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Submitted by // P Yeung, Partner
07 November 2018

 

Preventing discrimination versus upholding the status of marriage

Introduction

Article 37 of the Hong Kong Basic Law states that "The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law." This protection is understood to be limited to marriage between heterosexual monogamous couples. This has led to a debate on equality of treatment of homosexual couples in the context of rights and privileges borne out of marriage. The principal issue is that treating same-sex relationships differently to heterosexual relationships is discriminatory.

The recent case of Leung Chun Kwong v Secretary for the Civil Service and Another [2018] HKCU 1802, the Court of Appeal dealt with this difficult issue.

Background

The case involved an applicant, a Senior Immigration Officer. The applicant had married his same-sex partner in New Zealand. Upon returning to Hong Kong, he claimed spousal benefits available to civil servants.

The Secretary for Civil Service, however, took the view that the applicant's same-sex marriage was not a marriage within the meaning of Hong Kong law and accordingly, spousal medical and dental benefits offered to civil servants did not extend to the applicant's partner ("Benefits Decision").

Similarly, the Commissioner of Inland Revenue informed the applicant that he was not entitled to elect for joint assessment with his partner because their same-sex marriage did not fall within the meaning of marriage in the Inland Revenue Ordinance ("Tax Decision").

Court of First Instance Decision

In the first instance decision, Justice Chow held that the Benefits Decision unlawfully discriminated against the applicant by reason of his sexual orientation as there was a difference in treatment accorded to the applicant on account of his same-sex marriage. On the other hand, Justice Chow held that the Tax Decision was correct in that the Commissioner had based his decision on the provisions of the Inland Revenue Ordinance.

Court of Appeal Decision

The Secretary for Civil Service appealed the Benefits Decision and the applicant cross-appealed the Tax Decision. The central issue arising from the appeal was whether the Benefits Decision and/or Tax Decision constituted discrimination against the applicant on account of his sexual orientation.

In making its determination, the Court of Appeal applied the test established in the recent Court of Appeal case of QT v Director of Immigration [2017] 5 HKLRD 166 (a case which was subsequently appealed to the Court of Final Appeal, although that appeal had not been decided when Leung Chun Kwong was heard by the Court of Appeal).

According to the Court of Appeal decision in the QT case, if a benefit is a core right or obligation unique to marriage, no justification is required for its lawfulness. Where the differential treatment falls outside such core rights, and if the reason for the difference is, for example, sexual orientation, the right to equality is engaged and there must be a justification for the differential treatment. If, however, after evaluating all the circumstances, the court has a doubt as to whether the relevant right or obligation is a core right or obligation or not, the court must act cautiously by proceeding to consider justification.

The Court of Appeal in Leung Chun Kwong found that there is a strong case for saying that spousal benefits (as contractual employment benefits) are not a core right as they cannot be said to be unique to marriage by their nature. They are simply part of a contractual remuneration package and no more. However, the court said that the issue was not plain and obvious, and it would therefore be cautious and apply the justification test. The right to elect for joint assessment, however, was found to be a core right unique to marriage as it flowed from the special status of marriage. The justification test was therefore required.

Applying the justification test to both decisions, the Court of Appeal found that upholding the status of marriage was a "sufficient and indeed very weighty justification for both the Benefits Decision and the Tax Decision".

Accordingly, the court held that there was no discrimination against the applicant on account of his sexual orientation.

Looking forward

The deprival of spousal benefits to a same-sex couple was held not to be discriminatory in this case, and differential behaviour in this regard was held to be justified by the need to protect and not undermine the status of marriage.

In determining the appeal in the QT case, the Court of Final Appeal held that the justification test as established in the Court of Appeal (and as used in this case) should not be followed and that the correct approach is to examine every alleged case of discrimination to see if the difference in treatment can be justified. The Court of Final Appeal decision means QT is a landmark case, which will affect how future cases on discrimination are decided and which potentially paves the way for changes in the treatment of same-sex relationships in Hong Kong.
 


