A A

B B

JUDGMENT
C C

CACV 557/2020
D D
[2022] HKCA 1247
E E
IN THE HIGH COURT OF THE
F HONG KONG SPECIAL ADMINISTRATIVE REGION F

COURT OF APPEAL
G G
CIVIL APPEAL NO. 557 OF 2020

H
(ON APPEAL FROM HCAL NO. 2682 OF 2018) H

I BETWEEN I

J SHAM TSZ KIT (岑子杰) Applicant J

K
and K

L
SECRETARY FOR JUSTICE Respondent L

M M

N Before: Hon Poon CJHC, Kwan VP and Chu JA in Court N

Date of Hearing: 21 July 2022

O O
Date of Judgment: 24 August 2022
P P

Q Q

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

S S
1. In this appeal from the judgment of Chow J (as he then was)
T T
in [2020] 4 HKLRD 930, it falls upon this Court to determine the

U
constitutionality of the relevant laws of Hong Kong relating to the U

V V
A institution of marriage, which is hitherto understood to be confined to A

heterosexual marriage and does not extend to same-sex marriage: see W v

B B
Registrar of Marriages (2013) 16 HKCFAR 112, at [63], [65] and [165];
C QT v Director of Immigration (2018) 21 HKCFAR 324, at [26]; Leung C

Chun Kwong v Secretary for Civil Service [2018] 3 HKLRD 84 (CA), at

D D
[2], [7], [23] and [89].
E E

2. At the centre of the exercise is article 37 of the Basic Law

F F
(BL 37), the particular provision on marriage. Together with it are three
G general provisions on fundamental rights relied on by the applicant, G

namely, article 25 of the Basic Law (BL 25) and article 22 of the Hong
H H
Kong Bill of Rights (HKBOR 22) (right to equality), and article 14 of the
I I
Hong Kong Bill of Rights (HKBOR 14) (right to privacy).

J J
A. Background
K K
3. The applicant is a Hong Kong permanent resident in his
L L
early 30s. He is a homosexual, having realized his sexual orientation

M when he was in primary school. He has had a stable same sex partner M
since 2011, who is also a Hong Kong permanent resident. They wished
N N
to marry in Hong Kong but it was impermissible because all the relevant
O statutory provisions define or refer to marriage as a voluntary union for O

life of one man and one woman to the exclusion of all others: see
P P
section 4 of the Marriage Reform Ordinance1, section 40 of the Marriage
Q Ordinance (“the MO”),2 and section 20(1)(d) of Matrimonial Causes Q

Ordinance (“the MCO”).3 That is also the common law position: see W,
R R

S S
1
Cap 178. Section 4 provides that “Marriages entered into in Hong Kong on or after [7 October 1971]
shall imply the voluntary union for life of one man with one woman to the exclusion of all others…”
T 2
Cap 181. Under section 40, marriage involves “the voluntary union for life of one man and one T
woman to the exclusion of all others”.
3
Cap 179. Under section 20(1)(d), a marriage which takes place after 30 June 1972 shall be void if the
U parties are not respectively male and female. U

V V
A at [63]. So they had no other alternative but to marry outside Hong Kong, A

which they did in New York, the USA in November 2013.

B B

C 4. The applicant says that had it been permissible under Hong C

Kong law, he and his same-sex partner would have married in Hong
D D
Kong. There is no reason why they should be forced to marry outside
E Hong Kong because they are both permanent residents and Hong Kong is E

their home city. The applicant complains that since his foreign same-sex
F F
marriage is not recognized under Hong Kong law, he and his same-sex
G partner do not enjoy the rights and benefits afforded to heterosexual G

married couples in Hong Kong, including but not limited to taxation and
H H
inheritance. This, he contends, effectively deprives homosexual married
I I
couples of the legal protection that should follow from their marital

J
status, which is highly unfair and discriminatory. J

K K
B. Proceedings below

L L
5. In the proceedings below, the applicant mounted three

M alternative grounds of constitutional challenge based on the right to M

equality and the right to privacy:
N N

O (1) the exclusion of same-sex couples from the institution of O

marriage violates the right to equality under BL 25 and

P P
HKBOR 22 (Ground 1);
Q Q

(2) the laws of Hong Kong, insofar as they do not allow same-
R R
sex couples to marry and fail to provide any alternative
S means of legal recognition of same-sex partnerships (such as S

civil unions or registered partnerships), violate the right to

T T

U U

V V
A privacy under HKBOR 14; and/or the right to equality under A

BL 25 and HKBOR 22 (Ground 2); and

B B

C (3) the laws of Hong Kong, insofar as they do not recognize C

foreign same-sex marriage, violate the right to equality

D D
under BL 25 and HKBOR 22 (Ground 3).
E E

(collectively “the Grounds”)

F F

G 6. The applicant correspondingly sought, in respect of Grounds G

1 and 2, declarations that the relevant statutory provisions on marriage are

H H
unconstitutional; that the statutory definition of marriage must be read
I and given effect as “the voluntary union for life of two persons to the I

exclusion of all others”; and that the laws of Hong Kong, insofar as they
J J
do not allow same-sex couples to marry and fail to provide any
K alternative means of legal recognition of same-sex partnerships (such as K

civil unions or registered partnerships), constitute a violation of BL 25

L L
and HKBOR 22 and/or HKBOR 14. He further sought, in respect of
M Ground 3, a further or alternative declaration that the laws of Hong Kong, M

insofar as they do not recognize foreign same-sex marriage, constitute a

N N
violation of BL 25 and HKBOR 22.
O O

B1. MK disposing of Grounds 1 and 2

P P

7. Earlier in MK v Government of HKSAR [2019] 5 HKLRD

Q Q
259, the Judge held that the denial of the right to marriage to same-sex
R couples under the laws of Hong Kong did not constitute any violation of R

S
their constitutional rights because under a proper construction, BL 37 S
only protects heterosexual marriage. 4

T T

U
4
MK, at [14] – [31]. U

V V
A 8. Placing heavy reliance on the principle of lex specialis, the A

Judge further held that since same-sex couples do not enjoy the right to
B B
marry under BL 37, which is the lex specialis in the Basic Law
C concerning the right to marriage, they cannot derive such right from other C

articles of the Basic Law or the Hong Kong Bill of Rights. 5 He drew
D D
upon the judgments of the European Court of Human Rights (“ECtHR”)
E in Schalk and Kopf v Austria (2011) 53 EHRR 20 and Oliari v Italy E

