TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

CACV 183/2019 & CACV 184/2019

[2022] HKCA 675

CACV 183/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 183 OF 2019

(ON APPEAL FROM HCAL NO. 229 OF 2015)

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AND

CACV 184/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 184 OF 2019

(ON APPEAL FROM HCAL NO. 189 OF 2017)

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(Heard together)

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

1.  By a judgment handed down on 26 January 2022,[1] we dismissed the applicants’ appeal against the judgment of Au J (as he then was).[2] The applicants now seek leave to appeal to the Court of Final Appeal under section 22[3] on the following questions of law:[4]

“(1) Whether the application to the Applicant of the policy of the Respondent requiring full sterilization and genital reconstruction before a transgender person can amend the sex identifier on their Hong Kong Identity Card (“Policy”) give rise to cruel, inhuman or degrading treatment or the imminent risk of cruel, inhuman or degrading treatment of the Applicant, contrary to Article 3 of the Hong Kong Bill of Rights (“HKBOR”)? (Question 1)

(2) Whether an assessment that a policy is a proportionate interference with the right to privacy under Article 14 of the HKBOR precludes a finding that the Policy is incompatible with Article 3 of the HKBOR? (Question 2)

(3) Has the Policy been shown to amount to a proportionate interference with the Applicant’s right to privacy and private life, as guaranteed and protected under Article 14 of the HKBOR? (Question 3)

(4) When assessing the proportionality of the Policy under Question 3 (Question 4):

(a) What weight (if any) should be given to the factors identified under Question 1?

(b) Does the requirement for a criterion that ‘leaves no room for ambiguity’ erroneously impose a threshold of ‘manifestly without reasonable foundation’ instead of ‘no more than necessary’?

(c) Was the Court entitled to give weight to self-help measures which rely on production of documents issued by foreign Governments?”

2.  As rightly accepted by the respondent, Questions 1 and 3 are of great general or public importance that they ought to be submitted to the Court of Final Appeal for determination.

3.  The respondent opposes the leave application on Questions 2 and 4. For the purpose of disposing of the applications, it is not necessary to dwell on the parties’ submissions, which we have already considered with care.

4.  On Question 2, we accept that it engages an important question of law of great general or public importance on the interplay between Article 3 and Article 14, which clearly merits the consideration and determination by the Court of Final Appeal.

5.  Question 4(a) also touches upon the interplay between Article 3 and Article 14. As such, it should be placed before the Court of Final Appeal for determination.

6.  On Question 4(b), in applying the proportionality test, we have adopted the “no more than necessary” scrutiny. We have at [55] of our judgment explained why it is in our view necessary to adopt a criterion which “leaves no room for ambiguity” as a “clear, definite, consistent and objective yardstick to determine if the applicant has achieved clear resemblance to the new sex in terms of biological appearance and characteristics”. We fail to understand the logic in the applicants’ contention that in so doing, we have somehow adopted the less stringent scrutiny. Question 4(b) does not arise and is not reasonably arguable.

7.  On Question 4(c), the respondent submits that a question of weight to be given to a particular factor in the proportionality analysis is plainly a fact and context specific and hence does not give rise to issues of great general or public importance. However, we accept the applicants’ submissions that in the context of a systemic challenge against the Policy, which applies to all transgender persons, Question 4(c) has a wider implication affecting not only the applicants but all individuals affected by the Policy. It is a question of great general or public importance that merits the Court of Final Appeal’s determination.

8.  In consequence, we give the applicants leave to appeal to the Court of Final Appeal on Questions 1, 2, 3, 4(a) and 4(c) but not Question 4(b).

9.  We further order that costs of the present applications be in the cause of the appeal to the Court of Final Appeal. The applicants’ own costs be taxed in accordance with the Legal Aid Regulations.