Give spousal benefits to gay couples and floodgates open, Hong Kong court hears

Ruling in case involving immigration officer and partner he wed overseas could amount to recognising same-sex marriage in city, government lawyers argue

PUBLISHED : Monday, 11 December, 2017, 8:31pm
UPDATED : Tuesday, 12 December, 2017, 2:20am

Granting spousal benefits to gay couples working for the Hong Kong government would amount to recognising same-sex marriage and “opening floodgates”, its lawyers argued at an appeal hearing on Monday.

Barrister Monica Carss-Frisk QC said such a step could lead to other benefits traditionally enjoyed by married couples being challenged in other areas, leaving authorities to uphold the “institution of marriage”.

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“Why stop here?” she asked rhetorically.

But counsel representing senior immigration officer Angus Leung Chun-kwong, who lodged a judicial challenge after his same-sex partner was refused spousal benefits, dismissed the approach as discriminatory.

Leung challenged the bureau in 2015, a year after he and his partner, Scott Adams, were married in New Zealand.

The lower court ruled in Leung’s favour in April, finding his partner should be entitled to spousal benefits such as medical and dental services.

The bureau then lodged an appeal, which began on Monday and will have implications for other gay civil servants who married their partners overseas.

In the same legal bid, Leung challenged the tax department’s failure to recognise the marriage, but lost. He is appealing against that decision.

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Representing both the bureau and tax authority, Carss-Frisk argued the prospect of a flood of legal challenges by other gay couples who married overseas had justified the preferential treatment for heterosexual married couples.

The case hinges on whether Leung’s same-sex marriage, which was registered overseas, should be recognised by the Hong Kong government for the purposes of tax and civil employment benefits, even though the city does not recognise same-sex marriage.

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“There is no getting away, in truth, in substance and in reality, you are then recognising that,” Carss-Frisk said.

The barrister maintained that the government operated on scarce resources. She asked the court to consider that the existing benefits policy had been “long-standing”.

But Karon Monaghan QC, for Leung, countered those reasons, saying that as Leung already had a marriage certificate, it was reasonable to recognise his union.

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High Court chief judge Andrew Cheung Kui-nung suggested the matter was no more than a policy decision and that it was possible to rewrite regulations such that the rights could be granted without formally recognising foreign marriages.

The judge also distinguished the present case from what he called more “intrusive” instances, such as when the city was invited to recognise a same-sex marriage from overseas for adoption purposes in which a child would end up with two fathers or mothers.

Now we are in the 21st century
Andrew Cheung, High Court chief judge

“Now we are in the 21st century,” Cheung said, adding that the policy in question was introduced during a time when homosexual acts were criminalised.

Just two months ago, he and his fellow appeal justices, Jeremy Poon Siu-chor and Johnson Lam Wai-kuen, ruled in favour of an expatriate lesbian, referred to as QT, against the immigration authority after it refused to issue her a dependent visa. The authority said it did so because the city did not recognise same-sex marriage.

Lam invoked the case on Monday, asking Leung’s lawyer to address the concern about a floodgate being opened. He said while the QT case involved an immigration policy mostly affecting expatriates, the present case more directly related to local residents.

A permanent Hong Kong resident, Leung joined the Immigration Department in 2003.

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He ran into problems with the bureau when he tried to update his marital status after his wedding. The legal challenge followed. He argued that the failure to extend benefits to his husband was a violation of the city’s Basic Law or mini-constitution.

Holding Adams’ hand outside court, Leung said they only wanted to be treated equally.

The appeal continues on Tuesday.