Hectar Pun SC and Anson Wong Yu Yat invited by Eversheds Sutherland to share experience on “Advancing LGBT+ Rights at the Legal Frontier”

Recently, the Court of Appeal dismissed the appeal by LGBT rights activist Jimmy Sham in Sham Tsz Kit v Secretary for Justice (24 August 2022, CACV 557/2020, [2022] HKCA 1247), which involved a judicial review seeking (1) access to same-sex marriage, (2) legal recognition of same-sex union alternative to marriage (such as civil union), or (3) recognition of foreign same-sex marriage. In their sharing session held at Eversheds Sutherland’s office on 26 August 2022, Hectar Pun SC and Anson Wong Yu Yat – who acted for Mr. Sham – discussed this judgment as well as other legal milestones in LGBT+ persons’ fight for equality in Hong Kong.

Hectar and Anson, who are ranked “Leading Silk” and “Rising Star” respectively in Legal 500 Asia-Pacific 2022 for Administrative and Public Law, have extensive experience in representing the LGBT+ community in judicial review challenges against laws or administrative policies that are discriminatory on the basis of sexual orientation. For the purpose of the talk, they selected five landmark cases (in which Hectar acted for all the Applicants and Anson acted for some) to discuss with the lawyers, staff and clients of Eversheds Sutherland.

Notable Victories

To start off, Hectar shared the case of Leung v Secretary of Justice [2006] 4 HKLRD 211, in which he represented the Applicant in successfully challenging the constitutionality of section 118C of the Crimes Ordinance (Cap. 200). The provision then in force prohibited buggery between homosexual men over 16 but not yet 21 years of age, even though the age of consent for sexual intercourse between heterosexuals was only 16. 

Subsequently, in Yeung Chu Wing v Secretary for Justice [2019] 3 HKLRD 238, the Applicant (represented by Hectar and Anson) brought judicial review proceedings, successfully challenging the constitutionality of seven provisions of the Crimes Ordinance on the ground that they were discriminatory against male homosexuals.

As members of the LGBT+ community, transsexuals also have many legal obstacles to surmount. Hectar explained the background and history of proceedings in W v Registrar of Marriages (2013) 16 HKCFAR 112, in which he acted for Ms W, a post-operative male-to-female transsexual whose identity card and passport indicate that she is female. She challenged the refusal by the Registrar of Marriages to confirm her ability to marry her male partner. By a 4:1 majority, the Court of Final Appeal held that post-operative transsexuals are to be treated as persons of their re-assigned sex and eligible to marry a person of the opposite sex.

Recent Legal Challenges

More recently, another notable judicial review involving transgender persons is Q v Commissioner of Registration [2022] 1 HKLRD 803. Anson, who assisted Hectar in acting for the Applicants in the Court of First Instance, discussed this ongoing case. The Applicants were born biologically female but identified themselves as male and lived as such. They wish to change the sex entries on their HKID cards from female to male. However, the Commissioner of Registration’s policy only allows such changes if the Applicants produce medical proof of having completed the full sex re-assignment surgery, which would involve the removal of the uterus and ovaries and the construction of a penis or some form of a penis.

The Applicants, who already underwent mastectomies and hormonal treatments, had decided not to undergo the full sex re-assignment surgery (as defined by the Commissioner) since there is neither therapeutic nor medical reason to do so. They argued, inter alia, that the Commissioner’s policy infringed Article 14 (right to privacy) and Article 3 (right not to be subjected to cruel, inhuman or degrading treatment) of the Hong Kong Bill of Rights (“HKBOR”). Both the Court of First Instance and the Court of Appeal held against the Applicants. On 13 May 2022 ([2022] HKCA 675), the Court of Appeal granted the Applicants leave to appeal to the Court of Final Appeal.

Rounding off the sharing session, Anson spoke on the Court of Appeal’s latest judgment in Sham Tsz Kit v Secretary for Justice (24 August 2022, CACV 557/2020, [2022] HKCA 1247). The Applicant has had a stable same-sex partner since 2011, who is also a Hong Kong permanent resident. They wished to marry in Hong Kong but were not able to do so under local laws. Left with no other alternative, they married in New York, USA, in 2013.

