concept and institution of marriage is relied on to justify the differential treatment involved.  The difference between a core right or obligation and a non-core right or obligation is very often a matter of degree.  The relaxation of a non‑core right that has long been associated or enjoyed exclusively with married couples in favour of others may weaken the status of marriage just as the relaxation of a core right; the difference may well only be a matter of degree.

100.  When the encroaching measure does not fall within the core rights and obligations unique to marriage, if the difference is based on sexual orientation, the right to equality is engaged.   When protection of marriage is advanced as justification, tensions inevitably arise between the competing interests involved in protecting the status of marriage on the one hand, and the right to equality in terms of having same access to the rights and obligations under discussion on the other.  This entails a critical examination of the issues involved by applying the justification test.  How and where to draw the balance between the competing interests is not always easy.  The tensions are perhaps mostly felt at the 3^rd and 4^th stages of the justification test as propounded by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board, supra.  At the 3^rd stage, the court has to set the standard of scrutiny to review the encroaching measure, a standard that is commensurate with the circumstances of the case, in particular the need to uphold the status of marriage and the competing need to protect the homosexual applicant’s right to equality in assessing the rights under discussion.  At the 4^th stage, the court asks the question whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual : per Ribeiro PJ at [64]-[79] and [135].  So in the type of context under discussion, the court needs to ask if a reasonable balance has been struck between the societal benefits of upholding the status of marriage in the context of Hong Kong and the inroads into the homosexual applicant’s right to equality in terms of being deprived the rights in question and in particular if the pursuit of the societal interests in upholding the status of marriage results in an unacceptably harsh burden on the homosexual applicant by depriving him or her of the rights.  In this respect, I fully agree with the Chief Judge’s observations at [14] – [18] above.

F6.  Significance of socio-moral views on marriage

101.  Apart from legal analysis, the prevailing socio-moral values of Hong Kong society on marriage, as explained, must also be highly relevant.  I have already pointed out how it may inform the exercise of defining the core rights and obligations unique to marriage, and how it may feature at the 3^rd and 4^th stages of the proportionality analysis, if engaged.  There is one observation to add.

102.  Socio-moral values are always amenable to change.  In the area of human rights, the law should ideally catch up with and reflect any material change in socio-moral values.  When there are material changes, but the law lags behind, the court should not shy away from its constitutional role in bridging the gap by developing the law in this respect as a living instrument.  But when there is no material change, the court should be extremely slow to disturb the status quo in the guise of developing the law.  It is more preferable to leave the matter to the executive and the legislature.

G.  ARE SPOUSAL BENEFITS AND RIGHT TO JOINT ASSESSMENT CORE RIGHTS UNIQUE TO MARRIAGE?

103.  Apply the QT Approach, I now examine if the Spousal Benefits and the right to elect joint assessment are core rights and benefits unique to marriage in Hong Kong.

G1.  Spousal Benefits

104.  It is common ground that Spousal Benefits are civil service employment benefits.  Historically, medical and dental benefits were made available to the wives of male civil servants as part of their nuclear family at least from 1924 under the then general orders and later establishment regulations.  Such regulations became the CSRs in 1974.  In 1981, the CSRs were amended to provide that the husbands of female civil servants would also be able to get those benefits. Self-evidently, the aim of the amendment was to bring parity to entitlement of those benefits for civil servants of both sexes.  It was in such circumstances that the words “spouse” and “spouses” were introduced to replace “wife” and “wives”.  The Secretary’s case is that before and after the amendments in 1981, the relevant CSRs have always been understood as referring to marriage as recognized under the laws of Hong Kong.

105.  Against the above background, Ms Carss-Frisk argued that through longstanding tradition, practice and usage, Spousal Benefits have always been closely linked to the status of marriage, thus falling within the core rights and benefits unique to marriage. In response, Ms Monaghan submitted that Spousal Benefits are occupational benefits forming part of the overall remuneration package.  They are made available to those who are closest to the civil servants to incentivize them to perform better.  That being their true nature, although Spousal Benefits have been there for a long time, they do not form part of the core rights and benefits unique to marriage.  Ms Carss-Frisk accepted Ms Monaghan’s point that Spousal Benefits are contractual in nature.  But she argued that it does not simply follow that they cannot be linked to marriage in the relevant sense. They remain government benefits provided for by the Government, albeit as employer.

