POLS7040 Law & Public Affairs Individual Paper

Name: Chan Chun Sum Brian 23466987

Phone No.: 66285347
Email address: 23466987@life.hkbu.edu.hk
Topic: Discussion on issues related to the legalization of same sex marriage-personal view
(normal)
Introduction
Same sex marriage was argued and debated in global world and Hong Kong society. It was
controversial and different foreign countries passed motion of legalizing same sex marriage
and recognized it, such as Belgium, Holland, Spain, Canada, Finland, France, New Zealand,
United Kingdom and United States, etc. However, there were different opinions towards
whether same sex marriage should be legalized and equal with heterosexual marriage or not
in Hong Kong. Many stakeholders, such as policymakers, non-governmental organizations,
scholars, political parties, public, both anti-LGBTI and LGBTI alliances, also debated every
dimension towards equality and values of traditional marriage, or even debated on sexuality
movement for same sex marriage. For the support side of same sex marriage, arguments
mainly based on human rights and equality between homosexuality and heterosexuality,
while for the oppose side of same sex marriage, arguments were towards next generation
education of marriage and family formation. There are some of my personal views towards
legalization of same sex marriage in Hong Kong or even global world in further elaboration
of the paper, which firstly provided detail information on historical and current judicial
review that related to same sex marriage in Hong Kong, secondly will provide personal
stance towards legalization of same sex marriage in Hong Kong.
Hong Kong Judicial Review related to same sex marriage
In 1978 to 1980s, there were two original criminal cases which related to illegal behaviour of
homosexuality in Hong Kong, such as lawyer named Duffie and John Maclennan cases1.
These cases didn’t report in judicial reference system due to long history, however both cases
reflected on homosexuality was criminalized in that period, especially the Special
Investigation Unit set up in 1978, which they investigated whether homosexuality was guilty
or not in Hong Kong colonial period. Nevertheless, John Maclennan case happened due to his
homosexual behaviour found guilty in police duties, which suicided by five-gun shots2. After

1
Chan, K. K. (2017). Family and homosexuality in Chinese culture: Rights claims by non-heterosexuals in Hong
Kong. Sexuality & Culture, 21, 845-859.
2
ibid.

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these cases originated for homosexuality, illegal behaviour of homosexuality was
decriminalized in 1990, moreover same sex marriage was still unavailable in Hong Kong.
Therefore, there were different judicial review that related to homosexuality or same sex
marriage crossed in different year, in which also reflected in the society on whether to
support or oppose same sex marriage legalized in Hong Kong, or even judgement from
judicial review reflected on stances. In 2005, there was the first case related to parents' sexual
orientation that must not as automatic disqualified towards children custody, it named as W v
W3. This case was determined whether husband and wife legal documents on divorce related
to homosexual orientation of both sides could take precedence of responsibility towards
children care throughout avoiding the signature of Deed of Separation as it left issues on
granted leave or not, which were argued support relief to childcare responsibility in
Matrimonial proceedings. Trial dismissed leave application and relief for husband side
finally, it resulted husband must beard cost towards wife side due to his sexual orientation on
childcare4. Different judicial reviews mainly argued on same sex marriage or behaviour had
been violated law in Hong Kong during 2006 to 2007. To take Leung TC William v Secretary
of Justice5 and Secretary for Justice v Yau Yuk Lung Zigo and Lee Kam Chuen6 as examples,
both illustrated on homosexual behaviour violated ordinance and brought discrimination
towards sex minority, in which they pursued on equality between homosexuality and
heterosexuality. The background of Leung TC William v Secretary of Justice was about the
aged 20, homosexual appellant, Mr. Leung was in gay relationships for 16 years old, although
he didn’t prosecute from violation of Crimes Ordinance, it still made frustration on s. 118C,
s. 118H, s. 118F(2)(a) and s. 118J(2)(a), Crimes Ordinance (Cap 200)7. Therefore, he brought
judicial review to challenge on Crimes Ordinance (Cap 200) since he and his partner had
desired on physical sexual expression to their sexual orientation. Mr. William Leung argued
that Crimes Ordinance (Cap 200) negatively affected homosexual relationships under 21
years old, which resulted as stress for eternal relationship8. However, Mr. McCoy disagreed
towards Leung’s arguments due to the Basic Law and the Bill of Rights as there was
unsustainable challenges provisions in this case9. The result of judicial review succussed,
moreover, HKSAR government appealed in 2006, which their arguments towards
3
Hong Kong Marriage Equality(HKME). (n.d.). Key Court Cases. Retrieved Nov 4, 2023, from:
https://hkme.org.hk/en/key-court-cases/ ; Unreported, FCDJ 4722/1992, 29 April 2005
4
Unreported, FCDJ 4722/1992, 29 April 2005
5
[2005] 3 HKLRD 65, [2006] 4 HKLRD 211
6
[2007] 3 HKLRD 903; (2007) 10 HKCFAR 335
7
s. 118C, s. 118H, s. 118F(2)(a) and s. 118J(2)(a), Crimes Ordinance (Cap 200)
8
[2005] 3 HKLRD 65
9
ibid.

