Press Summary (English)

Press Summary (Chinese)

FACV No. 14 of 2022

[2023] HKCFA 28

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO. 557 OF 2020)

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JUDGMENT

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Chief Justice Cheung:

1. I have had the advantage of reading in draft the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Fok PJ. I would gratefully adopt the facts as set out in that judgment and its description of the legal proceedings below.

2. In short, the appellant, a Hong Kong permanent resident, is a homosexual. In 2011, he entered into a stable same-sex relationship in Hong Kong. Not being able to get married locally, he and his partner entered into a same-sex marriage in New York in November 2013. That marriage is not legally recognised in Hong Kong.

3. The appellant argues before us, as he unsuccessfully did in the courts below, [1] that :

(1) he has a constitutional right to same-sex marriage under Article 25 of the Basic Law and Article 22 of Hong Kong Bill of Rights; [2]

(2) alternatively, the absence of any alternative means of legal recognition of same-sex partnership constitutes a violation of Article 14 of the Hong Kong Bill of Rights (on privacy) and/or Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (on equality); and

(3) the non-recognition of foreign same-sex marriage constitutes a violation of Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights.

These three propositions, which are denied by the respondent, have throughout this litigation been referred to as Questions 1, 2 and 3.

Question 1

4. On Question 1, I agree with Mr Justice Ribeiro PJ and Mr Justice Fok PJ that the appellant’s contention must fail. Article 37 of the Basic Law specifically provides that the freedom of marriage of Hong Kong residents shall be protected by law. This has been consistently understood and construed to mean a constitutional guarantee on the right to heterosexual marriage. [3] It does not follow that same-sex marriage is constitutionally prohibited. But it does mean that there is no constitutional right to same-sex marriage under Article 37. The net result is that it is up to the government and the legislature to decide whether to allow or recognise same-sex marriage under Hong Kong’s marriage and matrimonial legislation – thus far they have not chosen to do so. Unless and until the court gives Article 37 a wider, more liberal interpretation to cover same-sex marriage [4] , this is the position in Hong Kong on the constitutional level. In this appeal, no attempt is made by the appellant to persuade the court to give Article 37 such an expansive interpretation. [5]

5.