By Kristie Wong

Hong Kong, 11 August 2021: Hong Kong’s historic and ongoing bias against its own LGBTQ+ community – enshrined in law but underscored by government practices – continues to be eroded in the city’s courts. Two recent judgments in landmark cases represent further legal recognition for the rights of same-sex couples.

In June, the High Court ruled that the Housing Authority was unlawfully discriminating on the basis of sexual orientation. It decided the Authority was wrong to exclude same-sex spouses of owners of Home Ownership Scheme (HOS) flats from being added as authorised occupants or receiving a transfer of ownership without the payment of a premium. The judgment was a victory for widower Henry Li and his late husband Edgar Ng, who passed away in December last year. Having married in London in 2017, they filed the case in 2019.

Ownership and use of HOS flats are subject to conditions set by the Housing Authority. One of the conditions is that a HOS flat shall be used only for residential purposes and for self-occupation by the owner and family members listed in the application to purchase. Henry Li, as the same-sex spouse of the Deceased, was not eligible to be considered as a family member of the Deceased under the Authority’s policy and was not allowed to live in the flat with the Deceased or to be added as a co-owner.

Having accepted that same-sex couples and opposite-sex couples are in a comparable or analogous position in relation to matters of occupation and ownership of HOS flats, Mr Justice Anderson Chow found the Housing Authority’s policies accorded differential treatment between same-sex couples and opposite-sex couples based on a prohibited ground, namely, sexual orientation and such differential treatment was not justified. In particular, the Judge did not accept the denial of the same benefit to same-sex couples would promote the legitimate aim of supporting “traditional family formations in the HKHA’s allocation of scarce HOS resources to meet housing needs”.

The case was a second victory for the couple after a 2020 ruling allowing same-sex couples equal rights to inheritance. Both cases were among a series of challenges brought by the LGBTQ+ community against discriminatory policies which have also covered such matters as tax assessments and dependant visas.

As we have noted in previous blogs, it is disappointing to see that the government’s action is limited to “reacting” to particular judgments – usually arising from discrimination claims brought before the courts by individuals, often at considerable cost – rather than taking a proactive role in comprehensively reviewing existing policies.

The second recent judgment did not concern a challenge to government policy. Rather, it was notable for the High Court granting an application regarding custody and guardianship of two children who were under the joint care of a same-sex couple. The court was told the Applicant and Respondent met in 2003. They moved to Hong Kong around 2007 and planned for a family about two years later. The Applicant was pregnant through insemination of donated sperm and gave birth to two children, known to the court as X and Y. Both minors regarded the Applicant and the Respondent as their parents, although the Respondent was not recognised as a parent under Hong Kong law.

The couple decided to separate in 2020 and were able to reach a co-parenting agreement in relation to X & Y. The Applicant, being the birth mother of X and Y, applied to the court, inter alia, that the Respondent be made a guardian of X and Y and that both parties should have joint custody and joint share and control of the children.

In considering the application, the court confirmed its power to make orders for custody, care and control and the upbringing of X and Y. Having regarded the best interests of X and Y as the first and paramount consideration, the Court was satisfied for the Applicant and Respondent to have joint custody and joint care and control. The Court also exercised its inherent jurisdiction in making the Respondent a guardian of X and Y during the Applicant’s lifetime and to act and exercise any guardianship rights jointly with the Applicant.

The judgment confirms the significance to grant same-sex couples an order for custody and guardianship of the children so that the existing parent-child relationship is maintained, enabling the non-biological parent to take part in the children’s life and arrangements like before, when such arrangement is in line with the best interest of the children.

An Associate with BC&C since 2017, Kristie Wong is a core member of the firm’s Family Law department where she deals with a wide variety of cases arising from the matrimonial context while she also handles Criminal Matters. She can be contacted at Kristie@boasecohencollins.com.