Subsequently, the Applicant mounted judicial review proceedings, arguing as his primary case that the exclusion of same-sex couples from the institution of marriage constitutes a violation of the right to equality enshrined in HKBOR 22 and Article 25 of the Basic Law (“BL 25). As his alternative case, the Applicant argued that the lack of any alternative means of legal recognition of same-sex partnerships (such as civil unions or registered partnerships) under the laws of Hong Kong constitutes a violation of the right to privacy under HKBOR 14 and the right to equality under HKBOR 22 and BL 25. In the further alternative, the Applicant contended that the non-recognition of foreign same-sex marriage under the laws of Hong Kong amounts to a violation of the right to equality enshrined in HKBOR 22 and BL 25.

The Court of Appeal upheld the dismissal of the Applicant’s challenge by the Court of First Instance. The decision is regarded as a disappointing setback to Hong Kong’s LGBT+ community, particularly since they had already scored legal victories in gaining equality across several areas including dependent visas and public housing. It remains to be seen whether Sham would proceed to the Court of Final Appeal and what the ultimate ruling would be.

Hectar and Anson’s sharing garnered a string of enthusiastic comments and insightful questions from the audience, which made for a lively post-talk discussion that further highlighted the plight and bravery of the LGBT+ community.

Denis Chang’s Chambers would like to extend our sincere thanks to Eversheds Sutherland’s Asia Diversity and Inclusion Committee for hosting this seminar, and Ms. Frankie Tam for acting as moderator. We look forward to exchanging perspectives on this and other legal topics with the Eversheds Sutherland team again in the future.  

 

 

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Hectar Pun SC “A very knowledgeable and hard-working barrister. He can always deal with difficult issues raised by the judge in court.” Legal 500 Asia-Pacific 2022, Administrative and Public Law — Leading Silks Hectar was called to the Bar in 1995 and appointed Senior Counsel in 2015. His practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. Hectar appears regularly on behalf of applicants in major judicial review proceedings. He 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. In the realm of commercial judicial review, Hectar has recently acted for a Bermuda-incorporated company in challenging the cancellation of its listing in Up Energy Development Group Ltd v Stock Exchange of Hong Kong Ltd [2021] HKCFI 3813. He also advises and acts for parties affected by letters of no consent issued by the Commissioner of Police.  Hectar has served on the Bar Council of the Hong Kong Bar Association as well as a number of its subcommittees. He was the Chairman of the Standing Committee on Civic Education and the Vice Chairman of the Committee on Constitutional Affairs & Human Rights from 2016 to 2018. He also regularly teaches constitutional law, administrative law and human rights law at law schools in Hong Kong. He is an Adjunct Professor of Law at the City University of Hong Kong and an Adjunct Professor of Law at The University of Hong Kong. Find out more from Hectar’s profile.

Anson Wong Yu Yat “Anson is very responsive and hard-working. A junior with good judgement.” Legal 500 Asia-Pacific 2022, Administrative and Public Law — Rising Stars Anson has appeared in more than 130 court judgments (including 14 cases in the Court of Final Appeal with 10 substantive appeals) over the mere span of less than 7 years of full practice, reflecting the exceptional wealth of experience and exposure in civil litigation for his seniority. Anson has developed a broad civil practice with particular interest in intellectual property and competition law matters. He is experienced in handling complex questions of law, including those of great general or public importance which reached the Court of Final Appeal. Recently, Anson has acted as junior counsel in three civil appeals (among others) before the Court of Final Appeal dealing with important questions of law concerning insolvency matters, land law and equity, and service out of jurisdiction: see Re Hsin Chong Construction Co Ltd (2021) 24 HKCFAR 98, Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116 and Employees Compensation Assistance Fund Board v Fong Chak Kwan [2022] HKCFA 12 respectively. Anson also has vast experience in handling complex public law issues in a wide range of areas, including human rights, regulatory, disciplinary, immigration, discrimination and election-related matters, etc. In the realm of commercial judicial review, Anson has recently acted for a Bermuda-incorporated company in challenging the cancellation of the company’s listing status in Up Energy Development Group Ltd v The Stock Exchange of Hong Kong Ltd [2021] HKCFI 3813 (led by Mr Hectar Pun SC). He also appeared as sole advocate for the applicant in Brightoil Petroleum (Holdings) Ltd v The Stock Exchange of Hong Kong Ltd [2020] HKCFI 1601 in a similar challenge. Visit Anson’s profile for more details.

This article was first published on 2 September 2022.

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.