(2017) 65 EHRR 26 on articles 12 and 14 of the European Convention on

F F
Human Rights (“ECHR”); and the decision of the United Nation Human
G Rights Committee (“HRC”) in Joslin v New Zealand (2003) 10 IHRR 40 G

on the comparable articles in the International Convenant on Civil and

H H
Political Rights (“ICCPR”), including article 23(2). The Judge also
I I
derived support from the Court of Final Appeal’s judgment in Comilang v

J
Director of Immigration (2019) 22 HKCFAR 59, at [30], [33], [35], [45] J
and [61].
K K

L
9. MK relied on several cases to counter the application of the L
doctrine of lex specialis. One of them was the first instance judgment of
M M
Smellie CJ of the Grand Court of the Cayman Islands in Day & Bush v
N Governor of the Cayman Islands (GC), Civil Cause Nos 111 & 184/2018, N

29 March 2019, which refused to apply the doctrine in a similar context.

O O
The Judge however did not find the Chief Justice’s reasoning persuasive.6
P P

10. The Judge went on to hold that on a proper reading of

Q Q
HKBOR 14, the Government was under no positive legal obligation to
R provide an alternative legal framework such as civil unions, registered R

partnerships or other legally recognized status giving same-sex married

S S
couples the same rights and benefits enjoyed by opposite-sex married
T T
5
MK, at [32] – [44].
U
6
MK, at [42] – [43]. U

V V
A couples. In so doing, he refused to follow the majority decision of the A

ECtHR in Oliari.7
B B

C 11. As noted by the Judge,8 Mr Hecter Pun SC, for the applicant, C

accepted that MK had effectively decided against him on Grounds 1 and

D D
2. He accordingly did not rely on them in support of Ground 3 for the
E purpose of the proceedings below, although the Grounds were, according E

to him, intertwined.9
F F

G B2. Ground 3 G

H 12. In respect of Ground 3 and the declaration sought, the Judge H

held that it was unsustainable as a matter of law and principle. 10 He first

I I
applied the conflict of laws rules and ruled that the applicant’s same-sex
J J
marriage lacked essential validity and therefore could not be recognized

K
as a valid marriage under Hong Kong law.11 Next, he rejected Mr Pun’s K
contention that the status of marriage is generally open to same-sex
L L
couples provided that they are lawfully married according to the place

M where the marriage is celebrated, because it is inconsistent with the M

observation of the Court of Final Appeal in QT v Director of Immigration
N N
(2018) 21 HKCFAR 324 at [25]. Finally, he found that Mr Pun’s attempt
O to apply the four-step proportionality test in support of the applicant’s O

case on discrimination was, in the absence and regardless of any specific

P P
subject matter and its relevant context, untenable, 12 citing QT at [45],
Q [54], [67] and [76]; and Leung Chun Kwong v Secretary for Civil Service Q

(CFA) (2019) 22 HKCFAR 127, at [19], [22].

R R

S S
7
MK, at [45] – [54].
8
Judgment, at [9] and [10].
T 9
Judgment, footnote 2, and [28]. T
10
Judgment at [1] and [13].
11
Judgment, at [14] – [16].
U
12
Judgment, at [18] – [26]. U

V V
A 13. In consequence, the Judge dismissed the applicant’s A

application for judicial review.

B B

C C. Overview of the applicant’s submissions C

D 14. At the outset of his submissions before us, Mr Pun 13 makes it D

plain that he does not seek to rely on the right to marry under BL 37,
E E
although it is his submission that the language used in BL 37 does not
F restrict the right to marry to heterosexual marriage to the exclusion of F

same-sex marriage.
G G

H 15. In respect of Ground 1, Mr Pun argues that the Judge erred H

in failing to recognize that the right to equality is autonomous, and free-

I I
standing, which may be engaged independently. By giving the right to
J J
equality a generous interpretation, even if BL 37 only protects

K
heterosexual marriage, it does not preclude the applicant from seeking K
equality of treatment in terms of having a right (at the statutory level as
L L
opposed to the constitutional level) to establish a same-sex legal

M relationship equivalent to heterosexual marriage. The court is thus duty M

bound to apply the proportionality test to assess if the exclusion of same-
N N
sex couples from the institution of marriage violates the right to equality;
O and had the court done so, it would have found that the exclusion did not O

pass the test.

P P

Q 16. As to the doctrine of lex specialis, Mr Pun submits that Q

despite the authorities cited in MK, his submissions are correct under
R R
Hong Kong’s constitutional framework. He first harks back to his
S reading of BL 37, submitting that it does not expressly limit “the freedom S

of marriage of Hong Kong residents” to heterosexual couples, which is a

T T
special feature rendering Schalk, Oliari and Joslin distinguishable.
U
13
Together with Mr Anson Wong. U

V V
A Noting that Schalk was a closely split 4:3 decision, Mr Pun next A

emphasizes that unlike BL 25 and HKBOR 22, article 14 of the ECHR

B B
does not create a right independently of the other substantive provisions
C of the Convention. Thirdly, he points out that Joslin was heavily C

criticized in various academic commentaries.14 Fourthly, he submits that

D D
when a certain benefit is specifically protected by a certain article under
E the Basic Law, it does not preclude protection of the same or similar E

benefit under the right to equality, citing Kong Yunming v Director of

F F
Social Welfare (2013) 16 HKCFAR 950 in support. Lastly, Mr Pun relies
G on Smellie CJ’s judgment in Day & Bush (GC), at [159] – [160] and G

[163], accepting however that it had been overturned on appeal firstly by

H H
the Court of Appeal in [2019] CICA No 9 of 2019 and then by the Privy
I I
Council in [2022] UKPC 6.

J J
17. In wrapping up his submissions on the doctrine of lex
K K
specialis, Mr Pun argues that it is only one of the principles of

L
construction and as such it does not detract from the unmitigated L
application of the constitutional provisions on equality and, for that
M M
matter, those on privacy as well, to the present context, as they are
N autonomous, free-standing and must be generously interpreted to protect N

those rights enjoyed by same-sex couples.