106.  In my view, as contractual employment benefits, Spousal Benefits cannot be said to be unique to marriage by their nature.  However, for a very long time since at least 1924, they have formed part of the remuneration package the Government offers to civil servants.  And all along they are only made available to spouses lawfully married to civil servants under Hong Kong law, formerly wives and since 1981 both wives and husbands.  The question is whether such long and uninterrupted practice and usage has rendered Spousal Benefits unique to marriage in the social context of Hong Kong?  This brings me to its underlying policy.

107.  In Legco Paper No. CB(2)2374/00-01(01) presented by the Civil Service Bureau to the Legco Panel on Home Affairs Sub-committee to study discrimination on ground of sexual orientation in October 2001, in response to Legco Members’ observation that such Benefits were not extended to homosexual partners of civil servants and their wish to discuss ways to extend the Benefits to such partners, the policy of granting Spousal Benefits to spouses was explained thus :

“ Existing Policy

2. Civil servants, by virtue of their appointment, are entitled to specified medical and dental benefits. Under the current policy, the sexual orientation of a civil servant does not affect his/her own eligibility for such benefits. Medical benefits are extended to the spouse and dependant children of civil servants. Spouses are individuals under a monogamous marriage, in line with Hong Kong’s marriage system. Proof of family relationship is needed to confirm eligibility.

Eligibility or otherwise of homosexual partners for civil service medical benefits

3. A suggestion has been made that eligibility for civil service medical benefits should be extended to homosexual partners of civil servants. As explained in paragraph 2 above, our existing policy on civil service medical benefits is firmly based on the prevailing marriage system in Hong Kong which recognises only monogamous and heterosexual marriages. We shall consider revising our policy in the light of changes to the marriage system practised locally.

4. Another suggestion has been made that we should allow civil servants to nominate certain specified persons who will be eligible for medical and dental benefits provided by the Government. Under such a system, a civil servant may choose as the beneficiaries any persons who may or may not be his/her spouse or dependant children. It is argued that this arrangement would, for instance, allow a civil servant to nominate his/her homosexual or heterosexual partner as eligible persons for medical benefits provided by the Government.

5. This approach would, however, deviate from our current policy that civil service medical and dental benefits are only extended to nuclear family members. Such a policy is necessary in order to ensure effective use of limited public resources. We do not see any justification, from the perspective of prudent financial management, to extend the scope of the existing eligibility criteria insofar as homosexual partners are concerned. We shall continue to be guided by the prevailing views of the community at large on who may be recognised as legal spouse.

Conclusion

   6.  The existing eligibility criteria for civil service medical benefits is in line with the monogamous and heterosexual marriage system in Hong Kong which reflects the socio-moral values and family ethics of the community.  It has also taken into account the need for prudence in the use of public resources and practical operational requirements.”

108.  The Legco Paper was prepared in October 2001, some 16 years ago.  Have the then prevailing views of the community at large on who may be recognized as a legal spouse mentioned in the Legco Paper changed with the passage of time?  In her affidavit dated 20 June 2016, Ms Winne Tse Wing Yee, Principal Assistant Secretary to the Permanent Secretary for the Civil Service, had this to say :

“ 35. Marriage is without question an important social and legal institution in Hong Kong, perhaps the single most important one. The relationship of husband and wife is created, and one’s status of being another person’s wife/husband is conferred, by law. Hong Kong marriage laws do not allow same-sex marriages. Any change in such laws would involve very complicated and sensitive areas of social and legal policies. There isn’t any or any sufficient evidence of a strong sentiment, not to mention consensus, in the society of Hong Kong for a change to the heterosexual nature of marriage.

