An Incomplete Victory: The Implications of QT v Director of Immigration for the Protection of Gay Rights in Hong Kong
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12367 |
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CASES
An Incomplete Victory: The Implications of QT v
Director of Immigration for the Protection of Gay Rights
in Hong Kong
Kai Yeung Wong∗
QT vDirector of Immigration is the most important decision on gay rights in Hong Kong
since the unequal ages of consent between heterosexuals and homosexuals were held to be
unconstitutional 10 years ago. The Court of Appeal of Hong Kong affirmed the right of same-
sex couples married or in a civil partnership overseas to be treated on an equal basis with
married heterosexual couples. This note considers the strengths and shortcomings of the Court
of Appeal’sreasoning, in ter ms of its potential significance both to the rights of sexual minorities
and to the wider protection of human rights by means of the common law.
In a historic decision in QT vDirector of Immigration1(QT), a strong constitution
of the Hong Kong Court of Appeal (HKCA) – consisting of the Chief Judge
of the High Court, a Vice-President of the HKCA and a Justice of Appeal –
found that it was unjustifiably discriminatory for the Director of Immigration
(the Director) to refuse dependant visas to couples who were not in a hetero-
sexual marital relationship. It was the first time that the courts of Hong Kong
had been called to rule on the legality of official discriminatory treatment of
sexual minorities since the judicial decriminalisation in 2006 of male same-sex
conduct between persons over 16.2As Geoffrey Yeung, an equality law expert,
rightly notes, the decision represents ‘an important step towards equality for
same sex couples in Hong Kong. It is a recognition that same sex relationships
in Hong Kong are valid relationships’.3
However, it would be remiss, and simplistic, to hail the decision as a com-
plete victory for gay rights. The reasoning of the HKCA warrants careful
examination because, although the Court was unanimous as to the result, their
∗Candidate for Doctor of Legal Science, University of Hong Kong; founding member of Law Lay
Dream, a Hong Kong-based online legal commentary group. The author has benefited greatly from
the informal discussions he had with Cora Chan and Geoffrey Yeung, whose penetrating insights
into various issues addressed in this note have been illuminating. A debt of heartfelt gratitude is owed
to them, and also to the anonymous reviewer for their helpful comments on the original draft. All
errors that remain are solely the author’s own.
1QT vDirector of Immigration [2017] 5 HKLRD 166 (HKCA).
2SeeLeung vSecretary for Justice [2006] 4 HKLRD 211 (HKCA); Secretary for Justice vYau YukLung
(2007) 10 HKCFAR 335.
3 K. Cheung, ‘“A landmark judgment”: Legal experts and banks react to Hong Kong’s key LGBT
court ruling’ Hong Kong Free Press, 26 September 2017 at https://www.hongkongfp.com/
2017/09/26/landmark-judgment-legal-experts-banks-react-hong-kongs-key-lgbt-court-
ruling/ (last accessed 1 October 2017).
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited. (2018) 81(5) MLR 874–905
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Kai Yeung Wong
Lordships were divided in the reasons given. Indeed, it will be seen that the
true ratio decidendi as to the proper starting point in considering marr iage –
which in Hong Kong can only be taken to mean heterosexual and monogamous
marriage4– as a differentiating criterion is to be found in the concurring judg-
ments of Cheung CJHC and Lam VP, both of which rest on a rather narrower
basis than was canvassed in Poon JA’s otherwise main judgment.
Before turning to the HKCA’s judgment, it is opportune to note the heavy
reliance placed on English and (to a lesser extent) European human rights
jurisprudence in divining the principles applicable in this case. Quite apart
from the fact that both parties to QT were represented by leading London silks
specialising in human rights law,5the judicial practice in Hong Kong when
pronouncing on human rights cases has customarily been to take account of ‘the
established principles of international jur isprudence as well as the decisions of
international and national courts and tribunals’.6For a jurisdiction decolonised
only in the recent past, and with relatively little case law of its own, English and
Strasbourg cases naturally have a special relevance to human r ights adjudication
in Hong Kong and are seen as deserving of ‘great respect’.7
In particular, the increasing influence on British decisions of the European
Convention on Human Rights (ECHR) since its incorporation into UK law
through the Human Rights Act 1998 (and now also, in the area of equality
law, the Equality Act 2010) has also g reatly reinforced the relevance of British
decisions, as decisions at the domestic level, in the Hong Kong courts. The
new but similar starting points in public law in both jurisdictions now make
the invocation of English rights jurisprudence all the more attractive to Hong
Kong judges.8Not infrequently, the Hong Kong courts turn to the ECHR as
applied by the European Court of Human Rights (ECtHR) and by the English
courts for inspiration or (almost authoritative) guidance in the application of
Hong Kong’s own constitutional bills of rights – the Basic Law of Hong Kong
(BL) and the Hong Kong Bill of Rights (HKBOR), both of which have the
effect of incorporating the International Covenant on Civil and Political Rights
(ICCPR) into Hong Kong law and set forth human rights in broadly the same
gone further, in one case holding that an approach under the ECHR ‘must hold
4 The Marriage Ordinance (Cap 181) (HK), s 40 defines ‘marr iage’ as implying ‘a formal ceremony
recognized by the law as involving the voluntary union for life of one man and one woman to
the exclusion of all others.’
5 Ms Dinah Rose QC for QT and Ms Monica Carss-Frisk QC for the Director.
6Shum Kwok Sher vHKSAR (2002) 5 HKCFAR 381 at [59] per Sir Anthony Mason NPJ.
7 A. Li, ‘The Development of the Common Law in Hong Kong under “One Country, Two
Systems”’ (2009) 21 Singapore Academy of Law Journal 375, 379–380. See J. M. M. Chan, ‘Hong
Kong’s Bill of Rights: its reception of and contribution to international and comparative ju-
risprudence’ (1998) 47 ICLQ 306, 314; S. N. M. Young, ‘Human r ights’ in S. N. M. Young and
Y. Ghai (eds), Hong Kong’s Court of Final Appeal: The Development of the Law in China’sHong Kong
(New York: Cambr idge Univer sity Press, 2014) 391-416.
8 See, Sir Anthony Mason, ‘The Place of Comparative Law in Developing the Jurisprudence on
the Rule of Law and Human Rights in Hong Kong’ (2007) 37 Hong Kong Law Journal 299, 307.
9 See, for example, Tse Wai-Chun Paul vSolicitors Disciplinary Tribunal [2002] 3 HKLRD 712 (CA)
at [26]; Chow Shun-Yung vWei Pih Stella (2003) 6 HKCFAR 299 at [36] per Ribeiro PJ; Ng
Yat-Chi vMax Share Ltd (2005) 8 HKCFAR1 at [72]-[76], [135]-[136] per Ribeiro PJ; HKSAR
vLam Kwong Wai (2006) 9 HKCFAR 574 at [37] per Sir Anthony Mason NPJ.
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(5) MLR 874–905 875
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