INFINGER, NICK v. THE HONG KONG HOUSING AUTHORITY

CACV 81/2020 and CACV 362/2021, [2023] HKCA 1178

On Appeal From [2020] HKCFI 329 and [2021] HKCFI 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 81 OF 2020

(ON APPEAL FROM HCAL NO 2647 OF 2018)

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and

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 362 OF 2021

(ON APPEAL FROM HCAL NO 2875 OF 2019)

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(heard together)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. INTRODUCTION

1.  These two appeals are brought by the Housing Authority (“the HA”) against the Orders made by Chow J (as Chow JA then was) and Chow JA (sitting as a First Instance Judge) (collectively “the Judge”) respectively in HCAL 2647/2018[1] and HCAL 2875/2019[2] (respectively “the PRH Order” and “the HOS Order”).

2.  In HCAL 2647/2018 (“the PRH Judicial Review”), the applicant (“Mr Infinger”) sought to challenge by way of judicial review the HA’s policy (“the PRH Spousal Policy”) to exclude same-sex couples from eligibility to apply for public rental housing (“PRH”) under the “Ordinary Families” category.

3.  In HCAL 2875/2019 (“the HOS Judicial Review”), the applicant, Mr Ng (“the Deceased”) sought to challenge by way of judicial review the HA’s policy (“the HOS Spousal Policy”) to exclude same‑sex spouses of owners of HOS flats from the definition of “family members” and “spouses” eligible:

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

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

4.  In gist, the applicants say these policies are discriminatory against same-sex couples and thus unlawful.

5.  By way of the judgments made respectively in the PRH Judicial Review (“the PRH Judgment”)[3] and the HOS Judicial Review (“the HOS Judgment”)[4], the Judge allowed the respective applications and made the PRH and HOS Orders, declaring that the PRH Spousal Policy and the HOS Spousal Policy are unlawful and unconstitutional for being in violation of Article 25 of the Basic Law (“BL”) and / or Articles 22(1) and (2) of the Hong Kong Bill of Rights (“BOR”).

B.  THE BRIEF BACKGROUND FACTS

6.  The Judge has set out in detail in the PRH Judgment[5] and the HOS Judgment[6] the relevant background leading to the respective judicial reviews, the relevant functions of the HA and the PRH and HOS Spousal Policies. These are not in dispute. It is unnecessary for us to repeat them here.

7.  For the present purposes, we only need to highlight the following.

B1.  The HA and the relevant policies

8.  The HA was established under the Housing Ordinance (Cap 283) (“The HO”), which provides that it “shall exercise its powers and discharge its duties under this Ordinance so as to secure the provision of housing and such amenities ancillary thereto as the Authority thinks fit for such kinds or classes of persons as the Authority may, subject to the approval of the Chief Executive, determine”[7].

9.  In substance, it is essentially charged with the wide powers and functions to, as approved by the Chief Executive, implement the Government’s public housing policy to provide affordable housing to low‑income families with housing needs, and to help middle-income families gain access to subsidized home ownership. The focus of the HA’s function and objective is to meet the Government’s policy objective of addressing the housing needs of low-income families and elderly[8].

10.  Relevantly, the HA has been charged with the powers and functions to implement and manage the provision of PRH units and HOS units.

11.  PRH are subsidized public rental housing flats provided to low-income families who cannot afford private rental accommodation.

12.  It is a well-known fact that there is only a limited supply of PRH units while at the same time there is a huge demand for PRH. The HA has therefore maintained an application system to provide eligible applicants with PRH[9]. All applicants for PRH units must first satisfy certain general eligibility requirements such as age and limits on income and net assets value[10]. Further, there are two major categories of application for PRH, namely, the “General Application” and “Application by Non-elderly One-Person Applicants”.

13.  The General Application category is further divided into four sub-categories of applicant, one of which is the category of “Ordinary Families”[11]. It is the HA’s policy that only the following relationships will be recognised as falling under this “Ordinary Families” sub-category[12]:

(1)  Husband and wife;

(2)  Parent and child;

(3)  Grandparent and grandchild;

(4)  Unmarried siblings.

14.  The Ordinary Families sub-category is in relation to applications for a shared PRH Unit. A non-elderly person[13] who is ineligible for a shared PRH unit may apply under the Non-elderly One‑person Applicants category, which has a separate Quota and Points System for determining priority for allocation of PRH units.

15.  However, the waiting time for single units is much longer than for shared units as it is the HA’s policy to give priority to general applicants over non-elderly one-person applicants. As mentioned by the Judge, the HA has set an average waiting time (“AWT”) target for providing the first flat offer to general applicants at around 3 years. This target is not applicable to non-elderly one-person applicants. As a matter of fact, due to the limited supply and huge demand for PRH, as at the end of December 2018, the AWT for general applicants was already 5.5 years, with about 150,200 general applications waiting in the queue, while there were about 117,400 non-elderly one-person applications under the Quota and Points System.

16.  As stated above, in relation to the “General Application” category, the HA has adopted a policy (ie, the PRH Spousal Policy) to exclude same-sex couples from eligibility to apply for PRH under the “Ordinary Families” category as husband and wife.

17.  HOS is a form of subsidized housing scheme for sale first introduced by the Government in 1978. The scheme has two principal aims, namely (a) to encourage better-off PRH tenants to vacate their existing PRH units for reallocation to the less well-off families, and (b) to assist families in the low to middle-income bracket to achieve home ownership.

18.  Under the current framework, applicants for HOS flats may be broadly divided into two groups:

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

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

19.  Green Form applicants may purchase HOS flats when HOS developments are put up for sale by the HA, or existing HOS flats under the Home Ownership Scheme Secondary Market Scheme (“HOS Secondary Market”) without having to pay a premium.

20.  In this respect, HOS flats purchased under the HOS Secondary Market are subject to various statutory and / or contractual usage and alienation restrictions[14]. HOS flats purchased under other schemes (eg, sale of new HOS flats by the HA) are also subject to similar restriction, with some slight modification. The main restrictions include:

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

(2)  Assigning or letting –

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

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

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

(1)  Husband / Wife;

(2)  Father / Mother;

(3)  Son / Daughter;

(4)  Father-in-law / Mother-in-law;

(5)  Son-in-law / Daughter-in-law;

(6)  Brother / Sister;

(7)  Grandfather / Grandmother; and

(8)  Grandchild.

22.  In the application form, there is a 9^th category of familial relationship known as “Other Relative”[15]. Whatever may be the scope of this category, it is not in dispute that, under the HA’s current policy, a same-sex spouse of an applicant is not recognised as a family member of the applicant, whether under the category of “Husband / Wife” or the category of “Other Relative”, so as to be eligible to be an authorised occupant of a HOS flat.

23.  The HA permits an owner of a HOS flat to apply to add certain categories of family members as authorized occupants of the HOS flat. For that, the HA adopts the Addition Policy which confines the person(s) that can be proposed to be added to family members to “the spouse and children under the age of 18 of the owner / joint owner(s)”[16].

24.  The HA also permits an owner of a HOS flat to apply to transfer the HOS flat to an authorized occupant without payment of premium, provided that the grounds for the transfer application are, among others, for the inclusion of spouse as joint owner or that the change of ownership reflects the financial contribution towards downpayment / mortgage repayment by such “authorized occupant” (ie, the Transfer Policy)[17].

25.  For the purpose of the HOS Spousal Policy, in determining who may qualify as the spouse of an owner of a HOS flat, the HA has always followed the common understanding of “husband and wife” in a traditional family unit constituted by opposite-sex married couples[18]. In other words, a member of a same-sex couple:

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

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

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

B2.  Mr Infinger and the PRH Judicial Review

26.  Mr Infinger, a male person, married his husband (“the Partner”), another male person, in Canada in January 2018.

27.  Both Mr Infinger and the Partner are Hong Kong permanent residents and reside in Hong Kong.

28.  By a letter dated 9 March 2018, Mr Infinger, through his solicitors, wrote to the HA enclosing a duly completed and signed application form (“the PRH Application”) for PRH. The PRH Application was made as an “Ordinary Family” application, in which the Partner was described as the only family member of Mr Infinger, and was accompanied by, inter alia, a copy of the Certificate of Marriage between Mr Infinger and the Partner dated 29 January 2018 issued by the Vital Statistics Agency of the Province of British Columbia, Canada.

29.  On 24 August 2018, the HA wrote to Mr Infinger, stating in substance that Mr Infinger is ineligible for application for PRH as ordinary family because his relationship with the Partner fell outside the ordinary understanding of “husband” and “wife” as adopted by the HA. It further stated that a formal rejection letter would be sent to Mr Infinger in due course. We will refer to the HA’s decision that Mr Infinger is not eligible to apply for PRH as an Ordinary Family as the “Eligibility Decision”.

30.  Later, on 7 September 2018, the HA wrote further to Mr Infinger, stating that his application for PRH as ordinary family had not been accepted for registration for the same reason that his relationship with the Partner fell outside the meaning of “husband” and “wife” as adopted by the HA. The HA’s decision not to accept the PRH Application for registration as an Ordinary Family application shall hereinafter be referred to as the “Registration Decision”.

31.  On 22 November 2018, Mr Infinger made the application for leave to apply for judicial review of the Eligibility Decision, Registration Decision and PRH Spousal Policy. In the Form 86, at paragraphs 48 ‑ 50, Mr Infinger advances the following grounds of judicial review:

(1)  The Eligibility Decision, Registration Decision and PRH Spousal Policy are illegal and / or unconstitutional since they constitute unjustified discrimination against Mr Infinger and the Partner on the ground of sexual orientation and therefore violate BL25[19] and / or BOR22[20].

(2)  For the same reason, the Eligibility Decision, Registration Decision and PRH Spousal Policy are Wednesbury unreasonable since they violate the principle of equality.

(3)  Further or alternatively, the Eligibility Decision, Registration Decision and PRH Spousal Policy are illegal and / or unconstitutional as an unjustified restriction of Mr Infinger’s right, and that of the Partner, to respect for their private and family life without distinction as to sexual orientation under BOR14[21] in conjunction with BOR1(1)[22].

B3.  The Deceased and the HOS Judicial Review

32.  The Deceased was a Hong Kong permanent resident and also a long-time tenant of PRH. Since 2011, he had been living in a PRH flat in Choi Fook Estate (“the PRH Flat”) with his family. His father, who was the original tenant of the PRH Flat, passed away in 2014, and since then, the Deceased became substituted for his father as the registered tenant of the flat.

33.  In January 2017, the Deceased and Mr Li Yik Ho (“Mr Li”) entered into a same-sex marriage in the UK, followed by a blessing service at a church in Hong Kong. After marriage, Mr Li could not be registered as an authorized occupant of the PRH Flat because of the PRH Spousal Policy. They decided to purchase a HOS flat through the HOS Secondary Market intending to use it as their matrimonial home.

34.  The Deceased therefore applied as a “Green Form” applicant to purchase a HOS flat as an existing tenant of the PRH Flat. He eventually purchased one in Kam Fung Court, Ma On Shan (“the HOS Flat”) in the HOS Secondary Market in April 2018 at the price of HK$5.45 million. It is their evidence that it was Mr Li who, as the sole breadwinner, contributed more than 90% of the financial costs of purchasing the HOS Flat, including down payment, stamp duty, renovation costs and monthly mortgage payments. However, under the HA’s policy, the Deceased could not purchase the HOS Flat as a Green Form applicant jointly with Mr Li as a same-sex spouse, nor could Mr Li be considered as a family member of the Deceased so as to live in the HOS Flat with the Deceased.

35.  Subsequently on 9 April 2019, the Deceased through his lawyers wrote to the HA[23] essentially asking whether under the HA’s “Family Member Policy”[24], Mr Li, as his spouse, could be (a) added as an authorized occupant of the HOS Flat as a family member (“the Intended Application for Addition of Family Member”), and (b) added as a co‑owner of the HOS Flat without payment of a premium (“the Intended Application for Transfer of Ownership”). The letter further asked whether the Deceased would be seen as breaching the conditions to own a HOS flat if he co-habitated with his same-sex married spouse and what remedial measures the HA would take to ensure that the Deceased was treated lawfully and in accordance with his rights[25].

36.  The HA answered those questions substantively on 2 July 2019 by a letter (“the Decision”), confirming that under its relevant policies:

(1)  Persons proposed to be added as family members as authorized occupant are confined to the spouse and children under the age of 18 of the owner;

(2)  In this context, “spouse” means either a “husband” or “wife” which respectively means “a married man especially in relation to his wife” and “a married woman especially in relation to her husband”;

(3)  As Mr Li is not considered as a spouse of the Deceased, he could not be added as a family member of the Deceased, and the Intended Application for Addition of Family Member would not be acceded to, if lodged.

(4)  Further, it is a pre-requisite that the proposed assignee in an application for a transfer of ownership in a HOS Flat before the payment of premium must be an authorized occupant (except in deceased cases), and as Mr Li cannot be added as an authorized occupant of the HOS Flat, the Intended Application for Transfer of Ownership would also not be acceded to, if lodged.

37.  On 30 September 2019, the Deceased filed the Form 86 seeking leave to challenge the HOS Spousal Policy and Decision, and advanced four grounds of judicial review (at paragraphs 60 ‑ 63):

(1)  The HOS Spousal Policy and Decision are unlawful and unconstitutional because they violate the principle of equality before the law guaranteed under BL25, BOR22(1) and BOR1(1). They amount to unjustified discrimination against the Deceased and Mr Li on the ground of sexual orientation.

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

(3)  They are unlawful and unconstitutional as unjustified restriction of the Deceased’s right, and that of Mr Li, to respect for their private and family life without distinction as to sexual orientation under BOR14, read with BOR1(1).

(4)  They are unlawful and unconstitutional as unjustified restriction of the Deceased’s right, and that of Mr Li, to respect and protection for their property rights under BL6[26] and BL105[27], read with BL25.

38.  On 7 December 2020, the Deceased passed away in Hong Kong. The Judge subsequently made an order that Mr Li be made a party in substitution for the Deceased for the purpose of carrying on the present application.

B4.  The PRH and HOS Judgments

39.  The Judge heard the PRH Judicial Review on 27 September 2019 and handed down the PRH Judgment on 4 March 2020. He then heard the HOS Judicial Review on 19 April 2021 and handed down the HOS Judgment on 25 June 2021.

40.  As mentioned above, Mr Infinger and Mr Li respectively challenged the PRH Spousal Policy and the HOS Spousal Policy (collectively “the Spousal Policies”) in not recognising same-sex spouse of a valid marriage on the grounds that:

(1)  They are unconstitutional and unlawful as an unjustified discrimination based on sexual orientation and thus in breach of equality provisions under BL25 and BOR22 (“the BL25 Ground”);

(2)  They are Wednesbury unreasonable being in violation of the principle of equality (“the Wednesbury Unreasonable Ground”); and

(3)  They are unconstitutional and unlawful as unjustified restriction of the applicants’ right to respect for their private and family life protected under BOR14 (“the BOR14 Ground”).