36. In this regard, surveys have from time to time been undertaken by various bodies to gauge the Hong Kong public’s views on same-sex marriage. There are now produced and shown to me respectively marked :

(a) ‘TWYW-12’ relevant extracts of the Report on the Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status (‘The Study’) commissioned by the Equal Opportunities Commission (‘EOC’) published in January 2016 (‘the Report’). The full report is available as follows :

http://www.eoc.org.hk/EOC/GraphicsFolder/InforCenter/Research/content.aspx?ItemId=13585;

(b) ‘TWYW-13’ the relevant findings of a telephone survey conducted under the Study …. These findings were not presented in the Report but published in March 2016 on EOC’s website at http://www.eoc.org.hk/EOC/Upload/UserFiles/File/ResearchReport/201603/SOGISE.htm;);

(c) ‘TWYW-14’ findings of a public opinion survey conducted by Centre for Comparative and Public Law of the University of Hong Kong in 2013 with the research findings published in January 2014.

   37.  According to the findings in the telephone survey in ‘TWYW-13’, 29.1% of the respondents very much supported/supported same-sex marriage, 26.1% stood neutral, and 42.4% very much opposed/opposed.  2.5% indicated that they ‘don’t know’ or are ‘not sure’ on the issue.

   38.  When asked whether a homosexual couple shall have the same rights as a heterosexual couple in Hong Kong through the legal procedure of ‘civil partnership’, without being recognized as ‘marriage’, 37.4% of the respondents very much supported/supported, 14.2% stood neutral, and 42.8% very much opposed/opposed. 5.6% indicated that they ‘don’t know’ or are ‘not sure’ on the issue.

   39.  According to the survey in ‘TWYW-14’, 27% of the public completely agreed that same-sex couples should be permitted to marry, 12% said that they somewhat agreed, 20% said that they were neutral, 6% said somewhat disagreed and 36% said completely disagreed.

   40.  Against such socio-legal background, although it has in the past 10 odd years or so become possible for a Hong Kong citizen (as in the case of the Applicant) to enter into a same-sex marriage that is recognised by the laws of another country, in administering the grant of benefits and allowances to civil servants and their families under the CSRs, the SCS feels obligated to follow the prevailing marriage laws of Hong Kong and to give effect only to a marital status that is recognised as such under the prevailing marriage laws of Hong Kong.  For the SCS to grant spousal benefits and allowances to the same-sex ‘spouse’ of a civil servant under a marriage contracted outside Hong Kong, though in accordance with the law in force at the place where it was performed, would in effect be indirectly recognizing same-sex marriages through the backdoor.”

109.  Two important points emerge from the above undisputed evidence.

(1)  In formulating and administering the policy pertaining to Spousal Benefits, the Secretary follows (a) Hong Kong law which only recognizes a heterosexual monogamous marriage and (b) the prevailing view of the community regarding marriage; both reflecting the socio-moral values on marriage held by the community at large.  In other words, marital status as the eligibility criterion for Spousal Benefits is not something arbitrary.  It has always been firmly based on the community’s prevailing socio-moral values on marriage.

(2)  As demonstrated by the results of recent surveys, public opinion on same-sex marriage remains divided with the majority firmly against it.  The corollary is that the majority of the community still regards heterosexual marriage as the only acceptable form of marriage in the local social circumstances.  In other words, insofar as the Government is concerned, there is no material change in the community’s socio-moral values on marriage that would warrant a change or a reconsideration of the policy to extend Spousal Benefits to a civil servant’s homosexual partner under a same-sex marriage.

