The legal battle for a gay immigration officer in Hong Kong over spousal benefits entered its final chapter on Tuesday as his lawyer argued in an ultimate appeal that the government could not justify its discriminatory treatment.
Addressing top judges at the Court of Final Appeal, barrister Karon Monaghan QC, for Angus Leung Chun-kwong, attacked the heads of the Civil Service Bureau and Inland Revenue Department for merely running in circles in their reasoning for refusing to grant Leung his rights.
“It has to be justified. It’s not enough to say marriage is special and unique,” she said.
Mr Justice Roberto Ribeiro, one of the presiding judges, also expressed difficulties in grasping the authorities’ assertion.
“Why are you saying that it was undermining the tradition of marriage...because a gay person is now allowed to see a dentist,” he asked Lord David Pannick QC, who represented the government.
A senior immigration officer, Leung, 39, took the government – the city’s biggest paymaster – to court in late 2015 after the secretary for the civil service refused to grant spousal benefits to his husband, Scott Adams. The couple, who are fighting for medical and dental benefits, married in New Zealand in 2014.
Leung also challenged the tax authority for not allowing him to make a joint assessment with Adams, as in the case of heterosexual couples.
He originally succeeded in his challenge against the Civil Service Bureau at the Court of First Instance, but lost when the bureau sought to overturn that ruling at the lower appeal court. All lower courts ruled in favour of the Inland Revenue Department.
As the city does not recognise same-sex marriage, Pannick on Tuesday reiterated that by conceding to Leung’s requests, it would undermine the nature of marriage in Hong Kong – between “one man and one woman”.
It has to be justified. It’s not enough to say marriage is special and unique
Karon Monaghan QC
But Leung’s counsel Monaghan hit back against such views on Tuesday.
She said the government had failed to explain why there was a “rational connection” between the protection of marriage and whether to grant Leung the rights he sought.
She said authorities, by far, could say that those rights had always been granted exclusively to heterosexual married couples, since the status of marriage was “special and unique”.
“It is the way it is. It has always been what it is. But that is not a reason for excluding a same-sex couple,” she said. “That is entirely circular.”
By granting what her client demanded, the British barrister said, the government was merely doing no more than acknowledging the “character and characteristics” of Leung’s relationship with Adams, which could be found in the form of lawful marriage recognised in the city.
Pannick, however, argued that it was inevitable that damage would be done if the government was obliged to offer benefits to couples whose marriage was not recognised under Hong Kong’s law - a suggestion which drew a response from one of the justices.
“We are talking about the provision of family benefits,” Chief Justice Geoffrey Ma Tao-li noted, asking what employees’ benefits had to do with local marriage law.
Pannick also cited Article 37 of the city’s mini-constitution Basic Law, saying that marriage shall be protected by law in the city. But the justices said the article concerned did not specifically refer to heterosexual marriages.
Pannick sought to differentiate Leung’s case from that of QT, a lesbian woman who successfully challenged the government in court to recognise same-sex marriage for the purpose of her spousal visa. He said the present case concerned fiscal matters rather than one’s private and family rights.
The judges - Mr Justice Ma, Ribeiro, Joseph Fok, Robert Tang Ching, and Murray Gleeson - will issue their ruling at a later date.
Before leaving the court, Leung, holding his husband’s hand, acknowledged that the journey in their fight for equality was long. But he said: “We are not asking for privileged treatment. We just want to be treated fairly and equally.”
Born and raised in Hong Kong, Leung joined the Immigration Department in 2003 and tied the knot with Adams on April 18, 2014 in New Zealand. Adams was a Briton but has been living in Hong Kong for years.
In a previous interview with the Post, Leung revealed that the two bonded over diving and adventure. He said he was prompted to speak up when he saw the government’s conflicting views on the city’s LGBT community – on one hand, it encourages the public to be accepting while, on the other, it denies rights.
A graduate of the University of Hong Kong, Leung also said the fight for LGBT rights was a local issue, contrary to the belief of some that it was mostly led by expatriates.