O O

P 18. Turning to Ground 2, Mr Pun submits that contrary to the P

Judge’s construction, HKBOR 14 gives rise to a positive obligation on

Q Q
the Government to provide for legal recognition of same-sex union
R alternative to marriage. The Judge failed to give the right to privacy a R

generous interpretation, thus departing from authorities such as HKSAR v

S S
14
Referring to Nowak’s CCPR Commentary: UN International Covenant on Civil and Political Rights,
3rd edition, 2019, at pp 738 – 742 & 785 – 788; Bluett, Marriage Equality Under the ICCPR: How the
T Human Rights Committee Got it Wrong and Why It’s Time to Get it Right (2020) 35(4) AmUInt’l LRev T
605; and Roos and Mackay, A Shift in the United Nations Human Rights Committee’s Jurisprudence on
Marriage Equality? An Analysis of Two Recent Communications from Australia (2019) 42(2)
U UNSWLJ 747. U

V V
A Au Kwok Kuen [2010] 3 HKLRD 371. In his oral submissions, Mr Pun A

also seeks to rely on his reading of BL 37 to reinforce his argument that

B B
HKBOR 14 gives rise to such a positive obligation.
C C

19. Mr Pun further complains that the Judge erred in failing to

D D
follow the majority decision in Oliari, contrary to the approach laid down
E by the Court of Final Appeal in W, at [116] and Leung Chun Kwong, at E

[57]; and Fedotova v Russia (2022) 74 EHRR 28, at [52].

F F

G 20. Finally, Mr Pun relies on Fedotova, at [48], and [54] – [55] G

to support his contention that the lack of any means of legal recognition
H H
of same-sex partnerships fails to satisfy the proportionality test.
I I

J
21. As to Ground 3, Mr Pun emphasizes that sexual orientation J
is one of the personal characteristics which an individual cannot change.
K K
Same-sex marriage which is valid under the law where it was entered into

L
is a relationship which has the same distinguishing characteristics of L
publicity and exclusivity as a heterosexual marriage. Same-sex couples
M M
are in a relevantly similar situation to heterosexual couples as regards

N their need for formal acknowledgment and protection of their N

relationship. Thus if a foreign marriage of a heterosexual couple validly

O O
entered into is recognized in Hong Kong but a valid foreign same-sex
P marriage is not, the difference in treatment amounts to discrimination. P

He complains that the Judge had misread the Court of Final Appeal’s
Q Q
observation in QT, at [25].
R R

D. The applicant’s core case

S S

22. Stripped of the legal niceties, the applicant’s core case is that
T T
although BL 37 enshrines the institution of marriage for heterosexual
U U

V V
A couples, it does not preclude same-sex couples to have access to (1) A

marriage, under BL 25 and HKBOR 22 or its equivalent as an aspect of

B B
their right to equality; or (2) its equivalent, under HKBOR 14 as an aspect
C of their right to privacy. The correctness of this contention depends on C

the interpretation of BL 37 and the rights relied on.

D D

E D1. The right to marry under BL 37 E

F 23. BL 37 protects the institution of marriage in these terms: F

G G
“The freedom of marriage of Hong Kong residents and their
right to raise a family freely shall be protected by law.”
H H

I 24. It is trite that the courts adopt a purposive and contextual I

interpretation of the Basic Law: see Ng Ka Ling v Director of

J J
Immigration (1999) 2 HKCFAR 4, at pp.28-29; Director of Immigration v
K Chong Fung Yuen (2001) 4 HKCFAR 211, at p 224D-G; Vallejos v K

Commissioner of Registration (2013) 16 HKCFAR 45, at [76] – [77];

L L
Comilang Milagros Tescon v Director of Immigration (2019) 22
M HKCFAR 59, at [60]. The purpose and context of a provision of the M

Basic Law is to be ascertained at the time when they were established,

N N
that is, when the Basic Law was enacted in April 1990: Chong Fung
O Yuen, ibid, Kwok Cheuk Kin v Director of Lands (CA) [2021] 1 HKLRD O

737, at [33]. As rightly identified by the Judge, there are three contexts
P P
that powerfully inform the interpretation of BL 37. 15 And they all point to
Q the same conclusion. Q

R R
25. First, the constitutional context, referring to the other
S provisions of the Basic Law and the provisions of ICCPR as applied to S

Hong Kong which must be read as a coherent whole: Comilang, at [60] –

T T

U
15
MK, at [14]. U

V V
A [61]. This is what Li CJ described in Chong Fung Yuen, ibid, as one of A

the internal aids to interpretation.

B B

C 26. For marriage, the only other relevant provision is HKBOR C

19(2). It stipulates:
D D

E
“The right of men and women of marriageable age to marry E
and to found a family shall be recognized.”

F F
27. HKBOR 19(2) is modelled on article 23(2) of the ICCPR,
G G
which came into force in March 1976, verbatim. In Joslin, the HRC said

H at [8.2]: H

I “… Article 23, paragraph 2, of the Covenant is the only I

substantive provision in the Covenant which defines a right by
using the term ‘men and women’, rather than ‘every human
J J
being’ ‘everyone’ and ‘all persons’. Use of the term ‘men and
women’ rather than the general terms used elsewhere in Part
K III of the Covenant, has been consistently and uniformly K
understood as indicating that the treaty obligation of States
parties stemming from article 23, paragraph 2, of the
L Covenant is to recognize as marriage only the union between a L
man and a woman wishing to marry each other.”
M M

28. Since BL 37 must be read in congruence with HKBOR

N N
19(2), it strongly suggests that the freedom to marriage thereunder is
O O
granted to heterosexual couples only.

P P
29. The other two contexts, legal and historical, provide external
Q Q
aids to interpreting BL 37.

R R
30. The legal context in the present instance refers to the state of
S S
the domestic law on marriage in April 1990. Like their current forms, all

T the relevant statutory provisions at the time defined or referred to T

marriage as a voluntary union for life of one man and one woman to the
U U

V V
A exclusion of all others.16 The same definition has always been adopted A

for common law purposes too: see W, at [63]. There exists no reason,
B B
arising either from the Basic Law and the HKBOR internally or any
C extrinsic materials, why the drafters of the Basic Law would give C

“marriage” in BL 37 a definition other than its legal meaning then

D D
understood in Hong Kong.
E E

31. The historical context is always important to the

F F
understanding of a constitutional document. In Schalk, the ECtHR at [55]
G explained why heterosexual marriage is preferred in the comparable G

article 12 of the ECHR17 as a matter of interpretation. After referring to

H H
the actual language used, the Court emphasized:
I I

“Moreover regard must be had to the historical context in

J which the Convention was adopted. In the 1950s, marriage J
was clearly understood in the traditional sense of being a union
between partners of different sex.”
K K

L As pointed out by the Judge, same-sex marriage was only recognized L

legally for the first time in the world when the Netherlands provided for it
M M
in 2001. 18
Self-evidently, the drafters of the Basic Law must have only
N used the term “marriage” in BL 37 in the traditional sense of being a N

union between a heterosexual couple. Any suggestion otherwise is

O O
divorced from reality.
P P

32. In conclusion, when properly interpreted, BL 37 only

Q Q
provides access to the institution of marriage to heterosexual couples. It
R R
does not include same-sex couples.

