Before we moved to Italy, we both lived in Hong Kong, one of the most cosmopolitan cities in Asia.  It is a perfect place for young people who want to work hard to achieve a career whilst enjoying a busy lifestyle.  With its colonial background, it is a fantastic mix of East and West.  However, when it comes to LGBT+ rights, it was a long way behind the other democracies of the world.  The slow progress of the LGBT+ rights frustrated us, particularly when we were considered as “nobody” to each other in the eyes of Hong Kong Law. But we are not the kind of people that settle to suffer silently, so we end up being involved in a 5 year battle against the government of Hong Kong, with our quest to be treated equally for Employment Benefits and Tax Benefits.

The beginning of the battle

‍It all started in March 2014, when I (Angus) proposed to Scott one morning in bed and he said YES!  After we decided to get married, we were looking to put each other in company benefits.  For Scott, who worked in an international airline, there was no problem to register me as a spouse and enjoyed full spousal benefits. On the other hand, I was a civil servant for the Hong Kong Government, where they did not recognise any same sex marriage in Hong Kong, it was not possible to put Scott as my spouse at work, for benefits - or even as an emergency contact.  This to us was odd, as at the same time, the government was promoting itself as an equal opportunity employer yet strikingly, it had a policy against discrimination in employment on the grounds of sexual orientation!  In this policy, it clearly stated that:

“the government is committed to the principle of equal pay for all employees for equal work…And all employees are entitled to the terms and conditions of employment or access to employment or access to benefits….Irrespective of their sexual orientation.”  

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At the same time, we also wanted to establish ourselves as spouses in tax declaration. In the tax ordinance in Hong Kong, it defined marriage as

(a) any marriage recognised by the law of Hong Kong; or

(b) any marriage, whether or not so recognised, entered into, outside Hong Kong, according to the law of the place where it was entered into and between persons having the capacity to do so. 

We thought that the definition was very clear and our marriage would fall under the (b) limb.  A marriage which is not recognised in Hong Kong, but entered into outside of Hong Kong - in New Zealand where it was legal.

Since then, we engaged in an email debate with the two departments of the government, to ask for the spouse benefits and to be treated equally for tax benefits.  We made demands on the benefits based on their own polices and ordinance, yet, all we got back was always the same answer, that Hong Kong did not recognise any marriage that was not one man and one woman.  We tried to reason with them with logic and sensible arguments, but they were like a broken record, just repeating the same answer again and again. 

I recalled at one point we simply asked the government how a gay civil servant can enjoy the benefit as stated in their policy against discrimination in employment on ground of sexual orientation, to which the government replied that the benefits indicate that the anti discrimination policy will be given to a couple married with one man and one woman! That really drove us crazy, the government designed a policy against discrimination on homosexuality but would only give you benefits if you're in a heterosexual marriage?! We couldn't agree with that logic and after 9 months of email battle, it wasn’t going anywhere, so we knew we had to look for other avenues to further pursue the issues.

The Ombudsman and the Equal Opportunity Commission

We raised the complaints to two statutory organisations. Firstly, we went to the Ombudsman, which is a government department that is meant to take an independent look at the complaint of a government decision. They blandly replied staff benefits were not under the scope of their power, so they had no authority to take up the complaint!  Secondly, we went to the Equal Opportunity Commission which is a government organisation that is meant to research and advise on areas of equality based on the four discrimination ordinances in Hong Kong (namely sex, family status, disability and race). They replied that the Sex Discrimination Ordinance only refers to discriminatory treatment regarding the person's sex, not the sexual orientation.

In our case, to consider whether we were being treated less favourably because of our sex, the appropriate comparator of the opposite sex in relevant circumstances would be a female staff in same sex marriage. They had the view that the government would also deny their benefits, so there was no less favourably treatment based on sex! We could not agree on their logic but there was no further way to challenge their decision. We felt really frustrated at this point as the two organisations were established to investigate on government malpractice, but to us they were only finding different excuses for not taking the case.

