SHAM TSZ KIT (岑子杰) v. SECRETARY FOR JUSTICE

FACV No. 14 of 2022

[2023] HKCFA 31

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO. 557 OF 2020)

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JUDGMENT ON RELIEF AND COSTS

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The Court :

1.  On the appeal, the appellant argued that he has a constitutional right to enter into a same-sex marriage under Hong Kong law (referred to in the judgment as “Question (1)”); alternatively, that the Hong Kong authorities are constitutionally obliged to provide a legal framework to enable his same-sex relationship to be officially recognised as a registered civil partnership or same-sex union in an appropriate form (“Question (2)”); or in the further alternative that he has a constitutional right for his same-sex marriage contracted in New York in the United States to be recognised under Hong Kong law (“Question (3)”).

2.  By its judgment handed down on 5 September 2023,[1] the Court unanimously rejected the propositions reflected in Questions (1) and (3) and dismissed the appeal in respect thereof. By a majority,[2] the Court accepted the proposition in Question (2) and allowed the appeal thereon.

3.  Orders were provisionally made in the following terms,[3] namely:

“... the Court:-

(1) Unanimously dismisses the appeal in relation to Question 1 (same-sex marriages) and Question 3 (recognition of foreign same-sex marriages).

(2) In relation to Question 2 (recognition of same-sex relationships):-

(a) By a majority, allows the appeal and sets aside the judgment of the Court of Appeal.

(b) By a majority, ... as provided below, subject to receiving written submissions from the parties (whereupon the following Declaration and accompanying Direction may be modified or confirmed):

(i) Declares that, the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation. [Referred to herein as “the Declaration”]

(ii) Directs that operation of the abovementioned Declaration be suspended for a period of two years from the date of the final Order to be made after receipt of the parties’ written submissions, to afford the Government time to comply with its aforesaid obligation. [Referred to herein as “the Suspension order”]

(c) Directs that the parties be at liberty, within 21 days of the date of this judgment, to lodge written submissions on the relief granted, such submissions to be dealt with on the papers.

(d) Directs that there be an Order Nisi that the costs here and below be paid by the respondent to the appellant, the parties being at liberty to lodge written submissions regarding costs within 21 days of the date of this judgment, to be dealt with on the papers. [Referred to herein as “the Costs Order nisi”]”

4.  Written submissions were duly lodged by the parties.

The Declaration

5.  Both parties support the making of the Declaration in the abovementioned terms. The Secretary notes that this is in line with the view of the majority that the government should be afforded a “flexible margin of discretion in deciding the content of the rights and obligations to be associated with the scheme of legal recognition to be devised”.[4]

The Suspension order

6.  The parties differ in certain respects regarding the Suspension order. First, the appellant submits that a two-year suspension is unnecessary and that a one-year period would suffice.[5] The Court does not agree since a realistic period should be afforded to the government to comply with its constitutional obligations and the Court’s orders. It recognises that a significant effort will be required to work out and implement a constitutionally compliant alternative framework for legal recognition of same-sex partnerships providing for appropriate rights and obligations. The appellant’s arguments for a one-year period of suspension are essentially polemical and do not rest on a factually realistic basis.

7.  Secondly, while both parties agree that the Court should grant them liberty to apply in relation to the Suspension order, they advocate different bases for making such an application. The appellant seeks liberty to apply in the event that the government fails to comply with the Court’s orders, pointing out that this would obviate the costs and delay of having to bring fresh judicial review proceedings in that eventuality.[6] The respondent, on the other hand, seeks a direction that there should be liberty to apply for an extension of the suspension period granted by the Suspension order if needed.

8.  In the Court’s view, it is appropriate that there should be liberty to apply on both of the abovementioned grounds. It is noted in this context that the Secretary for Justice submits as follows:[7]

“7. Consequential upon the Declaration, the Government is required to establish an alternative framework for legal recognition of same-sex partnerships. This is an unprecedented and momentous development in the recognition of same-sex partnerships in Hong Kong. Due considerations have to be given to the delineation of the appropriate rights and obligations attendant on such recognition, as well as the inter-relationship between the alternative framework and the institution of marriage. This is further complicated by the lack of societal consensus in favour of same-sex partnership in Hong Kong, which may pose further hurdle in the legislative process. In short, it can readily be anticipated that the alternative framework for same-sex partnerships would be of some complexity and considerable time will be required for the legislative process.

8. The Government and Legislature should be afforded a proper opportunity to put in place a constitutionally compliant framework to eliminate any unlawful and/or arbitrary interference to the right to privacy of same-sex couples, and which would, as far as is possible, take into account and accommodate the different views of members of society. Whilst the Government would undoubtedly endeavour to complete each step as expeditiously as is practicable, there is a concern that some of such steps may take longer than it is expected, especially for steps which depend on the actions of the Legislative Council rather than the Government itself. ...

