Ng Hon Lam Edgar v Hong Kong Housing Authority

[2021] 3 HKLRD 427, [2021] HKCFI 1812, [2021] HKEC 2768
Chow JA
19 April, 25 June 2021

Facts

These proceedings consisted of a challenge to the constitutionality of a policy of the Housing Authority (the Policy) and to the lawfulness of a decision made by the Authority pursuant to that policy (the Decision). The Policy was one excluding same-sex spouses of owners of Home Ownership Scheme flats from the definition of “family members” and “spouses” eligible for: (i) addition as authorised occupants of such flats; and (ii) consideration by the Authority for its consent, in the exercise of its discretion, to receive a transfer of ownership of such flats without the payment of a premium. Both the Policy and the Decision were attacked on the basis that they constituted unconstitutional and unlawful discrimination on the ground of sexual orientation.

Held, declaring the Policy and the Decision unconstitutional and unlawful in that they violated art.25 of the Basic Law and arts.1(1) and 22 of the Bill of Rights and quashing them, that:

    For the following reasons, the Policy and the Decision did constitute unconstitutional and unlawful discrimination on the ground of sexual orientation.

    (i) First step: Deciding whether the differential treatment pursued a legitimate aim

    The differential treatment in question pursued the legitimate aim of supporting traditional families, which aim included promoting their formation and encouraging childbirth (the Family Aim) (Ghaidan v Godin-Mendoza [2004] 2 AC 557; Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127 considered).

    (ii) Second step: Deciding whether the differential treatment was rationally connected to the legitimate aim as identified

    There was no basis for believing that the differential treatment in question would enter into the equation when a heterosexual couple considered whether to marry or have children. The differential treatment in question was not rationally connected to the Family Aim (Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127, Ng Hon Lam Edgar v Secretary for Justice [2020] 4 HKLRD 908 applied).

    (iii) Third step: Deciding whether the differential treatment was no more than reasonably necessary to accomplish its legitimate aim

    The appropriate standard of review in this case lay somewhere between the middle and high end of the intensity of review spectrum. On that standard of review, the differential treatment in question was not a proportionate means of achieving the Family Aim (Rodriguez v Minister of Housing of the Government [2009] UKPC 52, Kozak v Poland (2010) 51 EHRR 16, Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, R(MA) v Secretary of State for Work and Pensions [2016] 1 WLR 4550, Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127, Infinger v Hong Kong Housing Authority [2020] 1 HKLRD 1188, JD and A v United Kingdom [2020] HLR 5 applied).

    (iv) Fourth step: Making a value judgment as to whether the impugned measure operated on particular individuals with such oppressive unfairness that it could not be regarded as a proportionate means of achieving the legitimate aim in question

    Having regard to: (a) the very limited increase in the number of Home Ownership Scheme flats which the Policy may make available for purchase by heterosexual couples; and (b) the unfairness or unreasonableness of not allowing a same-sex married couple to live together as a family in a Scheme flat owned by one of them, or jointly own such a flat unless a substantial premium was paid, the Policy operated on particular individuals with such oppressive unfairness that it could not be regarded as a proportionate means of achieving the Family Aim (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 applied).

Application

This was an application for judicial review against the policy of the Housing Authority excluding same-sex spouses of owners of Home Ownership Scheme flats from the definition of “family members” and “spouses”, and a decision pursuant to that policy on the basis that they constituted unconstitutional and unlawful discrimination on the ground of sexual orientation.

Editorial Note: It is worth underlining that neither in letter nor in spirit does what the learned Judge says in para.78 of his judgment depart in any way from equality. The grounds of objection which he mentions in that paragraph by way of example could be raised against a heterosexual marriage as much as against a same-sex marriage.

Jurisdictions