41.  Mr Li in the HOS Judicial Review further challenged the HOS Spousal Policy on the ground that they are unconstitutional and unlawful as unjustified restriction of the applicants’ right to respect and protection of their property rights under BL6 and BL105, read with BL25 (“the BL105 Ground”).

42.  The Judge allowed both judicial reviews on the BL25 Ground.

43.  Under this ground, as summarized by the Judge, the court’s proper approach in deciding whether a government or public body’s policy or decisions constitutes unlawful discrimination is well established[28]. See: [23] ‑ [26] of the PRH Judgment, and [40] ‑ [41] and [49] of the HOS Judgment.

44.  The court first has to determine whether there is differential treatment on a prohibited ground and, only if this can be demonstrated, then to examine whether it can be justified. Differential treatment which is justified does not constitute unlawful discrimination. However, where differential treatment is not justified, it is unlawful discrimination.

45.  In order to determine whether the differential treatment is lawful or unlawful, the court applies the well-established 4-step justification test, namely:

(1)  Step 1: does the differential treatment pursue a legitimate aim;

(2)  Step 2: is the differential treatment rationally connected to that legitimate aim;

(3)  Step 3: is the differential treatment no more than necessary to accomplish the legitimate aim; and

(4)  Step 4: has a reasonable balance been struck between the societal benefits arising from the application of the differential treatment and the interference with the individual’s equality rights.

46.  In this respect, the HA in the PRH Judicial Review accepted that Mr Infinger’s equality right protected under BL25 was engaged but opposed the application on the following principal bases:

(1)  Same-sex couples and opposite-sex couples are not in comparable position in the context of public housing provision for the purpose of the inquiry as to whether the differential treatment is by reason of their sexual orientation.

(2)  In any event, applying the standard of scrutiny of manifestly without reasonable foundation, the PRH Spousal Policy satisfies the 4-step justification test in that:

(a)  The differential treatment is to pursue the “Family Aim” (see below), which is a legitimate aim, to support traditional family formations constituted by opposite-sex marriage with regard to their housing needs;

(b)  The differential treatment is rationally connected to the Family Aim;

(c)  It is no more than necessary to accomplish that aim; and

(d)  A reasonable balance has been struck between the societal benefits arising from the application of the differential treatment and the interference with the individual’s equality rights.

47.  In the HOS Judicial Review, which was heard by the Judge after the handing down of the PRH Judgment, the HA:

(1)  contended that BL25 and BOR22’s equality right was not engaged in that case. This was so as when these provisions were read coherently with BL37 and BOR19 (“the Traditional Family Provisions”) (which gave special constitutional protection to the traditional family formations), it was “impermissible to use generally expressed rights as a side door to demand the same-sex couples be granted positive rights or benefits enjoyed by opposite-sex couples due to their distinct married status, when the Traditional Family Provisions have deliberately elevated opposite-sex over same-sex formations by special constitutional protection”. For convenience, we will refer this contention as the “BL37 Contention”.

(2)  relied on the same contentions raised in the PRH Judicial Review (as summarized in [46] above) to oppose the HOS Judicial Review.

48.  In both judicial reviews, the “Family Aim” relied on by the HA involves the following three aspects:

(1)  to support existing traditional families constituted by opposite-sex married couples (in and of themselves);

(2)  to support existing traditional families constituted by opposite-sex married couples together with their existing children;

(3)  to support the institution of traditional family by protecting / prioritising the supply of PRH units or HOS flats occupancy and ownership to (a) opposite-sex unmarried couples whose marriage plans may be influenced by housing availability; and (b) opposite-sex married couples whose plans to have children may be influenced by housing availability.

49.  The Judge rejected all of the HA’s contentions. His reasons were in gist as follows:

(1)  The Judge rejected the BL37 Contention raised in the HOS Judicial Review on the basis that this is directly contrary to the judgments of the Court of Final Appeal in QT at [54] and [76]; and Leung Chun Kwong at [37]. He further held that in any event, there is no inconsistency between the constitutional protection of opposite-sex marriage and the protection of the fundamental right not to be subjected to unlawful discrimination where the status of opposite-sex marriage is not material or relevant as in the present case. See [36] ‑ [38] of the HOS Judgment.

(2)  Married same-sex couples are in comparable position with opposite-sex couples in the context of provision of public or subsidized housing as they share equivalent interdependent and interpersonal relationships and their marriages share the same characteristics of publicity and exclusivity. Their need for affordable housing and a home to live together as a family and their wish to achieve home ownership on a joint basis are not intrinsically different. In the premises, there is differential treatment based on the prohibited ground of sexual orientation. See: [31] and [36] of the PRH Judgment and [45] ‑ [48] of the HOS Judgment.

(3)  Under the 4-step justification test, the Judge first held that the appropriate standard of scrutiny to be adopted for assessing proportionality is somewhere in the middle of the continuous spectrum of reasonableness and the intensity of review should be set accordingly. See [43] ‑ [44] of the PRH Judgment and [62] ‑ [66] of the HOS Judgment.

(4)  Under Step 1, he accepted that the Family Aim is a legitimate aim in the present cases. See: [37], [41] ‑ [42] and [51(1)] of the PRH Judgment and [52] ‑ [53] of the HOS Judgment.

(5)  Under Step 2:

(a)  The Judge accepted in the PRH Judgment that the differential treatment is rationally connected to the Family Aim since, as a matter of logic and common sense, the policy in the context of eligibility to apply for PRH would have the consequence of enlarging the pool of PRH units to opposite-sex married couples. See [51(2)] of the PRH Judgment;

(b)  On the other hand, the Judge held in the HOS Judgment that the differential treatment is not rationally connected to the Family Aim. This is so since, as a matter of logic, it is extremely far-fetched to suggest that opposite-sex couples would be encouraged to marry or have children by the knowledge or realisation that same-sex couples are prevented or deterred from applying to purchase HOS flats by reason of the HOS Spousal Policy applied in the Addition and Transfer Policies, and thus there would be more HOS flats available to them to purchase. See: [54] ‑ [60] of the HOS Judgment.

(6)  Under Step 3, the Judge held that he was not satisfied that the differential treatment under the Spousal Policy is a proportionate means of achieving the Family Aim. This is so as the HA has failed to show with any or sufficient evidence that the Spousal Policy made any significant or real difference to the overall availability of the PRH or HOS units to opposite-sex couples. The Judge also emphasized that he would have reached the same conclusion even if the appropriate standard of review should be that of “manifestly without reasonable foundation” as advocated by the HA. See: [51(3)] of the PRH Judgment and [67] ‑ [72] of the HOS Judgment.

(7)  Step 4:

(a)  In the PRH Judgment, the Judge held that for the same reason, ie, for the lack of evidence in support of the extent of the beneficial effect in pursuing the Family Aim as given under Step 3, he was not satisfied that a fair balance has been struck in that the differential treatment under the Spousal Policy has resulted in an unacceptably harsh burden on same-sex couples lawfully married overseas. See: [51(4)] of the PRH Judgment;

(b)  In the HOS Judgment, the Judge also held that no fair balance had been struck, given the very limited increase in the number of HOS flats which may become available to opposite-sex couples to purchase as a result of the Spousal Policy and the clear oppressiveness and unfairness towards same-sex couples in denying them the right to live together as a family in a HOS flat owned by one of them or jointly owned the flats unless substantial premium is paid. See: [75] ‑ [77] of the HOS Judgment.

(8)  The Judge further held in the PRH Judgment that given that the PRH Spousal Policy amounted to an unjustified discriminatory measure to pursue the Family Aim, it plainly cannot be justified as a measure to achieve administrative effectiveness in implementing the HA’s PRH. He also did not accept that it would be more administratively inconvenient or difficult to verify the validity or genuineness of a foreign same-sex marriage when compared to a foreign opposite-sex marriage. See: [52] ‑ [53] of the PRH Judgment.

50.  As the Judge allowed the Judicial Reviews on the BL25 Ground, he did not find it necessary to deal with the Wednesbury Unreasonable Ground, the BOR14 Ground, and the BL105 Ground raised by the applicants.

C.  THESE APPEALS

C1.  Grounds of appeal and the Respondent’s Notices

51.  The HA has raised a number of grounds of appeal in these two appeals which effectively challenge all of the above material aspects of the Judge’s conclusions. As helpfully summarized by Mr Abraham Chan SC (leading Mr John Leung) for the HA, these grounds of appeal can be gathered into three main branches.

52.  First, “the Threshold Grounds”, which go to (a) whether BL25 / BOR22 are engaged at all, and (b) whether Mr Infinger and Mr Li have discharged their burden of showing that opposite and same-sex couples are relevantly comparable in the present context[29].

53.  Second, “the Rational Connection Ground”, which only relates to the finding in the HOS Judgment that the differential treatment of the same and opposite-sex couples under the HOS Spousal Policy does not rationally connect to the Family Aim[30].

54.  Third, “the Proportionality Grounds”, which concern various facets of the proportionality analysis in both cases[31].

55.  On the other hand, Mr Infinger and Mr Li have also respectively filed their Respondent’s Notices (respectively, the PRH Amended Respondent’s Notice (“PRH ARN”) and the HOS Respondent’s Notice (“HOS RN”)) seeking to affirm the PRH Order and the HOS Order on various additional or alternative grounds. In gist, in these RNs, they contest that (a) the Family Aim is not a legitimate aim (PRH ARN, paragraphs 1 ‑ 1A), (b) there was no rational connection in the PRH Judicial Review (PRH ARN, paragraph 2), (c) the court in the PRH Judicial Review had considered all relevant factors in assessing proportionality (PRH ARN, paragraph 3), (d) the correct standard of review should be “reasonable necessity” (PRH ARN, paragraphs 4 - 5; HOS RN paragraphs 1 ‑ 2), (e) the opposite-sex couples are comparable to same-sex couples (PRH ARN, paragraph 6), (f) the Spousal Policies and the HA’s decisions were Wednesbury unreasonable or contra BOR14 and BOR1(1) (PRH ARN, paragraphs 7 ‑ 8; HOS RN, paragraphs 3 ‑ 4).

56.  Given that the PRH ARN and the HOS RN only seek to raise additional or alternative grounds to affirm the respective PRH and HOS Orders, we propose to consider and deal with the grounds of appeal raised by the HA first. We will only deal with respondents’ grounds if and when necessary.

C2.  Discussion

C2.1  The Threshold Grounds

57.  The HA raises two principal sub-grounds under the Threshold Grounds:

(1)  First, the HA contends that the applicants’ BL25 / BOR22[32] equality rights are simply not engaged in these two cases when the equality provisions are read coherently with BL36 (together with BL145) and BL37 / BOR19. For convenience, we will refer this as the “BL25 Non‑Engagement Ground”.

(2)  Second, the HA says that the Judge erred in law in holding that same-sex couples and opposite-sex couples are proper comparators for the purpose of assessing whether there is or there is no discrimination (direct or indirect) in the present case. It contends that they are not when the question is assessed in its proper context. We will refer this as the “Not Proper Comparators Ground”.

C2.1.1   BL25 Non-Engagement Ground

58.  Under these grounds, Mr Chan submits that when properly construed together with BL36, 37 and 145, it is clear that BL25 excludes an equality challenge by the applicants against the Spousal Policies.

59.  BL25 provides:

“Article 25

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

60.  BL36, 37 and 145 provide as follows:

“Article 36

Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.

Article 37

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

...

Article 145

On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.”

61.  In support of this ground, Mr Chan for the HA has focused and advanced his submissions at the hearing as follows.

62.  First, he submits that it is well established that the constitutional provisions in the BL have to be read coherently[33]. Hence, both BL25 and BOR22 must be read in line with the other BL provisions and cognate BOR provisions, taken as a coherent whole[34].

63.  Second and relevantly, it has also been well established that BL36 provides a constitutional protection of Hong Kong residents’ rights to social welfare to be no worse than what they had been enjoying before 1 July 1997, subject to the power of the government under BL145 to formulate policies for the development and improvement of the social welfare system in response to the economic conditions and social needs under BL145. In this regard, it is pertinent to note that:

(1)  It has been held that housing benefits are a form of social welfare covered under BL36: Choi King Fung v Hong Kong Housing Authority (HCAL 191/2015, 17 March 2017, G Lam J (as he then was)) at [39] ‑ [50]; and

(2)  The constitutionally protected rights under BL36 include the right “defined by the eligibility rules” for the subject social welfare system “derived from the previous system of social welfare and in existence as at 1 July 1997”. This has been explained by the Court of Final Appeal in Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950, at [33] ‑ [36] per Ribeiro PJ as follows:

“33. Those words unequivocally declare the Basic Law’s intention to create an independent head of constitutional protection in the context of social welfare rights. True it is that art.36 does not — and obviously cannot — descend into particulars as to specific welfare benefits or their eligibility and other conditions. But that is because, like many other constitutional provisions, art.36 is intended to operate as a framework provision. Read together with art.145, it provides the framework for identifying a constitutionally protected right to social welfare: Once it is clear that an administrative scheme such as the CSSA scheme has crystallized a set of accessible and predictable eligibility rules, those rules may properly be regarded as embodying a right existing ‘in accordance with law’, qualifying for art.36 protection.

34. Article 145 supports this view. It adopts the previous social welfare system as the basis for the Administration’s formulation of policies after 1 July 1997 to develop and improve that previous system in the light of economic conditions and social needs. Article 145 therefore endorses the rules and policies established under theprevious system and, as discussed above, it implicitly regards them as rules established ‘in accordance with law’ and thus capable of constituting particular rights protected by art.36.

35. The relevant right given constitutional protection by art.36 in the present case is the right defined by the eligibility rules for CSSA derived from the previous system of social welfare and in existence as at 1 July 1997. Crucially, this means that art.36 confers constitutional protection on the rules which laid down a one-year, and not a seven-year, residence requirement as a condition of eligibility for CSSA.” (emphasis added)

64.  Third, Mr Chan submits that the Spousal Policies in effectively excluding same-sex couples from respectively being eligible to (a) apply for PRH, and (b) apply for either being added as an authorized occupant or becoming a joint owner of a HOS flat without the payment of a premium constituted “eligibility rules” in the pre-1997 public housing social welfare system which stipulated that only opposite‑sex couples had the exclusive rights to make those applications. They are rights that were defined by these “eligibility rules” which had been enjoyed by opposite‑sex couples in relation to the social welfare of public or subsidized housing before 1 July 1997, and are therefore constitutionally protected under BL36.