S S

16
See [3] above.
T T
17
It provides: “Men and women of marriageable age have the right to marry and to found a family
according to the national laws governing the exercise of this right.”
U
18
MK, at [14(2)]. U

V V
A 33. Mr Pun argues that since BL 37, unlike article 23(2) of the A

ICCPR or article 12 of the ECHR, does not use the term “men and
B B
women” but adopts a general term of “Hong Kong residents”, it does not
C exclude same-sex couples from the institution of marriage. That C

argument does not sit well with his avowed position that the applicant
D D
does not seek a right to marry under BL 37. In any event, it is an attempt
E to isolate the language used from its constitutional, legal and historical E

contexts. It is plainly wrong and must be rejected.

F F

G 34. As will be elaborated further, the fact that BL 37 enshrines G

the right to marry for heterosexual couples exclusively must inform the
H H
interpretation of the rights relied on by the applicant. To this we now
I I
turn.

J J
D2. Interpreting the rights
K K
35. It is well-established that fundamental rights in the Basic
L L
Law should be generously interpreted so that individuals are given the

M full measure of their protection. However, it is equally well-settled that M

fundamental rights must be derived from the language used in the Basic
N N
Law, properly interpreted in the light of its context and purpose: see ZN v
O Secretary for Justice (2020) 23 HKCFAR 15, per Fok PJ at [29(2)]. It is O

impermissible to ignore the language used, which must be properly

P P
interpreted, in favour of a general resort to the concept of “rights” or
Q “values”. For the result is not interpretation but divination: Matadeen v Q

Pointu [1999] 1 AC 98, per Lord Hoffmann at p108C-G; Day & Bush
R R
(PC), per Lord Sales at [46].
S S

T T

U U

V V
A D2.1 No right to marry arising from the rights A

B 36. A proper interpretation of the fundamental rights requires B

them to be read together with other relevant provisions of the Basic Law
C C
as a coherent, internally consistent whole. In so reading, if there is a
D specific provision on a particular subject matter constituting a lex D

specialis, it will prevail over some other general provisions. As the Court
E E
of Final Appeal in Kwok Cheuk Kin v Director of Lands (No 2) (CFA)
F (2021) 24 HKCFAR 349, at [44(2)], explained:19 F

G G
“It is a principle of statutory construction that the specific
prevails over the general. This is simply one aspect of the more
H H
general principle that legislative instruments must be read as a
coherent whole:
I I
‘The rule is, that wherever there is a particular enactment
and a general enactment in the same statute, and the
J J
latter, taken in its most comprehensive sense, would
overrule the former, the particular enactment must be
K operative, and the general enactment must be taken to K
affect only the other parts of the statute to which it may
properly apply.’
L L

M The same principle applies to constitutional interpretation. …” M

N N
In a similar vein, Lord Sales in Day & Bush (PC), at [38], said:
O O
“The Board regards it as trite law that [the Cayman Islands
Constitution] should be read as a coherent whole … [The]
P P
approach to interpretation of an instrument which includes a
provision which constitutes a lex specialis in relation to a
Q particular subject matter is not a technical rule of treaty Q
interpretation … Rather, like the maxim generalia specialibus
non derogant, it is a consequence of the principle that an
R R
instrument should be interpreted as a coherent whole and
‘represents simple common sense and ordinary usage’…”
S S

T T

U
19
Omitting the footnote. U

V V
A 37. The doctrine of lex specialis has been applied by the Court A

of Final Appeal in different contexts. For example:

B B

C
(1) In Comilang, the Court held that the scheme of constitutional C
rights laid down by the Basic Law, both in its Chapter III and
D D
in the HKBOR incorporated via article 39 of the Basic Law,
E must be interpreted as a coherent whole, consistently with E

section 11 of the Hong Kong Bill of Rights Ordinance. 20

F F
Therefore, section 11 is not confined to rights in the HKBOR
G but extends by necessary implication to cognate rights in the G

Basic Law in the specific immigration context, excluding

H H
reliance on the rights to raise a family freely under BL 37 by
I the mother applicants, and reliance on the cognate rights in I

the Basic Law by the children applicants, whether they were

J J
invoked directly or in connection with the enjoyment of
K another right. K

L L
(2) More recently, in Kwok Cheuk Kin (CFA), the Court held

M that in respect of the lawful traditional rights and interests of M

indigenous inhabitants of the New Territories, article 40 of
N N
the Basic Law (BL 40)21 as the dominant provision qualifies
O and limits the application of BL 25 and HKBOR 22 when O

they are read together. The constitutional challenge by the

P P
applicant, a non-indigenous inhabitant, against the Small
Q House Policy, which falls within BL 40, on the ground of Q

discrimination was rejected.

R R

S S
20
Cap 383. Section 11 provides: “As regards persons not having the right to enter and remain in Hong
Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and
T departure from Hong Kong, or the application of any such legislation.” T
21
BL 40 stipulates: “The lawful traditional rights and interests of the indigenous inhabitants of the
U ‘New Territories’ shall be protected by the Hong Kong Special Administrative Region.” U

V V
A 38. Turning specifically to the right to marry, BL 37 is A

undoubtedly the lex specialis on the subject. It prefers heterosexual

B B
marriage and must correspondingly qualify and limit the rights on
C equality and privacy relied on by the applicant. In this respect, the C

observation by Cheung CJHC (as the Cheung CJ then was) in Leung

D D
Chun Kwong v Secretary for Civil Service (CA) [2018] 3 HKLRD 84, at
E [9] is most pertinent:22 E

F F
“… [The] preference in [BL 37] for heterosexual people over
homosexual people in terms of access to marriage is there
G notwithstanding that the Basic Law also provides in [BL 25] G
that everybody is equal before the law. In other words, the
drafters of the Basic Law were fully aware of this important,
H H
fundamental human right to equality, when granting to
heterosexual people only in the same Chapter III of the Basic
I Law a constitutional protection not shared by homosexual I
people, in terms of access to marriage. If anything, this makes
the preference for heterosexual marriage in [BL 37] stand out
J all the more starkly.” J

K K
39. Applying the doctrine of lex specilais, within the scheme of
L fundamental rights contained in Chapter III and the HKBOR, BL 25, L

