Although Jimmy Sham Tsz-kit is perhaps best known for having been convicted in 2024 of conspiring to commit subversion (he was imprisoned for four years and three months), he is also an LGBTQ activist who tried to drive a coach and horses through Hong Kong’s marital regime.
In 2013, Sham and another male entered into a same-sex marriage (“gay marriage”) in New York, where such unions are permitted. As Hong Kong law does not provide for these unions and does not recognize those entered into abroad, he mounted a three-pronged challenge through judicial review. Perhaps unsurprisingly, he was given short shrift by both the Court of First Instance and the Court of Appeal. However, on Sept 5, 2023, he enjoyed some success in the Hong Kong Court of Final Appeal (CFA) (FACV 14/2022).
Whereas the CFA’s five judges agreed that the constitutional freedom of marriage guaranteed by the Basic Law and the Hong Kong Bill of Rights was confined to opposite-sex marriage and that equality rights under both instruments did not compel recognition of a foreign same-sex marriage, a majority (3-2) found in Sham’s favor on the privacy issue. With Chief Justice Andrew Cheung Kui-nung and Justice Johnson Lam Man-hon disagreeing, the other three judges (“the majority”) concluded that the right to privacy was engaged. They decided this right was infringed by arbitrary interference with the private life and dignity of same-sex couples resulting from (i) the real difficulties they faced in the ordinary course of their private lives, and (ii) their exposure to the publicity, stress, uncertainty and expense of litigation in judicial review proceedings.
In consequence, the majority issued a declaration, stating that the Hong Kong Special Administrative Region government was “in violation of its positive obligation under the Hong Kong Bill of Rights (Art 14) 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”. However, the “operation of the afore-mentioned declaration” was suspended for two years (to Oct 27, 2025), to give the government “time to comply with its aforesaid obligation”.
The majority’s declaration immediately aroused concerns, including among those who regarded it as an assault on traditional marriage. They saw it as the thin edge of the wedge, a precursor to other changes. Indeed, its reference to “registered civil partnerships or civil unions” did little to allay worries and recalled the United Kingdom’s experience. Whereas, amid assurances that nothing further was on the horizon, Tony Blair’s government legislated for civil partnerships for same-sex couples in the UK in 2004, it was only the start. The supporters of same-sex marriage were emboldened and immediately ramped up their campaigning. Thereafter, without any public consultations or a popular mandate, David Cameron’s government railroaded same-sex marriage through in England and Wales in 2014 (it was extended subsequently to Scotland and Northern Ireland). It was, therefore, unsurprising that some viewed the declaration as the first step on a slippery slope.
Although all five judges ruled against Sham on the same-sex marriage issue, it is unsurprising that the majority’s declaration has been seen in some quarters as a move in that direction. If traditional family values are not only upheld but affirmed in all areas, the institution of marriage as it has always been understood could end up being questioned. When, moreover, liberal-minded judges in the US Supreme Court interpreted the US Constitution in 2015 in such a way as to enable it to order every state to license and recognize same-sex marriage (by a 5-4 majority), thereby usurping the legislative role of the US Congress, the chief justice, John Roberts, called the majority’s decision “an act of will, not legal judgment”. He explained that the majority was ordering “the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs”. In other words, an institution cherished by people everywhere since time immemorial was being jeopardized by judges bent on social engineering, regardless of historical truths.
Not surprisingly, these trends alarmed the world’s great religions, who were unanimous in their condemnation. For example, Pope John Paul II, who led the world’s 1.3 billion Catholics from 1978 to 2005, tried to nip the gay marriage debate in the bud, saying marriage was a sacrament between a man and a woman. It was based on natural law, which could not be changed by human will or social norms. He characterized same-sex unions as a threat to the natural moral law, the family, and society, and his words will have guided many of his co-religionists (and others) in Hong Kong.