65.  Fourth, these protected rights of opposite-sex couples are further buttressed or underlined by the constitutional protection of the traditional marriage system which consists only of opposite-sex couples and their right to raise a family in Hong Kong under BL37. See MK, at [21] and [38], per Chow J (as he then was).

66.  Fifth, when BL36 is read together with BL37, opposite-sex couples’ exclusive eligibility rights to apply for PRH (as set out in the PRH Spousal Policy) and to apply for being added as an authorized occupant or becoming a joint tenant of a HOS flat without the payment of a premium (as set out under the HOS Spousal Policy) are guaranteed and protected constitutionally. In the premises, in order to read BL25 coherently with BL36 and BL37, it cannot be correct that an applicant can rely on the equality right under BL25 to challenge these constitutionally protected rights. In other words, it must be the intention of the drafters of the BL that the protected rights under BL36 and BL37 are to be excluded from the scope of the equality protection provided under BL25. This is particularly so as it is a principle of statutory construction that the specific prevails over the general, which is one aspect of the general principle that legislative instruments must be read as a coherent whole. In this respect, BL36 and BL37 (which relate to specific rights) are therefore the dominant provisions that qualify and limit the scope of BL25 (which is a general provision). See: Kwok Cheuk Kin, at [43] ‑ [44].

67.  Once so understood, says Mr Chan, it is plain that it is not open to the applicants to rely on BL25 to challenge the Spousal Policies on equality grounds.

68.  With respect to Mr Chan, despite his skilful and ingenious submissions, we are not persuaded.

69.  Taking Mr Chan’s contentions to the highest, it amounts to saying that, on a proper interpretation together with BL36, BL25 must be read to exclude grounding any inequality challenge against any policy which relates to opposite-sex couples’ pre-97 rights that are protected under BL36. This in turn must mean that such exclusion will apply to pre-97 BL36 rights if and when those rights are engaged.

70.  However, in our view, the opposite-sex couples’ said BL36 rights are simply not engaged in the present challenges.

71.  Insofar as the PRH Judicial Review is concerned, the subject opposite-sex couples’ pre-97 BL36 right as submitted by Mr Chan is their right to be eligible to apply for shared PRH units and join the queue for allocation of units. This right however will not be affected at all even if the HA is now to allow same-sex couples to be also eligible to so apply and join the queue. The real effect of this, if any, is on the AWT of opposite‑sex couples for the allocation PRH units. However, the AWT is not a protected right under BL36: there was never any guaranteed or specified AWT for opposite-sex couples for the allocation of PRH units before 1 July 1997 as a matter of policy or otherwise. This is plain as the AWT is by its nature a variable which depends on the number of units available and the number of applicants at any particular time.

72.  Mr Chan seeks to contend that the said right is engaged since the supply of PRH units is a zero-sum game: the allocation of a PRH unit to a person necessarily reduces the number of PRH units available, and correspondingly deprives another potentially eligible person of the same benefit. In our view, this is a misplaced approach to the present question. As mentioned, the concerned right is the eligibility to apply and join the queue for the allocation of PRH units. There is no real zero-sum context here as submitted. The inclusion of a further group of persons eligible to apply under the same category will only affect, as pointed out above, the AWT of those people within the previously entitled group to be allocated PRH units, which is not a BL36 protected right. Their eligibility right to apply, which is protected, will not be affected.

73.  In this respect, Mr Chan contends that Kong Yunming is also a case which concerns the Government’s change of policy which increased the residence requirement period for a non-permanent Hong Kong resident to be entitled to receive CSSA[35] from 1 to 7 years. The Court of Final Appeal held that the original requisite length of residence (1 year) provided under the pre-97 policy was a BL36 protected right.

74.  In our view, Kong Yunming does not assist Mr Chan. Kong Yunming is a challenge based on BL145. In that case, the pre-97 policy expressly prescribed a specific length of time of residency which would entitle a non-permanent resident to be provided with CSSA. This length of time is therefore a specific term of the policy, and therefore an administratively “defined right” of Hong Kong residents to obtain CSSA payments and thus protected under BL36. As explained by Ribeiro PJ at [44]:

“44. As we have seen, the right protected by art.36 is the administratively defined right of Hong Kong residents who pass the means test and are not otherwise disqualified, to obtain CSSA payments after having resided here for one year. That was the established position as at 1 July 1997 when art.36 took effect. There is no dispute that but for the seven-year residence requirement, Madam Kong would have qualified for CSSA after residing here for one year. Her income has at all material times fallen below the level defined by the Director as necessary to meet basic needs. The seven-year requirement therefore removed the safety net that would otherwise have been deployed in her case.” (emphasis added)

75.  As a result, any change of that policy by the Government under BL145 would have to satisfy the proportionality test to be lawful[36]. However, in the present case, the AWT was never a specific term of the PRH or HOS Spousal Policies. Kong Yunming is therefore distinguishable.

76.  The above analysis applies a fortiori to the HOS Judicial Review, which relates to the HOS Spousal Policy applied in the context of the Addition and Transfer Policies and concerns the situation where a spouse of a relevant same-sex couple is already an owner of a HOS unit. No question of any deprivation of the number of HOS units to be available to opposite-sex couples even arises under that challenge.

77.  In response, Mr Chan has submitted that the challenge to the HOS Spousal Policy would also affect the supply of HOS units to opposite‑sex couples. This is so, Mr Chan says, as the application of the HOS Spousal Policy in the context of the Addition and Transfer Policies will discourage a same-sex partner from purchasing a HOS flat in the first place, which in turn will increase the number of available flat in the market for opposite-sex couples. If the present challenge is permitted and successful, it will also affect the number of HOS flats available to opposite-sex couples.

78.  We are unable to accept this contention:

(1)  This submission is a red herring as it is not the relevant HOS purchase policy which is under challenge in the HOS Judicial Review (in this regard, see also the discussions at [175] ‑ [178] below);

(2)  Further, in our view, given the speculative and indirect nature of this submitted effect of the policy (which in any event is not supported by any evidence), it is simply not capable of constituting a defined term or right under the HOS Spousal Policy. This cannot be regarded as a protected right under BL36.

79.  In the premises, we are not persuaded that opposite-sex couples’ pre-97 BL36 rights are engaged in the present challenge to the Spousal Policies. Consequently, even if Mr Chan’s submissions on the interpretation of BL25 together with BL36 is a correct one (as to which we do not express a view), it will not assist the HA in these appeals.

80.  We would reject the BL25 Non-Engagement Ground on this basis alone.

81.  It is noted that the parties have also raised various contentions to support or oppose the BL25 Non‑Engagement Ground. As we have rejected this ground for the above reasons, strictly speaking it is unnecessary for us to deal with those contentions. But for completeness sake, we will briefly address them as follows.

82.  First, as a preliminary point, both Mr Parker and Mr Pao have objected to the HA’s reliance on any BL36 arguments in these appeals. This is so as the HA has not relied on BL36 in the court below and even in the grounds of appeal set out in the PRH ANOA and HOS NOA. It is therefore simply not open to the HA to advance any submissions in these appeals based on BL36. This is particularly so, Mr Parker and Mr Pao also contend, since the applicants will be prejudiced as this contention is evidence-sensitive and the applicants would be deprived of the chance to file relevant evidence to oppose this ground.

83.  Although accepting that the HA has not relied on BL36 below and in the respective Notices of Appeal, Mr Chan in reply says the reading of BL25 with BL36 together is a matter of construction, which is a pure question of law. Further, Mr Chan emphasizes that both Mr Infinger and Mr Li have had sufficient time to deal with the BL36 arguments since they have been fully set out in the HA’s written submissions, which were provided to the applicants well before the hearing of the appeals. In the premises, the applicants would not suffer any prejudice if the HA is permitted to rely on BL36 to advance the arguments in these appeals.

84.  In Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668, in refusing leave to allow a new point to be raised, Ma CJHC (as he then was) set out some general observations as to the court’s approach in this regard at [45] as follows:

“(1) Where new points are sought to be raised on appeal (not having been raised in the Court below), it is for the Court of Appeal to decide in its discretion whether or not to allow this.

(2) Where pure points of law are involved, the Court of Appeal may be more inclined to allow these to be raised than if factual questions or mixed law/fact issues are involved.

(3) Where in particular any factual questions are sought to be raised, the Court of Appeal will be anxious to ensure that no prejudice to the other side will be caused. This is equally applicable to pure points of law but is more acute when factual issues are involved.

(4) If the court does allow new factual points to be raised, the other side must be given sufficient opportunity to meet them. It does not follow from this, however, that just because the other side may be given an opportunity to deal with new factual issues that leave will be given to raise them. The time for going into the facts is before the trial court. It is not for the appeal courts to try and determine disputed facts.

(5) The Court of Appeal will almost invariably expect an explanation to be given as to why new points raised on appeal (whether of fact or law) were not raised in the Court below. This is an important facet of the court’s discretion.

(6) It is also incumbent on the party seeking to raise new points on appeal to alert the Court and the other party or parties that this is the case. It will not be good practice merely to ‘slip in’ new points without there being some prior indication of this.

(7) Where appropriate, an application should be made to amend pleadings or in judicial review proceedings, the Form.86A application for leave to apply for judicial review.”

These observations have been further adopted in K v Commissioner of Police [2021] 2 HKLRD 645 at [41] per Lam VP (as the learned PJ then was).

85.  Bearing this approach in mind, for the following reasons, we agree that the HA should not be allowed to rely on BL36 in these appeals:

(1)  As pointed out by Mr Pao, the BL36 point was raised at a very late stage only in the HA’s written submissions. Given this significant lateness, it cries out for an explanation as to why this point was only raised now. However, the HA has proffered no explanation at all.

(2)  Further, we agree with Mr Parker and Mr Pao that the new BL36 point in the present context is not a pure question of law. As we have discussed above, taking Mr Chan’s submissions to the highest under the BL25 Non-Engagement Ground, even if BL36 is to limit and prescribe the scope of BL25, it must only be limited to those cases where an equality challenge of a subject measure or policy will affect another’s engaged BL36’s right. In the present cases, whether the opposite-sex couples’ BL36’s rights (as explained by Mr  Chan) will be so materially affected by the challenge made is evidence or fact-sensitive. There should be evidence to show how and to what extent will the opposite-sex couples’ said right be affected before the court is in a position to consider and determine if such equality challenge is to be excluded from the scope of BL25. In this respect, the applicants have clearly been deprived of any opportunity to file any evidence to show that the opposite-sex couples’ rights are either not or not materially affected. In the premises, if the BL36 point is allowed to be raised at this stage, it would cause material prejudice to the applicants.

86.  On the other hand, we will reject the following two contentions raised by Mr Parker and Mr Pao in opposition to the BL25 Non‑Engagement Ground:

(1)  First, the applicants submit that the BL25 Non-Engagement Ground is academic or irrelevant as they also rely on the Wednesbury Unreasonable Ground sounded under general administrative law to challenge the Spousal Policies.

(2)  We agree with Mr Chan that there is nothing in this. If we were to accept the BL25 Non-Engagement Ground, it would be very difficult to see how it could be said that the HA’s policies are Wednesbury unreasonable for being discriminatory in nature, as the policies would be regarded as constitutional and lawful as they had been excluded from any challenge under the constitutional equality provisions.

(3)  Second, the applicants further submit that the HA’s arguments that the opposite-sex couples have “exclusive standing” to a relevant social welfare benefit accorded under a pre-97 policy are not supported by the fact that there are other eligible categories under the same PRH scheme (ie, “Ordinary Families” include other eligible groups[37]) and the HOS scheme (ie, authorized occupants also include other eligible relationships[38]).

(4)  We again agree with Mr Chan that this is misplaced. The applicants’ challenge is specifically against the respective Spousal Policies on the basis that they are discriminatory in giving differential treatment between opposite-sex and same‑sex married couples. The complaint is that same-sex partners should also be similarly treated as their opposite-sex counterparty under the “husband and wife” category. What is needed in response is for the HA to justify why these comparable parties are treated differently under this specific category. The mere fact that the respective overall general schemes for PRH and HOS flats also include other categories of persons eligible to make the relevant applications is neither here nor there and thus irrelevant to this specific challenge.

87.  That takes us to the HA’s arguments based on BL37 in support of the BL25 Non-Engagement Ground.

88.  In this respect, it is noted that in the Notices of Appeal, the HA has only relied on BL37 to support this ground of appeal[39]. However, as pointed out by Mr Parker, for the purpose of the hearing, the HA has entirely shifted its reliance to BL36 as the principal basis in support of the BL25 Non-Engagement Ground. BL37 is only relied upon as an ancillary basis to buttress the BL36 arguments (see the HA’s written submissions and [61] ‑ [66] above).

89.  It is readily clear as to why the HA has so shifted its emphasis, as the reliance on BL37 is plainly without merit. In this respect, the HA had relied on BL37 to advance a similar BL25 Non-Engagement Ground in the HOS Judicial Review. The Judge dismissed it in the HOS Judgment at [36] ‑ [38] for the following reasons:

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

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

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

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

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

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

90.  We fully agree with the Judge’s reasons, in particular those set out at [38]. We are further of the view that Mr Chan’s BL37 submission amounts to nothing more than a refined or reformulated proposition that there are unique and special rights and privileges that are attached to opposite-sex marriage which give it a special status as once adopted by the Court of Appeal in QT v Director of Immigration [2017] 5 HKLRD (CA) 166[40]and Leung Chun Kwong v Secretary for Civil Service [2018] 3 HKLRD (CA) 84[41]. However, the said core rights approach has been rejected by the Court of Final Appeal in the respective appeals in QT[42]and Leung Chun Kwong[43].  There is therefore no merit in the BL37 arguments.

91.  For all these reasons, the BL25 Non-Engagement Ground fails.

C2.1.2  Not Proper Comparators Ground

92.  Under this ground, HA challenges the Judge’s holding that same-sex couples and opposite-sex couples are proper comparators for the purpose of assessing whether there is or there is no discrimination under the relevant challenged policies.

