MK v. GOVERNMENT OF HKSAR

HCAL 1077/2018

[2019] HKCFI 1089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1077 OF 2018

________________________

________________________

________________________

D E C I S I O N

________________________

INTRODUCTION

1.  There are before the court 5 summonses seeking leave to intervene in this application for judicial review.

(1)     a summons dated 1 April 2019 issued by The Catholic Diocese of Hong Kong also known as The Bishop of the Roman Catholic Church in Hong Kong Incorporation (“the Roman Catholic Church”);

(2)     a summons dated 1 April 2019 issued by Family School Concern Group for SODO (“the Family Group”);

(3)     a summons dated 1 April 2019 issued by The Society for Truth and Light (“the Society”);

(4)     a summons dated 16 April 2019 issued by (i) Trustees of the Kowloon Union Church, (ii) Blessed Ministry Community Church Limited, (iii) Hong Kong Christian Institute Limited, and (iv) Queer Theology Academy Limited (“the Christian Church Group”). They belong to a coalition called “The Covenant of the Rainbow” which, I am told, comprises 11 churches and organizations from various Christian denominations (including both Protestants and Catholics); and

(5)     a summons dated 17 April 2019 issued by Leung Wing Yan, who is said to be a transgender lesbian woman and the Chairperson of Transgender Resource Centre (“the Transgender Group”).

2.  In the underlying application for judicial review, the applicant (“MK”), a lesbian who has been co-habiting with her same-sex partner in Hong Kong, seeks, inter alia, a declaration that the laws of Hong Kong, in so far as they do allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex partnership (such as civil union or registered partnership), constitute a violation of BOR 14 (right to privacy), BOR 22 and BL 25 (right to equality) and/or BOR 19(2) and BL 37 (right to found or raise a family).  Leave to apply for judicial review was granted by the court on 13 June 2018.  The substantive application for judicial review has been fixed to be heard by the court on 28 and 29 May 2019.

3.  In broad terms, the Roman Catholic Church, the Family Group and the Society all oppose the application for judicial review, while the Christian Church Group and the Transgender Group support the application.  MK opposes the applications for intervention by the Roman Catholic Church, the Family Group, the Society and the Christian Church Group, while the Government opposes the application for intervention by the Transgender Group.

4.  The extent of intervention sought by the proposed interveners are different:

(1)     The Roman Catholic Church seeks leave to file and serve a supplemental affidavit after receipt of the documents filed in these proceedings (see paragraph 5 below), and file written submissions for the purpose of the substantive hearing, but does not propose to make oral submissions unless invited by the court to do so;

(2)     The Family Group and the Society propose to rely on the evidence already filed, file written submissions, and present oral submissions at the substantive hearing;

(3)     The Christian Church Group proposes to file written submissions and evidence, or alternatively evidence only, but not to make oral submissions unless invited by the court to do so;

(4)     The Transgender Group proposes to rely on the detailed written submissions dated 17 April 2019 already prepared and lodged together with the skeleton submissions for today’s hearing, but does not intend to make oral submissions at the substantive hearing.

5.  In addition, the Roman Catholic Church, the Family Group, the Society and the Christian Church Group each asks for copies or access to documents filed in these proceedings, access to which has hitherto been prohibited by virtue of an anonymity order made by the court on 8 June 2018.

6.  All the proposed interveners claim that they have some special or unique knowledge, expertise or perspective which it is said would provide the court with a more balanced, complete or rounded picture for the purpose of resolving the underlying constitutional issues, which undoubtedly are issues of great general or public importance.

7.  The jurisdiction of the court to permit interveners to participate in public law proceedings is not in doubt.  Under Order 53, rule 5B of the Rules of the High Court, Cap 4A, the court may grant leave to any person to (a) file evidence, or (b) make representation at the hearing of an application for judicial review, but no such leave may be granted unless the applicant appears to the court to a proper person to be heard at the hearing of the application for judicial review. Further, under Order 53, rule 9(1), on the hearing of any originating summons for judicial review, any person who desires to be heard in opposition to or in support of the application, and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the originating summons.

8.  The proper approach to be adopted by the court when facing an application for intervention in public law proceedings has recently been considered by the Appeal Committee of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 150, at paragraphs 13 to 18:

[13] In the latest edition of Michael Fordham QC’s Judicial Review Handbook, it is noted that third party interventions in the Supreme Court are “extremely common” and the case of E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 is amongst the cases cited by way of example.

[14] In that case, Lord Hoffmann provided valuable guidance (at [2]-[3]) as to the basis for and scope of leave to intervene that might be granted to statutory bodies and non-governmental organisations on questions of general public importance:

“2. … Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help.

3.  An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the NIHRC only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way.”