HKBOR 22 and HKBOR 14, which are general provisions and do not
M M
stipulate a right to marry, must take account of BL 37, the dominant
N provision on access to marriage, and cannot be developed, even by way N

of a most generous interpretation, to circumvent the express preference

O O
for heterosexual marriage in BL 37. They cannot establish indirectly by
P implication a right to marry for same-sex couples which is not provided P

for in BL 37. Were such an interpretation possible, as Mr Pun has

Q Q
advocated, it would render the preference over heterosexual marriage in
R R
BL 37 redundant. It would be clearly contrary to the intention of the

S
drafters of the Basic Law. S

T T
22
His Lordship’s remark remains valid as it was not disturbed on appeal to the Court of Final Appeal in
U Leung Chun Kwong (CFA). U

V V
A 40. The above conclusion is well supported by international A

jurisprudence which unanimously applies the doctrine of lex specialis to

B B
deny access to marriage to same-sex couples who rely on general rights
C when there is a specific provision in the constitutional document that C

creates a right to marry for heterosexual couples only. The latest

D D
authority on the subject is the decision of the Privy Council in Day &
E Bush (PC). E

F F
41. There, the principal issue was whether the Bill of Rights
G (which forms Part 1 of the Cayman Islands Constitution) provides for a G

right for the appellants, a same-sex couple, to marry when section 14 (1)
H H
of the Bill of Rights provides for the right to marry a person of the
I I
opposite sex in these terms: “Government shall respect the right of every

J
unmarried man and woman of marriageable age (as determined by law) J
freely to marry a person of the opposite sex and found a family”. The
K K
applicants relied on general provisions in the Bill of Rights, namely,

L
section 9 (right to respect private and family life), section 10 (right to L
freedom of conscience) and section 16 (right against discriminatory
M M
treatment) in support of their cases.
N N

42. Before the Grand Court, Smellie CJ held that the fact that
O O
section 14(1) enshrines the right to marry for opposite-sex couples does
P not exclude a similar right existing for same-sex couples under the P

general provisions of the Bill of Rights. He particularly emphasized that

Q Q
section 14(1) did not use exclusionary words such as “only” before “a
R person of the opposite sex” to deny same-sex couples the right to marry. 23 R

He further held that notwithstanding the lex specialis argument, the

S S
refusal to license the marriage of the applicants constituted unjustified
T discrimination.24 T
23
Day & Bush (GA) at [159].
U
24
Day & Bush (GA), at [160]. U

V V
A 43. On appeal, the Court of Appeal held that in the scheme of A

the Bill of Rights section 14 is the provision which governs the right to
B B
marry as a lex specialis, and which does not cover same-sex marriage.
C Hence, the general rights could not be interpreted to include a right for C

same-sex couples to marry for which the lex specialis in section 14 did
D D
not provide.
E E

44. In dismissing the appellants’ appeal, the Privy Council

F F
rejected their argument that their right to marry arose from the general
G rights which should be given a generous interpretation to give the G

individuals the full measure of the fundamental rights and freedoms. In

H H
giving the judgment for the Privy Council, Lord Sales held at [32]:
I I

“In the context of the Bill of Rights, section 14(1) is a lex

J specialis dealing with the right to marry. That right is J
confined to opposite-sex couples. Sections 9, 10 and 16 have
to be interpreted in the light of that lex specialis, so none of
K K
them can be construed as including a right for a same-sex
couple to marry.”
L L

M
His Lordship then went on at [32] – [44] to expound on and apply the M
doctrine of lex specialis. He also drew support from the jurisprudence of
N N
the ECtHR including Schalk and Oliari; and other jurisprudence,

O
including Joslin at [45] – [50] and [51] – [54] respectively. Specifically, O
he at [52] highlighted the well-established proposition by Strasbourg
P P
jurisprudence that because the lex specialis does not recognize the right to
Q same-sex marriage, no question of justification arises at all, disapproving Q

the judgment of the Court of Appeal of Northern Ireland in Re Close’s

R R
Application for Judicial Review [2020] NICA 20.
S S

45. In Attorney General for Bermuda v Roderick Ferguson &

T T
others [2022] UKPC 5, Lord Sales at [146] summarized the review that
U U

V V
A he did in Day & Bush (PC) thus: A

B “Both the ECHR and the ICCPR contain an express right for B
individuals to marry, drafted in terms which cover only
C opposite-sex couples: article 12 and article 23, respectively. … C
As explained in detail in the Board’s judgment in the Day case,
paras 45-54, in the scheme of these instruments those
D provisions constitute a lex specialis in relation to the right to D
marry which precludes such a right being found to be inherent
E
in other, general provisions set out in them. As regards the E
position under the ECHR, it is on the basis that in the scheme
of the Convention article 12 is the lex specialis on the right to
F marry that the Strasbourg Court has rejected the submission F
that general rights in article 8 (right to respect for family and
private life) and article 14 (right to protection against
G G
discrimination) include a right for same-sex couples to marry
… The ECtHR made the point in this way in Schalk at para
H 101: H

I
‘Insofar as the applicants appear to contend that, if not I
included in article 12, the right to marry might be derived
from article 14 taken in conjunction with article 8, the
J Court is unable to share their view. It reiterates that the J
Convention is to be read as a whole and its articles should
therefore be construed in harmony with one another.
K K
Having regard to the conclusion reached above, namely
that article 12 does not impose an obligation on
L contracting states to grant same-sex couples access to L
marriage, article 14 taken in conjunction with article 8, a
provision of more general purpose and scope, cannot be
M interpreted as imposing such an obligation either.’ M

N By the same reasoning, no right of marriage for same-sex N

couples can be derived under the ECHR from article 9
(freedom of thought, conscience and religion), whether taken
O O
by itself or together with article 14: Parry v United Kingdom
(Application No 42971/05), admissibility decision, 28
P November 2006.” P

Q Q
46. In light of our conclusion on interpretation and the weight of
R authorities, both local and international, Mr Pun’s submissions on the R

doctrine of lex specialis are simply untenable. They can be disposed of

S S
briefly.
T T

U U

V V
A 47. First, there is no merit in Mr Pun’s argument that because of A

the difference in language, the Hong Kong constitutional framework for

B B
marriage under BL 37 is different from that under article 12 of the ECHR
C and article 23(2) of the ICCPR, thus rendering Schalk, Oliari and Joslin C

distinguishable. As seen, despite the difference in language, BL 37 on a

D D
proper interpretation enshrines the right to marry for heterosexual couples
E exclusively in the same way as article 8 of the ECHR and article 23(2) of E

the ICCPR do.