93.  In this respect, after considering and applying the relevant principles relevant to the question of proper comparators as set out by the Court of Final Appeal in Leung Chun Kwong and QT, the Judge explained why he found that same-sex couples and opposite-sex couples are proper comparators in the PRH Judgment and the HOS Judgment respectively as follows:

(1)  In the PRH Judgment (footnote omitted):

“31. Leung Chun Kwong concerned a challenge by a homosexual civil servant who had entered into a same-sex marriage with his partner in New Zealand against (i) the decision of the Secretary for Civil Service to refuse to update his marital status such that his same-sex partner would become entitled to various spousal medical and dental benefits, and (ii) the decision of the Commissioner of Inland Revenue that he was not entitled to elect for joint tax assessment. Both decisions were made essentially on the basis that Leung’s same-sex marriage with his partner could not be recognized and his partner could not be regarded as his spouse for the purposes of claiming civil service benefits or electing for joint tax assessment. The respondents conceded that, in the context of financial spousal benefits, a same-sex married couple and an opposite-sex married couple were relevantly analogous, and Leung was treated differently to a heterosexual married man on the ground of his sexual orientation. The Court of Final Appeal considered that the concession was properly made because, in the context of financial spousal benefits, a same-sex married couple and an opposite-sex married couple were relevantly analogous having regard to, amongst other matters, the fact that both types of relationship had the same readily identifiable characteristics of ‘publicity’ and ‘exclusivity’.

...

35. The Spousal Policy of the Housing Authority to exclude same-sex couples from being eligible to apply for PRH as Ordinary Families is embodied in §2.3.3 of the Application Guide. On an ordinary and natural interpretation of §2.3.3 of the Application Guide, the Applicant and the Partner cannot be regarded as ‘family members’ because they are not ‘husband and wife’.  It follows that under the existing policy of the Housing Authority:

(1) the Applicant is not eligible to apply for PRH as an Ordinary Family with the Partner as a member of his family; and

(2) the Applicant is only eligible to apply under the Non-elderly One-person Applicants category.

36. It is clear that the Spousal Policy treats heterosexual couples and homosexual couples (including the Applicant and the Partner) differently for the purpose of determining eligibility to apply for PRH as ‘Ordinary Families’. Having regard to the Housing Authority’s declared aim of provision of PRH, namely, to address the housing needs of low-income families, the two groups cannot, in my view, be said to be relevantly different for the purpose of eligibility for PRH. Hence, there is, in the present case, differential treatment based on sexual orientation.” (emphasis added)

(2)  In the HOS Judgment:

“42. The question of whether two persons or groups of persons are in a comparable or analogous position is context dependent. The notion of being ‘analogous’ for the present purpose is elastic both linguistically and conceptually. ...

...

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

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

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

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

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

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

(1) the relevant consideration is not just whether same-sex spouses are in a loving, public formal relationship, but includes ‘the couples’ propensity for opposite-sex marriage and traditional family formations’, which have special constitutional recognition[44]; and

(2) due and significant weight should be given to HA’s own policy view on what is significant and distinctive between types of married couples for public housing purposes[45].

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

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

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

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

94.  Mr Chan contends that the Judge had erred in his above holdings. Counsel’s submissions can be summarized as follows:

(1)  It is common ground that the question of whether the subjects are proper comparators is context-specific and value‑dependent. See: QT at [45]. It is also well established that what similarities and differences are relevant under the comparison will “vary with the fundamental moral outlook of a given person or society”[46]. Therefore, there are some contexts which would compel findings that a same-sex couple and an opposite-sex one are not analogous[47].

(2)  Here, the proper context and value is about public housing provision and the policies concerned are to pursue the Family Aim for the need and right to raise a family with children.

(3)  This is therefore not a case about comparing emotional attachment and interpersonal relationship as the Judge sought to do.

(4)  Instead, given that the basis for the difference of these two subject groups in these contexts is purely biological (as same‑sex couple cannot give birth to children as opposite‑sex couple does), they are not therefore proper or true comparators for these purposes.

(5)  Further, in this respect, the authority should be given a wide margin of appreciation / discretion in deciding which are relevantly analogous to opposite‑sex spouses for the purpose of PRH eligibility and HOS rights, and to accord priority on the latter by reference to its chosen policy to facilitate population growth: Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at [75(2)].

95.  We are not persuaded by Mr Chan’s submissions.

96.  The question of whether the subjects are proper comparators is context-specific. The question to be asked is what is the context and purpose as to why someone is treated differently from the other person and whether there are sufficient relevant differences between the two of them to support that difference in treatment. As observed by the Court of Final Appeal in QT at [44] and [45] (footnotes omitted):

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

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

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

97.  This is further explained by the Court of Final Appeal in Leung Chun Kwong with specific reference to the context of the challenge in that case at [37] ‑ [40] as follows (footnotes omitted):

“D.3 The appellant is subject to differential treatment requiring justification

37. The need to justify the differential treatment of the appellant being conceded by the respondents, it might be thought unnecessary to discuss the issue of whether there is relevantly differential treatment in this case. As the Court’s questions (identified at [29] above) demonstrate, though, there might well have been some scope for debate as to the true boundaries of the analogous situations existing between same-sex couples and opposite-sex couples. Not all couples are in a truly analogous situation and the use of the status of marriage itself as a distinguishing characteristic may or may not be determinative of the question of whether there is relevant differential treatment in any given case. As the Court held in QT:

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

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

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

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

98.  Adopting this approach, in our view, the proper context and question to be asked is this: is there sufficient relevant difference between the hypothetical comparators as to why a same-sex couple is treated differently from an opposite-sex couple in the context of application for shared PRH unit under the “Ordinary Families” category or for being recognised as an authorized occupant of a HOS flat already owned by a partner of that couple. When so considered, it is plain to us that there is none:

(1)  In terms of whether the two couples are economically or financially in need of the provision of public housing, there is no relevant or material difference between them.

(2)  In terms of whether they should be regarded to be in such a relationship that justifies the living together under the same roof as spouses or authorized occupants, as the Judge found (and not challenged nor is it challengeable by the HA), they share equivalent interdependent and interpersonal relationships, and their marriage shares the same characteristics of publicity and exclusivity.

99.  Mr Chan’s contention that the court should give significant weight to the HA’s own view as to what are the important features in the comparison exercise is not arguable. As the Judge rightly said, this proposition is not supported by any authority, and is inconsistent with the plain position that it is the function of the court to determine whether two persons are relevantly similar for the purpose of a discrimination claim. There is no question of “relative institutional competence” or deference to the decision-maker at that stage of the analysis. The HA conflates the question of the margin of discretion which might be applied in the context of proportionality, with the logically prior question of comparability which is a matter for the court to determine having regard to the relevant context.

100.  Mr Chan’s reliance upon Fok Chun Wa at [75(2)] is misplaced. When Ma CJ in that paragraph said that the margin of appreciation is relevant to “all the three stages of the justification test”, he was referring to the requirements in the test that (a) the difference in treatment must pursue a legitimate aim, (b) the difference in treatment must be rationally connected to the legitimate aim, and (c) the difference in treatment must be no more than is necessary to accomplish the legitimate aim[48], but not the question of comparability.

101.  As to Mr Chan’s submission that they are not in analogous position in the context that the difference in treatment is conferred to pursue the aim of promoting child birth by a couple, there is also no merit in it. We will explain why.

102.  Central to this contention is the submission that the Spousal Policies are to pursue the Family Aim to support “traditional family formations” constituted by opposite-sex marriage with regard to their housing needs. As mentioned above, it is the HA’s case that this aim involves three aspects:

(1)  to support existing traditional families constituted by opposite-sex married couples (in and of themselves);

(2)  to support existing traditional families constituted by opposite-sex married couples together with their existing children;

(3)  to support the institution of traditional family by protecting / prioritising the supply of PRH units or HOS flats occupancy and ownership to (a) opposite-sex unmarried couples whose marriage plans may be influenced by housing availability; and (b) opposite-sex married couples whose plans to have children may be influenced by housing availability.

103.  It is the third facet of the Family Aim that is relevant to Mr Chan’s submissions based on the difference between same‑sex couples and opposite-sex couples’ inherent procreative potential.

104.  However, we do not accept that this is a relevant difference for this purpose. As Mr Pao points out, the Spousal Policies draw no distinction between opposite-sex couples who are unable (eg, due to age or health) or are unwilling to have children. Nor is there any differentiation between same-sex couples who wish to, and are able to form a family with children, and those who do not.

105.  Importantly and relevantly, Mr Li has provided evidence (which has not been subject to any challenge) to show that same-sex couples are able and capable to lawfully raise or form families with children, whether by artificial procreation, adoption or otherwise.[49]  In this respect, it is pertinent to note that it is not, and cannot be, a necessary element of this specific part of the aim to protect traditional family institution that the children that the couples intend to have must be their biological children: it cannot be said that an opposite-sex couple who has children by way of artificial procreation or with adopted children does not constitute a traditional family[50]. In relation to these, it is also illuminating to note the observations by Lord Nicholls and Baroness Hale in Ghaidan.

106.  Ghaidan concerned Rent Act 1977, where paragraphs 2(1) and (2) of its Schedule 1 provided relevantly as follows:

“The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence.

For the purpose of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant…”

107.  The defendant (Mr Godin-Mendoza) was the surviving partner of the original tenant in a dwelling-house in a same-sex relationship. The landlord claimant sought to repossess the flat from the defendant. The defendant in defence claimed that he was a statutory tenant as a “spouse” of the original tenant under paragraph 2 of Schedule 1. The first instance judge rejected the defendant’s case that he was entitled to be a statutory tenant but instead held that he became entitled to an assured tenancy of the flat by succession as a member of the original tenant’s family within paragraph 3(1) of the Schedule. The defendant appealed to the Court of Appeal. The English Court of Appeal upheld the defendant’s case. It held that paragraph 2(2) placed a surviving same-sex partner in a less secured position than the survivor of an opposite-sex partnership and thus infringed the defendant’s rights under articles 8 and 14 of the Convention on Human Rights[51] for being discriminatory on the ground of sexual orientation[52]. The Court of Appeal then further held, pursuant to section 3 of the Human Rights Act, that it was possible to give effect to paragraph 2(2) in a way that was compatible with the Convention rights by reading it as extending to persons living with the original tenant as if they were his or her wife or husband. The landlord appealed to the House of Lords.

108.  The House of Lords dismissed the appeal. Relevant for the present purpose, in rejecting the landlord’s contention that there was no discrimination as the same-sex surviving partner and opposite-sex surviving partner were not in an analogous position since the context of paragraph 2 was for the protection of traditional family and same-sex partners were unable to have children with each other, Lord Nicholls at [15] ‑ [17] and Baroness Hale at [141] ‑ [142] explained as follows:

“15 Miss Carss-Frisk submitted there is a relevant distinction between heterosexual partnerships and same sex partnerships. The aim of the legislation is to provide protection for the traditional family. Same sex partnerships cannot be equated with family in the traditional sense. Same sex partners are unable to have children with each other, and there is a reduced likelihood of children being a part of such a household.

16 My difficulty with this submission is that there is no reason for believing these factual differences between heterosexual and homosexual couples have any bearing on why succession rights have been conferred on heterosexual couples but not homosexual couples. Protection of the traditional family unit may well be an important and legitimate aim in certain contexts. In certain contexts this may be a cogent reason justifying differential treatment: see Karner v Austria [2003] 2 FLR 623, 630, para 40. But it is important to identify the element of the ‘traditional family’ which paragraph 2, as it now stands, is seeking to protect. Marriage is not now a prerequisite to protection under paragraph 2. The line drawn by Parliament is no longer drawn by reference to the status of marriage. Nor is parenthood, or the presence of children in the home, a precondition of security of tenure for the survivor of the original tenant. Nor is procreative potential a prerequisite. The survivor is protected even if, by reasons of age or otherwise, there was never any prospect of either member of the couple having a natural child.

17 What remains, and it is all that remains, as the essential feature under paragraph 2 is the cohabitation of a heterosexual couple. Security of tenure for the survivor of such a couple in the house where they live is, doubtless, an important and legitimate social aim. Such a couple share their lives and make their home together. Parliament may readily take the view that the survivor of them has a special claim to security of tenure even though they are unmarried. But the reason underlying this social policy, whereby the survivor of a cohabiting heterosexual couple has particular protection, is equally applicable to the survivor of a homosexual couple. A homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together. They have an equivalent relationship. There is no rational or fair ground for distinguishing the one couple from the other in this context: see the discussion in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, 44.

...

141 The relevant difference which has been urged upon us is that a heterosexual couple may have children together whereas a homosexual couple cannot. But this too cannot be a relevant difference in determining whether a relationship can be considered marriage-like for the purpose of the Rent Act 1977. First, the capacity to bear or beget children has never been a prerequisite of a valid marriage in English law. Henry VIII would not otherwise have had the problems he did. Even the capacity to consummate the marriage only matters if one of the parties thinks it matters: if they are both content the marriage is valid. A marriage, let alone a relationship analogous to marriage, can exist without either the presence or the possibility of children from that relationship. Secondly, however, the presence of children is a relevant factor in deciding whether a relationship is marriage-like but if the couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together. One or both may have children from another relationship: this is not at all uncommon in lesbian relationships and the court may grant them a shared residence order so that they may share parental responsibility. A lesbian couple may have children by donor insemination who are brought up as the children of them both: it is not uncommon for each of them to bear a child in this way. A gay or lesbian couple may foster other people’s children. When the relevant sections of the Adoption and Children Act 2002 are brought into force, they will be able to adopt: this means that they will indeed have a child together in the eyes of the law. Thirdly, however, there is absolutely no reason to think that the protection given by the Rent Act 1977 to the surviving partner’s home was given for the sake of the couple’s children. Statutes usually make it plain if they wish to protect minor children. These days, the succession is likely to take place after any children have grown up and left home. Children, whether adult or minor, who are still living in the home may succeed as members of the family under paragraph 3 of the Schedule. It is the longstanding social and economic interdependence, which may or may not be the product of having brought up children together, that qualifies for the protection of the Act. In the days when the tenant was likely to be a man with a dependent wife, it was understandable that preference was given to the widow over anyone else in the family. But in 1980 that preference was extended to widowers, whether or not they were dependent upon the deceased wife. In 1988 it was extended to the survivor of unmarried marriage-like relationships, again irrespective of sex or financial dependence.

142 Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can. Sexual ‘orientation’ defines the sort of person with whom one wishes to have sexual relations. It requires another person to express itself. Some people, whether heterosexual or homosexual, may be satisfied with casual or transient relationships. But most human beings eventually want more than that. They want love. And with love they often want not only the warmth but also the sense of belonging to one another which is the essence of being a couple. And many couples also come to want the stability and permanence which go with sharing a home and a life together, with or without the children who for many people go to make a family. In this, people of homosexual orientation are no different from people of heterosexual orientation.” (emphasis added)

109.  Although the context is different, in our view, Lord Nicholls and Baroness Hale’s above pertinent and valid observations are applicable to the present debate as explained in [104] and [105] above.