Meeting with the Lawyer

Other than filing two compliants to the two statutory organisations, we discussed our case with our very good friend Billy, who is also an activist of LGBT+ rights. He himself was involved in a huge legal battle with the government 10 years ago. He fought for the age of consent of homosexual men to be equal to heterosexual couples. His case set up a precedent case prohibiting unjustified differential treatments based upon one's sexual orientation. In simple terms, he is a legend!

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So Billy connected us with his lawyer, Michael, who is a famous human rights lawyer in Hong Kong, for a discussion. We attended his office, where he sent his paralegal, Josh, to met us. Josh explained to us our option of Judical Review, which is a procedure by the High Court in Hong Kong exercising its supervisory jurisdiction over the decision of government or administrative bodies. The court will review the relevant decision making process to check whether there was any error made and the decision being reviewed must be of public interest. In our case, Josh told us that we can consider challenging the government decisions on the spousal and tax benefits. However, he also mentioned that judicial review includes long procedures and the legal cost involved would be very high.

He further explained that we can try to apply for legal aid, which is a scheme providing the eligible person with a legal service in court proceedings to ensure that no-one who has reasonable grounds for pursuing legal action in the courts of Hong Kong is denied access to justice because of a lack of means. With legal aid, we would limit our exposure of the legal cost. Another issue he mentioned was the anonymity order, to protect our privacy and avoid embarrassment, so we would be represented as an alphabet in all records.

The meeting was a bit strange to us, before we attended the office, Billy told us Michael was interested in our case, yet he was just sitting in his office next to the room we were in the whole time when we were there, without meeting us to listen and understand our case. Furthermore, we felt that they talked about money a lot without actually analysing the merit of our case. We finished the meeting and agreed to spend 5,000HKD for their assistance for the legal aid application and we would make a decision depending on the outcome of the legal aid.

The very next day of the meeting, we got an email from Josh, mentioning that they have sought the counsel advice. As there was a time limitation to file the judicial review, which is within 3 months of the decision, at the time we met them, it was already two and half months, so we needed to file the case immediately together with the anonymity order, without the legal aid. This would cost us at least 25,000HKD.

We were not happy with this message at all. Firstly, the price they quoted was multiplied by 5 in one day. Also, we did not want to expose ourselves in unlimited legal cost, we were talking about multi millions here, which we could not afford. What kind of lawyers would put their client in such financial burden? We were enraged and asked them to close our case.

Our First Interview

We were really low and ran out of options. By chance, one of the local TV channels was making a short program about difficulties faced by same sex couples in Hong Kong and they reached out to us. We thought this would be a good opportunity for people to know about our difficulties, even though we couldn't bring justice to the case in court, so we agreed to do an interview. We met the reporter at the government headquarters and she asked if we would like to show our faces on the camera. We hesitated. We were not sure about that, we did not see ourselves as activists, we felt shy, nor did we want to affect our jobs and families, so for many concerns racing through our minds at that time, we declined. This was the first TV interview for us and we had our back to the camera.

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HKU LGBT Forum

Just as we thought there was no means for us to further pursuit our rights, I coincidentally met two lawyers in a HKU LGBT Forum, Darcy and Azan. The HKU LGBT Forum was a meeting to discuss the way forward regarding the LGBT rights development in Hong Kong, all the people attended were passionate about the issues. In the forum, I raised our case and it was vigorously discussed. Azan, who was also mediating and hosting the forum, was particularly helpful in giving advice. He explained the case has a very strong merit, given that there were a lot of precedent cases in the common law system to support discriminated treatment based on sexual orientation. Also, by challenging certain rights it would be easier for the judges in the Hong Kong court to accept rather than challenging the whole marriage system (although that would be the ultimate aim).

In terms of the 3 months time limitation, because we had been continuously seeking help from different organisations, it should be acceptable to the court of our delay. Darcy, who was a solicitor, also understood our concern on the legal cost and she was happy to assist us on pro bono basis until we got a decision from legal aid. She understood if we couldn't secure legal aid, it was totally understandable that we wouldn't further proceed the judicial review. After the forum, it didn't take us long to decide to continue to bring our case to justice. We agreed to have Darcy to help with the legal aid application.