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commitment of buggery resulted inequality treatment10. It still dismissed by judges due to
insufficient evidence towards jurisdiction on prosecution11. Secretary for Justice v Yau Yuk
Lung Zigo and Lee Kam Chuen also noted as significant judicial review on whether
homosexual behaviour was illegal or not due to illegal charges on private buggery from Mr.
Zigo Yau and Mr. Lee. Before the trial of judicial review, their charges were dismissed and
resulted as Crimes Ordinance (Cap 200) was unconstitutional, which the appellants were
success in the judicial review12. To compare 2006 and 2007 judicial review, both shared
similarity on challenging the violation of Crimes Ordinance due to illegal homosexual
behaviour. However, appellant of these two judicial reviews had different in prosecution and
not be prosecuted towards homosexual behaviour respectively.
Cho Man Kit v Broadcasting Authority was another judicial review for arguing unlawful
decision of RTHK TV programme “Gay Lover” since he was being invited to the show,
which afterwards received public complaints by Broadcasting Authority, resulted as
Broadcasting Authority failed in the trial and had to paid cost to Mr. Cho13. Throughout
different judicial review in Hong Kong across different years, such as W v Registrar of
Marriages in 201314, QT v Director of Immigration in 201815, or even Sham Tsz Kit v
Secretary for Justice in 202316, both judicial reviews reflected diversity of social acceptability
towards same sex marriage legalization in Hong Kong still debated. It was first argued on
whether transgender person could marry opposite sexuality person throughout surgery
afterwards since W v Registrar of Marriages in 2013 based on W who was 30 years old post-
operative male to female transsexual person due to male birth registration in correct
biological, undergone sex change operations and became woman, her hope was to marry with
her male partner17. Until 2008 W's HKID still was male, but from early age W perceived as
woman, she was diagnosed for the suffer of gender identity disorder and undergone both
psychological assessments, orchidectomy in Thailand and hormonal treatment in 2005, 2007
and 2008 respectively18. W's name changed to feminine and succeeded under professional
supervision, performed removal penis and construction on artificial vagina surgery, sex
reassignment surgery by Hospital Authority, resulted as letter issued W towards the sex
10
[2006] 4 HKLRD 211
11
ibid.
12
[2007] 3 HKLRD 903; (2007) 10 HKCFAR 335
13
Unreported, HCAL 69/2007, 8 May 2008
14
[2013] 3 HKLRD 90; (2013) 16 HKCFAR 112
15
[2017] 5 HKLRD 166; (2018) 21 HKCFAR 324
16
[2022] HKCA 1247; [2023] HKCFA 28
17
[2013] 3 HKLRD 90; (2013) 16 HKCFAR 112
18
ibid.

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transformed to woman19. New HKID card and passport stated W's new name and provided
sex as female in August 2008. Afterwards, W's solicitor wrote for seeking confirmation on W
was able to marry her male partner or not, however Registrar of Marriages refused and
justified W wasn't qualified to become women under Marriage Ordinance and the
Matrimonial Causes Ordinance, resulted as powerless to celebrate marriage. W brought
Judicial Review proceedings on challenging the decision of Registrar of Marriages but failed
in the Court of First Instance and the Court of Appeal, which pursued for legal purpose on the
marriage for transsexual person with opposite sex, challenged on Registrars decision based
on s.40, Marriage Ordinance and s.20(1)(d), Matrimonial Causes Ordinance20. Although
arguments from the Registrar of Marriage rose two questions that summarized as procreation
of marriage aspect and consummation, also the social consensus in Hong Kong since no
evidence on favouring the post-operational transsexual person to marry under reassigned
capacity, it still significant that protection of marriage right for post-operational transsexual
person towards opposite sex under reassigned capacity should be guaranteed by the
constitution21. Therefore, it also provided legislation on concern of gender acquired by sex
reassignment surgery provided permission on post-operational transsexual person to marry
opposite sex in reassignment capacity. For this judicial review result, W success to appeal in
the trial, while Hong Kong government made legislation based on the trial appeal result 22.
QT v Director of Immigration in 2018 and Sham Tsz Kit v Secretary for Justice in 2023, as
mentioned before, these judicial review examples were also significantly affected Hong Kong
public as several debates polarized support and oppose side of same sex marriage. Many
political actors in Legislative Council or other events argued frequently towards this sensitive
topic in society. Especially for QT v Director of Immigration that appealed in The Court of
Final Appeal on June 4, 2018, QT was the British national and homosexual person who
coupled with SS, lesbian person who was in dual South Africa and British nationality, both
received recognition of same-sex civil partnership under Civil Partnership Act 2004 in the
United Kingdom in May 2011. QT brought judicial review to challenge on defer the
application decision from Hong Kong Immigrant Department director since it was unfair that
SS applied working visa and extended her visa to work in Hong Kong on September 2011
and 2014 respectively, while QT only got visitor status that differed from dependent visa, she
wasn’t permitted to work and study in Hong Kong, in which result showed no dispute for
19
ibid.
20
ibid.
21
ibid.
22
ibid.