110.  For the above reasons, we agree with the Judge’s reasons and holding that a same-sex spouse and an opposite-sex spouse are in an analogous position in relation to the differential treatment conferred by the Spousal Policies. The differential treatment under the Spousal Policies is therefore based on the ground of sexual orientation, which is discriminatory in nature and must be justified to be lawful. We therefore reject the Not Proper Comparators Ground.

111.  Before we move on to consider the rest of the grounds of appeal, we should mention that Mr Parker has also advanced two substantive contentions to oppose the Not Proper Comparators Ground as follows.

112.  First, counsel submits that the HA’s reliance on “inherent procreative capacity” as a point of difference between same-sex and opposite-sex couples is contrary to the “well settled principle” that characteristics inherent in a protected status cannot be relied upon as placing them in a dissimilar position. In support of this, Mr Parker relies on Baroness Hale’s observation in AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 at [27]:

“27. There are, also, as Lord Walker recognised in the Carson case [2006] 1 AC 173, dangers in regarding differences between two people, which are inherent in a prohibited ground and cannot or should not changed [sic], as meaning that the situations are not analogous. For example, it would be no answer to a claim of sex discrimination to say that a man and a woman are not in an analogous situation because one can get pregnant and the other cannot. This is something that neither can be expected to change. If it is wrong to discriminate between them as individuals, it is wrong to focus on the personal characteristics which are inherent in their protected status to argue that their situations are not analogous. That is the essential reason why, in Ghaidan v Godin‑Mendoza [2004] 2 AC 557 the argument that same sex couples were not in an analogous position to opposite sex couples, because they could not have children together, did not succeed.” (emphasis added)

113.  Second, Mr Parker says it is not open to the HA in these appeals to argue that married same-sex couples are dissimilarly situated in the housing context because a non‑discriminatory allocation of shared PRH units would affect Hong Kong’s birth-rate or population dynamics:

(1)  The purported connection between the relevant spousal policy and Hong Kong’s birth-rate or population dynamics was first raised by the HA in 3^rd Affidavit of Hui Bing Chiu (“3^rd Hui”) at paragraphs 18 ‑ 25 filed in the PRH Judicial Review. That affidavit was served on Mr Infinger on 27 August 2019, shortly before the substantive hearing before the Judge and after the handing down of the decision in Leung Chun Kwong by the Court of Final Appeal. The filing of 3^rd Hui was vigorously opposed to by Mr Infinger, for the reasons stated in the letter from his solicitors, Vidler & Co, dated 3  September 2019 (with original emphasis) as follows:

“Hui’s 3^rd Affirmation [sic] proceeds on the assumption that affording PRH units to married same-sex couples will affect the birth rate in Hong Kong: see §§20-22 and 25. … This assumption – which the Applicant does not accept is factually accurate – raises a number of questions of fact and quantification which would require careful and detailed rebuttal evidence from the Applicant, addressing inter alia the following questions: …

If the HKHA were permitted to rely on the new ‘justification’ that affording PRH units to opposite-sex couples [sic] who are married overseas would affect the ageing population to a material extent, our Aided Client [Mr Infinger] would need to file significant evidence in reply…”

(2)  The HA responded to this objection by filing the Affidavit of Chan Yin Yee dated 5 September 2019, in which it specifically disavowed any reliance on a claim that permitting married same-sex couples to shared PRH units would affect Hong Kong’s birth-rate at paragraphs 19 ‑ 20:

“19. …Nowhere in Hui’s 3^rd Affidavit purported to say that refusing same-sex married couples PRH units as ordinary families will ‘affect the birth rate in Hong Kong’ as alleged in … Vidler’s letter.

20. Since it is not HKHA’s position to raise the Alleged New Justification [ie, excluding same-sex couples from PRH as an ordinary family (i) would promote child-birth among opposite‑sex married couples, and (ii) this in turn would affect the population demographics] in these proceedings, the ‘rebuttal evidence’ contemplated by the Applicant is not necessary.”

(3)  In reliance on this assurance, Mr Infinger refrained from filing the rebuttal evidence on the alleged connection between housing discrimination and Hong Kong’s birth-rate or population dynamics. The HA cannot now resile from its concession: Cathay Pacific Airways Flight Attendants Union at [45]; Test Claimants in the Franked Investment Income Group Litigation v Revenue and Customs Commissioners [2020] 3 WLR 1369 at [86] ‑ [89].

114.  As we have rejected the Not Proper Comparators Ground for the reasons set out above, we will only deal with these two further contentions briefly:

(1)  We have reservation about Mr Parker’s submission that there is a “well settled principle” that characteristics inherent in a protected status cannot be relied upon as placing them in a dissimilar position. First, if this is to be treated as a sweeping statement of principle, it appears to be inconsistent with the fundamental general approach (as accepted by all parties) that the question of comparators is always context‑based and sensitive. Second, if it is submitted that Baroness Hale’s above quoted observation in AL is intended to be laying down a general principle, this does not appear to be supported by Her Ladyship’s own summary of Lord  Walker’s view[53] in the Carson case[54], or the reasons in Ghaidan as to why the inability to bear children was not accepted as a relevant distinction in that case (as quoted above at [107]).

(2)  On the other hand, we accept Mr Parker’s submissions that, given the HA’s clear and express disavowal of the reliance on a case of connection between the spousal policy and Hong Kong’s birth-rate or population dynamics, it is not open to the HA to now advance such a case in these appeals as the applicants will suffer prejudice by not having a chance to file relevant evidence to rebut this proposition.

C2.2  The Rational Connection Ground

115.  This ground of appeal relates only to the Judge’s finding in the HOS Judgment that the differential treatment of the same and opposite‑sex couples under the HOS Spousal Policy does not rationally connect to the Family Aim. The Judge’s reasons for the finding are in gist these[55]:

(1)  Whether a measure is rationally connected to an aim is essentially a matter of logic and common sense, in that whether it could be shown that the legitimate and important goals are furthered by the subject means, and the word “furthered” points towards a causal test as to whether the implementation of the measure can reasonably be expected to contribute towards the achievement of that objective[56];

(2)  In relation to the first and second facets of the Family Aim, applying the same reasoning in Leung Chun Kwong at [66] ‑ [67] and [71] ‑ [72], the Judge held that it was entirely illogical to suggest that the denial of eligibility of a same-sex spouse to apply to be added as a family member / authorised occupant, or become a joint owner (without having to pay a premium), of a HOS flat belonging to the other spouse would or could support existing traditional families constituted by heterosexual married couples (in and of themselves, or together with their existing children); and

(3)  In relation to the third facet of the Family Aim, he considered it to be “extremely farfetched” to suggest that opposite‑sex couples would be encouraged to marry or have children by the knowledge, or realisation, that because same-sex couples are prevented or deterred from applying to purchase HOS flats under the Addition and Transfer Policies, there would be more HOS flats available to them to purchase. There is simply no basis to believe this sort of reasoning (or calculation) would enter into the equation when an opposite-sex couple considers whether to marry or have children.

116.  Mr Chan’s complaint under this ground is focused on the Judge’s analysis at [59] of the HOS judgment where the Judge said this:

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

117.  Mr Chan’s submissions are these:

(1)  The Judge correctly accepted “availability of housing is a consideration which may affect a heterosexual unmarried couple’s marriage plan or a heterosexual married couple’s plan to have children”.

(2)  However, having accepted this, the Judge wrongly focused on what might be the subjective reasoning, calculation, or realisation of opposite-sexual couples as to the potentially greater availability of HOS flats available to them due to same-sex couples being disincentivised from seeking to buy such flats by the application of the HOS Spousal Policy in the context of Addition and Transfer Policies. The proper question is whether, as a matter of logic and common sense, the HOS Spousal Policy considered in this context could discourage initial HOS flat applications by a same‑sex spouse (because he cannot later add his same-sex partner as an authorised occupant or transfer the HOS flat to the partner). If the number of these applications is reduced, there will be fewer such applications overall. It logically follows that there will then be more HOS flats potentially available for opposite-sexual couples to support their marital and family lives.

118.  There is nothing in this ground.

119.  First, the Judge did not as contended focus on what Mr Chan described as the “subjective” reasoning, calculation or realisation of an opposite-sex couple. It is clear that the Judge adopted an objective approach to assess whether the HA’s purported explanations on there being a rational connection between the exclusionary effect of the HOS Spousal Policy and the third facet of the Family Aim are logical to “a fair, broad‑minded and reasonable person”, and concluded not.

120.  Second, this conclusion is eminently reasonable and correct:

(1)  In our view, in the context of justification assessment, to say that a measure (say “A”) is rationally connected to further an objective (say “B”) as a matter of logic, it has to be shown that A will have a material effect on achieving B. In other words, if A only has a de minmus effect on achieving B, it cannot be said that the two are logically connected.

(2)  In the present case, Mr Chan’s propositions as to the effects of the HOS Spousal Policy and thus its rational connection to the third facet of the Family Aim must be properly looked at in the following objective contexts:

(a)  as pointed out by Mr Pao, the number of same-sex couples (married or unmarried) who are eligible under the HOS Scheme but will indeed be deterred by the HOS Spousal Policy to purchase a HOS flat must be a “minority in a minority”[57]. This is particularly so when one further considers that, as a matter of fact, these eligible individuals (who are from low or middle income groups) are already ineligible to apply for shared PRH units under the PRH Spousal Policy and who also are unlikely to be able to purchase a flat in the private market because of their financial constraints;

(b)  The suggested deterrence is in any event only a postulated result of an indirect effect of the HOS Spousal Policy.

(3)  Once viewed in these contexts, in the absence of any evidence to the contrary and purely as a matter of logic, it must be objectively far-fetched (as the Judge described it) to say that because of the HOS Spousal Policy (which only prohibits a same-sex spouse to be added as an authorized occupant of a HOS flat that is already owned by the other same-sex partner), it will reduce a material number of same-sex partners who will have an intention to purchase a HOS flat on their own and thus materially increase the supply of available HOS flats to opposite-sex couples.

(4)  In other words, taking Mr Chan’s propositions to the highest, as a matter of logic and common sense and on the state of the materials before the court, the HOS Spousal Policy will at most only have an immaterial or de minimis effect in furthering the third facet of the Family Aim. There is therefore no rational connection between the two of them for the purpose of the justification test.

121.  For these reasons, the Judge was correct in finding that there was no rational connection between the Family Aim and the HOS Spousal Policy. We therefore reject the Rational Connection Ground.

C2.3  The Proportionality Grounds

122.  The HA advances a number of bases to say the Judge had erred in his balancing exercise under the last two steps of the justification test in finding that both the PRH and HOS Spousal Policies are not proportionate (and thus justified) measures to pursue the Family Aim. We will look at these bases in turn.

C2.3.1  The Judge adopted the wrong standard of scrutiny

123.  This basis relates to the standard of scrutiny that the court is to adopt in the balancing exercise under the proportionality assessment of the 4-step justification test.

124.  Before we deal with contentions raised by Mr Chan under this basis, it is useful to remind us the principles laid down by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 relating to the standard scrutiny as follows (per Ribeiro PJ):

“[106] In principle, the choice of the standard for the Court’s intervention depends on the extent of the appropriate margin of discretion, determined by factors which affect the proportionality analysis in the circumstances of the particular case. In cases calling for a wide margin of discretion, the ‘manifest’ threshold may well be apposite, whereas cases admitting of a narrow or no margin of discretion are more appropriately analysed on the basis of ‘reasonable necessity’. Which standard or threshold to choose therefore depends on the appropriate width of the margin.

[107] As we have seen, in the ECtHR context the scope of the margin of appreciation is held to vary according to the context with a number of factors being relevant. The same applies in domestic cases where such factors principally relate to (i) the significance of and degree of interference with the right in question; and (ii) the identity of the decision-maker as well as the nature and features of the encroaching measure relevant to setting the margin of discretion.

[108] A theme of the foregoing discussion has been the inter‑related and inter-dependent qualities of the various elements of a proportionality analysis. While there would be no point in attempting to construct a formal hierarchy of constitutional rights, a sliding scale has been recognized in which the cogency of the justification required for interfering with a particular right will be proportionate to the perceived importance of that right and the extent of the interference.

...

[119] It should be noted that the difference between the two standards is one of degree. Once it is recognized that the former threshold is a standard of reasonable necessity, it becomes clear that it is located on the same ‘reasonableness’ spectrum as the standard which asks whether a measure is ‘manifestly without reasonable foundation’. That may be why that phrase is sometimes referred to in the authorities as a measure of the ‘intensity’ of judicial scrutiny rather than as a ‘standard’.

...

[122] It is perhaps worth re-iterating that while for the purposes of elucidation, two differently named standards are referred to: ‘reasonable necessity’ and ‘manifestly without reasonable foundation’, they indicate positions on a continuous spectrum rather than wholly independent concepts.” (emphasis added)

125.  In other words, for the purpose of proportionality assessment, the court will adopt a holistic approach by taking into account all the relevant factors in each particular case to determine what should be the appropriate level of review that should be adopted within the sliding scale of reasonableness, with one end being the standard of “reasonable necessity” (the highest level of scrutiny) and the other end “manifestly without reasonable foundation” (the lowest level).

126.  Before the Judge, the HA contended that the court should adopt a standard at the “manifestly without reasonable foundation” end of the spectrum. On the other hand, the applicants advocated that the standard to be adopted should be at the other end of the spectrum of “reasonable necessity”.

127.  After considering the principles set out in Hysan and other relevant authorities[58], and taking into account the specific circumstances of the present cases that the discriminatory differential treatment was based on the core personal value of sexual orientation while at the same time the context related to the allocation of scarce public housing recourses, the Judge decided that the standard of review that should be adopted should be somewhere in between the middle and high end of the continuous spectrum of reasonableness. See [43] ‑ [44] of the PRH Judgment and [62] ‑ [66] of the HOS Judgment.

128.  Mr Chan argues that the Judge’s said adoption of the level of scrutiny is flawed in principle because:

(1)  Any stricter justificatory test should yield to the “manifest” test in discriminatory cases based on protected characteristics in the public benefits context[59]. This is particularly so when the public benefit considerations involved related to public / subsidized housing which are multifactorial policy judgments relating to scarce public resources, as accepted by the Judge at [44] of PRH Judgment.[60]

(2)  In this respect, the “manifest” approach is particularly apt here given the exceptionally stark situation of PRH / HOS availability. As the Judge further accepted[61], compared with QT and Leung Chun Kwong, the Infinger case features “highly scarce public resources” and “particularly acute socio‑economic considerations which the government is undoubtedly in the much better position that [sic] the court to assess”. Mr Chan says the same can also be said of the HOS resources, relying on the purported indirect effect of the HOS Spousal Policy on dampening eligible same-sex partners’ intention to purchase HOS flat in the first place.