P.S. - A little side story, in the forum, the legal counsel of the Equal Opportunity Commission was there. During the discussion, he agreed there was discrimination and the wrongful decision of the government. I immediately confronted him that the Equal Opportunity Commission refused to take up the case a few months ago, he then asked us to send him the information but he never replied...another example of the Equal Opportunity Commission that did not really want to take up our case.

The Legal Aid Application

We moved forward to the legal aid application, Darcy attended the legal aid office with me. Because we are married, I naturally submitted both of our information as a married couple. Normally, for a family with two employed persons, it would exceed the financial income limit of legal aid and would not be eligible, but because our case was related to a human rights issue and had a big impact to public interest, we asked for the Legal Director's discretion to wavie such requirement (which was a discretionary power given to him under the law). To help justify our case to legal aid, Azan also prepared a counsel advice to explain the legal merits. The meeting with legal aid was smooth and they were very helpful, we were confident we could get the approval when we walk out the office. Also Darcy told us she'd never seen legal aid treat an applicant so nicely, which led us to suspect that there might have been some staff in the legal office who had an interest in it?!

A few weeks later, we got a letter from legal aid, saying the application was approved but we needed to come up with a contribution of over 700,000HKD!  We were shocked with the number. Then we asked how come the number was so high, legal aid told us because we had a high combine income. This wasn't right, the whole government refused to recognise our relationship and give any benefits to same sex married couples and suddenly when they could get their hands in our pocket, we're considered as married couple so that they can have a higher contribution! We went back and asked for a review, then they agreed not to count the income of Scott and reduced the contribution.

The Anonymity Order

So we got the legal aid in place, we definitely wanted to go ahead with the judicial review. Darcy advised us that we should consider an anonymity order, given the nature of our case, it would not be a problem to obtain.

We discussed among ourselves. One of our friend's story really affected us deeply in our decision; he was with his partner for long time, but because they thought their family and society did not accept them, they were living in the closet and separately with their family. One day, one of them had an accident at sea and passed away.  The other half was not informed and he found out in the newspaper.  He couldn’t reach his family and could only find out about the funeral from a website and stood at the back whilst the service was going on.  He was so upset that his family asked him what had happened. He then told his family about his deceased partner and their story, his family told him that they would have accepted them and it was a sad way to come out. The story showed that stigmatism still exist a lot in Hong Kong, a lot of people who have yet to come out and encounter a lot of problems and discrimination in life. 

We are blessed with supportive families and friends, so we felt like we can do more to fight for equality for all of us and we were proud of who we are. We did nothing wrong to ask for a fair treatment and we did not need to hide behind an alphabet. Therefore, after a short discussion with our family about our intention to file the case, we decided to file the case without the anonymity order.

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The Court of First Instance

The Application for Judicial Review

We decided to go ahead for the judicial review, but first we had to form a legal team. At that moment in time, we had Darcy as our solicitor and Azan as junior counsel. While we were searching for a senior counsel, Darcy told us a reputable senior counsel contacted her and wanted to be on our case. He's called Nigel and she suggested we would be lucky to have him on our team, especially as we don't want him to play on the government's team, so we happily welcomed him onboard.

The legal team then prepared the judicial review application. It was a 108 paged application that documented everything that happened; from how we met each other to when we decided to get married, to the legal context of right to marriage, principle of equality to indirect discrimination, then to the grounds and merit to review the case. It was such a thorough document, compared to a usual judicial review case, it would be only a few pages at the application stage, as our legal team did not want to be shut down on the first hurdle just because the application was not submitted within 3 months of the government decision.

We were really pleased with the document, as this was the first time a full picture was prepared for our case.

The Big Annoucement by the Newspaper

The judicial review was submitted in the afternoon of Christmas Eve of 2015. Our lawyers warned us that it would probably draw some media attention given it was a gay local civil servant taking the government to court for LGBT rights. People in Hong Kong would be interested on who is the gay civil servant and why he would do it. Then nothing happened, we thought we dodged a bullet.