4
civil partnership that provided determination towards genuine relationship. QT raised three
challenges towards decision from Immigrant Department director in form 86, which
summarized as discrimination, unjustified and unreasonable decision, also the policy
misapplication in definition of couple term construction and subjected as unconstitutional
decision based on the inconsistent of the Basic Law and Bill of Rights23. Nevertheless, QT
also sought to challenge the decision and declaration of Immigrant Ordinance as it was
mainly argued towards policy authorization on less favourable stay conditions of sexual
orientation assumption, also applicable immigration policy towards same sex marriage and
relationships were not settle24. Throughout Immigrant Ordinance stated during the judicial
review, “The Director is responsible for immigration controls on entry into, stay in and
departure from Hong Kong. The policy presently in question is that under which a person
may apply to take up residence or remain in Hong Kong as a dependant of another person
who has been admitted into Hong Kong to take up employment”25. Nevertheless, there were
two criteria on Dependent Visa policy for employment from Immigrant Department, which
were his or her spouse, and also other party to a same-sex civil partnership, same-sex civil
union, “same-sex marriage”, opposite-sex civil partnership or opposite-sex civil union
entered into by him or her in accordance with the local law in force of the place of celebration
and with such status being legally and officially recognised by the local authorities of the
place of celebration. Throughout of Immigrant Department policy above, it assumed that
Immigrant Department director had rights on determination of applicant eligibility, in which
the word of “spouse” was limited to the concept of marriage as defined under Hong Kong
Basic law, resulted as assumption on marriage as one male and one female, therefore it didn't
recognise same sex marriage. However, The Court of Final Appeal concluded that it was
failure for the Director of Immigration Department to satisfy the court that the difference in
treatment was objectively justified, considering its discriminatory effects, and thus allowed
QT’s appeal success26.
Personal view of same sex marriage legalization in Hong Kong
Throughout different judicial reviews related to same sex marriage in Hong Kong, or even
support and oppose side arguments of same sex marriage, including non-governmental
organizations, political actors, such as Legislative Council councillor and Hong Kong
government, I believe same sex marriage should be legalized in Hong Kong, mainly my
23
[2017] 5 HKLRD 166; (2018) 21 HKCFAR 324
24
ibid.
25
ibid.
26
ibid.

5
argument is about equality between heterosexuality and homosexuality, or even human rights
of homosexuality since scholars research study investigated their barriers of same sex
partnership, in which it was the inequality and social exclusion issues in Hong Kong. Hong
Kong society mainly focused on traditional value of heterosexual marriage rather than same
sex marriage, which public actors considered as conservative side, such as Hong Kong
government, Anti-LGBTI Alliance, Liberal Party, Democratic Alliance for the Betterment
and Progress of Hong Kong (DAB) and others, both Legislative Council councillor, Mr.
Dominic Lee and Mr. Holden Chow argued on no evidence in same sex marriage legalization
before QT brought judicial review, in which QT judicial review encouraged legalization of
same sex marriage, or even forced social acceptability towards same sex couple, dependent
couple definition extension and caused negative effect on discrimination of law, resulted as
lead to the deconstruction of the traditional Chinese culture in marriage education and
religion perspectives respectively. Hong Kong government always stance on there was no
law prohibition towards same sex marriage, but still protected heterosexual marriage based
on s. 181, Marriage Ordinance: “both marriages are heterosexuals, other people mustn’t
involve”27. To my view, same sex marriage should be encouraged and legalized for achieving
social inclusion and equality between heterosexuality and homosexuality. As there were
support side supported same sex marriage, such as pro-democratic parties liked People power
and democratic party, they argued on unaccepted same sex couple resulted as discrimination,
since former Legislative Council councillor, LGBTI Alliance member, Mr. Ray Chan stated
establishment of equality between heterosexuality and homosexuality after QT judicial
review. In LegCo proceedings for bill to support homosexuality and heterosexuality equality,
he also argued that after QT judicial review, core value of marriage was to build up stable
long live relationship, which didn’t relate to gender or sexual orientation28. He stated that
Hong Kong government always avoided homosexuality issues, QT judicial review provided
another legislative amendment of Immigrant Ordinance for Hong Kong government
considering homosexual couples to enter union from overseas to apply dependant visa on stay
or study purpose in Hong Kong. Also, he believed freedom of choosing spouse that no need
to seek permission from others in respect, in which society must respect each other
throughout different values. Core values of marriage are not lie to gender and sexual
orientation, but for love and build up long stable relationship, also the caring responsibilities

