Hong Kong’s top court on Friday urged the government to pay same-sex civil servants spousal benefits backdated to when a gay immigration officer won his landmark challenge at a lower court two years ago.
The Court of Final Appeal made the remarks in its final judgment in the case of senior immigration officer Angus Leung Chun-kwong.
It set out the scope of how Leung and other gay civil servants would benefit from Leung successfully overturning the government’s decision not to grant them employee welfare support and joint tax assessment based on their sexual orientation.
Hong Kong generally does not recognise same-sex marriage, but does so in limited aspects.
Leung, who launched the case in 2015, convinced the High Court in 2017 to partially take his side.
It ruled the Civil Service Bureau should grant civil servants in a same-sex marriage or civil union partnership registered overseas the same spousal benefits awarded to heterosexuals.
However, Mr Justice Anderson Chow Ka-ming also ruled against Leung in his challenge against the Inland Revenue.
The new spousal benefits were not put in place immediately as the government had obtained a suspension order pending an appeal at the Court of Appeal, where the city’s administration won on both the employee benefits and tax challenge in 2018.
In June this year, however, Leung declared “love wins” when the Court of Final Appeal overturned the lower appeal court’s ruling and, this time, sided with him both against the civil service and taxman.
Leung therefore demanded the benefits that were held back since the suspension order in 2017 be handed to all affected civil servants, although the top court on Friday explained that its hands are tied on that matter.
In the judgment, justices at the top court acknowledged the government had indeed made an undertaking that it would reimburse civil servants, and backdate those payments, if it eventually lost the case.
But they said the order had since been overtaken by events because the government had won the lower court appeal, which rendered the order “spent and of no further effect”.
The justices continued: “However, we would simply observe that, subject to administrative practicalities, fairness and good administration would seem to dictate that the reimbursement of benefits contemplated by the undertaking would be an appropriate outcome as from the date of Chow J’s order [in 2017].”
Meanwhile, the panel – consisting of Chief Justice Geoffrey Ma Tao-li, and Mr Justices Roberto Ribeiro, Joseph Fok, Robert Tang Kwok-ching and Murray Gleeson – declared the Civil Service Bureau and Inland Revenue’s decisions were discriminatory based on his sexual orientation, contrary to the city’s Bill of Rights and mini-constitution Basic Law.
On the tax aspect, the judges ordered that from now on the term “marriage” in the Inland Revenue Ordinance would include same-sex marriages registered overseas.
Any references to “husband and wife” in the ordinance become “a married person and his or her spouse”, the judgment said.
The judges gave the taxman six months to deal with administrative matters including updating the computer system and various guidelines and practice notes.
They said the delay was unlikely to have an effect on anyone set to benefit from the change as it would be done before the end of the current tax year, which closes on March 31, 2020.
Leung told the Post: “It is not the best outcome we want, but we are still positive to see changes in equality in Hong Kong.”
A spokesman from the Civil Service Bureau did not respond directly as to whether it would take up the judges' directions.
"The Civil Service Bureau respects the Court of Final Appeal’s judgment on relief and costs, and will consider the judgment, seek advice from the Department of Justice and take appropriate follow-up actions," he said.
An Inland Revenue Department spokesman said it would follow-up the judgment.
Born and raised in Hong Kong, Leung, 39, joined the Immigration Department in 2003 and married his husband Scott Adams, a British pilot who has been living in the city for decades, on April 18, 2014, in New Zealand.
Leung took the government to court in late 2015 after the secretary for civil service refused to grant Adams spousal benefits, including medical and dental coverage.
His case was among a series of legal challenges brought by Hong Kong’s LGBT community in recent years. Last year, the top court ruled in favour of a lesbian expatriate, ordering the same-sex marriage should be accepted for the purposes of immigration.
The Court of First Instance earlier this year heard the first-ever judicial challenge directly attacking the government for not providing the option of same-sex marriage and civil union partnership.