Then suddenly on the first day after the Christmas holiday, it was hugely reported in the Hong Kong media! I got messages from family, friends and colleagues. We also got a message from our wedding videographer, who told us that we got almost a thousand plays on our wedding video in just one day. When I went home after work, I saw a lot of reporters waiting downstairs outside our building. I decided not to go home that night and went to stay with a friend that night. The next day when I returned home, we got some reporters who had sneaked into the building and put their business card at our door.

We were a bit overwhelmed. Some reporters were able to get my phone to ask for interviews, other stalked us on our Facebook and used our photos to report in the news. We maintained our ground not to take any interviews and after a few days, it all died down.

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A Year Long Wait...

From the date of application to the actual hearing, it took almost a year and there were many things that happened behind the scene.

The hearing date

The judge at the Court of First Instance informed us in March 2016 that they decided to have a rolled up hearing for us, to consider (i) the extension of time to apply for leave in order to apply for judicial review, (ii) the application for leave to apply for judicial review and (iii) the substantive application for judicial review. For us this was good news, as it seemed that the court was willing to hear the whole story before just rejecting our case because we did not meet the 3 month requirement to file the judicial review. The court also asked all the parties for their diaries to fix the hearing date for the 26th and 27th of November 2016. It wasn't particularly fast, but our lawyers told us it was a normal waiting time as there would be a lot of back and forth of documents during that period.

However, in mid July, we received a message from Darcy, telling us that both counsels were working on another case in the Court of Appeal and have set a three day hearing on the 29th, 30th of November and 1st of December. The Court of Appeal knew at the time of setting down about the date conflict but did it anyway! We did not understand that but just got told this was how it worked in the court, our options were (i) insist on our hearing date and choose a new counsels (ii) move our hearing date to a later date.

We did not want to further delay our case, so we told Darcy that we insisted on the original date and checked with the counsels. Azan said he would stay on the case if there was date conflict, while Nigel would stay on other cases. In this situation, it meant that we needed to find a new senior counsel. Nigel wanted to have a meeting with us to pursue us to move the date, so that he could stay on the case, but we didn't want to. In our mind, we got the date first and it was insincere for the Court of Appeal to steal our date. After a few phone calls with lawyers, we agreed they would try to contact the court and other side to fix a day within 7-14 days of the original date, if that was not possible, then we would change the counsel. In the end, they were able to fix a date in early December, 10 days after the original date, a good compromising ending.

The permission to public communications

As a civil servant, I was bounded by the rule to public communications, whether official or in private capacity. Public communications mean interviews, speeches, by letters or articles in press or by talks or discussion on radio or TV. So pretty much everything. We knew that we would at some point need to speak about our case to the public, so starting from the beginning, we wrote to the government and asked for the permission.

Darcy sent out the first letter in February and we didn't hear from them until May. They replied that they have concerns for my intention on public communication, while the judicial review was in progress, my public speaking may interfere with the due administration of justice and constitute a contempt of court! They asked how my intended communications would be properly done? In their mind, I would go around and speak disrespectfully about the court and judges?!

If you're a normal citizen going to court, you would be free to speak and having interviews about your case, you see it so often a plaintiff would speak outside to the court building to explain his case. Just because I was a civil servant, it became so difficult for them to ask us how the intended communications would be done in which they were setting a hurdle to deter me speaking about our case publicly. It was unrealistic for them to ask what i intended to discuss or say. However, I wouldn't go down without a fight. I denied and refuted their accusation. We replied that it was my right of freedom of speech to discuss the situation in a constructive manner, it was also important to speak about our experiences and explain the legal claims.  

After that, we sent a few chasers every month, no reply until September, they finally granted approval for me to discuss in public about my "alleged" discrimination on the employment benefit and tax benefit. It was a big frustration to get something we thought was so simple to be be completed in 8 months time and their choice of word of "alleged" discrimination was just laughable as they kept telling themselves they did nothing wrong. All these little things they did just fired up our spirit to get the justice we deserved.

The permission to accept advantages

Even though I got legal aid, we still had to come up with a large sum of contribution. There were a few people and organisations who had approached us and our lawyers and offered to support financially, so were looking to see if we could accept such assistance. In Hong Kong, under the Prevention of Bribery Ordinance, it is illegal for a public servant or his associate to solicit or accept advantages without approval.