[15] And as Sedley LJ stated in Roe v Sheffield City Council [2004] QB 653 at [84]:

“The most apparent value of interventions is in public law cases, where aspects of the public interest in a legal issue of general importance may be represented by neither of the two parties before the court. Both NGOs and ministers may play a valuable role here.”

[16]    This is also reflected in De Smith’s Judicial Review (7^th Edition) at [2-068], where the suggested test for intervention is put in these terms:

“The main criterion ought to be whether would-be interveners, th[r]ough their expertise, are likely to be able to assist the court in understanding either the legal issues in question or the factual basis of the claim and the consequences that may flow from the court’s judgment.”

[17] Similar considerations apply in this jurisdiction and in respect of appeals to this Court. Leave to intervene will not be granted to allow a party merely to act as an additional supporting party for one or other side in the appeal. Nor if leave to intervene has been granted, should the intervention take the form of simply repeating what one or other of the parties to the appeal has already said. Further, it is important to distinguish between leave to file evidence and leave to file submissions. If leave is granted for the latter but not the former, it is important that the distinction is observed. Moreover, the timing of the application may be a relevant factor and if, for example, an intervention involves the filing of evidence, it may in some cases be appropriate for the application to have been made at an earlier stage of the proceedings.

[18] There is clearly a need, too, in this context for some degree of restraint. As Sedley LJ observed in Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482 at [24]:

“… it needs to be remembered that litigation, even on issues of general importance, is not an open battleground. The court may well welcome help, such as it has had in this case, on law or, more occasionally, on fact from knowledgeable third parties. But there is no legal right to intervene and a limit to the amount of material the court can cope with from other quarters. We note with approval that in public interest litigation Treasury counsel today do not stand in the way of interventions unless they consider that there is good reason to do so. But potential interveners do need to be able to contribute something relevant that is not already before the court.”

9.  In short, subject to considerations of specific prejudice to the parties to the proceedings, the primary consideration for the court when deciding whether to permit intervention is whether the proposed intervener is likely to be able to provide additional, material, assistance on either law or fact or the consequences of the court’s judgment which it is unlikely will be provided by the immediate parties to the proceedings.

10.  In the present case, I am not satisfied that the court should permit intervention by any of the proposed interveners, for the following reasons.

11.  First, the main issues to be determined in the present application for judicial review are primarily legal issues.  According to MK, the main issues to be determined by the court at the substantive hearing of the application for judicial review are as follows:

(1)     Whether the failure of the Marriage Ordinance, Cap.181, (“MO”) to allow same-sex couples to marry and/or the failure of the laws of Hong Kong to provide any alternative means of legal recognition of same-sex partnerships violate BL 25, which provides that all Hong Kong residents shall be equal before the law;

(2)     Whether BL 37 should be interpreted such that the Hong Kong residents, irrespective of their sexual orientation shall have the freedom of marriage and the right to raise a family freely, and therefore the laws of Hong Kong (including the MO), insofar as they do not allow same-sex couples to marry and/or fail to provide any alternative means of legal recognition of same-sex participants violate BL 37;

(3)     Whether “marriage” as required under MO to be a Christian marriage or the civil equivalent of a Christian marriage, insofar as it is being relied upon by the Government to justify restricting marriage in law to opposite-sex couples only, is a violation of the freedom of religion and freedom of conscience under BL 32 (this is subject to amendment of the Form 86 with leave of the Court);

(4)     Whether the failure of MO to allow same-sex couples to marry and/or the failure of the laws of Hong Kong to provide any alternative means of legal recognition of same-sex partnerships violate the Applicant’s right to the protection of privacy and family under BOR 14;

(5)     Whether the failure of MO to allow same-sex couples to marry and/or the failure of the laws of Hong Kong to provide any alternative means of legal recognition of same-sex partnerships constitute prohibited discrimination on account of sexual orientation under BOR 22 and/or ICCPR 26;

(6)     Whether the protection of the ‘concept’ of marriage and the ‘concept’ of family as perceived by the Government, in which the Government has refused to identify the specific elements, constitute a legitimate aim for the purposes of justifying the failure of MO to allow same-sex couples to marry and/or the failure of the laws of Hong Kong to provide any alternative means of legal recognition of same-sex partnerships;

(7)     Whether religion or tradition can ever provide justification for the failure of MO to allow same-sex couples to marry and/or the failure of the laws of Hong Kong to provide any alternative means of legal recognition of same-sex partnerships or differentiation in treatment before the law.

(8)     Whether it is the Government’s case that the behaviours and/or elements of same-sex relationships are in breach of the perceived ethics and morals (see Lum Kwok Keung Jacky’s Affirmation filed on behalf of the Government, in particular, paragraphs 34, 43 and 56.)