110.  In my view, when one looks at the policy pertaining to Spousal Benefits, it is of paramount importance to bear in mind that the Government is not just an ordinary employer in the private sector.  Like any other government in a modern civilized society, the Government endeavours to govern as a responsible and responsive administration.  In performing its functions of governance, formulating and implementing its policies, and conducting its business and affairs, it strives its best to reflect and uphold the prevailing socio-moral values of the community at large.  In this sense, the Government is the custodian of Hong Kong’s prevailing socio-moral values.  (That said, the Government must of course be sensitive to any material change in the community’s socio-moral values and act accordingly when necessary.)  Hence, in formulating its policy on Spousal Benefits, which concerns all civil servants, the Government is perfectly entitled to take into account and follow the prevailing socio-moral values on marriage held by the community at large.  And since day one, the Government, acting consistently on the prevailing view of the community on marriage, has always adopted marital status as the benchmark for the entitlement of Spousal Benefits.  In the circumstances, it is certainly arguable that, through such long and uninterrupted practice and usage, which has all along been based on and reflective of the community’s prevailing socio-moral values on marriage, Spousal Benefits have been accepted and perceived by Hong Kong society at large to be unique to marriage.  Thus if Spousal Benefits were not reserved for married couples only and were to be extended to homosexual partners of civil servants under same-sex marriage contracted overseas where the socio-moral values are markedly different, it would fundamentally or substantially undermine, or perceived by society at large as so undermining, the status of marriage in the social context of Hong Kong when the prevailing socio-moral views still regard heterosexual marriage as the only acceptable form of marriage.  By granting same-sex married couples, who are unmarried both under Hong Kong laws and according to prevailing socio-moral values, access to Spousal Benefits, which are unique to marriage, the very status of marriage would diminish significantly in the eyes of the public at large.  Indeed, the public at large might well think that it is a recognition of same-sex marriage by the back-door. That, as I understand it, is the main thrust of Ms Carss-Frisk’s submissions.

111.  However, despite its long usage and rationale behind, Spousal Benefits remain medical and dental benefits provided to civil servants as part of their contractual remuneration package, and no more.  When the matter is looked at in the round, whilst the case for saying that they are core rights is strong, it is not so strong as to be plain and obvious.  Applying the cautious approach as explained at [84] above, I would require the Spousal Benefits to undergo the justification test.

112.  I next turn to the right to elect joint assessment.

G2.  Right to elect joint assessment

113.  Joint assessment was introduced by section 10 of the IRO in 1989 to enable a married couple to get greater deductions for the purpose of salaries tax, thus reducing their total tax liability.  In his affidavit dated 20 June 2016, Mr Frederick Kung Chun Fai, Senior Assessor of the Inland Revenue Department, explained joint assessment thus :

“ 26. Salaries Tax is imposed on every person in respect of his/her income arising in or derived from Hong Kong from any office or employment of profit. Under separate taxation, a married person is individually responsible for all aspects of his/her own salaries tax affairs and separately assessed on his/her own income on the same basis as unmarried taxpayers. If the total tax liability of a married couple under two separate salaries tax assessments is greater than it would have otherwise been when their incomes are aggregated, the husband and wife may jointly elect to have their incomes and allowance entitlements aggregated in any year of assessment.”

114.  Briefly, the right to elect joint assessment came about in this way.  The IRO was first introduced in 1947 as the very first general taxation statute.  Since then and until 1989 when the current section 10 was enacted, the salary income of a working married couple had to be jointly reported and assessed in the name of the husband only.  The wife’s income was simply subsumed under the husband’s for the purpose of salaries tax assessment.  In other words, the wife did not have a separate individuality insofar as taxation of salaries was concerned.  The basis of such treatment is not clear.  Mr Wong, who has substantial experience in tax matters, could not advise us what the basis was even after taking instructions.  He vaguely suggested the old common law rule that a wife was subsumed into her husband as a possible basis.

115.  If that were the real basis for joint assessment, an argument to say that it is a core right unique to marriage might be mounted as follows. Based on that concept, the married couple was, for the purpose of taxation, treated as one.  So were their salaries. A wife’s individuality, as it were, was subsumed under her husband’s for taxation purpose.  Then in 1989, section 10 was introduced to give a married couple the choice to elect for separate or joint assessment to avail themselves of maximum taxation benefits.  Under separate assessment, the couple’s salaries are assessed separately as two individuals, thus recognizing that despite being married, a wife still retains her own individuality and should be so treated for taxation purpose.  However, when joint assessment is elected, the married couple’s salaries will be assessed together, as if they were one.  As such, joint assessment effectively puts the married couple in the same position pre-1989 without, of course, the out-dated treatment of making the wife’s identity subsumed into her husband’s.  Thus, the right to elect joint assessment is also based on the concept that husband and wife is to be treated as one unity for taxation purpose.  Which is in turn based on the fundamental concept that marriage is a union of a man and a woman.  Thus analysed, the right to elect joint assessment flows from the special status of marriage.  It is therefore a core right unique to marriage.