27
s. 181, Marriage Ordinance
28
HK LegCo(2018). OFFICIAL RECORD OF PROCEEDINGS. Retrieved Nov 15, 2023, from
https://www.legco.gov.hk/yr18-19/chinese/counmtg/floor/cm20181122-confirm-ec.pdf

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to each other29. Meanwhile, another former LegCo councillor, Mr. Lam Cheuk Ting also
supported on Mr. Ray Chan views of supporting same sex marriage as Catholic and Christian
church moved towards liberalization, in which he argued Catholic church discriminated those
same sex couples or sex minorities, resulted as being excluded and persecuted30. Throughout
both former Legislative Council councillors Mr. Ray Chan and Mr. Lam Cheuk Ting views,
it provided my insights of supporting legalization of same sex marriage in Hong Kong as
both argued on core value of marriage, definition of love that determined long stable
relationship and discrimination towards same sex couples or sex minorities respectively.
For my perspective that based on the research study31, same sex couple had difficulties to
claim rights since it hindered development of same sex partnership and insufficient
engagement of claiming rights, in which it was also argued that same sex marriage was
difficult to legalize in Hong Kong due to social acceptability of same sex couples in Hong
Kong, which public subjectively determined them as sin or deviance in society, resulted as
they were being bullied or other violence scene as suicided or being murdered. Mostly
homosexual people had difficult to express desire on same sex partnership due to family
disapproval since family members wishes could not fulfil same sex couples' desire towards
partnership, in which there were uncertainties and changes in family opposition of sexual
orientation, resulted as distress from origin family32. To discuss with, I believe current
judicial review related to same sex marriage and other could reflect social inequality, or even
policymaker provided barriers on welfare equality achievement for same sex couples, take
Nick Infinger v The Hong Kong Housing Authority33 and Ng Hon Lam Edgar v The Hong
Kong Housing Authority34 as examples of judicial review for illustration, both reflected social
norms on same sex marriage recognition and welfare provision since Mr. Infinger, who
married in Canada and got Hong Kong permanent residents with his partner, he applied
public rental housing through his solicitor, however due to ineligible application that failed in
Housing Authority term of definition towards “ordinary family”, which consisted of one male
and one female, therefore he brought judicial review on challenging Housing Authority
decision on public rental housing application eligibilities that excluded same sex couples 35,
moreover especially Mr. Edgar Ng and his partner, Mr. Li Yik Ho Henry, they brought
29
ibid.
30
ibid.
31
Chan, K. K. (2017). Family and homosexuality in Chinese culture: Rights claims by non-heterosexuals in Hong
Kong. Sexuality & Culture, 21, 845-859.
32
ibid.
33
[2023] HKCA 117
34
ibid.
35
ibid.

