This general view shows the High Court building in Hong Kong on Aug 17, 2017. (PHOTO / AFP)

Hong Kong's Court of Appeal ruled on Tuesday in favor of a lower court’s landmark decision that affirmed inheritance rights for married same-sex couples.

Dismissing the appeal by the government, a panel of judges sitting at the Court of Appeal said in a written judgment that the differential treatment did exist in this case and it was based on a prohibited ground: the sexual orientation of the applicants.

The lawsuit began in 2019 when Edgar Ng Hon-lam filed for a judicial review of the inheritance laws in the city after becoming concerned that his husband, Henry Li Yik-ho – who he married in UK in 2017 – might not be able to inherit his flat upon his death, as the city didn’t recognize same-sex marriage

The lawsuit began in 2019 when Edgar Ng Hon-lam filed for a judicial review of the inheritance laws in the city after becoming concerned that his husband, Henry Li Yik-ho – who he married in UK in 2017 – might not be able to inherit his flat upon his death, as the city didn’t recognize same-sex marriage.

The couple resided in a flat owned by Ng, which is part of the Home Ownership Scheme, a subsidized public housing program developed and managed by the Hong Kong Housing Authority.

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Yet, Hong Kong excludes same-sex unions that took place overseas and fails to include them in the definitions of husband, wife, and valid marriage as stated in the Intestates’ Estates Ordinance (“IEO”). 

These same definitions are also employed in the Inheritance (Provision for Family and Dependents) Ordinance (“IPO”).

In response, Ng initiated a judicial review to challenge the city’s inheritance laws.

In September 2020, the High Court ruled that the marriage provisions were discriminatory and unconstitutional as they contravened the equality provision outlined in Article 25 of the Basic Law and Articles 1(1) and 22 of the Hong Kong Bill of Rights.

Article 25 enshrines the principle that all Hong Kong residents shall be equal before the law. Article 1 ensures the rights granted are applied without discrimination on any basis. Article 22 mandates equal treatment and prohibits discrimination on grounds such as race, color, sex, language, religion, opinion, national or social origin, property, birth or other status.

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After the High Court’s ruling, the city’s Secretary for Justice lodged an appeal.

In December 2020, Ng, who had been battling depression for years, committed suicide and Li took over as the review’s substitute applicant.

In Tuesday’s written judgment, the panel of judges also acknowledged the couple’s marital status.

They emphasized that in this particular case, the applicants had chosen to solemnize their union through a same-sex marriage in the UK.

There is no dispute that this marriage is valid in the UK and possesses the essential characteristics of publicity and exclusivity that distinguish a heterosexual marriage, they said.

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This fact serves as the starting point for examining whether the applicants have been treated differently due to their sexual orientation, they said.
With regard to the coherent package issue, the judges said it is evident that the IEO and the IPO are not limited to monogamous heterosexual marriages.

They also said because of previous court decisions, marriage rights and responsibilities in Hong Kong did not only exist for heterosexual unions.

In past case rulings, same-sex relationships were accorded the same rights as heterosexual marriages in areas like immigration and employment, which shows that marriage responsibilities are not confined solely to opposite-sex couples under Hong Kong law.

Same-sex relationships can also involve spousal duties and entitlements, they said.

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Earlier in September, Hong Kong’s top court ruled against same-sex marriage but acknowledged the need for a legal framework that provides recognition of same-sex partnerships. The Hong Kong Special Administrative Region government was given two years to come up with the framework.

Hong Kong Marriage Equality, a local organization dedicated to eliminating discrimination against same-sex couples, hailed the ruling on Tuesday as a momentous milestone for same-sex couples.

On the other hand, lawmaker Holden Chow Ho-ding said it is crucial not to undermine the traditional institution of marriage, which has historically been defined as a union between a man and a woman. He said alternative approaches can be explored for same-sex couples.