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Scott Adams and Angus Leung after their victory in the city’s top court. Photo: Sam Tsang

Gay civil servant wins final appeal on spousal benefits for husband in another victory for Hong Kong’s LGBT community

  • Senior immigration officer Angus Leung took government to court after secretary for civil service refused to grant spousal benefits to his British husband
  • He also challenged Inland Revenue Department for not allowing the couple to submit a joint tax assessment
LGBTQ
A gay civil servant won his final appeal on Thursday, ending his long battle to force the Hong Kong government to allow him and his husband spousal benefits and joint tax assessment, in yet another landmark ruling for the city’s LGBT community.

The Court of Final Appeal unanimously ruled in favour of Angus Leung Chun-kwong, a senior immigration officer who took the government to court after being unequally treated by the city’s biggest paymaster and the taxman.

The judgment – in which the court affirmed that the absence of a prevailing view in society was no reason to deny the rights of a minority – was expected to bring same-sex couples, who had entered into marriage overseas, a tax assessment option they were previously unable to enjoy.

Gay and lesbian civil servants would also get spousal benefits, including dental and medical ones, they had been deprived of.

The court gave the government and Leung’s lawyers a little over a month to come up with a plan on how the new arrangements could be put in place.

Leung – who had been travelling overseas with his husband Scott Adams but jumped on a plane on Wednesday almost immediately after learning the judgment was due – said: “Love wins!”

He called the court’s decision a “small step for equality in Hong Kong”, and urged the government to take the opportunity to review and rectify policies and legislation that were discriminatory against sexual minorities.

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“We think that as small citizens we shouldn’t be fighting for such a process, to fight for such basic family rights,” he said outside court.

“Marriage equality is one of them,” Adams added.

Human rights lawyer Mark Daly, who represented the couple, said it was “a big step towards recognising the dignity of the LGBTQ community”.

The ruling came just days after a separate case in which the Court of First Instance sided with a gay activist and struck down or revised seven criminal offences discriminatory against homosexual men.

Last year, the top court also backed an expatriate lesbian in recognising her overseas marriage for the purpose of getting a spousal visa.

While Taiwan became the first place in Asia to allow same-sex marriage last month, Hong Kong’s definition of marriage – between a man and a woman to the exclusion of others – has remained unchanged in the Marriage Ordinance since the 1930s.

Born and raised in Hong Kong, Leung, 39, joined the Immigration Department in 2003 and married Adams on April 18, 2014 in New Zealand. Adams, a Briton, has been living in Hong Kong for years.

Leung took the government to court in late 2015 after the secretary for the civil service refused to grant spousal benefits to his husband.

He also challenged the Inland Revenue Department for not allowing him to make a joint tax assessment with Adams, as heterosexual couples can do.

LGBT activists call for city to follow Taiwan on same-sex marriage

In its judgment on Thursday, the top court said it accepted the government had a legitimate aim to protect the institution of marriage.

But the prevailing views of the community on marriage and the absence of a majority consensus should not stand as a reason for rejecting a minority’s claim to a fundamental right, they wrote.

They also disagreed with the government that there was a “rational connection” between protecting the institution of marriage and denying Leung employment and tax benefits.

The couple take a selfie with their supporters outside the Court of Final Appeal after the first day of the hearing in May. Photo: Nora Tam

“How is it said that allowing Mr Adams medical and dental benefits weakens the institution of marriage in Hong Kong?” the judges wrote.

They went on to ask the same questions for tax assessment.

“It cannot logically be argued that any person is encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied,” they said.

The five top judges who ruled on the case were Chief Justice Geoffrey Ma Tao-li and Mr Justices Roberto Ribeiro, Joseph Fok, Robert Tang Ching and Murray Gleeson.

They also criticised the government for resorting to “circular logic” by saying Leung should not be granted the rights just because his marriage was not recognised in Hong Kong. That was no explanation, they said, for why there was such differential treatment based on sexual orientation.

They added the government’s refusal undermined its own equal opportunities employment policies. Leung, who has a marriage certificate, would also not cause any “administrative difficulty”, they said.

Before Leung’s ultimate victory, he originally succeeded in his challenge against the Civil Service Bureau at the Court of First Instance, but lost when the bureau sought to overturn that ruling at the lower appeal court. All lower courts ruled in favour of the department.

Leung argued that the discriminatory treatments amounted to a violation of the Bill of Rights and the Basic Law, the city’s mini-constitution.
His case was among a series of legal challenges brought by Hong Kong’s LGBT community in recent years. Last week, a court also heard the city’s first judicial challenge that took on the government for not providing the option of same-sex marriage and civil union partnership.

Kelley Loper, director of the Centre for Comparative and Public Law at the University of Hong Kong, said the ruling provided “a solid basis” for challenging other discriminatory policies, including the lack of legal recognition of same-sex relationships.

Pro-establishment lawmaker Holden Chow Ho-ding, from the Democratic Alliance for the Betterment and Progress of Hong Kong, who had cautioned against the effects of greater LGBT rights, said he accepted the ruling reluctantly.

“The Court of Final Appeal’s ruling today could bring upside-down changes to how our society distributes resources in the future,” Chow said.

He also stressed the judgment by no means endorsed the legalisation of same-sex marriage.

The Civil Service Bureau and Inland Revenue Department would study the judgment and seek advice from the Department of Justice before taking “appropriate follow-up actions”, spokesmen said.

This article appeared in the South China Morning Post print edition as: Gay civil servant wins landmark ruling on rights
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