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LGBTI

Top Hong Kong court to hear gay civil servant’s appeal seeking spousal benefits for husband

Senior immigration officer Angus Leung also granted leave to challenge government for not letting him and partner jointly declare tax as heterosexual married couples do

PUBLISHED : Monday, 24 September, 2018, 3:09pm
UPDATED : Monday, 24 September, 2018, 7:46pm

The Court of Appeal on Monday granted a gay Hong Kong immigration officer leave to appeal to the city’s top court against its decision that his husband could not enjoy the same spousal benefits offered to his heterosexual colleagues in the government.

Angus Leung Chun-kwong, 37, was also granted leave to challenge the Inland Revenue Department for not letting him and his partner, Scott Adams, jointly declare their tax as heterosexual married couples can.

The three appeal justices concluded in a written judgment that Leung had raised two questions of “great general and public importance” but dismissed three others, so he was ordered to pay the legal costs incurred by the secretary for justice and the commissioner of Inland Revenue: HK$30,000 (US$3,800).

Leung’s lawyers at Daly, Ho & Associates said he was reviewing the judgment with his legal team to see whether it was necessary make an application to the Court of Final Appeal to redefine the scope of his intended appeal.

His bid came on the heels of the Court of Final Appeal’s landmark decision in July in favour of a lesbian expatriate, known as QT in court, requiring the city’s Immigration Department to grant her a spousal visa.

That led to a government announcement last week that Hong Kong would for the first time recognise overseas same-sex partnerships when granting dependant visas.

Encouraged by the top court’s ruling, Leung filed his application for leave to appeal.

Same-sex marriage is not legal in Hong Kong.

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Leung launched the judicial review in 2015 against the commissioner and the secretary for civil service after the two departments refused to recognise his union with Adams sealed in New Zealand a year earlier.

The Court of First Instance originally ruled in favour of Leung last year on the benefits issue, in what the local LGBT community hailed as “a rare judicial recognition”, though he lost the taxation challenge.

But on June 1 this year, the Court of Appeal sided with the government and overturned the lower court’s benefits decision, meaning Leung lost on both fronts.

The three appeal justices said the government had a role in protecting the institution of traditional marriage. By conceding on spousal benefits for same-sex couples, “the very status of marriage would diminish significantly in the eyes of the public”, Mr Justice Jeremy Poon Shiu-chor wrote in a 69-page judgment.

In the application for leave to appeal, Leung’s counsel, Nigel Kat SC, questioned whether the protection of heterosexual and monogamous marriage constituted a legitimate aim for the purposes of justifying the denial of spousal benefits or joint tax assessment.

But Poon, who issued the judgment on behalf of High Court chief judge Mr Justice Andrew Cheung Kui-nung and vice-president Mr Justice Johnson Lam Man-hon, noted it was the parties’ common ground that the protection was plainly a legitimate aim.

Study shows growing support for same-sex marriage in Hong Kong

“Whether protecting heterosexual monogamous marriage could constitute a legitimate aim for the benefits decision or the tax decision was never an issue before us,” Poon said.

Instead, the judges granted leave to appeal on questions reformulated by the government, which asked the top court to clarify whether the legitimate aim of protection is rationally connected to the difference in treatment.

They also found it important to clarify whether local circumstances, such as prevailing values on marriage, were relevant in considering whether the treatment is proportionate and whether the government had justified its handling.