129.  We are not persuaded by these arguments.

130.  As pointed out by Mr Parker and Mr Pao, in Hong Kong, the Court of Final Appeal has repeatedly emphasized that when core values relating to personal or human characteristics are involved, such as sexual orientation in the present case, a socio-economic policy is still subject to the court’s vigilant scrutiny by the more stringent standard of “no more than necessary”. Thus, Chief Justice Ma in Fok Chun Wa (a case involving the availability of public health benefit) said at [77] and [78]:

“77. It is, however, important to put what has just been discussed into proper perspective. The proposition that the courts will allow more leeway when socio-economic policies are involved, does not lead to the consequence that they will not be vigilant when it is appropriate to do so or that the authorities have some sort of carte blanche. After all, the courts have the ultimate responsibility of determining whether acts are constitutional or lawful. It would be appropriate for the courts to intervene (indeed they would be duty-bound to do so) where, even in the area of socio-economic or other government policies, there has been any disregard for core-values. This requires a little elaboration. Where, for example, the reason for unequal treatment strikes at the heart of core-values relating to personal or human characteristics (such as race, colour, gender, sexual orientation, religion, politics, or social origin), the courts would extremely rarely (if at all) find this acceptable. These characteristics involve the respect and dignity that society accords to a human being. They are fundamental societal values. On the other hand, where other characteristics or status which do not relate to such notions or values are involved, and here I would include residence status, the courts will hesitate much more before interfering; in other words, more leeway is given to the executive, legislature or other authorities. I have found useful in this context the analysis contained in the speech of Lord Hoffmann in Carson, 182E-183B [15]-[16]. As Lord Hoffmann observed, there can of course be borderline cases but generally there ought to be little difficulty in differentiating between a core value and a mere question of general, social or economic policy: at 183C [17]. In the present case, using residence status as the dividing line in relation to health benefits clearly falls within the latter. This status has less to do with personal characteristics (in the sense used above) than with social and economic considerations.

78. Where core values relating to personal characteristics are involved, the court will naturally subject the relevant legislation or decision to a particularly severe scrutiny. Lord Pannick QC (for the respondents) used the term ‘inherently invidious’ to describe any decision which offended these core values. While I would, for myself, not have used this expression, it nevertheless conveys the necessary sentiment.” (emphasis added)

131.  This approach has been repeatedly adopted by the Court of Final Appeal in QT at [108] ‑ [109] and Leung Chun Kwong at [79].

132.  Both QT and Leung Chun Kwong involved areas of policy where the government has a wide margin of appreciation or where there was allocation of housing and other benefits in an employment context. In QT, it was immigration – an area where the government has unparalleled discretion due to the exigencies and circumstances of Hong Kong. Leung Chun Kwong was concerned with housing (and medical care) benefits under the Civil Service Regulations.

133.  Despite these circumstances, in both cases the CFA confirmed that if the differential treatment was based on the suspect ground of sexual orientation, the Government’s margin of discretion was much narrowed and the court would subject the impugned measure to “particularly severe scrutiny” of the “reasonable necessity” standard.

134.  In this respect, Mr Chan has emphasized that QT and Leung Chun Kwong can be distinguished as they do not deal with circumstances where, like in the present case, scarce public resources are involved. However, it must be noted that the Judge was fully aware of this distinction as raised by Mr Chan (see [44] in PRH Judgment and [65] in the HOS Judgment). It was only after giving full effect to this special context in the present cases, and balancing that against the more stringent standard of scrutiny that the court should adopt in cases where personal core values are infringed, the Judge decided that the appropriate standard of review should be somewhere between the middle and high end of the intensity of review in the continuous spectrum of reasonableness (see [44] in the PRH Judgment and [66] in the HOS Judgment). Given the Court of Final Appeal’s repeated emphasis that the court should subject a discriminatory policy which infringes on personal core values to a stringent scrutiny, the Judge’s said approach and conclusion are entirely consistent with the established principle summarized at [124] and [125] above and cannot be faulted. Mr Chan’s above criticisms of the Judge’s approach are simply not established.

135.  Further and in any event, this basis of appeal is academic and irrelevant as the Judge had made it clear that, even if he was to adopt the “manifestly without reasonable foundation” standard of review, he would have arrived at the same conclusion and found that the differential treatment under the Spousal Policies is not a proportionate (and thus justified) means of achieving the Family Aim. See [51(3)] of the PRH Judgment and [71] ‑ [74] of the HOS Judgment.

136.  There is therefore nothing in this basis of appeal.

C2.3.2  The Judge failed to give due effect to BL36, 37 (and BOR19) and 145

137.  Under this basis, Mr Chan’s fundamental complaint is that the Judge had failed to give “heavy weight” to the constitutional provisions of BL36, 37 and 145 in his balancing exercise.

138.  In relation to similar contentions based on these provisions made in the context of what standard of scrutiny that the court should adopt in these judicial reviews, the Judge first dealt with these at [47] ‑ [50] in the PRH Judgment as follows:

“47. Fifth, Mr Chan argues that the ‘protection of the family in the traditional sense’ is a ‘weighty and legitimate reason’ for a difference in treatment, relying on the statement of the European Court of Human Rights in Kozak v Poland (2010) 51 EHRR 16, at §98. That case concerned discrimination based on sexual orientation in the context of the right to succeed to a municipality flat which had previously been rented to the deceased partner of the applicant. The European Court of Human Rights went on to state, at §99, that ‘having regard to the state’s narrow margin of appreciation in adopting measures that result in a difference based on sexual orientation, a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy cannot be accepted by the Court as necessary for the protection of the family viewed in the traditional sense’. It seems clear, therefore, that notwithstanding the weighty consideration that should be accorded to the protection of the traditional family, the European Court of Human Rights continued to adopt a high standard of review in that case involving discrimination based on sexual orientation.

48. Sixth, Mr Chan prays in aid BL 145, which imposes an obligation, and prerogative, upon the Government to ‘formulate policies on the development and improvement of [the social welfare system] in light of the economic conditions and social needs’. The ability of the Government to formulate policies is respect of the social welfare system is respected, but it cannot seriously be argued that this article of the Basic Law authorizes the Government to pursue an unlawful or discriminatory policy.

49. Lastly, Mr Chan makes the point that any entitlement of the Applicant to social welfare is not absolute under BL 36 and 145, but is inextricably bound and subject to other socio‑economic considerations. It is undoubtedly true that entitlement to social welfare is not absolute under our system. However, this is case is not about whether the Applicant has any absolute right to social welfare. This case is about whether the Housing Authority, having established a scheme for PRH, has introduced a policy for determining eligibility thereunder which is discriminatory and thus unlawful.

50. Returning to the case of justification advanced by Mr Chan on behalf of the Housing Authority, there can, of course, be no quarrel with the declared aim of fair and rational allocation of the scarce PRH resources, or the proposition that some lines must be drawn to determine eligibility for PRH. The question is whether the line which has been drawn is fair, reasonable and lawful.” (emphasis added)

139.  The Judge then adopted the same approach in the HOS Judgment at [64(4)]:

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

140.  Mr Chan submits that the Judge had erred in the following ways in relation to the failure to accord heavy weight to BL37:

(1)  A constitutional right is engaged when its exercise is substantially impeded as a matter of substance, not form: Interush Ltd v Commissioner of Police [2019] 1 HKLRD 892 at [6.3(1)].

(2)  It having been recognised in the PRH Judgment that “knowledge that adequate housing would be available could have a positive impact on the marriage plans of heterosexual unmarried couples as well as on the plans of heterosexual married couples to have and raise children” emphasis added ([51(2)]), the necessary corollary is that restricting housing supply (by broadening the categories of eligible applicants competing in the same pool) may negatively impact / influence such plans.

(3)  It follows that the constitutional rights of opposite-sex couples are indirectly engaged in at least three ways, each of which must be closely factored in assessing whether it is appropriate to strike down the Spousal Policies in favour of the applicants’ alleged constitutional rights:

(a)  The BL37 / BOR19 right to enter into marriage of presently unmarried opposite-sex couples.

(b)  The BL37 / BOR19 right of existing married opposite‑sex couples to raise children.

(c)  The BL37 / BOR19 right of married opposite-sex couples to “live together”, which as noted in UNHRC General Comment No 19 (1990) on ICCPR 23 is implicit in the right to found a family.

(4)  Even without the constitutional equivalent of BL37, the European context recognises that a governmental policy aim of protecting traditional family formation is legitimate and “weighty” (see for example the European Court of Human Rights in Kozak at [98]; PRH Judgment at [47]). It follows a fortiori that the Hong Kong constitutional aim of protecting traditional family carries very substantial if not decisive weight in the proportionality assessment.

(5)  Viewing matters from another critical constitutional perspective, interference with the constitutional rights of opposite-sex couples under BL37 and also BL36 is itself subject to proportionality considerations. Such a conflict of rights compels a “double-proportionality” assessment.[62]

141.  There is nothing in these contentions.

142.  Plainly, the Judge indeed accepted that “weighty consideration” should be given to the aim of protecting traditional family (which Mr Chan says is underlined by BL37) in the relevant balancing exercise (see [47] in the PRH Judgment and [64(4)] of the HOS Judgment). Despite that, the Judge came to the conclusion that the discrimination under the Spousal Polices was not justified. In the premises, the complaint made under this basis that the Judge had failed to give “heavy weight” to this factor is simply not made out. In this respect, we do not understand Mr Chan to be saying that this factor alone is so “decisive” that it would “trump” all other factors in the balancing exercise. But if that was indeed what Mr Chan intended to contend, we would reject it without hesitation for the reason that it is not supported by any authority nor is this correct as a matter of principle.

143.  Insofar as BL36 and BL145 are concerned, Mr Chan’s contentions run as follows:

(1)  The judge further wrongly rejected the relevance and importance of BL145 to the proportionality question in PRH Judgment at [48] ‑ [49]). His very brief consideration of BL145 rests on a fundamentally unsound footing is plain from the last sentence of [48], which (a) puts cart before horse in assuming that the differential treatment is unlawfully discriminatory; and (b) does not take into account BL36, which crystallised the differential treatment of married spouses as an eligible category at a constitutional level.

(2)  The preferential treatment accorded by the HA to traditional families constituted by opposite-sex marriages clearly falls within the realm of the BL145 governmental prerogative to “formulate policies on the development and improvement of the [social welfare system] in the light of the economic conditions and social needs”.

(3)  In the present cases, the right to social welfare under BL36 read with BL145 is directly and substantially engaged in the present context in the form of the entitlement of opposite‑sexual spouses to apply for PRH in accordance with the eligibility criteria existing as at 1 July 1997. The proposal in the PRH Judicial Review to strike down the PRH Spousal Policy would therefore indeed substantially interfere with constitutional rights of opposite-sex couples.

(4)  In the HOS case, although the HOS Spousal Policy is not concerned with initial HOS allocation, denial of eligibility to same-sex couples because of its application under the Addition and Transfer Policies is likely to reduce the number of overall applications for HOS flats, meaning that more HOS flats may potentially be enjoyed by opposite-sex couples (if not also other categories of eligible persons). It follows that extending eligibility to same-sex couples under the Addition and Transfer Policies would also impede opposite-sex couples’ right to apply for HOS under BL36.

(5)  Any interference with or displacement of the BL36 right must itself be justified as proportionate: Choi King Fung at [43]. Yet the proportionality of such interference is not at all shown, particularly if the judge’s evidential requirements for showing proportionality between ends and means are upheld. This sounds critically against the applicants’ stance, whether considered within the framework of double-proportionality analysis or simply as a counterweight factor in the global assessment of whether any interference with the applicants’ constitutional rights is proportionate and justified in all the circumstances.

144.  We will also reject this complaint. As we have concluded above, the BL36 right is not engaged in the present challenges. There is therefore no question that any weight, let alone heavy weight, should be accorded to this factor in the balancing exercise. In this respect, it is pertinent to note that, as mentioned above, the Judge in his assessment exercise had already paid specific regard to the fact that the present cases involved the allocation of scarce public housing resources.

C2.3.3  The Judge’s flawed and inconsistent evidential approach

145.  This basis of appeal relates to the Judge’s conclusion at the 3^rd step of the justification test that the HA has failed to provide evidence to show that the differential treatment is a proportionate measure to achieve the Family Aim. The Judge explained this at [51(3)] of the PRH Judgment as follows:

“In relation to the 3^rd step of the justification test, there is a dearth of evidence on the effect or impact of the differential treatment under the Spousal Policy on the advancement of the Family Aim. There is no, or no reliable, evidence on the number of same-sex married couples in Hong Kong who can satisfy the general eligibility criteria under §2.1 of the Application Guide, or how many of them may apply for PRH as Ordinary Families but for the Spousal Policy. The Housing Authority has also failed to provide any impact analysis based on raw data or (in their absence) reasonable models and assumptions, of by how much the AWT may be lengthened if same-sex married couples in Hong Kong are permitted to apply for PRH as Ordinary Families. There is, I consider, no or no sufficient materials before the court which would permit it to conclude that the Spousal Policy makes any significant or real difference to the overall availability of PRH to traditional families constituted by heterosexual marriage, or unmarried couples intending to form traditional families, who are in need of such form of housing. Applying the appropriate standard or intensity of review referred to §44 above, I am not satisfied that the differential treatment under the Spousal Policy is a proportionate means of achieving the Family Aim. I should add that I would reach the same conclusion even if the appropriate standard of review should be that of ‘manifestly without reasonable foundation’.” (emphasis added)

146.  The Judge also explained the same at [67] ‑ [71] of the HOS Judgment (footnotes omitted) as follows:

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

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

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

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

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

147.  In challenging the Judge’s said holdings, Mr Chan in essence submits that, for the following reasons, the Judge’s insistence on statistical, quantitative or other empirical evidence is not a proper exercise of the court’s supervisory review function in the context at hand:

(1)  The extent to which evidence is needed to support a justification depends on the nature of the justification itself, for example whether it is based on “intuitive common sense”[63]. As Lords Neuberger and Dyson noted in Beghal v DPP [2016] AC 88 at [76], the proportionality test does not require positive justificatory evidence in every case, and the court must be attentive “to the realities of the case in question”.

(2)  However, in both cases, the Spousal Policies and the Family Aim are based on:

(a)  essentially unquantifiable normative value judgments as to the type of marital institution (or indeed any form of social attachment) the HA should privilege for PRH / HOS distribution, having regard to the government’s broader policies (PRH Judgment at [37(4)]);

(b)  broad socio-economic considerations on which “firm factual conclusions are elusive”[64]; and

(c)  intuitive common sense and logic.

(3)  In such a context, insisting on statistical evidence or empirical data is inapposite and inconsistent with multiple decisions of the higher courts of Hong Kong and England.