116.  But the olden day when the husband and wife were one person in law and that person was the husband had long gone : Re G (Adoption: Unmarried Couple), supra, per Baroness Hale, at [109].  If that legal concept no longer holds true, the above arguments, even if mounted, might be standing on shaky grounds.  Further, taxation is a matter for the Government.  As a matter of policy, the IRO is entitled to group different persons together and treat them as one unity for taxation purposes. A good example is partnership.  Thus even though marriage is a union of a man and woman, it is not plain and obvious that within the statutory regime of the IRO, joint assessment of a married couple under section 10 must have been based on their marital status.  I would therefore also require the right to elect joint assessment to be justified.

H.  JUSTIFICATION

117.  To preface the discussion below, I would refer to my judgment in QT, at Part D.  There, I explained why I preferred Lord Nicholls’s approach in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, at [3] in the context of that case.  In my view, the same reasons set out in Part D are equally apposite in the present context.  I would therefore also adopt Lord Nicholls’s approach in Carson here.

H1.  Indirect discrimination

118.  Both the Benefits Decision and Tax Decision are not available to unmarried persons, whether they are heterosexual or homosexual.  As such, they do not target homosexual couples under same-sex marriage.  They therefore do not constitute any direct discrimination against the applicant.  However, homosexual couples under same-sex marriage can never make themselves eligible for the Spousal Benefits or the right to elect joint assessment by getting married to a person of the opposite sex.  So the Benefits Decision and the Tax Decision, which are based on marital status, may constitute indirect discrimination against homosexual couples under same sex marriage, if not justified.  In this respect, the same reasoning in my judgment in QT, Part E1 applies.

119.  To recap, the justification test entails four steps :

(1)  The difference in treatment must pursue a legitimate aim.

(2)  The difference in treatment must be rationally connected to the legitimate aim.

(3)  The difference in treatment must be proportional.  Depending on contexts, there is a spectrum within which to assess proportionality.  At one end of the spectrum is the standard of “no more than is necessary”.  At the other is the less stringent standard of “manifestly without reasonable foundation”.  In assessing proportionality, the court is however not bound by the labels of the standard of scrutiny.  Instead, the court takes a holistic approach by reference to all the circumstances and giving due weight to all relevant factors in scrutinizing the difference in treatment, always bearing in mind that the suitable degree of scrutiny to be applied must commensurate with the actual context of the case.

(4)  A reasonable balance has been struck between the societal benefits of the encroaching and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.

H2.  The parties’ submissions

120.  Ms Carss-Frisk began her submissions by emphasizing the importance of context when determining the proportionality of an encroaching measure.  She then took a number of points to justify the Benefits Decision.

(1)  The provision of benefits and allowances to civil servants and their families involves the allocation of public resources which are finite and subject to competing demands.  It is obviously relevant that the context in this case is employment benefits, involving social and economic considerations, and the Secretary, having been authorised to interpret and apply the CSRs on behalf of the Government as the employer, should enjoy a wide margin of discretion.

(2)  Given the limit to public resources, a bright line has to be drawn.  For Spousal Benefits, in order to ensure effective use of such limited resources, it is legitimate to use the status of “marriage”, as it is defined and recognised under Hong Kong law, as a criterion, or to draw a distinction based on marital status.