F F

G 48. Second, Mr Pun’s attempt to criticize Schalk and Joslin as G

unsound must fail in the absence of any authority in support and more
H H
importantly, in light of the survey of cases on the doctrine of lex specialis
I by the Privy Council in Day & Bush (PC). I

J J
49. Third, Mr Pun’s reliance on Kong Yunming is entirely

K
misplaced. That case concerned the right to social welfare enshrined K
under article 36 of the Basic Law (BL 36). The Government’s policy
L L
since 1 January 2004 was that persons residing in Hong Kong for fewer

M than seven years did not qualify for comprehensive social welfare M
assistance save in exceptional circumstances. Previously since 1971, the
N N
residence requirement was one year. The applicant, an immigrant from
O the Mainland, who did not qualify under the 2004 residence requirement O

challenged the policy on the ground that it was inconsistent with BL 25,
P P
BL 36, article 145 of the Basic Law (BL 145) and HKBOR 22. As
Q observed by the Court of Final Appeal, 25 in the courts below, the Q

applicant’s case as argued centred on the right to equality under BL 25.

R R
Before the Court of Final Appeal, although the case based on equality
S was not abandoned, her central complaint shifted to BL 36. Focusing S

therefore on BL 36, the Court of Final Appeal held that the relevant right
T T
given constitutional protection by it in the present case was the right
U
25
At [20]-[21]. U

V V
A defined by the eligibility rules for CSSA in existence as at 1 July 1997. A

Social welfare rights protected by BL 36 were subject to modification in

B B
accordance with BL 145, which did not preclude the elimination or
C reduction of particular welfare benefits if that proved necessary to C

develop, improve or maintain the welfare system as a whole. However,

D D
any restriction of such rights was subject to constitutional review. And
E the seven-year requirement did not satisfy the proportionality test. In E

short, the applicant in Kong Yunming had an established right to social

F F
welfare under BL 36 which could only be restricted if the restriction
G satisfied the proportionality test. Properly understood, the Court of Final G

Appeal’s decision in that case simply did not address BL 25, lending no
H H
support to the applicant’s reliance on it to overcome the operation of BL
I I
37.

J J
50. Fourth, Mr Pun asks us to follow the reasoning of Smellie CJ
K in Day & Bush (GC). With respect, we are unable to subscribe to his K

Lordship’s view, which departs from the well-established jurisprudence.

L L
We do not consider that giving effect to the drafters’ preference for
M heterosexual marriage enshrined constitutionally in a lex specialis M

amounts to any unjustified encroachment of the fundamental rights.

N N

O 51. For the above reasons, we reject the applicant’s case to claim O

access to marriage or its equivalent based on BL 25 and HKBOR 22, and

P P
HKBOR 14. Those provisions are not engaged and the question of
Q justification does not arise. Q

R R
D2.2 No obligation to provide alternative framework under HKBOR 14
S S
52. We next come to the applicant’s alternative case that the
T Government is under a positive duty to provide for an alternative legal T

U U

V V
A framework for recognition of same-sex relationships equivalent to A

marriage under HKBOR 14. It is again a matter of interpretation.

B B

C 53. HKBOR 14 provides: C

D D
“(1) No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or
E correspondence, nor to unlawful attacks on his honour E
and reputation.

F F
(2) Everyone has the right to the protection of the law
against such interference or attacks.”
G G

H HKBOR 14 is modelled on article 17 of the ICCPR verbatim. H

Significantly, Mr Pun has not been able to cite any authority on article 17
I I
to make good his submissions. Instead, he primarily relies on the
J Strasbourg jurisprudence, in particular, Oliari in support of his J

construction of HKBOR 14. In that case, the majority of the ECtHR

K K
found Italy to be in breach of article 8 of the ECHR by reason of its
L failure to provide any form of legal recognition for same-sex couples, L

such as by way of a civil partnership regime.

M M

N 54. Article 8 of the ECHR is couched very differently from N

HKBOR 14. It reads:

O O

“1. Everyone has the right to respect for his private and
P P
family life, his home and his correspondence.

Q 2. There shall be no interference by a public authority with Q

the exercise of this right except such as in accordance with law
R and is necessary in a democratic society in the interests of R
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
S protection of health or morals, or for the protection of the rights S
and freedoms of others.”
T T

U U

V V
A And it has long been the established view of the Strasbourg Court that A

article 8 imposes both positive and negative obligations. In Marckx v

B B
Belgium (1979) 2 EHRR 330, the ECtHR at p.342 explained:
C C
“By proclaiming in paragraph 1 the right to respect for family
D life, Article 8 signifies first that the State cannot interfere with D
the exercise of that right otherwise than in accordance with the
strict conditions set out in paragraph 2. As the Court stated in
E the BELGIAN LINGUISTIC CASE [in 1968], the object of the E
Article is ‘essentially’ that of protecting the individual against
arbitrary interference by the public authorities. Nevertheless, it
F F
does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking,
G there may be positive obligations inherent in an effective G
‘respect’ for family life.”
H H

55. This view was reiterated by the majority of the ECtHR in

I I
Oliari:26
J J
“159. While the essential object of art.8 is to protect
K
individuals against arbitrary interference by public authorities, it K
may also impose on a state certain positive obligations to ensure
effective respect for the rights protected by art.8. These
L obligations may involve the adoption of measures designed to L
secure respect for private or family life even in the sphere of the
relations of individuals between themselves.
M M

160. The principles applicable to assessing a state’s positive

N and negative obligations under the Convention are similar. N
Regard must be had to the fair balance that has to be struck
O
between the competing interests of the individual and of the O
community as a whole, the aims in the second paragraph of art.8
being of a certain relevance.”
P P

Q The majority then embarked on an essentially proportionality analysis at Q

[165] – [186] to arrive at the conclusion at [187] that there was a violation
R R
of article 8.
S S

T T
26
See the authorities cited at footnote 96, which is omitted for present purpose. See also [162], [164],
U [175] and [185] where the state’s positive obligation under article 8 was repeatedly mentioned. U

V V
A 56. It is now well settled that under article 8 of the ECHR as A

interpreted by the Strasbourg Court, corresponding to the positive

B B
obligations on the states to ensure effective respect, there is a right to a
C legally recognized union for same-sex couples which is equivalent to C

marriage in substance though not in name, giving them the same rights
D D
and benefits that married couples have: see the Privy Council’s
E observation in Roderick Ferguson, at [21]. However, because of the E

crucial differences between the provisions, this line of Strasbourg cases

F F
resting on the state’s positive obligations in article 8 of the ECHR does
G not assist the interpretation of HKBOR 14. G

H H
57. Because HKBOR 14 is taken from article 17 of the ICCPR
I I
verbatim, the HRC’s view on the latter’s scope as contained in the