12.  On the other hand, the main issues as formulated by the Government are as follows:

(1)     Whether the concept of marriage as protected and guaranteed by BL 37 and BOR 19(2), properly construed, is limited to opposite-sex couples;

(2)     Whether the right to raise or found a family as protected and guaranteed by BL 37 and BOR 19(2), properly construed, is founded on a marriage so protected and guaranteed by the said provisions and is also limited to opposite-sex couples;

(3)     Whether the Government has any positive obligation, whether under the Basic Law, or the Hong Kong Bill of Rights including more particularly BOR 14, to ensure that a specific legal framework by whatever name is available to same-sex couples for recognising their same-sex relationships in Hong Kong;

(4)     Whether, insofar as same-sex couples’ asserted right to have access to legal recognition of their relationships in any form or to raise or found a family is concerned, there can be any question of discrimination against same-sex couples based on sexual orientation arising in law at all when the laws at constitutional level (more particularly BL 37 and BOR 19(2)) recognise opposite-sex marriage as the only form of legal institution in this regard;

(5)     If the question of discrimination is capable of arising in law, whether the difference in treatment in question (ie lack of any form of legal recognition of same-sex relationship in Hong Kong) can be justified by reference to the legitimate aim of protecting the concept and institution of marriage and the concept of family constituted by (opposite-sex) marriage as they have always been understood, practised and accepted in Hong Kong, and their associated values deeply rooted in our culture, tradition and society;

(6)     Whether there is any violation of BOR 14, for the reasons that (i) the laws of Hong Kong do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex relationships, and/or (ii) the Government has not provided a specific legal framework for recognizing same-sex relationships in Hong Kong;

(7)     Whether there is any violation of the right to equality enshrined in BOR 22 and BL 25, for the reasons that (i) the laws of Hong Kong do not allow same-sex couples to marry and fail to provide any alternative means of legal recognition of same-sex relationship, and/or (ii) the Government has not provided a specific legal framework for recognising same-sex relationships in Hong Kong.

13.  It is clear that the main issues as formulated by the parties, with the exception of that referred to in paragraph 11(8) above (which I do not consider to be a distinct issue arising from the Form 86 or require separate determination) and possibly that referred to in paragraph 12(5) above, are essentially issues of law, not fact.  At the hearing of the application for judicial review, the court will be assisted by counsel experienced in matters of human rights and unlawful discrimination engaged on behalf of MT and the Government respectively.  There is no reason to believe that they will not bring to the court’s attention all important authorities bearing on the issues.  At the moment, I do not see that additional submissions from the proposed interveners are likely to materially add to the court’s understanding of the legal issues involved.

14.  Second, in so far as factual information is concerned, both MK and the Government have already filed substantial evidence, including the legal development of the concept of marriage in Hong Kong, social views regarding legal recognition of same-sex relationships in Hong Kong, service-wide implications of legalizing same-sex relationships in Hong Kong, the Government’s work relating to the protection of same-sex couples in Hong Kong, as well as some related information from overseas (in particular, England and Wales).  I have looked at the evidence briefly, and I consider that they provide sufficient background materials to enable the court to reach a reasonable understanding of the relevant factual basis necessary for a proper determination of the legal issues.

15.  Third, having regard to the nature of the issues involved in the present application, there would undoubtedly be many people or groups who hold strong views on those issues.  There are now 8 such persons or groups before the court represented by 4 teams of lawyers, and there could be many more.  They hold and represent diverse and even diametrically opposed views based on social, moral, religious or theological grounds, and may seek to argue those grounds if granted leave to intervene.   For example, in the submission on behalf of the Roman Catholic Church dated 1 April 2019, it is argued that the matters deposed to in the Affidavit of Fr Lee Len are sufficient to justify leave being granted to it to intervene.  In that affidavit, Fr Lee says it cannot be assumed the Roman Catholic Church has nothing that it can usefully or significantly add to the arguments/evidence/authorities that the Government will presumably be putting forward, and he refers to (i) what John Cardinal Tong in his Pastoral Letter on Ecology and the Family calls “marriage integrity”, ie the true meaning of marriage in all its dimensions, including human ecology, and (ii) the term “marriage equality”, raising the question of whether there could be a juridical and moral equivalence between homosexual and heterosexual relationships, a topic addressed by the Cardinal in both the said Pastoral Letter on Ecology and the Family and an earlier Pastoral Letter on Living and Proclaiming the Gospel of the Family.

16.  In the submissions on behalf of the Family Group and the Society dated 16 April 2019, it is said that (i) the Society is well-placed to more fully illuminate and defend the impugned laws by the Christian concept of marriage, and (ii) the Family Group will seek to highlight the perspective of parental groups who are, as a matter of conscience, culture or religion, committed to maintaining for their children and future generations the long-standing legal recognition of the unique attributes and status of heterosexual marriage, and will seek to draw attention to the range of social policy considerations and broadly shares cultural and religious beliefs against same-sex marriage in Hong Kong (although in the same breadth it is said that the Family Group does not seek judicial endorsement of the substance of any such matters).