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judicial review to quash decision from Housing Authority due to Housing Authority decision
on housing repossession towards him and his partner, although they succussed in Court of
First Instance while Department of Justice appealed afterwards, however resulted Mr. Ng
suicided in 3 years ago due to depression of longer procedure and results towards judicial
review in The Court of Final Appeal. Mr. Li continued Mr. Ng’s journey of judicial review,
in which after success for appeal in October 2023, he still faced government and Housing
Authority appeal after the success of appeal36. It was argued that the Housing Authority had
indirect discrimination towards same sex couples, which policymaker tried to prohibit same
sex couples for welfare and homosexual partnership. This judicial review provided my
reflection on recognition of same sex marriage related to policy decision of legislature as
normative values and sexuality ideas, such as strong and active male sexuality, weak and
passive women sexuality respectively, which were replicated and asserted in social policies
throughout ideology and heterosexuality. However, social policy failed to response same sex
marriage and homosexuality issues, which could not provide and ensure opportunities of
welfare equality to homosexual couples in Hong Kong. Leung Chun Kwong v the Secretary
for the Civil Service and others37 was one of judicial review examples illustrated policy
failure of fulfilling welfare equality between heterosexuality and homosexuality in Hong
Kong since Mr. Leung brought judicial review on challenging decision of Inland Revenue
Department towards online filling tax system that didn’t accept taxpayers' sexual orientation
as homosexual with his or her spouse due to s.2, Inland Revenue Ordinance also stated
validity of marriage was determined by law that had place to celebrate38, in which under this
definition, same sex couples could not have same rights on taxation reduction, such as
Married Person’s Allowance and Joint Person Assessment.
I support on legalization of same sex marriage in Hong Kong, except reason of equality on
welfare provision, it also reflected what are the homosexual couples facing in the past and
currently, returned to equality of civil and social rights towards same sex couples in Hong
Kong. Basic Law stated all Hong Kong residents should be equal before the law39, also have
the right to social welfare in accordance with law. The welfare benefits and retirement

36
HK01. (2023). Tongzhi Equality Judicial Review, Li Yik Ho continued deceased husband journey: someone
finally affirmed our suffer (in Chinese). Retrieved Dec 5, 2023, from: https://www.hk01.com/article/966978?
utm_source=01articlecopy&utm_medium=referral

37
[2019] HKCFA 19
38
s.2, Inland Revenue Ordinance
39
Basic Law of the Hong Kong Special Administrative Region, Article 25.
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security of the labour force shall be protected by law40. Finally, Basic Law provided law
protection of all Hong Kong residents’ marriage freedom and their rights to raise a family
freely41. Civil right was determined as liberty rights and law equality. Marriage right was
significant civil right as it was more than piece of agreement paper, which provided societal
recognition and legal protection to relationships and provided many benefits to spouses. No
matter the sexual orientation what you or others are, such as LGBTI or not, all Hong Kong
residents should obtain equality of marriage right. It was argued that Basic Law stated
marriage freedom and rights of raising family freely, but same sex marriage still didn’t
legalize in Hong Kong, in which same sex couples' status didn’t recognize by Basic Law, also
they faced inequality situation before the law. Social right was determined as basic welfare
rights and total societal participation, in which taxation reduction, property law, inheritance
rights, immigration, decisional and visitation rights in health care and burial and adoption and
custody rights were determined as part of social rights in Hong Kong. Both homosexual and
heterosexual couples ought to enjoy equal social rights. There was an issue related to unequal
social rights of homosexual couples in Hong Kong, which consisted of lesbian couples held
in trust form and opened joint bank account, moreover one of them passed away in 2016, it
was argued allowance of same sex partners inherit asset rights since ineligibility of legal
ownership based on marriage validity. Although different countries recognized same sex
marriage as mentioned in the introduction, it assumed that when same sex couples married in
other countries, however it would not recognize same sex marriage as valid marriage in Hong
Kong, which they didn’t have inherit partner’s asset rights, resulted as unequal social rights
towards same sex couples.
Conclusion
To wrap up, based on different judicial review related to same sex marriage crossed different
years in Hong Kong, or even support and oppose side, such as political actors, parties and
public arguments of same sex marriage legalization in Hong Kong, I support same sex
marriage should be legalized in Hong Kong as Hong Kong plural society should accept same
sex marriage rather than social exclusion, although some politicians argued that judicial
review result reflected forcing social acceptance on same sex couples, it wasn’t forcing social
acceptability towards them, but not discriminate them. In fact, mainly I argued on equality
and rights from same sex couples. Except of debating traditional value of marriage, or even
education of marriage towards youth, to my personal view that same sex marriage should be

40
ibid, Article 36.
41
ibid, Article 37.

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recognized, legalized and accepted in Hong Kong or global society to achieve equality
between heterosexuality and homosexuality. Throughout different judicial review that related
to homosexuality or same sex marriage in Hong Kong, I believe same sex couples have
difficulties to claim their rights and welfare provision towards same sex couples is unequal
due to government authorities and departments set up law and other ordinances to protect
heterosexual marriage in Hong Kong or other global society. Different judicial reviews
reflected on both heterosexuality and same sex couples' equality of civil rights and social
rights liked welfare provision, such as public rental housing application and taxation
reduction, which these social policies fail to response to same sex couple needs and ensure
opportunities of welfare.
(3650 words, excluded name, student ID, email address, topic, sub-topics, footnotes and
references)

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