Darcy sent out a letter to ask for permission in Feburary and the government replied at the end of April, asking to fill in the form for each individual donation and it would have to be accessed individually. For the application, the donor has to provide full names or their organisation, their business nature, whether I have any relationship or official dealings with them, the value of donation and the reasons for the donations. These made it difficult as some donors did not want to disclose their identity to the government. Also there were issues related to maintenance and champerty, both of them are common law offences. In simple terms, maintenance is money that is offered by a person who has no interest without justification or excuse in the legal proceeding can be considered as an offence. On the other hand, for someone to offer money to assist a legal proceeding and at the end taking portion of reward is an offence of champerty.

Having all of these in mind, the legal team came up with an idea to have a third party law firm or organisation to take care of the donation. That was because they wanted to isolate me, Scott and the whole legal team in handling the issue to avoid breaking the Prevention of Bribery Ordinance. Darcy approached some law firms and organisations in July but they all took their time to look into the issues. In the end, there was no one who wanted to take up the task and in order not to jeopardise our legal aid assistance, we came up with the money ourselves.

This wasn't an ideal situation for us, but time was running out and we wanted the legal team for focus on preparing for the court instead of working on the side issues, we we decided to leave it as it is.

The issue of Darcy

In around mid July, we met Darcy and Azan for a strategy meeting, after the meeting, Darcy told us that she left her previous law firm. She told us that her previous firm had some partners that had issues with her taking up our case, case of human rights of sexual minority. She had to pick between her company and our case, so she left the company. She also told us it was lucky that Mark (who later became our solicitor), who was a famous human rights lawyer in Hong Kong took her and she would continue to work on our case. We thought her previous firm was a commercial firm, so it might not be interested in human rights cases, it all seemed reasonable.

However, at a much later time, we found out that she was actually fired by the first law firm and then she was fired by Mark as well around 10 months later (which I will talk more about later).

We never doubted Darcy for her passion in human rights and we saw that she wanted to work on our case. After all, she was the one that we started the case with and she helped a lot in the initial stage in applying for the legal aid application, dealing with the government at the initial stage and getting all the initial documents ready for applying for the judicial review. However, after that we found that there were a lot of issues working with her. First of all, she seemed to talk big but not action. Everytime we were on the phone or in a meeting, she would come up with lots of action plans, such as I will do this and that, I will contact who and who. Then after two or three weeks later when we asked for an update, there would be no progress. Secondly, she also seemed to have an issue with communication with the counsels side as well. I recalled we came up with an idea to contact numerous companies for their support on the case, she was delighted with the idea and said we should go forward, but then when we had a meeting with the counsels together, Nigel had no idea of it and said that was not a good idea as it would distracted the judges, so he said no to it.

Thirdly, she wasn't able to deliberate the counsels' advise to us. Many times when we asked for a decision of an action, she would only say it was counsels' advice but she wasn't able to give further explanation behind the decision, but as we couldn't meet the counsel ourselves (that is the rule in Hong Kong), we had to go back and forth for a few times to understand one question, which would take days. With the way we worked with her, we got extremely frustrated. The trigger point came around September 2016, when Darcy constantly said she would approach Scott's company and other financial companies as well as banks in response to one of the government's arguments. As there was no progress, Scott contacted his company and they were willing to support the case and gave a letter. When Darcy sent us the draft affirmation in early December 2016, which was 10 days before the court hearing, we saw that Scott's company was the ONLY company on the affirmation! We were hugely disappointed with her result of the affirmation and also the content. We had been talking about this since May, but she didn't give us this draft until the latest possible moment before filing, so we couldn't do anything to fix it. We reluctantly agreed to file it then she came back to us and said that the counsel say no to submitting the affirmation. We asked why but she couldn't answer, only citing it was the counsel's advice.  We asked to speak to the counsel but then she said Nigel wouldn't speak to us.

We were devastated at that point. We thought this affirmation would be a good argument point to the government but now we only got one company on it and what's worst it wouldn't even get put in front of the judge. Then our lead counsel ignored us and didn't address our concern. We felt that this was not our case anymore, we were simply two puppets, the legal team did whatever they wanted. We went into a week of Cold War and didn't reply to their email. It did come into our mind that we didn't want to show up in the court for the hearing. After a week of calm down, we decided we would still go to the court, as we still care about the case.