17.  In the submissions on behalf of the Christian Church Group dated 16 April 2019, it is said that the Christian Church Group is able to provide useful insight in three areas, including an explanation of “the theological Christian arguments which are in support of same-sex marriage” by references to the views of some Biblical scholars.

18.  While the above mentioned social, moral, religious or theological matters are interesting in their own right, and the views of the Cardinal, Biblical scholars, and the various organisations seeking to intervene in these proceedings are no doubt entitled to respect, I do not consider that these matters are germane to the legal and constitutional issues which fall for determination by the court in the present proceedings.

19.  I have read and considered the respective evidence filed and submissions advanced on behalf of the Roman Catholic Church, the Family Group, the Society, and the Christian Church Group and do not propose to set them out in detail in this decision.  The more I read them the more I am convinced that they seek to raise social, moral, religious and/or theological issues which are not proper to be, and cannot be, determined by the court.  It needs to be emphasized that the court cannot arbitrate on social, moral, religious or theological issues, and do not decide cases based on such considerations. The court’s only proper role in an application for judicial review is to determine the application based strictly on legal considerations. This is a particularly important point that the court must remind itself when deciding issues on which the society holds strongly divergent views.  There are undoubtedly better fora outside the courtroom to debate the relevant social, moral, religious or theological issues.

20.  The position of the Transgender Group merits separate consideration.  Mr Parker argues that the present legal regime relating to marriage in Hong Kong places on transgender gay and lesbian people particularly onerous burden that are unique to them which is not suffered by other gay and lesbian Hongkongers who, like MK, are cisgender (ie non-transgender). He points to three particular facets in support of his argument:

(1)     First, the law imposes an impossible choice upon a pre-operative transsexual person who is gay or lesbian, in that that person can either enjoy the right to live and be recognised in the assumed gender by undergoing a sex reassignment surgery, or the right to marry a person of a different gender;

(2)     Second, the indirect effect of W v Registrar of Marriages is that a post-operative transsexual gay or lesbian would no longer be able to marry a person of the same gender as the assumed gender of the post-operative transsexual person;

(3)     Third, a post-operative gay or lesbian transsexual person who had married before the decision in W v Registrar of Marriages will, as a result of the remedial interpretation of s.40 of the MO and s.21(1)(d) of the Matrimonial Causes Ordinance (Cap 179), have had his/her existing marriage rendered void.

21.  While I can see that the Transgender Group’s arguments would bring to the court a unique perspective which is based on the legal consequences of the impugned legal provisions, it is important to note that so far as Ms Leung is concerned, she is a post-operative transsexual person.  She has already made her choice and enjoyed the right to live and be recognised in her assumed gender.  The difficulty or hardship that she now faces is no different in nature or substance from that suffered by homosexuals (such as MK) generally.  Also, she had not married prior to the assumption of her new gender, and thus there is no question of any such marriage being rendered void as far as Ms Leung is concerned.  The various points mentioned by Mr Parker can in fact be effectively advanced by any person or lawyer.  They are easy to understand and, once made, do not require much elaboration.  In any event, having considered the detailed written submissions prepared by Mr Parker, I do not consider that they will significant add to the analysis of the constitutional and legal issues which will likely be advanced by the parties at the substantive hearing, or bring about additional, material, assistance to the court in the proper resolution of those issues.

22.  Fourth, to allow the present applicants or some of them to intervene in these proceedings may prompt others to follow suit and lead to a floodgate of further applications.  The evidence shows that some of the present applicants were prompted to apply to intervene after they had become aware of the applications made by the Roman Catholic Church, the Family Group and the Society.  The court must carefully consider the deployment of its limited resources in the face of the ever increasing volume of public law cases filed in the High Court in recent years, many of which also raise issues of great, general or public importance.  This is a relevant, though by no means conclusive, consideration.

23.  In all, I have come to the conclusion that leave should not be granted to the proposed interveners to intervene in these proceedings.  Having reached this conclusion, there would be no reason to grant them access to the documents filed in these proceedings either.

DISPOSITION

24.  For the foregoing reasons, the 5 summonses mentioned at the beginning of this decision are dismissed.  In view of the public importance of the issues raised in the present application for judicial review, and my view that none of the proposed interveners is motivated by self-interest to seek to intervene in these proceedings, I would make no order as to the costs of the applications.  MK’s own costs are to be taxed in accordance with legal aid regulations.

25.  Lastly, it remains for me to thank counsel for their assistance rendered to the court.