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Case Update - [2024] HKCFA 29; FACV Nos. 2 and 3 of 2024

A time to look back on one of the landmark cases at Pantheon Chambers before the Year of the Snake. The Court of Final Appeal handed down a judgment near the end of 2024, in favour of same-sex couples in relation to their public housing and inheritance rights. With the continuous effort and support of various parties, it marks the victory for same-sex couples in Hong Kong.


Azan (led by Mr Timothy Otty KC and Mr Jin Pao SC) appeared on behalf of the applicant (namely, Li Yik Ho) in FACV 3/2024, where the appeal by the Housing Authority was dismissed.


Background of the case


The two cases concern the family provision policies for the Public Rental Housing (“PRH”) and the Home Ownership Scheme (“HOS”) of the Housing Authority (“HA”) as they apply to same-sex couples lawfully married abroad.


Mr Nick Infinger, who married his husband abroad, was the applicant for judicial review of the PRH proceedings. With his husband as his family member, he applied for a shared PRH unit under the “Ordinary Families” sub-category and was rejected by the HA.


Mr Edgar Ng was the original applicant for judicial review of the HOS proceedings. He unfortunately passed away and his surviving spouse Mr Li Yik Ho was substituted as the applicant. Mr Ng was the registered owner of an HOS flat. The HA did not allow Mr Li to be added as an occupant of Mr Ng’s flat as his same-sex spouse, or considered for a transfer of ownership of the flat without payment of a premium.


In both judicial reviews the Court of First Instance struck down the respective policies for discrimination. The Court of Appeal heard the appeals at same time and affirmed the decisions.


The HA appealed to the Court of Final Appeal. The two appeals were dismissed.


The rulings of the Court of Final Appeal


The HA contended that Article 36 of Basic Law (“BL36”) (1) entrenches all pre-1997 societal benefits as rights protected under the Basic Law; and (2) is the lex specialis concerning social welfare rights and policies and thus they are not subject to the equality provisions in Article 25 of Basic Law and Article 22 of the Hong Kong Bill of Rights. The inclusion of same-sex married couples will lengthen the waiting time of the opposite-sex married couples in their applications and dilute their exclusive rights to apply for PRH units and HOS flats under the pre-1997 system.


The Court held that there is no constitutional guarantee on their waiting time, and there is no exclusive queue for the opposite-sex married couples, for they are only one of the several familial relationships included in the “Ordinary Families” sub-category. Therefore, the Court held that BL36 is not engaged.


The Court made a further finding that BL36 cannot override the equality provisions because the allocation of limited societal resources based on differentiation must be made on grounds ‘that are fair, rational, and otherwise justifiable’. (at §36)


Same-sex married couples are comparable to opposite-sex married couples, therefore equality provisions are engaged. The only common thread to the different relationships in the “Ordinary Families” sub-category is a ‘close familial relationship that is in need of housing assistance.’ (at §50) The issue of procreative potential does not make same-sex married couples incomparable to opposite-sex married couples in this context.


One major issue at trial is whether the HA policies of differential treatment satisfied the proportionality analysis, which consist of 4 stages. At Stage 1, the Court agreed that ‘to support traditional families founded on opposite-sex marriages’ (“Family Aim”) (at §55) is the legitimate aim of the PRH and HOS policies. At Stage 2, the Court accepted that there is a rational connection between the Family Aim and both policies.


At Stage 3, the Court stayed with the usual practice of requiring evidential substantiation for justifications of an economic or social nature. (at §72) The Court needed to see empirical evidences which could reflect the impact on the Family Aim if same-sex married couples were included, which regrettably the HA did not provide any. The Court therefore had no reliable basis to rule that the policies are proportionate measures.


At Stage 4, on whether there is ‘a reasonable balance between the societal benefits of the differential policies and the inroads made into the equality rights of the individuals affected’, (at §81) the Court observed that the differential policies deprived same-sex married couples the chance to share family life under the same roof. On the other side, the HA did not provide any empirical evidence to support its stance. The HA failed in Stage 4 as well. Therefore, the policies cannot be justified.


The above case summary was written by Grace Chan.


Full judgment is available here.


For more information about Azan, please visit here


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