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6 August 2019 | by LexisNexis Hong Kong
In the landmark decision of Leung Chun Kwong v Secretary for the Civil Service & Ors  HKCU 2115, the Court of Final Appeal unanimously allowed the Appellant’s appeal against unlawful discrimination on grounds of sexual orientation with regards to spousal employment benefits and joint tax assessment privileges.
A Hong Kong civil servant (the “Appellant”) married a same-sex partner in New Zealand in 2014 and was issued a New Zealand Marriage Certificate in formal recognition of their marriage. The Appellant contended that the Secretary for the Civil Service and the Commissioner of Inland Revenue (the “Respondents”) had unlawfully discriminated against him on grounds of sexual orientation in respect of two separate incidents.
The first incident, referred to as the Benefits Decision by the court, concerned the denial of the Appellant’s spousal medical and dental benefits under the Civil Service Regulations. The second incident, referred to as the Tax Decision by the court, concerned the denial of the Appellant’s rights to joint assessment of salaries tax as a married couple under section 10 of the Inland Revenue Ordinance. The Appellant was denied access to these benefits because same-sex marriage was not recognised for the purposes of the corresponding legal instruments.
Court of Final Appeal
In determining whether the Respondents’ conduct amounted to unlawful discrimination, the Court of Final Appeal applied the principles enumerated in QT v Director of Immigration  4 HKC 403, where the first step was to determine whether there was differential treatment on the grounds of sexual orientation. If yes, then in order to determine whether such differential treatment was unlawful, the next step was to go through a justification test consisting of the following four questions:
- Does the differential treatment pursue a legitimate aim?
- Is the differential treatment rationally connected to that legitimate aim?
- Is the differential treatment no more than necessary to accomplish the legitimate aim?
- Has a reasonable balance been struck between the societal benefits arising from the application of differential treatment and the interference with the individual’s equality rights?
The Respondents conceded to the existence of differential treatment that would require justification. The Appellant also conceded that there was indeed a legitimate aim being pursued through this differential treatment, namely the protection of the institution of marriage as understood and recognised in Hong Kong. The Court of Final Appeal proceeded from the parties’ concessions and identified that the determinative question was whether the differential treatment was rationally connected to that legitimate aim.
In consideration of the context where neither the employment nor tax benefits in dispute were conferred for the purposes of protecting the institution of marriage, the court rejected the notion that the extension of the same benefits to same-sex married couples would undermine or impinge upon the institution of marriage. The court then provided separate reasoning in respect of why the Benefits Decision and Tax Decision did not have a rational connection to the legitimate aim.
With regards to the Benefits Decision, the court held that it was illogical for the Respondents to suggest a rational connection to the legitimate aim given that the Government’s own policy as an equal opportunities employer indicates their mission to eliminate discrimination in employment based on various grounds including sexual orientation. This was further supported by the Secretary for the Civil Service’s own “Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation”, which specified that all employees are entitled to the same benefits irrespective of sexual orientation.
With regards to the Tax Decision, the court held that the purported rational connection to further the legitimate aim of protecting the institution of heterosexual monogamous marriage was undermined by the wording of the Inland Revenue Ordinance itself as section 2(1) includes polygamous marriage within the scope of the definition of ‘marriage’.
Since there was no rational connection between the differential treatment of the Benefits and Tax Decisions and the legitimate aim of protecting the institution of marriage as understood and recognised in Hong Kong for the above reasons, the court held that the Respondents were unable to justify their differential treatment. The court therefore held that the Respondents’ conduct constituted unlawful discrimination and allowed the appeal.
For commentary on related topics, please see:
- Family Law
- Taxation and Revenue
Encyclopaedia of Hong Kong Taxation
Hong Kong Employment Law Manual
Hong Kong Employment Ordinance: An Annotated Guide
Hotten and Ho on Family and Divorce Law in Hong Kong
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