A Hong Kong court has handed a victory to the LGBTQ community by rejecting two appeals from the Housing Authority relating to the public housing rights of same-sex couples.

The Court of Appeal on Tuesday upheld two lower court decisions that the spousal policies of the city’s Public Rental Housing scheme and Home Ownership Scheme were unlawful and unconstitutional. The administrative measures breached the Basic Law provision that all Hong Kong residents shall be equal before the law, the court reaffirmed.

Henry Li and Edgar Ng gay couple gay marriage LGBT.
Henry Li and Edgar Ng’s wedding in 2017. Photo: Supplied.

The appeals stemmed from two separate judicial reviews filed in 2018 and 2019, respectively. Nick Infinger launched his legal bid in 2018 after his application for public rental housing was declined by the government. The authorities had said his relationship with his partner, whom he married in Canada in 2018, fell outside the ordinary understanding of “husband” and “wife” as adopted by the Housing Authority.

Infinger argued that the policy was illegal and unconstitutional, as they constituted unjustified discrimination against him and his partner on the basis of sexual orientation.

See also: Explainer: LGBTQ rights in Hong Kong – breakthroughs and bitter court battles against discriminatory laws

The other judicial review was lodged in 2019 by Edgar Ng, who later took his own life in 2020. Ng had challenged the Housing Authority’s refusal to recognise same-sex spouses as “spouses,” or other “family members” of subsidised flat owners who married overseas.

Ng and his partner Henry Li had lived together in a public rental housing unit shortly after they got married in the UK in 2017. But their living situation was reported to the Housing Authority via anonymous letters that Li was residing in a flat leased by Ng, and Li failed to register as an authorised applicant of the public housing flat owing to the Housing Authority’s policy.

The pair subsequently decided to jointly purchase a flat under the Home Ownership Scheme. But the Housing Authority refused to allow Ng to make the purchase with Li as a same-sex spouse, nor did it consider Li as a family member of Ng.

A public housing estate in Hong Kong. File photo: Kyle Lam/HKFP.
A public housing estate in Hong Kong. File photo: Kyle Lam/HKFP.

The couple argued that the spousal policy was “unlawful and unconstitutional, and amounted to an “unjustified restriction” of their rights.

Summarising the respectively rulings by then-Court of First Instance judge Anderson Chow, who oversaw both judicial reviews, a three-judge appeal panel said on Tuesday that the court decided that married same-sex couples should be treated as equal to heterosexual couples in the provision of public or subsidised housing.

“Their need for affordable housing and a home to live together as a family and their wish to achieve home ownership on a joint basis are not intrinsically different. In the premises, there is differential treatment based on the prohibited ground of sexual orientation,” Justice of Appeal Thomas Au wrote on behalf of Chief Judge of the High Court Jeremy Poon and Justice of Appeal Aarif Barma in a 102-page English judgement handed down on Tuesday.

The Housing Authority argued that Chow failed to give “heavy weight” to the Basic Law provisions on religious freedom and personal freedom. The judge also failed to attach weight to the article stipulating that the Hong Kong government shall formulate policies on the development and improvement of the social welfare system based on economic conditions and social needs, it contested.

The government body also argued that the spousal policies in question only involved indirect discrimination. There was less need for the Housing Authority to justify why there was a differential treatment, it said.

Housing Authority
Housing Authority. File photo: Wpcpey via Wikimedia Commons.

By making this argument, the appeal panel said the Hospital Authority in effect admitted that its policy “specifically targeted same‑sex couples for ‘deterrence,’” as in to deter them from purchasing a HOS flat. Judge Chow was therefore “clearly correct” to adopt a higher standard in reviewing the two judicial reviews.

The appeal judges eventually rejected all grounds of appeal.

In a statement released through his lawyers, Li said he was “grateful” for Tuesday’s judgement, but it “reminded [him] painfully” that his husband and the original judicial review applicant was no longer around to witness the victory.

The couple simply wanted to be able to live together in their own home lawfully, a “humble wish” shared by many couples in the city, he said. But such wish was “cruelly denied” by the Housing Authority on the basis of sexual orientation, he said.

“It has been more than 4 years since this court case started. I sincerely hope that upon thoughtful consideration, the Housing Authority would not appeal and let this matter rest, and at last let Edgar rest in peace,” Li said in an English statement released by law firm Daly & Associates.

HKFP has reached out to the Housing Authority for comment.

LGBT gay rights flag rainbow
An LGBT flag. File photo: Jose Pablo Garcia.

Tuesday’s judgement reaffirmed the principles that public policies should protect all individuals from discrimination and unfair treatment based on their sexual orientation, Advocacy group HK Marriage Equality said in a Chinese statement issued on Tuesday.

The NGO called on the government to work with relevant stakeholders to design a comprehensive framework for recognising same-sex relationships.

“To avoid unnecessary and costly litigation, the government should not handle the recognition of same-sex relationships in a piecemeal manner,” it said.

In September, the city’s top court handed down handed a partial victory to LGBTQ advocate Jimmy Sham, ruling that the government has not fulfilled its constitutional duty to provide any legal framework for same-sex relationships to be recognised.

The government was given two years to develop a mechanism that recognises same-sex relationships before the court could say the government was in breach of the law.

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Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.