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Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; fraud; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

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Submitted by // K Bowers, Partner / Solicitor Advocate
22 August 2018


Ng Po Yu and Another v Lam Kai On [2018] HKCU 2335

Introduction

This is a case involving a family dispute over the ownership of a house ("House") which was left by the deceased ("Mother"), who had 3 sons from a previous marriage and a daughter, the 1st Plaintiff, from her second marriage to Mr. Ng ("Father"). The Mother left the House to her 3 sons (one of which was the Defendant) in a will.

In 1982, the Mother and Father ("Parents") set up a fabric wholesale business called Shun Lee Trading Co ("Shun Lee"), and held equal shares in Shun Lee as partners. Over the years, the Parents bought 6 properties held in either the sole name of the Father or the Mother.

During the 1990s, the 1st Plaintiff gave up her job to help the Parents with the running of Shun Lee. Among other transactions involving the Parents' properties, a mortgage was created over the House in May 1996 to secure banking facilities for Shun Lee. Over the years, multiple facilities and loans were taken out by the Father, the 1st Plaintiff, and Shun Lee. The House eventually became the only property left in the family.

After the Mother died during May 2012, the 1st Plaintiff applied for letters of administration. She then discovered the Mother's will.

Parties' respective cases

The 1st Plaintiff's case was three-fold:

- there was a general promise by the Parents which led to the 1st Plaintiff leaving her job to (i) help run the family business (ii) repay the mortgage, and (iii) maintain the Parents ("3 Conditions");

- the Mother had asked the 1st Plaintiff to perform the 3 Conditions on the express understanding that the House would be left to the 1st Plaintiff; and

- there was a common intention constructive trust which arose after the 1st Plaintiff assumed liability for repaying the mortgage on the House in return for the Mother's agreement to leave her the interest in the House.

The Defendant pointed out that the ownership of the House was in the Mother's sole name, and asserted that he had also helped run (for no pay) the Mother's business between 1970 – 1980 and that the bank loans were taken out wholly or partly for the personal use of the Father and the 1st Plaintiff. The Defendant also claimed that the 1st Plaintiff had provided maintenance and had repaid the mortgage on the House in discharge of her filial duties, and not in exchange for the House.

Findings

In assessing whether a constructive trust had been created, the starting point is that beneficial interest follows the legal title. The burden of proof in establishing that there was a constructive trust fell on the 1st Plaintiff. The principles for a common intention constructive trust are that there must be:-

a) a common intention between the parties that one party was to be the beneficial owner of a property despite the fact that the property was acquired in another's name;

b) the claiming party had altered its position in detrimental reliance upon such a common intention; and

c) it is therefore unconscionable for the legal owner to assert ownership in reliance on his/her legal title to the property.

In relation to the 1st Plaintiff leaving her job to perform the 3 Conditions, the Court found that the 1st Plaintiff had received significant benefits at the beginning of her career working for the family business. In evidence, the 1st Plaintiff also stated that she had acquired shares in some of the family business. As such, she had suffered no real detriment. The Court did not find any incentive on the part of the Parents to make a general promise. Without any concrete evidence of intention, the Court found that the facts and evidence did not support the 1st Plaintiff's case.

It is worth pointing out however that although the 1st Plaintiff's case in constructive trust failed, the Court found that the 1st Plaintiff's money was the source of the repayment of the mortgage on the House and that these repayments had not been made out of filial duties. As such, the Court held that the Mother's estate should reimburse 3/4 of the mortgage repayments made by the 1st Plaintiff. The monetary judgment for repayment was charged on the House until full payment by the Mother's estate.

Comment

It is important for family members to ensure that interests in property and other family-owned assets are recorded in writing (and preferably witnessed), so that there is 'hard' documentary evidence of any conflicting interests to prefer any family member over another – the alternative (in disputed cases) is an expensive, long-drawn out court process which can (and does) cause permanent damage to family relationships.


About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

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Submitted by // J Wong, Partner
21 August 2018


"Bitcoin, Blockchain and ICOs : Brave New World or Wild Wild West" 

Please click here for a printable PDF version.