J
General Comment No 16 (1988) on ICCPR 17 is instructive. The J
relevant parts read:
K K

“1. Article 17 provides for the right of every person to be

L protected against arbitrary or unlawful interference with his L
privacy, family, home or correspondence as well as against
unlawful attacks on his honour or reputation. In the view of
M M
the Committee this right is required to be guaranteed against all
such interferences and attacks whether they emanate from State
N authorities or from natural or legal persons. The obligations N
imposed by this article require the State to adopt legislative and
other measures to give effect to the prohibition against such
O interference and attacks as well as to the protection of this O
right.”
P P
…
Q Q
9. States parties are under a duty themselves not to engage
in interferences inconsistent with article 17 of the Covenant
R and to provide the legislative framework prohibiting such acts R
by natural or legal persons.”
S S

T T

U U

V V
A 58. As pointed out by the Judge,27 the protection of “this right” A

at the end of [1], properly understood in context, refers to the right “not to
B B
be subject to arbitrary or unlawful interference with the rights protected”.
C In fact, article 17(2) of the ICCPR expressly guarantees a right to C

protection of the law against such interferences. The purpose of ICCPR

D D
17 is thus clear:
E E

(1) It first enjoins the state authorities from arbitrarily or

F F
unlawfully interfering with the rights protected.
G G
(2) It further requires the state authorities to protect the rights
H from being arbitrarily or unlawfully interfered with. H

I I
However, it does not mandate the state authorities, as article 8 of the
J ECHR as interpreted by the Strasbourg Court does, to take positive steps, J

whether legislative or administrative, to give effect to the rights protected.

K K
Indeed, Mr Pun has cited no authority to show that article 17 does impose
L such obligations on the state authorities. HKBOR 14 must have the same L

purpose as article 17.

M M

N 59. With respect, Mr Pun’s reliance on the Strasbourg authorities N

including Oliari in support of his interpretation of HKBOR 14 is

O O
misconceived. In this regard, the caution sounded by Lam J (as he then
P was) highlighted in Comilang & others v the Commissioner of P

Registration & others, HCAL 28/2011, unreported, 15 June 2012, at [95]

Q Q
is worth repeating:
R R

“It has to be borne in mind that there are discrepancies between

S the context and the language in different instruments and such S
discrepancies could be material to the proper construction of the
applicable instrument in Hong Kong. Actually, there are
T differences between the protection afforded to family under the T

U
27
MK, at [53]. U

V V
A ICCPR and that afforded by the ECHR. It is not right to start A
with an assumption that simply because broadly speaking all
these instruments refer to protection of family, the contents of
B the protection under all of them are the same. Indiscriminant B
citation of overseas authorities as modern trends in international
C human right laws very often fudges the proper analysis as to C
whether such overseas authorities are relevant in the Hong Kong
context.”
D D

E 60. The other points taken by Mr Pun can all be disposed of E

shortly.
F F

G 61. First, Mr Pun complains the Judge erred in failing to give G

HKBOR 14 a generous interpretation. But as said, a proper interpretation

H H
must begin with the language used. Such a general proposition does not
I really help if the language used in HKBOR 14 cannot bear the I

interpretation as he has contended.

J J

K 62. Second, there is no merit in Mr Pun’s complaint that the K

Judge had at [51] of MK erred in failing to give proper regard to same-sex

L L
relationship as required in W, Leung Chun Kwong and Fedotova when he
M declined to follow the majority in Oliari. There, the Judge was dealing M

with the various factors then prevailing in Italy which were relevant to the
N N
ECtHR’s proportionality analysis. And he rightly pointed out that they
O were neither present nor applicable in Hong Kong. Mr Pun has mis-read O

his judgment.
P P

Q Q
63. Third, properly understood, the two local authorities cited by

R
Mr Pun do not support his interpretation of HKBOR 14. R

S S
64. The first case is HKSAR v Au Kwok Kuen. There, a group of

T protestors demonstrated outside the residential development where a T

government official lived. When the metal gate to the development was
U U

V V
A opened by the caretaker, they went inside and the police officers present A

formed a “human chain” to prevent them from approaching the common

B B
area at the end of the driveway. After about 45 minutes, some of the
C protestors charged the police cordon and eventually all of them reached C

the common space. They were convicted of taking part in an unlawful

D D
assembly, contrary to section 18(3) of the Public Order Ordinance. 28

E They appealed and one of the grounds of appeal was that the police E

officers were not executing their duty inside the development when they
F F
formed the cordon and prevented them from moving down the driveway.
G In rejecting this ground, A Cheung J (as he then was) held that the police G

officers were entitled to take the view that there could be a breach of the
H H
peace by the protestors after their entry into the development in the
I I
manner as they did. The learned judge went on to say at [74]:

J J
“Moreover, just like the positive duty of the government
(including the police) to take reasonable and appropriate
K measures to enable lawful demonstration to take place K
peacefully … arts.6, 29 and 105 of the Basic Law and art.14 of
the Hong Kong Bill of Rights would, in my view, require the
L L
Government (including the police) to take reasonable and
appropriate measures to protect Hong Kong residents’ homes
M and other premises against intrusion and their privacy at home M
against interference, provided that the measures, if they are to
be taken within private premises, must be taken with the
N N
permission of their owner or occupier. …”

O O
65. Mr Pun says that A Cheung J was there recognizing the
P positive duty of the Government to take reasonable and appropriate P

measures to protect privacy rights under HKBOR 14. We disagree.

Q Q
Properly understood, the positive duty that his Lordship referred to is the
R R
duty on the Government to prevent the privacy rights under HKBOR 14

S
from arbitrary and unlawful interference. This is exactly what we have S
identified as the second aspect of the purpose of HKBOR 14: see [58(2)]
T T

U
28
Cap 245. U

V V
A above. It does not embrace a positive duty to take measures to give effect A

to the privacy rights, as Mr Pun has argued.

