Hong Kong’s Court of Appeal upholds ruling protecting inheritance rights of same-sex couples, rejecting government bid to quash it
- Court rejects government appeal of ruling from 2020 that denying gay homeowner right to pass property to husband constitutes discrimination
- Original review launched by the late Edgar Ng in 2019, with his husband Henry Li taking over case after Ng’s death
Hong Kong’s Court of Appeal has upheld a decision to support a gay homeowner who asked the judiciary to ensure his husband’s inheritance rights, dismissing a government bid to quash the ruling.
The ruling on Tuesday came after a legal battle that started in 2019 when the late Edgar Ng Hon-lam applied for a judicial review of the city’s inheritance laws after he learned he could not bequeath the flat he had bought under the Home Ownership Scheme to his husband, Henry Li Yik-ho.
“It has been incredibly painful to have lost Edgar. It added insult to injury – that the government repeatedly argued in open court I am not Edgar’s husband and should be treated as a stranger to him, while I was still mourning,” Li wrote after the decision was handed down.
“I hope the government will respect today’s judgment and at long last give Edgar the respect and dignity he’d always deserved.”
Daly & Associates, the law firm that appeared for Li, said in the same statement the court had affirmed that discrimination inflicted oppressive injustice and long lasting damage on LGBTQ people.
Jerome Yau, the co-founder of Marriage Equality, asked the government not to take the case to the Court of Final Appeal as Li had been through enough.
The Court of First Instance in September 2020 ruled that any exclusion of same-sex couples to legal entitlements and benefits relating to inheritance constituted unlawful discrimination on the grounds of sexual orientation.
Abraham Chan Lok-shung, the government’s senior counsel, earlier insisted in court that gay couples were not “comparable” with their heterosexual counterparts in the sense that the law defined marriage as a union of a man and a woman.
Chan added the different treatment was designed to serve three legitimate aims, the integrity of traditional marriage, the encouragement of opposite-sex marriage and the coherence of the city’s legislation.
But Mr Justice Thomas Au Hing-cheung said in the 60-page judgment, co-written with two other judges, that the “impugned measure” was not “proportionate” when same-sex married couples were denied entitlements.
“It is plainly an unacceptably harsh burden on same-sex couples lawfully married overseas which cannot be justified by the overall benefits said to be achieved by the three aims,” the judgment ruled.
Au said that the choice to make a will should be irrespective of an individual’s sexual orientation, but that Li and Ng, who held a valid marriage certificate issued in Britain, found that it was not recognised in Hong Kong.
The problem had barred Ng from inheriting the matrimonial home registered in Ng’s name under the Intestates’ Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance.
Chan argued that the “overall benefit to society” should outweigh the impact on Li.
But Au said the principle of “proportionality” in different treatment was subject to a “stringent standard” that meant unnecessary and unfair restrictions could not be imposed.
He pointed out the case did not involve wider socio-economic policy or social resources, but only Li’s access to what his late husband had wanted, which had been denied based on sexual orientation.
Au dismissed the appeal and ordered the government to pay the costs of both sides.
Li, who was not in court, took over as the review’s applicant after Ng took his own life in late 2020.
The ruling came a month after the Court of Final Appeal handed a gay activist a major victory when it ruled the government had to formulate a framework for the recognition of same-sex unions.
The decision could pave the way for a landmark change in legislation to make same-sex couples eligible for marital entitlements given to their heterosexual counterparts.