10. Therefore, the Respondent submits that a two-year suspension period with proviso to apply for extension will achieve a better balance between protection of the right to privacy of same-sex partners and the practicalities in implementing the alternative regime encountered by the Government.”

9.  In supplemental submissions,[8] the appellant has sought to contend that there is no need either for a two-year suspension period or for a direction enabling an application to be made for an extension citing certain university surveys which indicate a growing majority consensus in favour of recognising same-sex relationships and postulating a likelihood that little resistance to the government’s declared policy would emerge in the Legislative Council. Whether or not there is substance in such considerations, they are not reasons for denying the government liberty to apply to the Court for an extension should that prove necessary, especially given that the Secretary has represented that the government “would undoubtedly endeavour to complete each step as expeditiously as is practicable” and that any application for an extension “[would] be supported by compelling reasons”.

10.  The Court is accordingly of the view that:

(a)  the Declaration should be made in the terms indicated in the judgment; and

(b)  there should be liberty to apply both in relation to the implementation of the Court’s order and in relation to any possible need for an extension of the period encompassed by the Suspension order, supported by compelling reasons.

Costs

11.  The appellant submits that the Costs Order nisi should be confirmed with a certificate for three counsel and an order that the appellant’s own costs be taxed in accordance with the Legal Aid Regulations. The certificate for three counsel in this Court is not controversial.

12.  However, the Secretary points out that (i) the appellant’s case on Questions 1 and 3 has been rejected unanimously in all three Courts; and (ii) that it was only in the course of the hearing in this Court that it was made clear that his case under Question 2 did not involve claiming rights which mirror marriage rights enjoyed under Article 37 of the Basic Law, a position that would have led similarly to dismissal of his appeal on that Question on the basis of the lex specialis doctrine. The Secretary submits[9] accordingly:

(a)  as to the costs in this Court, that the appellant should be ordered to pay all the costs certified fit for two counsel up to the start of the hearing (when the successful basis of his argument was first made clear) and that there should be no order as to the costs of the hearing or, alternatively, that there should be no order as to costs in respect of the proceedings in this Court; and

(b)  as to the costs below, that the appellant should pay the Secretary’s costs since he had not relied on what proved to be the successful basis of his appeal in this Court.

13.  The appellant responds stressing that his challenge called into question the absence of any form of legal recognition of same-sex relationships under Hong Kong law. While it is true that his arguments on same-sex marriage and recognition of foreign same-sex marriages have failed, he ultimately succeeded on a highly significant constitutional obligation under Question 2 (which had always been part of his case) with widespread consequences.

14.  In the Court’s view, there is force in the Secretary’s argument that a large part of the appellant’s case has proved unsuccessful and that he should not be awarded all the costs here and below. On the other hand, the Secretary’s submissions correctly describe the outcome in the appellant’s favour as “an unprecedented and momentous development in the recognition of same-sex partnerships in Hong Kong”. Moreover, as those submissions recognise, almost the entirety of the argument in this Court concerned Question 2.

15.  In the circumstances, the appropriate costs orders are that (i) there should be no order as to costs in relation to the proceedings in the Court of First Instance and Court of Appeal; and (ii) that the respondent should pay the appellant’s costs of and occasioned by the appeal to this Court, certified fit for three counsel, with the appellant’s own costs to be taxed under the Legal Aid Regulations.

Orders made

16.  The Court accordingly makes the following final Orders, namely:

The Court :-

(1)  Unanimously dismisses the appeal in relation to Question 1 (same-sex marriages) and Question 3 (recognition of foreign same-sex marriages).

(2)  In relation to Question 2 (recognition of same-sex relationships) :-

(a)  By a majority, allows the appeal and sets aside the judgment of the Court of Appeal.

(b)  By a majority :-

(i)  Declares that, the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships (such as registered civil partnerships or civil unions) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation.

(ii)  Directs that operation of the abovementioned Declaration be suspended for a period of two years from the date of this Order.

(3)  Directs that there should be liberty to apply to the Court in connection with the implementation of or non-compliance with this Order; and in particular liberty to apply for an extension of the abovementioned period of suspension in the event that such extension is necessary, on the understanding that the government will endeavour to complete each step as expeditiously as is practicable and that any application for an extension would be supported by compelling reasons. Any applications under the liberty to apply should be made and dealt with on the papers unless otherwise directed by the Court.

(4)   Directs that :-

(a)  there be no order as to costs in relation to the proceedings in the Court of First Instance and Court of Appeal;

(b)   the respondent should pay the appellant’s costs of and occasioned by the appeal to this Court, certified fit for three counsel; and

(c)  the appellant’s own costs be taxed under the Legal Aid Regulations.