B B

C 66. The second case is Q v Commissioner of Registration C

[2022] 1 HKLRD 803. There, the applicants were female to male

D D
transgender persons. Their applications to change the sex entry in their
E Hong Kong identity cards from female to male were rejected by the E

respondent on the ground that they had failed to complete the relevant sex
F F
re-assignment surgery according to their policy. The respondent accepted
G that the applicants’ right of gender as an aspect of privacy rights under G

HKBOR 14 was engaged by the policy. The Court of Appeal at [38]

H H
described the applicants’ case as follows:
I I

“… What they seek is to identify themselves by their acquired

J gender on their identity card. In her oral submissions, Ms J
Dinah Rose QC, appearing for the applicants, referred to it as
their social gender or lived gender, the way how they present
K K
themselves. Putting the applicants’ case in more precise terms,
what is engaged under BOR 14 in the present context is their
L right to state their acquired gender in the sex entry on their L
identity card, thereby enabling them, when using or presenting
their identity card, to express their acquired gender and conduct
M their life and affairs accordingly.” M

N N
67. Mr Pun seizes upon the word “enabling” and submits that
O the rights under HKBOR 14 are, according to the Court of Appeal, O

positive in nature. Again, we disagree. As an aspect of their privacy

P P
rights under HKBOR 14, the applicants in Q had the right to present
Q themselves by their acquired gender, including their identity cards. The Q

policy adopted by the respondent prevented them from so doing by

R R
refusing to change the sex entry because they had not completed the
S requisite sex-reassignment surgery. It amounted to an interference with S

T
their privacy rights that needed to be justified. This aligns with the T
second aspect of the purpose of the HKBOR 14. The applicants did not
U U

V V
A assert, and the Court of Appeal certainly did not hold, that HKBOR 14 A

imposed a positive duty on the respondent to protect the applicants’

B B
privacy rights in terms of enabling them to present their acquired gender
C by their identity cards. C

D D
68. For the above reasons, we hold that on a proper
E interpretation, HKBOR 14 does not impose a positive duty on the E

Government to provide for an alternative framework for the recognition

F F
of same-sex unions that is equivalent to marriage such as civil
G partnerships. HKBOR 14 is not engaged and no justification, as what the G

Strasbourg cases like Fedotova have decided, arises.

H H

I E. The applicant’s further alternative case on discrimination I

J J
69. We finally come to the applicant’s further alternative

K
discrimination challenge against the non-recognition of his foreign same- K
sex marriage.
L L

M 70. The applicant’s case is based on the proposition that a M

heterosexual couple and a same-sex couple, both married overseas, are in
N N
a relevantly similar situation so that both of them are equally entitled to
O have their foreign marriages registered in Hong Kong. Giving the former O

recognition of their foreign marriage but denying the latter the same
P P
treatment amounts to discrimination.
Q Q

71. Put simply, what the applicant seeks is access to the

R R
institution of marriage by way of recognition of his foreign same-sex
S marriage. This distinguishes his case from others, such as QT and Leung S

Chun Kwong, where the same-sex couples sought the benefits arising
T T

U U

V V
A from their relationship, but not recognition or access to marriage. A

However, he faces the insurmountable hurdle of BL 37.

B B

C 72. Plainly, BL 37 grants access to marriage in Hong Kong for C

couples married locally and overseas as well. And as the lex specialis, it
D D
only prefers heterosexual marriage, which means that only heterosexual
E couples are entitled to recognition of their foreign marriage. If the same E

recognition is afforded to same-sex couples married overseas, they would

F F
be able to circumvent the preference enshrined in BL 37, clearly contrary
G to the intention of the drafters of the Basic Law. That would also create G

an inherent incompatibility between them and those same-sex couples

H H
who wanted to marry in Hong Kong but could not do so in terms of
I I
gaining access to the institution of marriage. That is self-evidently

J
wrong. J

K K
73. Fedotova does not take Mr Pun’s argument any further.

L
There, the ECtHR held that Russia had failed to fulfil its positive L
obligation under article 8 of the ECHR to ensure that homosexual couples
M M
have available to them a specific legal framework providing for the

N recognition and protection of their same-sex unions. However, there was N

no discussion of the prior question of comparability between heterosexual

O O
and same-sex couples in light of the doctrine of lex specialis on marriage.
P Absent such critical analysis, Fedotova does not really assist the applicant P

who has to grapple with BL 37.

Q Q

R 74. As noted by the Judge,29 Mr Pun in effect contends that R

status of marriage is generally open to same-sex couples if they are

S S
lawfully married according to the law of the place where the marriage is
T celebrated. The Judge was correct in noting that it is inconsistent with the T

U
29
Judgment, at [17]. U

V V
A Court of Appeal’s observation in QT, at [25], that by definition the status A

of marriage is not open to same-sex couples. We too would reject this

B B
contention because whatever the position might be under the foreign law
C on marriage, it does not detract from the application of BL 37 in Hong C

Kong.
D D

E 75. Mr Pun emphasises that it is unfair for the applicant to come E

to court to challenge a particular Government policy or decision which

F F
accords differential treatment based on his sexual orientation as a
G violation of his constitutional right to equality whenever it arises. He G

should instead be granted access to marriage by recognition of his foreign

H H
marriage so that he could enjoy all the benefits flowing from his marital
I I
status. We disagree.

J J

76. In terms of access to benefits, it is trite law that whether any

K K
alleged differential treatment amounts to discrimination is subject and
L context specific. The proportionality analysis invariably involves a L

careful balance of the complainant’s interest and any countervailing

M M
public interest that is engaged. Focusing just on the former without
N considering the latter, as implied in Mr Pun’s submission, misses a most N

crucial aspect of the analysis. Such a blanket but blinkered approach is

O O
wholly unjustified as a matter of law and principle, however burdensome
P the exercise might be. P

Q Q

77. In terms of access to the institution of marriage, it concerns

R R
the special status of marriage, which is a distinct concept from the
S benefits arising from it. The difficulty or even perceived hardship S

involved in obtaining the benefits by means of legal challenges does not

T T
justify a short-cut bypassing BL 37 to access the institution of marriage.
U U

V V
A 78. For completeness, we fully agree with the Judge’s reasoning A

summarized at [12] above in dismissing the applicant’s discrimination

B B
challenge. We reject Mr Pun’s submissions to the contrary in their
C entirety. C

D D
F. Dispositions
E E
79. For the above reasons, the Judge was correct in rejecting the
F Grounds and dismissing the applicant’s judicial review. We accordingly F

dismiss his appeal.

G G

H 80. We further make an order nisi that the applicant is to pay the H

respondent’s costs, to be taxed if not agreed with a certificate for two

I I
counsel; and that the applicant’s own costs are to be taxed in accordance
J with the Legal Aid Regulations. J

K K

L L

M M

N N

O (Jeremy Poon) (Susan Kwan) (Carlye Chu) O

Chief Judge of the Vice President Justice of Appeal
P High Court P

Q Q

R Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Ho, Tse, R

Wai & Partners, assigned by Director of Legal Aid, for the applicant
S S
Mr Stewart Wong SC and Mr Johnny Ma SC, instructed by the
T Department of Justice, for the respondent T

U U

V V