(3)  The Secretary’s policy of following the prevailing marriage laws of Hong Kong and of giving effect only to marital status that is recognised as such under the laws of Hong Kong pursues, and is rationally connected to, the legitimate aims of protecting the concept of traditional marriage and not undermining the integrity of the institution of marriage as understood in Hong Kong, as well as of ensuring the effective use of limited public resources and administrative workability.  Those legitimate aims have weighty force on justification analysis : see, for example, Kozak v Poland (2010) 51 EHRR 16, where the European Court of Human Rights at [98] said that “protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment”; and Mata Estevez v Spain (application no 56501/00, 10 May 2001), 2001-VI ECHR, where the same Court declared inadmissible a complaint that denial of survivor’s benefit which depended on marital status was discriminatory on the ground of sexual orientation, observing at [32] that “the Court notes that Spanish legislation relating to eligibility for survivor’s allowances does have a legitimate aim, which is the protection of the family based on marriage bonds” and that the difference in treatment found could be considered to fall within the State’s margin of appreciation.

(4)  It would be a fiction to suggest that the Judgment does not have the effect of requiring overseas same-sex marriages to be recognised as valid marriages for present purposes under Hong Kong law. This plainly undermines the integrity of the institution of marriage as understood in Hong Kong.

(5)  In the premises, to achieve the legitimate aims of protecting the concept of traditional marriage and not undermining the institution of marriage as understood in Hong Kong, as well as ensuring the effective use of limited public resources and administrative workability, the Secretary adopts a bright line policy, based on marital status as defined by Hong Kong’s matrimonial law.  Such a policy is rationally connected with those aims, is within the spectrum of reasonable options which the Secretary can legitimately pursue in the exercise of his margin of discretion, and is not manifestly without reasonable foundation or (in so far as this is the relevant standard) is no more than necessary to accomplish those aims.

121.  In respect of the Tax Decision, Ms Carss-Frisk submitted that it would be justified by reference to the legitimate aims of protecting and not undermining the institution of marriage as understood in Hong Kong and ensuring certainty and administrative workability.

122.  In response, Ms Monaghan submitted that the Benefits Decision could not be justified for the following reasons.

(1)  As to the aim of managing public expenditures, it simply goes nowhere to identifying what is sought to be achieved (the aim) by the discrimination in issue and it is that that must be justified.  Although excluding a class of people from entitlement to a benefit will always impact positively on resources, where the class excluded is highly protected under constitutional equality law then it is the exclusion of that class that must be justified.  It will always save the executive money to limit benefits to certain groups but the mere saving of cost will not alone justify discrimination on highly protected grounds.  Furthermore, there was no evidence in support of this aim identified below.

(2)  As to the aim of achieving administrative workability, it is obvious that there would be nothing problematic or administratively difficult in treating foreign lawful same-sex marriages (or other legally recognised civil unions) in the same way as heterosexual marriage.  No evidence has been adduced indicating otherwise.  Further, this Court when addressing the same argument in QT at [146] concluded that : “For unmarried homosexual couples whose relationship is legalized in the form of civil partnership or same-sex marriage, the same degree of administrative workability and convenience, in terms of definition, existence and proof of the relationship, applies to them as it does to marriages.  So excluding them by reason of administrative workability and convenience is not rational”.  The same is true here.

(3)  As to the aim of protecting marriage, there is simply no rational connection between that aim and the discrimination in issue (excluding those in same-sex relationship from entitlement to benefits enjoyed by heterosexual married people).  See Rodriguez, supra, per Baroness Hale at [26] :

“ [p]rivileging marriage can of course have the legitimate aim of encouraging opposite sex couples to enter into the status which the State considers to be the most appropriate and beneficial legal framework within which to conduct their common lives …… But… it is difficult to see how heterosexuals will be encouraged to marry by the knowledge that some associated benefit is being denied to homosexuals. They will not be saying to one another ‘let’s get married because we will get this benefit and our gay friends won’t’. Moreover… :

  ‘The distinction between heterosexual and homosexual couples might be aimed at discouraging homosexual relationships generally.  But that cannot now be regarded as a legitimate aim.  It is inconsistent with the right to respect for private life accorded to ‘everyone’, including homosexuals, by article 8 since Dudgeon v United Kingdom (1981) 4 EHRR 149.  If it is not legitimate to discourage homosexual relationships, it cannot be legitimate to discourage stable, committed, marriage-like homosexual relationships … Society wants its intimate relationships, particularly but not only if there are children involved, to be stable, responsible and secure.  It is the transient, irresponsible and insecure relationship which cause us so much concern.’”

