Court of Final Appeal rules lack of legal framework for recognising same-sex partnerships unconstitutional

The Hong Kong Court of Final Appeal has held (by a majority) that the failure of the Hong Kong Government to establish a framework for legal recognition of same-sex relationships and to provide for appropriate rights and obligations attendant on such recognition violated the Appellant’s constitutional rights.

In Sham Tsz Kit v Secretary for Justice (FACV 14/2022) [2023] HKCFA 28, the Court allowed the appeal by Sham and declared that “the Government is in violation of its positive obligation under Article 14 of the Hong Kong Bill of Rights to establish an alternative framework for legal recognition of same-sex partnerships”.

Mr. Justice Ribeiro PJ and Mr. Justice Fok PJ delivered a joint judgment (with which Mr. Justice Keane NPJ agreed) and ruled that legal recognition of same-sex partnership is required “to meet basic social needs similar to those experienced by different-sex couples in stable relationships” and to dispel “any sense that they belong to an inferior class of persons whose relationship is underserving of recognition”.

The absence of such legal recognition “is potentially demeaning of same-sex couples”.

The appellant was represented by Ms. Karon Monaghan KC, Mr. Hectar Pun SC and Mr. Anson Wong, instructed by Ho Tse Wai and Partners.

Our Partner Jonathan Man, Associate Gardenia Kwok and trainee solicitor Venisa Wai handled the case.

The full judgment can be viewed here.

News articles reporting on the case: –