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FACV No. 4 of 2024

[2024] HKCFA 30

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2024 (CIVIL)

(ON APPEAL FROM CACV NO. 558 OF 2020)

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(By Order to carry on proceedings dated 8 April 2021 substituting Ng Hon Lam Edgar upon death)

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JUDGMENT

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Chief Justice Cheung:

1. I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Fok PJ and the concurring judgment of Mr Justice Lam PJ.

2. In R (Elan-Cane) v Secretary of State for the Home Department , [1] the UK Supreme Court, following Strasbourg jurisprudence, [2] accepted that preserving the “coherence of the administrative and legal practices within the domestic system” can be a legitimate, and even significant consideration in determining whether an impugned measure amounts to a failure by the state to comply with its positive obligation to secure the complainant’s right to respect for private life under Article 8 of the European Convention on Human Rights. [3] Whether this acceptance may be extended to other contexts involving different fundamental rights, particularly the right to equality, is a distinct issue that does not require final determination in this appeal. But even if it could be so extended, the existence of the claimed coherence must first be satisfactorily established. Secondly, whilst the weight attributed to such coherence will inevitably depend on the nature of the right at issue, along with other relevant considerations and the specific facts of each case, it is highly doubtful whether coherence alone could ever suffice to justify differential treatment based on an inherently suspect ground in a discrimination challenge. In the present case, as is fully explained in the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Fok PJ, the coherence asserted by the Secretary for Justice is absent. The statutory definition of “marriage” differs from ordinance to ordinance depending on the specific legislative purpose to be served. Moreover, even with respect to the requirement of “heterosexual marriage”, the supposed uniformity in our laws has been punctured by exceptions. This is completely different from the situation in Elan-Cane , where a uniform approach to gender, based on a binary model, was consistently adopted across the legislative and administrative framework. Accordingly, the Secretary for Justice’s case on maintaining coherence fails in limine .

Mr Justice Ribeiro PJ and Mr Justi