148.  Mr Chan has made lengthy submissions in support of the above contentions[65]. But in substance, counsel’s principal underlying argument is that, given that the supply of PRH and HOS units is a zero‑sum game, it is simple logic and common sense that if the Spousal Policies are changed to include the same-sex couples, there will be a corresponding reduction of the number of units available to the opposite-sex couples. The said impact and consequences do not require evidence or empirical materials to support or prove. In this respect, Mr Chan emphasizes that there is no suggestion whatsoever that the number of same-sex couples who will satisfy the general criteria for the application of PRH or HOS units is so negligible that the availability of the units to the opposite-sex couples that will be reduced is also negligible. The latter’s right is therefore clearly and materially affected  Mr Chan further says the Judge had failed to appreciate that the Spousal Policies’ long-term impact or contribution towards the Family Aim involves highly “predicative or judgmental” elements “as to which no single ‘right answer exists’”, and for which an even wider margin of discretion is to be given to the HA[66].

149.  In the premises and in the present context, Mr Chan contends, the Judge erred in holding that the HA had provided no or no sufficient materials before the court to show that the Spousal Policies made any significant or real difference to the overall availability of PRH or HOS units to traditional families.

150.  Mr Chan seeks to further underline the above arguments by saying that the Judge’s flawed evidential approach and assessment is most acute in the PRH case: having recognised that the differential treatment there rationally connects to all aspects of the Family Aim (PRH Judgment at [51(2)]), it was inconsistent and wrong in principle for the judge to then find there were “no or no sufficient materials” permitting the conclusion that the policy “makes any significant or real difference to the overall availability of PRH to traditional families constituted by opposite-sexual marriage, or unmarried couples intending to form traditional families, who are in need of such form of housing” (PRH Judgment at [51(3)]). Counsel submits that it is not for the court to opine on whether the difference that would be made is “significant” (PRH Judgment at [51(3)]) to the HA’s legitimate policy concerns. The Judge was indeed wholly unclear as to what constitutes a “significant or real difference” in terms of the HA’s or the government’s own housing policy prerogatives, or the needy traditional families whose PRH access is necessarily de-prioritised absent the PRH Spousal Policy. Mr Chan emphasizes that the question by nature goes beyond purely objective or empirical matters but requires a value judgment. That is for the HA.

151.  By these lights, Mr Chan says, none of the types of evidence required by the Judge to “permit” (PRH Judgment at [51(3)]) a conclusion in favour of the HA are necessary, but in any event there are in fact ample factual and rational grounds to support the conclusion that the prioritisation of opposite-sex spouses in PRH allocation would likely support or enhance the Family Aim – or at the least that it was well within the HA’s margin of judgment to come to that view.

152.  There are no merits in these arguments.

153.  First, the 3^rd step of the justification test requires the court to carry out an assessment to see whether the impugned differential treatment is a proportionate measure to achieve the legitimate aim. That will invariably require the court to form a view as to whether the respective differences in impact on achieving that aim with and without the impugned measure is significant in order to see if there is the requisite proportionality. This is usually a quantitative and not just qualitative assessment. Mr Chan’s contention that it is not for the court to opine on whether the difference made is “significant” cannot be right.

154.  Second, as Mr Chan himself submits, whether evidence is required in the 3^rd step is case specific and context dependent. In the present case, the differential discriminatory treatment in the PRH Spousal Policy to entirely deprive same-sex couples’ entitlement to apply for shared PRH units is based on sexual orientation. In adopting a closer scrutiny as to whether the said measure is a proportionate one to achieve the Family Aim by purportedly increasing the number of shared PRH units available to opposite-sex couples, it must be legitimate for the court to see at least on a ball-park figure basis the extent or scale of the purported increase. The zero-sum logic as advanced by the HA alone will not be able to assist the court to form a view on that. It is only with the application of that logic to the evidence or materials on the number of same-sex couples who will be excluded to apply for shared PRH units by reason of the differential treatment that the court can see the potential increase in the number of shared PRH units that will be made available to opposite-sex couples.

155.  These reasons apply with even greater force in the HOS Judicial Review, given the asserted more remote and indirect effect of the HOS Spousal Policy in achieving the third facet of the Family Aim.

156.  In the premises, the Judge was plainly correct to hold that the HA had failed to demonstrate by evidence that the differential treatment under the Spousal Policies is proportionate to achieve the Family Aim.

157.  Mr Chan has further sought to raise a number of subsidiary contentions to say why the Judge was wrong in principle. We will deal with them briefly.

158.  Mr Chan points out that the Judge himself accepted that the inclusion of same-sex spouses in the PRH Spousal Policy will also impact on unmarried opposite-sex couples presently ineligible couple for PRH but (a) whose marriage plans are influenced by housing availability, or (b) whose plans to have children are influenced by housing availability. This added impact, says Mr Chan, which is supported by evidence[67], means that the inclusion of same-sex couples in the PRH Spousal Policy may in fact have more than a mirrored exclusionary impact on traditional families.

159.  Mr Chan then submits that the Judge could not consistently apply his own evidential standards to other important aspects of the proportionality assessment. On his approach:

(1)  There would likewise have been a “dearth of evidence” to show the alleged adverse impact upon the rights or interests of opposite-sex couples, or for that matter any benefits to same-sex couples as a group that might come with quashing the impugned policies.

(2)  Applying the Judge’s own reasoning and absent empirical evidence of the kind demanded of the HA, there is likewise no discernible basis on which the judge could properly find that the PRH Spousal Policy has, as a matter of objectively verifiable fact, resulted systemically in “an unacceptably harsh burden on same sex couples lawfully married overseas” (PRH Judgment at [51(4)]).

160.  There is also nothing in these submissions.

161.  As to (1), given that the differential treatment is discriminatory, it is for the HA to justify it as to why it is proportionate to achieve the Family Aim. It is not necessary for the applicants to show by evidence what benefits they would have as a group in quashing the policies.

162.  As to (2), [51(4)] of the PRH Judgment is in relation to step 4 of the justification test, which relates to the position where the HA had already satisfied step 3, in that, even without evidence, the court accepted that the differential treatment was a proportionate means to achieve the Family Aim. On that basis, it would then be entirely open to the Judge to rely on the undisputed effect of the PRH Spousal Policy in absolutely disentitling same-sex couples’ eligibility to apply for shared PRH units to find that to be “an unacceptably harsh burden on same-sex couples lawfully married overseas”. As Ribeiro PJ observed at [78] of Hysan, the 4^th step requires the court to make a “value judgment” as to whether the impugned measure, despite having satisfied the first three requirements, operates on particular individuals with such “oppressive unfairness” that it cannot be regarded as a proportionate means of achieving the legitimate aim in question.

163.  Lastly, Mr Chan argues that the suggestion by the applicants[68] that a heightened standard of scrutiny should apply because the Family Aim is an ex post facto justification is unsound. The Family Aim is presently expressly endorsed by the HA as the basis for maintaining the Spousal Policies.[69]  It is in other words a present and continuing justification for an extant policy.

164.  This is neither here nor there as this does not impact on the reasons set out at [130] ‑ [135] above.

165.  For all these reasons, we also reject this basis of appeal.

C2.3.4  The Judge erred on the justificatory burden for indirect discrimination

166.  Before the Judge, the HA submitted that as the Spousal Policies involved only indirect discrimination on the prohibited ground, less weighty justification would be required to be shown by it to support the differential treatment. The HA relies on the authorities of Burnip v Birmingham City Council [2012] EWCA Civ 629, at [28] and Humphreys (SCT), at [19] to support this proposition. This was rejected by the Judge for these reasons:

(1)  In the PRH Judgment at [45] ‑ [46]:

“45. Fourth, Mr Chan argues that comparatively less weighty justifications will be required in cases of indirect rather than direct discrimination. Two cases are relied upon by Mr Chan: Burnip v Birmingham City Council [2012] EWCA Civ 629, at §28; and Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545, at §19. Neither case concerned discrimination based on sexual orientation.

(1) Burnip concerned a case of discrimination on grounds of congenital disability in the context of housing benefits. At §28 of the judgment, Henderson J accepted that congenital disabilities of the kind suffered by the applicants in that case might in principle fall within the category of grounds for discrimination which could be justified only by very weighty reasons, but drew a distinction between (i) a case of ‘positive discrimination’, where weighty reasons might well be needed for justification, and (ii) ‘cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue’, where the proportionality review should be made by reference to the usual standard instead of an enhanced standard.

(2) Humphreys concerned a case of discrimination on grounds of sex in the context of tax benefits. Baroness Hale of Richmond, JSC (with whom the other members of the Supreme Court agreed) stated at §19 of her judgment that: ‘It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without reasonable foundation’ test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in the Stec and Runkee cases, they must, as the Court of Appeal observed, at para 50, apply a fortiori to the indirect sex discrimination with which we are concerned.’ At §22, Baroness Hale further stated: ‘the fact that the test is less stringent than the “weighty reasons” normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny. On analysis, it may indeed lack a reasonable basis.’

46. Two observations may be made:

(1) While Burnip does provide some support to the proposition advanced by Mr Chan, Humphreys, properly read, is less clear. In any event, I do not accept, as a matter of principle, that less weighty justification, or a lower standard or intensity of review, should be applied in a case of indirect discrimination. Most discrimination cases that have found their way to this court involve indirect, as opposed to positive or direct, discrimination. The vice is, however, the same. There was also no suggestion in the judgment of the Court of Final Appeal in either QT or Leung Chun Kwong that the standard or intensity of review should vary depending on whether the discrimination was direct or indirect.

(2) In choosing the appropriate standard of review and the application of the appropriate standard in this case, two counterveiling considerations come into play: the differential treatment here is based on sexual orientation, but the policy choice is made in the context of allocation of highly scarce public resources. As earlier mentioned, both considerations should be given proper weight and taken into account when deciding whether the relevant policy is justified.”

(2)  In the HOS Judgment at [64(5)]:

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

167.  Mr Chan says the Judge had erred in his analysis. Counsel’s principal submissions are that there are various authorities in support of the HA’s above proposition and the Judge was wrong in concluding otherwise:

(1)  As acknowledged in PRH Judgment at [46], Burnip does “provide some support to the proposition” that less weighty justification (or intensity of review) is required in such circumstances. But the Judge then wrongly held that Humphreys (SCT) [19] “is less clear”. Mr Chan submits that Baroness Hale’s observation at Humphreys (SCT) [19] is directly on point, and affirms the Court of Appeal’s identical observation in Humphreys v Revenue and Customs Commissioners [2010] EWCA Civ 56 (“Humphreys (CA)”) at [50] that: “In the context of a general measure of social policy…the fact that the discrimination is on the ground of sex does not appear of itself to require the court to apply a more intensive scrutiny. That must be true a fortiori where, as here, the discrimination is indirect rather than direct.”

(2)  Humphreys (CA) was applied in Stewart v the Secretary of State for Work and Pensions [2011] EWCA Civ 907 at [24], again in clear terms: “the judiciary should accord the legislature or the executive a wide margin of appreciation or discretion when considering discrimination in the arena of social policy... The discretion to be accorded to the legislature or executive is especially wide where the discrimination is indirect rather than direct.”

(3)  In relation to the Judge’s observations in the HOS Judgment at [64(5)], Mr Chan argues that Lady Hale’s observation in Rodriguez sheds no light on the issue. While noting that indirect discrimination may in a given instance come close to direct discrimination, Lady Hale did not address the weight of justification required for each type of discrimination.

(4)  In this respect, Mr Chan further draws our attention to the recent judgment in R (SC) (concerning a two child policy for the enjoyment of a social welfare benefit), where the UK Supreme Court rightly at [162] warned that, because it is very easy to formulate a challenge by way of indirect discrimination, “such cases present a risk of undue interference by the courts in the sphere of political choices”.

168.  Further, Mr Chan says this proposition is also consistent with the fact that there is usually a sharp distinction drawn in legislation between direct and indirect discrimination. For example, in Hong Kong, under the various discrimination ordinances, indirect discrimination is capable of justification (hence inherently less objectionable than direct discrimination) but not direct discrimination.

169.  We are unable to accept Mr Chan’s submissions.

170.  The authorities relied upon by Mr Chan are not laying down a general principle of law that whenever the complained differential treatment is an indirect but not direct discrimination, a less weighty justification is required or that the court should adopt a lower standard of review. We do not think Mr Chan is indeed advocating that.

171.  In the circumstances, what the authorities are saying, taking it to the highest for the HA, is that indirect discrimination is one of the material factors that the court should take into account in determining at what point on the sliding scale the standard of review should be adopted and whether the justification provided is sufficient by reference to the particular circumstances of each case. This is particularly so since, as submitted by Mr Parker, the distinction between direct and indirect discrimination is sometimes not clear and “by no means easy to draw”: Preddy v Bull [2013] 1 WLR 3741 at [16] per Baroness Hale.

172.  In the premises, in the right circumstances and context which involve even cases of indirect discrimination (such as where the differential treatment is based on the core personal value of sexual orientation), the court will still apply a more stringent standard of review. Thus:

(1)  In QT and Leung Chun Kwong, which are both indirect discrimination cases, the court still applied the reasonable necessity standard in each of them.

(2)  In Rodriguez, Lady Hale said at [19]:

“19 In this case we have a clear difference in treatment but not such an obvious difference between the appellant and others with whom she seeks to compare herself. The appellant and her partner have been denied a joint tenancy in circumstances where others would have been granted one. They are all family members living together who wish to preserve the security of their homes should one of them die. The difference in treatment is not directly on account of their sexual orientation, because there are other unmarried couples who would also be denied a joint tenancy. But even if, as Dudley J found, these are the proper comparator, the effect of the policy upon this couple is more severe than on them. It is also more severe than in most cases of indirect discrimination, where the criterion imposed has a disparate impact upon different groups. In this case, the criterion is one which this couple, unlike other unmarried couples, will never be able to meet. They will never be able to get married or to have children in common. And that is because of their sexual orientation. Thus it is a form of indirect discrimination which comes as close as it can to direct discrimination. Indeed, Mr Singh puts this as a Thlimmenos case: they are being treated in the same way as other unmarried couples despite the fact that they cannot marry or have children in common. As Ackermann J put it in the South African Constitutional Court decision in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [2000] 4 LRC 292, at para 54, the impact of this denial ‘constitutes a crass, blunt, cruel and serious invasion of their dignity’.” (emphasis added)

(3)  In R (SC) v Work and Pensions Secretary [2021] 3 WLR 428, Lord Reed PSC observed at [145]:

“145 In domestic law, as at the Strasbourg level, one would expect closer scrutiny where the case concerns discrimination on a ground such as sex or race, rather than a difference in treatment on less sensitive grounds, especially if it is simply a by-product of a legitimate policy. Distinctions drawn on ‘suspect’ grounds are inherently appropriate for close judicial scrutiny, notwithstanding the respect due to the judgment of the executive or the legislature.” (emphasis added)

173.  As submitted by Mr Pao (and as rightly held by the Judge), these cases confirm that the differential treatment in the present cases is a more severe form of indirect discrimination than most cases because the criterion is one which same-sex couples can never meet. They thus are akin to direct discrimination cases and are worthy of greater justification. Here, given the HA’s submission on the indirect effect of the HOS Spousal Policy in deterring same-sex partners in purchasing a HOS unit in the first place, the HA in substance admits that its policy specifically targeted same‑sex couples for “deterrence”. This was a form of targeted and direct discrimination or at best the “more severe form of indirect discrimination” described by Lady Hale. The Judge’s adoption of a higher standard of review in the present cases is in line with the principle and is clearly correct.