Nobody can compel them (the elected legislators) to vote against their conscience and judgment, and their decision must be fully respected by the executive and judicial authorities, and by everybody else
Under the Constitution of the People’s Republic of China (Art 49), which applies throughout the country, traditional marriage, family, and motherhood/fatherhood are specifically protected. On any construction, there is no scope for same-sex marriage, and anything that impinges on its safeguards is questionable. Only 38 countries have recognized gay marriage, and such arrangements, alien as they are to most countries in the world (157), can, as things stand, have no place in China. They cannot, moreover, be legitimized by a sidewind in Hong Kong under the guise of privacy rights. Although the CFA’s majority found in Sham’s favor on privacy rights, which should not be conflated with the gay marriage issue, the majority has conferred a degree of legitimacy on foreign same-sex unions. Nobody, therefore, should be surprised if legislators decline to play along.
Although not everybody understands how the majority’s declaration works, a founding CFA member, former justice Henry Litton, has clarified the position. He said the declaration was “full of holes”, pointing out that the CFA had “made no order as such”. All the declaration amounted to was “the expression (by a bare majority) of an opinion as regards the legal effect of Article 14 of the Bill of Rights. Nothing more”. In other words, there was no order for the government to implement, which, given its commitment to respecting the CFA, placed it in a dilemma.
Moreover, Litton explained that, “The executive arm of government is not slave to the CFA”, which was incontrovertible. If Hong Kong’s family law structure is to be changed, it is “the responsibility of the executive and legislative authorities, not that of the judiciary”. Indeed, the Basic Law (Art 73) provides that one function of the Legislative Council is “To enact, amend or repeal laws in accordance with the provisions of the Basic Law and legal procedures”. Therefore, when the executive proposes a law, the legislature is at liberty to approve or reject it, as the government recognizes.
Doing the best it could, the government gazetted the Registration of Same-sex Partnerships Bill (“the bill”) on July 11, and it was introduced into the Legislative Council on July 16 (for first reading). It proposes creating a registration system for same-sex partnerships, allowing same-sex partners to apply to register their partnerships at a new registry. Although it recognizes some legal rights of same-sex partners who have entered into gay marriages abroad, activists called its framework inadequate in protecting same-sex relationships.
The advocacy group, Hong Kong Marriage Equality, said the bill “falls well short of providing the full and equal recognition that all couples and families deserve”, and it was particularly concerned over the “unfair” requirement that eligible couples must be registered in another country.
Sham agreed and said the bill did “unimaginably little” for the “core rights of partnership”. He was also unhappy with the financial costs involved in entering into an overseas registered gay marriage.
The chief executive, John Lee Ka-chiu, sought to reassure everybody that marriage arrangements would remain “monogamous and heterosexual”. He said the CFA’s ruling (which he called a “determination” rather than a “declaration”) was “legally binding on the government”, although it would “respect LegCo’s final decision”. This was just as well, as many legislators found the bill unpalatable. They pointed out that recognizing same-sex partnerships registered overseas was functionally the same as allowing gay marriages in Hong Kong, which was therefore an objectionable compromise.
One legislator, Priscilla Leung Mei-fun, called the bill a “dark day” for traditional values, and warned against Hong Kong following “the so-called LGBTQ trend” of other countries. Another legislator, Holden Chow Ho-ding, stated that while the DAB party (of which he is vice-chairman) opposes discrimination, the bill threatens Hong Kong’s traditional family values and could affect children. He said, “Textbooks would then need to teach the next generation that Hong Kong allows the registration of same-sex marriages”, which might create the impression that such unions were normalized in Hong Kong.
The bill has been assailed on all sides and is mired in controversy. Whereas Litton has called on the government to withdraw it, Leung wants the CFA’s two-year deadline to be extended. Although there is a real possibility that the bill will be voted down, the government will at least be able to say it did what the CFA’s majority expected of it.
While there have been suggestions that the government is open to “improving” its bill to win legislators over, this is most likely wishful thinking. Even if it is watered down, many legislators will remain reluctant to confer any sort of formal recognition on gay marriages entered into in the US and elsewhere. If the elected legislators decide that the bill is not something that Hong Kong needs or wants, they will have discharged their constitutional function. The decision will be theirs and theirs alone, and they will be answerable for it to their electors. Nobody can compel them to vote against their conscience and judgment, and their decision must be fully respected by the executive and judicial authorities, and by everybody else.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