About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

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Submitted by // K Bowers, Partner / Solicitor Advocate
05 July 2018


Dr. Chan Hin Keung Henry v Apple Daily Ltd and Others [2018] HKDC 219

This recent District Court judgment revisits the applicable legal principles concerning libel  and considers the application of the Reynolds defence for journalists.

Background Facts

During November 2012, Apple Daily published a full-page report concerning a possible pyramid scheme in Hong Kong.

The report contained a number of articles, amongst which one suggested that a local company was promoting a pyramid scheme; another mentioned that there were a number of possibly related companies registered under similar names and at the same address, and that the Plaintiff was a shareholder and director of one of the named companies; and a third article contained generic commentary outlining the features of a pyramid scheme.

The Plaintiff was then the President of the Chiropractors Association.  He issued proceedings against Apple Daily, alleging that that the article which named him was libellous of him when viewed together with the other articles in the same report.

Issues at trial

The case at trial focused on two main issues; firstly, whether the Court would attribute a defamatory meaning to the articles insofar as the Plaintiff was concerned; and secondly, if the Court were to ascribe a defamatory meaning to the articles, whether the Defendant could invoke the defence of Reynolds privilege.

After trial, the Court dismissed the Plaintiff's claim by finding that (1) the article was defamatory of the Plaintiff; but that (2) the Defendant was able successfully to rely on Reynolds privilege as a defence to the publication of the article.

Determining the meaning of the article

The Court considered the natural and ordinary meaning of the article which specifically identified the Plaintiff in order to decide whether it was defamatory of him.  It took a holistic view of the whole report and considered the inferences readers would draw, and held that it was "entirely plausible" for a reasonable reader to gain the impression that there was a connection between the Plaintiff and the pyramid scheme.

In the Court's analysis, readers could have attributed a number of meanings to the articles (when read together) including the following:-

i) the Plaintiff knowingly participated in the pyramid scheme (this was the defamatory meaning as pleaded by the Plaintiff) ("Level One Meaning");

ii) there were reasonable grounds to suspect such participation ("Level Two Meaning");

iii) there were grounds to investigate if there was such participation ("Level Three Meaning"); or

iv) there was no culpable connection between the Plaintiff and the pyramid scheme ("Level Four Meaning").

The Court decided that the "Level Two Meaning" was the right meaning as the article contained reasonable grounds for one to suspect that there was a "nefarious connection" between the Plaintiff and the pyramid scheme and that he knowingly participated in it. The article was therefore found to be libellous of the Plaintiff.

Reynolds privilege - a balancing exercise by the Court

Having established the defamatory nature of the article, the Court had to consider whether the Defendant could rely on the defence of Reynolds privilege. In order for Reynolds privilege to be successfully invoked, the Court had to consider whether:-

i) the subject-matter of the publication was of sufficient public interest;

ii) it was justifiable to include the particular material complained of; and

iii) the publisher had met the standards of responsible journalism.

Application of Reynolds privilege to the present case

The Court undertook a balancing exercise and considered the reasonableness of the Defendant's conduct in including the defamatory statement in the article. The Defendant's reference to the Plaintiff was found to be justifiable because:-

i) the emergence and existence of pyramid schemes was a matter of public interest, and so was the identity of persons who may be involved in such schemes in Hong Kong;

ii) it was part of the story for the Defendant to explain the nature of pyramid schemes and disclosing connected persons ; and

iii) references to the Plaintiff in the article were made in a "balanced and matter-of-fact fashion".

Although the Defendant's news editor and reporter were found not to have verified the defamatory statements made about the Plaintiff in the articles, they were found to have presented facts in an objective manner. It was therefore held that they had conducted themselves as responsible journalists.  Based on this finding, the Defendant was found to have successfully invoked the Reynolds defence, and the Plaintiff's claim was dismissed.

Commentary

This case is a good illustration of the Court's balancing exercise between public interest and a subject person's interest in the context of responsible journalism.

Journalists should take note from this Judgment that the applicability of the Reynolds defence is a delicate balancing exercise with responsible journalism and fair reposting on matters of public interest at its heart.

 

About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

 
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