174.  This basis of appeal is without merit and must be rejected.

C2.3.5  The Judge erred in rejecting policy coherence consideration in the HOS Judgment

175.  This basis relates only to the HOS Judgment. In the court below, the HA relied on coherence consideration as one of the bases to justify the HOS Spousal Policy. The gist of the contention is this: the HA also maintains a policy not to allow same-sex couples to apply as husband and wife to purchase a HOS flat (“the HOS Spousal Purchase Policy”), and this policy is not under challenge in the HOS Judicial Review. In the premises, if the HOS Spousal Policy is allowed to be challenged on discrimination ground, it would effectively defeat the effect of the lawful HOS Spousal Purchase Policy by way of a backdoor. That cannot be right. There is therefore a need or desirability of construing the two policies (ie, the HOS Spousal Purchase Policy and the HOS Spousal Policy) coherently, and in so doing, the court should also accord a due recognition of discretion to the HA as policymaker (see [63(3)] of the HOS Judgment).

176.  The Judge rejected this contention at [64(3)] of the HOS Judgment because “it begs the question of whether such policy [the HOS Spousal Purchase Policy] also constitutes unlawful discrimination based on sexual orientation”.

177.  Mr Chan submits that the Judge erred in this since:

(1)  As the UK Supreme Court recently reiterated in R (Elan‑Cane) v SSHD [2021] UKSC 56 at [34], [43], [51] ‑ [54], [62], the overall coherence of administrative practices both within the same overall public context and systems and between such contexts and systems is an important factor in assessing the proportionality of an administrative policy.

(2)  The HOS Spousal Policy must be consistent with the definition of “spouse” as husband and wife for the purposes of eligibility to purchase HOS flats. To quash the HOS Spousal Policy would wholly undermine the unchallenged policy that same-sex married couples cannot apply for HOS flats together, either under the Green Form or White Form. It would create a loophole by which same-sex couples could access HOS resources by having one partner apply for an HOS flat as an individual, then later adding the other “spouse” as an authorised occupant and transferring ownership to him, subverting the policy objectives of prioritising traditional families in acquiring HOS flats.

178.  There is nothing in this argument. The underlying fundamental proposition of the HA’s submission is that the HOS Spousal Purchase Policy must be regarded as lawful and constitutional because the applicant has not sought to challenge it in the HOS Judicial Review. That, however, is incorrect. As Mr Pao has submitted at the hearing, the facts of the case related only to the Transfer and Addition Policies. The HOS Spousal Purchase Policy did not concern and affect the applicant. It was therefore not necessary for him to challenge that policy, in particular when it might also be debatable as to whether he had the proper locus to challenge that policy. In the premises, the mere fact that the HOS Spousal Purchase Policy was not subject to challenge in the HOS Judicial Review does not mean, as submitted by Mr Chan, that that Policy must be regarded (or accepted by the applicant) as lawful and constitutional. The Judge’s observation at [64(3)] is plainly justified and he was correct not to accept the coherence argument.

C2.3.6  The Judge’s failure to uphold the administrative justification in the PRH Judgment

179.  Before the Judge, the HA also sought to justify the PRH Spousal Policy on the basis of administrative effectiveness in implementing it. The Judge rejected this at [52] ‑ [53] of the PRH Judgment for these reasons (footnote omitted):

“52. If, as I consider it to be the case, the Spousal Policy cannot be justified as a measure in the pursuit of the Family Aim, it plainly cannot be justified as a measure to ensure the administrative effectiveness in implementing the Housing Authority’s PRH policy, which is to address the housing needs of low-income families. There is no reason to believe that low‑income families constituted by same-sex couples have any lesser need for housing than low-income families constituted by opposite-sex couples without children. In any event, I am unable to see why it would be more administratively inconvenient or difficult to verify the validity or genuineness of a foreign same-sex marriage when compared to a foreign opposite-sex marriage. I am also not impressed by the argument that ‘there are differing, complicated, and rapidly evolving concepts of same-sex marriage and civil partnership/union across various foreign jurisdictions, including those … involving substantially different legal and governmental systems than those of Hong Kong’. Any case of genuine difficulty can be investigated and resolved on a case by case basis in accordance with the Housing Authority’s existing mechanism or procedure for verification of the validity or genuineness of an opposite-sex marriage. I would add that the present case only concerns a foreign, monogamous, same-sex marriage. Other than the fact that the Applicant’s marriage with the Partner are between two persons of the same sex, the Housing Authority has not been able to point to any difference between their marriage and other foreign opposite-sex marriages which it would accept for the purpose meeting the eligibility criterion under §2.3.3 of the Application Guide. The question of whether the court should reach the same conclusion on the lawfulness of the differential treatment under the Spousal Policy in respect of other forms of union, such as civil partnership, does not arise for determination in this case.

53. While I would not completely rule out the possibility that administrative efficiency may justify a discriminatory measure, it would, I consider, require a very strong and clear case before the court would be driven to accept such a result, particularly where one is concerned with discrimination based on suspect grounds (such as sexual orientation). This is not such a case.” (emphasis added)

180.  Mr Chan now says, in holding that “any case of genuine difficulty can be investigated and resolved on a case by case basis in accordance with the Housing Authority’s existing mechanism or procedure for verification of the validity or genuineness of an opposite-sex marriage” (PRH Judgment at [52]), the Judge failed to properly understand and uphold the HA’s administrative justification.

181.  He submits that, contrary to the Judge’s understanding, the administrative concern is that, if same-sex marriage is also to be included in the spousal category of Ordinary Families, it would impose an excessive burden on the (already critically burdened) PRH administrative system to require assessments of whether any particular same-sex marriage or civil partnership from an overseas jurisdiction is sufficiently analogous to a traditional marriage as presently recognised under Hong Kong law. In this respect, Mr Chan reiterates that even a “genuine” foreign marriage need not be recognised if it is not sufficiently analogous to a traditional family in Hong Kong. Counsel says this particular aspect of the administrative concern of the HA has been made clear in the 3^rd Hui at paragraph 32 which states this:

“32. Given the apparent differences in the concepts and legal frameworks of same-sex marriage and civil partnership adopted overseas, it will be difficult if not impossible for the HKHA to assess which form of the same-sex marriage or civil partnership of a particular overseas jurisdiction is sufficiently analogous to a heterosexual marriage as presently recognised under Hong Kong law for the purpose of PRH allocation. Such assessments are particularly difficult and highly complicated when same-sex marriage is currently not legally recognised in Hong Kong, and where there is accordingly no or no clear consensus as to which concept and framework of same-sex marriage should be recognised in Hong Kong or otherwise regarded as sufficiently analogous to a heterosexual marriage recognised in Hong Kong. The fact that overseas same-sex married couples are able to produce certificates to demonstrate the characteristics of publicity and exclusivity in their marriage or civil partnership does not absolve the HKHA of its responsibility (an onerous one) to make such assessments.”

182.  Mr Chan then argues that the Judge also wrongly focused on Mr Infinger’s particular marriage with his same-sex partner when evaluating the administrative aim. The relevant plane of review in this case is systemic, not case-specific.

183.  There is also nothing in this complaint.

184.  First, there is no misunderstanding by the Judge as to the HA’s purported administrative efficiency concern. The Judge dealt with that at [52] (see parts emphasized in the above quote).

185.  Second and more pertinently, nothing that has been advanced by Mr Chan shows that the Judge’s said reasoning is wrong in principle or plainly wrong. Quite to the contrary, as rightly submitted by Mr Parker, the Judge’s conclusion and reasons are consistent with what the Court of Final Appeal has said respectively in QT and Leung Chun Kwong in rejecting a similar line of arguments.

186.  In QT at [94] ‑ [98], the Court of Final Appeal says:

“94. We turn next to the Director’s aim of facilitating the administration of immigration controls by laying down clear or bright lines to determine ‘which categories of person can be allowed into Hong Kong and on what conditions or restrictions’.

95. That it is helpful to have bright demarcating lines is acceptable as a general proposition but with the qualification that certain areas of administrative discretion do not lend themselves to being governed by hard-edged rules. Thus, for instance, as Lord Hoffmann held in Re G (Adoption: Unmarried Couple), the paramountcy of the interests of the child in an adoption case made it irrational to adopt any bright line test:

‘A bright line rule cannot be justified on the basis of the needs of administrative convenience or legal certainty, because the law requires the interests of each child to be examined on a case-by-case basis.’

96. That applies to some extent to the Policy. In putting forward the ‘bright line’ aim, the Director has in mind the convenience of drawing a demarcating line based on production of a marriage certificate. But the line is not quite so bright or simple since the conditions of eligibility include ‘reasonable proof of a genuine relationship between the applicant and the sponsor’, bogus marriages being a practical concern, and require evidence that ‘the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.’

97. But even purely at the level of convenience, QT and SS are just as conveniently able to produce their civil partnership certificate. Excluding them on the basis of administrative convenience is irrational.

98. More substantively, the rationality in question is not about the convenience of drawing of bright lines but about the rationality of the demarcation. We are back to the question of why the line is drawn, not how clearly it can be drawn. Thus, in James v Eastleigh Borough Council, the Council sought to justify its policy of free admission to a public swimming pool for women aged 60 and over while levying admission charges on men until they reached the age of 65, on the basis that it had acted with the best intentions and that it was administratively convenient to use pensionable ages as the criterion. That did not convince Lord Bridge of Harwich who stated:

‘The criterion of pensionable age was a convenient one to apply because it was readily verified by possession of a pension book or a bus pass. But the purity of the discriminator’s subjective motive, intention or reason for discriminating cannot save the criterion applied from the objective taint of discrimination on the ground of sex.’” (emphasis added)

187.  In Leung Chun Kwong at [76], the Court of Final Appeal also says:

“76. Nor is it necessary to restrict the spousal employment and tax benefits to those in an opposite-sex marriage as recognised under Hong Kong law in order to draw a ‘bright line’ in order to achieve administrative workability. As explained in Section D.3 above, the appellant in this case can demonstrate without any difficulty that he and Mr Adams are parties to a same-sex marriage having the characteristics of publicity as a formal marriage and exclusivity that distinguish it from a mere relationship. There is therefore no administrative difficulty posed by the appellant’s case and the ‘bright line’ argument provides no rational justification for upholding the Benefits Decision or the Tax Decision.” (emphasis added)

188.  The same reasoning is equally applicable to the present cases, and the Judge is therefore plainly correct in rejecting this argument. This ground therefore also fails.

C2.3.7  The Judge ought to have found justification in the PRH Judicial Review given the limited interference

189.  This appears to be a new argument advanced in this appeal in relation to the PRH Judicial Review. In gist, Mr Chan says that the interference of the same-sex couples’ constitutional right to equality by the PRH Spousal Policy is a limited one. As such, the differential treatment is easier to be justified. Counsel further explains this as follows.

190.  A more limited interference with constitutional rights is easier to justify: Hysan at [112] and [140]. The existence of alternatives to what is denied or limited by an impugned policy is also highly pertinent to justification: see eg, Cheung Tak Wing v Director of Administration [2020] 1 HKLRD 906 at [119] ‑ [141].

191.  Unlike QT, Leung Chun Kwong or other cases involving the complete denial of (non zero-sum) benefits like spousal visas and tax reduction / civil service perks, nothing in the PRH Spousal Policy prevents same-sex partners from seeking PRH under other categories if they like all others (of any sexual / relational orientation, or none) meet the established criteria. For example, Mr Infinger is eligible to apply as a non-elderly one-person applicant with low income, even if this means a comparatively longer average waiting time.[70]

192.  Also, if the number of same-sex married couples otherwise eligible for PRH as an ordinary family is small, as the judge appears to suggest, then the limited impact of the PRH Spousal Policy on same-sex married couples may in fact be a factor in favour of its proportionality: see Mba v The Mayor & Burgesses of the London Borough of Merton [2013] EWCA Civ 1562 at [31] ‑ [33].

193.  Not only was this submission not advanced in the court below, in our view, it is also misplaced.

194.  The relevant right that has been interfered in the present case is the equal treatment that should be afforded to “married couples” to have a priority in applying for shared PRH unit. The interference is thus a complete denial of same-sex married couples’ said right.

195.  We therefore also reject this ground.

C2.3.8  The Judge erred in his overall proportionality and fair balance assessment

196.  Under this ground, Mr Chan says the Judge ought to have found in both the PRH and HOS Judicial Reviews that the Spousal Policies were justified. This is so as there was and is no proper basis for finding the Spousal Policies disproportionate, particularly given:

(1)  the importance and weight of the Family Aim (on its own, and taken together with the constitutional purposes of BL37);

(2)  the impact on other constitutional rights, particularly BL36, if the Spousal Policies were quashed, as to which no proportionality is shown;

(3)  in contrast, the limited impact on same-sex spouses given the indirect nature of any relevant discrimination, coupled with the existence of alternative options; and

(4)  the wide margin of judgment due to the HA in this context.

197.  This is simply a wrap-up ground of all the grounds of appeal advanced by the HA. Given that we have rejected all the other grounds of appeal above, there is nothing in this, and it must be dismissed.

C3.  Respondent’s Notices

198.  As we have rejected all the grounds of appeal, it is unnecessary for us to deal with the alternative or additional grounds sought to be advanced respectively by Mr Infigner and Mr Li in their respective Respondent’s Notices to affirm the PRH and HOS Judgment.

D.  DISPOSITION

199.  For all the reasons above, we dismiss the appeal.

200.  There is no reason why costs should not follow the event. We therefore further make an order nisi that costs of the appeal be to Mr Infinger and Mr Li respectively, with certificate for two counsel, to be taxed if not agreed. Mr Infinger’s and Mr Li’s own costs should be taxed in accordance with legal aid regulations.

201.  Lastly, we thank counsel for their helpful assistance.