123.  In respect of the Tax Decision, Ms Monaghan, relying on the same reasons, submitted that the two aims advanced by the Commissioner are not rationally connected to the discrimination in issue and nor has a fair balance been struck as between the aims sought to be achieved and the impact of the encroachment on the applicant’s fundamental right to equality.

H3.  My views

124.  In my view, for the reasons advanced by Ms Monaghan, in respect of the Benefits Decision, allocation of limited public resources and administrative workability alone are not sufficient as legitimate aims to justify the denial of Spousal Benefits to the applicant.  And for the Tax Decision, administrative workability alone is not sufficient either.  The justification for both Decisions must turn on the aim of protecting and not undermining the institution of marriage in the societal context of Hong Kong.  Applying the four-step test, my analysis is as follows.

125.  First, protecting and not undermining the status of marriage in light of the prevailing views of the community on marriage as mentioned in Part G1 above is plainly a legitimate aim. This in fact is the parties’ common ground.

126.  Second, given the local legal landscape and circumstances including the prevailing views of the community on marriage, using marital status to differentiate the treatments for Spousal Benefits and joint assessment is also rationally connected to that aim.  In this regard, Ms Monaghan’s reliance on Baroness Hale’s observation in Rodriguez, at [26] is misplaced.  There, her Ladyship was dealing with rationality in terms of encouraging heterosexual marriages and discouraging homosexual marriages.  In fact, earlier in Ghaidan v Godin-Mendoza, supra, Baroness Hale at [141] made a similar point.  While her Ladyship’s observation is a valid one, it is solely based on utility.  But in Hong Kong, utility should not be the only factor to inform how rationality in the context of a legitimate aim of protecting and not undermining the status of marriage should be considered. In Hong Kong, both the law and the community’s prevailing views on marriage remain that the only acceptable form of marriage is heterosexual marriage.  For the reasons articulated by the Chief Judge, there are ample legitimate reasons why in Hong Kong protection of marriage goes well beyond encouraging people to get married.  In the local context, if Spousal Benefits and joint assessment, which have been long associated closely and exclusively with marriage, were made available to homosexual couples, it would per se undermine, or be perceived by many to undermine, the status of marriage.  Thus using marital status as the benchmark is plainly rationally connected to the aim of protecting marriage in the societal context of Hong Kong.

127.  Third, as said, the standard of scrutiny in applying the justification analysis varies with context.  Here, Spousal Benefits and joint assessment involve fiscal policies and the Government usually enjoys a wider margin of appreciation in these areas, which means that the “manifestly without reasonable foundation” standard is ordinarily appropriate.  But when an individual’s fundamental right to equality is engaged on suspect ground such as sexual orientation, the court needs to subject the encroaching measure to a stringent scrutiny.  Thus in QT, where the encroaching measure would impact adversely and significantly on the homosexual applicant’s life, individually or together with her same-sex partner, we adopted the “no more than necessary” standard of scrutiny.  In the present case, bearing in mind that sexual orientation is a suspect ground and discrimination on sexual orientation is an affront to a person’s dignity, I would also adopt the standard of “no more than necessary” to scrutinize the Decisions, although they concern fiscal matters.

128.  In so assessing the Spousal Benefits and the right to joint assessment, I firmly bear in mind that in the local context, (a) our law, including the Basic Law, only recognizes heterosexual marriage and (b) the prevailing socio-moral views of society still regard heterosexual marriage as the only acceptable form of marriage.  That being our legal landscape and societal circumstances, the immense public interests for protecting marriage must weigh heavily in the assessment.  Thus, as pointed out by the Chief Judge, the court should be slow to find Spousal Benefits and the right to joint assessment as more than necessary to achieve the legitimate aim of protecting marriage.  Both Spousal Benefits and the right to elect joint assessment have been closely and exclusively associated with marriage for a very long time.  By restricting them to married couples, and not extending them to homosexual couples, it is no more than necessary to protect the status of marriage as understood and accepted in the local context.

