Administrative Law — Court of Final Appeal makes final orders on relief and costs in landmark judgment on legal recognition of same-sex partnerships
On 27 October 2023, following its landmark judgment allowing the appeal by LGBT activist Jimmy Sham Tsz-kit handed down on 5 September 2023 ( HKCFA 28; see also our previous case summary), the Hong Kong Court of Final Appeal (“CFA”) gave its Judgment on Relief and Costs ( HKCFA 31) after considering written submissions lodged by the parties.
By its Judgment on Relief and Costs, the CFA confirmed the terms of the Declaration and accompanying Direction indicated in its earlier judgment, namely: (1) a Declaration 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 (such as registered civil partnerships or civil unions) and to provide for appropriate rights and obligations attendant on such recognition with a view to ensuring effective compliance with the aforesaid obligation; and (2) a Direction that operation of the abovementioned Declaration be suspended for a period of two years from the date of this Order (“the Suspension Order”).
While both parties agreed that the Court should grant them liberty to apply in relation to the Suspension Order, they advocated different bases for making such an application. The Appellant sought liberty to apply in the event that the government fails to comply with the Court’s orders, pointing out that this would obviate the costs and delay of having to bring fresh judicial review proceedings in that eventuality. On the other hand, the Respondent sought a direction that there should be liberty to apply for an extension of the suspension period granted by the Suspension Order if needed. The CFA took the view that it is appropriate that there should be liberty to apply on both of the abovementioned grounds.
The CFA thus further directed that there should be liberty to apply to the Court in connection with the implementation of or non-compliance with its Order; and in particular liberty to apply for an extension of the abovementioned period of suspension in the event that such extension is necessary, on the understanding that the government will endeavour to complete each step as expeditiously as is practicable and that any application for an extension would be supported by compelling reasons. Any applications under the liberty to apply should be made and dealt with on the papers unless otherwise directed by the Court.
Regarding costs, the CFA directed that: (1) there be no order as to costs in relation to the proceedings in the Court of First Instance and Court of Appeal; and (2) the Respondent should pay the Appellant’s costs of and occasioned by the appeal to the CFA, certified fit for three counsel.
In arriving at its final order on costs, the CFA endorsed the description that the outcome in the Appellant’s favour is “an unprecedented and momentous development in the recognition of same-sex partnerships in Hong Kong”.
The CFA’s Judgment on Relief and Costs can be found here.
Hectar Pun, SC
“Hectar is very senior and offers very professional delivery and impeccable performance as a court advocate. He’s a judicial review human rights specialist, and obviously a judicial review specialist in general.” — Chambers and Partners Greater China Region 2023, Administrative and Public Law: Spotlight Table: Silks
Hectar’s practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. He appears regularly on behalf of applicants in major judicial review proceedings. He is ranked in Chambers and Partners as well as The Legal 500 Asia-Pacific 2023 as a “Leading Silk” in Administrative and Constitutional Law.
Hectar has acted for the Catholic Diocese of Hong Kong, legislative councillors, district councillors, demonstrators, police officers, prisoners, refugees and asylum seekers, tenants of public housing estates, homosexuals, transsexuals, the disabled and the underprivileged, etc.
Visit Hectar’s profile for more details.
Anson Wong Yu Yat
“Anson is intelligent, detail-oriented and practical. He is highly capable of analysing and deconstructing complicated legal issues.”
Legal 500 Asia-Pacific from 2022 – 2023, Commercial Disputes & Administrative and Public Law — Rising Stars
Anson has appeared in more than 150 court judgments (including 16 cases in the Court of Final Appeal with 11 substantive appeals) over the mere span of 8 years of full practice, reflecting the exceptional wealth of experience and exposure in civil litigation for his seniority.
Anson is experienced in handling complex questions of law, including those of great general or public importance which reached the Court of Final Appeal. For example, he has recently appeared in (among others) three civil appeals before the Court of Final Appeal dealing with important questions concerning insolvency matters, land law and equity, service out of jurisdiction and statutory interpretation.
Visit Anson’s profile for more details.
This article was first published on 27 October 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.