The Hearing Day

After a year long wait and all the drama just 10 days before, we showed up in the court, feeling really nervous and sat behind our legal team.  At this stage it was just a single judge in the High Court, who listens and reviews the case. We remembered that our side was really thin, just two of us plus two solicitors and two councels.  Meanwhile on the government side, they had an entourage of around fifteen people, which made us wonder...

how many government employees does it take to change a light bulb?

The court completed in one day and a half. We argued that our relationship is no different from other heterosexual relationships, we treat each other as a family, we share a home, finances, spend time together with both of our extended families and friends.  We lead our lives like any other heterosexual married couples, why should we be treated differently simply because of our sexual orientation? 

Meanwhile, the government argued that there was no same sex marriage in Hong Kong and they did not recognised our married status from overseas, as such we were not in the same comparable position as heterosexual couples. They said we should be compared to unmarried couples. Also, they said, granting benefits to same sexual couples would undermine the integrity of the institution of marriage.

To us, this logic didn't make sense as an unmarried couple has the access to get married and make a decision whether or not they want to, which is different to our case as we have no choice of marriage in Hong Kong. One of the main authority we quoted from Lady Hale, the Deputy President of Supreme Court in UK at the time,

"It is difficult to see how heterosexuals will be encouraged to marry by the knowledge that some associated benefit is being denied to homosexuals. They will not be saying to one another: Let's get married because we will get this benefit and our gay friends won't."

During one of the recesses, while we were getting coffee, Azan came to us and explained about what happened the other day. He told us that Nigel was preparing the case and he would need to be very focus during that time, but he would be able to speak with us after, somehow the message was delivered as Nigel did not want to talk to us at all...another example of miscommunication. When we finished the hearing, Nigel took the time to debrief us and explained the decision about the other day.

The hearing was kind of an anticlimax, we built up all the tension and anticipation, watching the legal team debate and deliberate the arguments in court for two days. The judge was pretty quiet in the court, most of the time he was listening, did not show any emotion, so we couldn't tell whether he agreed or not on the case. Then finally, he thanked both sides and decided to postpone the judgement to a later date, then that's it, everyone just left and lives go on! 

The Judgement

Four long months later, the court made a judgement.  We were only told a day before the judgement that it would be released the next day. We remember it was a very nerve wracking morning waiting for the judgement to come out. We thought we would have to be there in person, whilst the judge reads his judgement, but for these types of cases, it's just a written judgement that is posted online, on the judiciary website for all to read and a printed version for the representative of our lawyer. Just after 2pm on the 28th April 2017, the judgement popped on the website and we hastily downloaded it and went immediately to the back pages to read the final judgement.

The judge agreed that our relationship was not different to other committed heterosexual married couples, but because Hong Kong only had heterosexual marriage and we could not enter such marriage due to our sexual orientation, so the different treatment between us and heterosexual couples was indirect discrimination based on our sexual orientation.  Also the judge could not relate the aim of the government to justify such treatment, he quoted

“It is difficult to see how heterosexuals will be encouraged to marry by the knowledge that some associated benefits is being denied to homosexuals.”. 

‍As such the court called the governments spousal policy “indirect discrimination and rejected the government had a justifiable aim for the differential treatment." 

We won the spousal case and it was a landmark win!

However, on the tax benefit, the judge was in view that we did not ask the correct question, i.e. “whether the policy is discriminative and unconstitutional?” Instead of asking “whether our marriage fits in the definition of the tax ordinance?”.  So he ruled that our marriage did not fit the definition and we lost the case.  We were told that this was more a technicality, rather than a legal issue.  We looked back at our original court filings (it was 86 pages long!) and we did ask the correct questions and say that the tax poicy is discriminative and unconsitutional, however the judge must have accidentally overlooked it. For this reason, we decided to appeal the Tax decision, as we thought the judge made a mistake on this ruling. At the same time, the government also appealed on the spousal benefit decision! It was a cross appeal situation.

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To be continued....