129.  Fourth, I am keenly aware of the perceived prejudice that the applicant may feel he has suffered by being denied the Spousal Benefits and the right to elect joint assessment.  But the inroads in his right including financial prejudice that he might suffer because of such denial, is reasonably balanced out by the immense public interests involved in protecting the status of marriage, bearing in mind the current legal landscape and local circumstances including the community’s prevailing views on marriage.  The spill-over effect, as explained by the Chief Judge, is also a strong factor tilting the balance in favour of upholding the status of marriage in Hong Kong.

130.  In conclusion, I hold that upholding the status of marriage is, in the present context, a sufficient and indeed very weighty justification for both the Benefits Decision and the Tax Decision.  Both Decisions therefore satisfy the justification analysis.  No indirect discrimination against the applicant on his sexual orientation as contended arose.

131.  To complete the discussion, I would add this. It is evident that I regard the prevailing socio-moral views on marriage currently held by society as a highly significant factor in my justification analysis.  But societal views on marriage might change materially in favour of same-sex marriage in the future.  Should such a material change take place in the future, the justification analysis might well lead the court to a different conclusion on the Benefits Decision and the Tax Decision.

I.  MISCELLANEOUS POINTS

132.  The other miscellaneous points raised by Ms Monaghan can be disposed of shortly.

133.  As noted, Ms Monaghan relied on the three additional grounds raised in the applicant’s respondent notice in support of the Judge’s decision on the Benefits Decision.  To recap, they are :

(1)  The Benefits Decision is contrary to the Secretary’s stated policy of prohibiting discrimination on the ground of sexual orientation in the provision of employment benefits, embodied in Section 5 of the Code of Practice.

(2)  The Secretary is wrong in equating the position of the applicant and Mr Adams with an unmarried couple for the reason that they cannot marry in Hong Kong unlike an unmarried heterosexual couple.

(3)  The Benefits Decision, in the absence of justification, also violates the applicant’s right to protection for his privacy and family under BOR 14 read together with BOR 1(1) and 22.

134.  As to the first ground, I agree with Ms Carss-Frisk that section 5 of the Code of Practice must be read in its context subject to the law of Hong Kong as it now stands.  On a proper reading, section 5 merely sets out some general principles and or practices which are recommended to be followed.  It must by necessary implication be subordinate to, and intended to be interpreted and applied in a manner not inconsistent with the law of Hong Kong, which does not recognize same-sex marriage.  Thus an employee who has entered into a same-sex marriage outside Hong Kong cannot be regarded as a married person and as such is not entitled to have access to the Spousal Benefits.

135.  The second ground and third ground (even assuming that those provisions were engaged) do not take the applicant’s case any further in light of my conclusion that the Benefits Decision is justified.

136.  In respect of the Tax Decision, other than the right to equality, the applicant also relied on BOR 14. Even assuming that BOR 14 were engaged, the Tax Decision would still be justified by reason of my analysis and conclusion in Part H3 above.

J.  DISPOSITIONS

137.  For the above reasons, I would allow the Secretary’s appeal, set aside the Judge’s order in this regard and dismiss the applicant’s application for judicial review against the Benefits Decision.  I would also dismiss the applicant’s cross-appeal.

138.  On costs, I would set aside the Judge’s costs order and make an order nisi that the Secretary and the Commissioner shall have their costs below and on appeal, to be taxed if not agreed; and that the applicant’s own costs both below and on appeal, are to be taxed in accordance with Legal Aid Regulations.

139.  Lastly, it remains for me to thank counsel and their legal teams for their very able assistance.

Hon Cheung CJHC :

140.  Accordingly, this appeal and cross‑appeal are disposed of in terms of paragraphs 137 and 138 above.