Kong Yunming v Director of Social Welfare (FACV No. 2 of 2013)

Madam Kong settled in Hong Kong in December 2005 on the strength of a one-way permit to join her husband for family reunion. Unfortunately her husband passed away the day after she arrived in Hong Kong.

In March 2006, Madam Kong applied for Comprehensive Social Security Assistance ("CSSA") with the Social Welfare Department ("SWD"). Under the then existing policy which had been in force since January 2004, any persons who had resided in Hong Kong for less than seven years did not qualify for CSSA ("7-year residence requirement"). Based on the then existing policy, Madam Kong's application was refused.

Madam Kong was granted legal aid to apply for judicial review against SWD's decision and the policy. She relied on Article 36 of the Basic Law which provides that "Hong Kong residents shall have the right to social welfare in accordance with law…". Madam Kong argued that the 7-year residence requirement contravenes Article 36. In additon, Madam Kong also relied on Article 145 of the Basic Law which provides that "On the basis of the previous social welfare system, the Government of the HKSAR shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs."

The Court of First Instance dismissed Madam Kong's application and ruled that the 7-year residence requirement was not unconstitutional. The decision was upheld by the Court of Appeal.

Madam Kong was granted legal aid to appeal to the Court of Final Appeal ("CFA").

The highest court reviewed the history of the residence requirement for the CSSA scheme. It started off with a residence requirement of 10 years in 1948 which was reduced over the years and eventually came down to 1 year in 1970. However, from 1 January 2004, the residence requirement of one year was increased to seven years as recommended by the then Task Force on Population Policy with aimed to provide a more rational basis for the allocation of public resources in the light of rising social expenditure and limited financial resources and to ensure the long-term sustainability of the provision of social security benefits to the community.

CFA decided that Article 36 confers a constitutional right on Hong Kong residents "to social welfare in accordance with law" and the CSSA is within the meaning of "social welfare" under the article. Article 145 then endorses the rules and policies established under the previous system and it implicitly regards them as rules established "in accordance with law". Therefore the one-year residence rule for CSSA derived from the previous system of social welfare and in existence as at 1 July 1997 was given constitutional protection by Article 36.

The Court has to consider whether the imposition of the 7-year residence requirement (1) pursues a legitimate societal aim, namely properly allocating finite public resources in light of rising public expenditure to ensure the long-term sustainability of the social security system, and (2) is rationally connected with the accomplishment of that end, and (3) whether the means employed are proportionate or on the contrary, they make excessive inroads into the protected right.

The Government imposed the new residence requirement in 2004 (children under 18 and current HK residents are exempted) in order to reduce the public expenditure on the grounds that firstly there was an increase of immigrants under the One-way Permit ("OWP") scheme who are usually children or unemployed spouses of Hong Kong residents. Secondly there was an increase of the ageing population in Hong Kong who need to be supported by a shrinking working age population. Thirdly there was rising expenditure on CSSA.

CFA, however, noted that many new arrivals under the OWP scheme are children under 18. They are given the largest sub-quota (60 out of the 150 daily quota) and are exempted from the 7-year residence requirement but their mothers (mostly housewives) who came to Hong Kong to take care of them are not. The humane and laudable purpose of the OWP scheme is the promotion of family union. Where a reunited family is poor, one would expect the social security scheme to operate in harmony with the OWP scheme and so make CSSA benefits available. The Court considered it illogical that there is no such exemption for mainland parents who come to take care of their children and there is no rational basis for adopting the 7-year rule for OWP arrivals. The policy underlying the OWP scheme militates against the restriction imposed by the new residence requirement.

Regarding the ageing population, the Government is right to regard the problems as serious and right to lay down policies aimed at mitigating those problems with a view to ensuring the long-term sustainability of the social welfare system. Given that the root cause of the ageing population is low fertility rate, a rational response to the ageing problem should involve encouraging the entry of young immigrants to rejuvenate the population. There is no rational connection between mitigation of the problem and the impugned policy of excluding new arrivals from receiving CSSA until they have resided here for seven years.

On the issue of rising CSSA expenditure, the Government had acknowledged the relatively insignificant level of the savings achievable by the new residence requirement which undermines the suggestion that the restriction was genuinely intended to be, or functioned as, a measure rationally designed to safeguard the sustainability of the social security system.

CFA found that the 7-year residence requirement aiming to curb expenditure in order to ensure the sustainability of the social security system is in fact in conflict with the family reunion policy under the OWP Scheme and the policy seeking to rejuvenate the ageing population. The Government has not justified the requirement to be rationally connected to the above legitimate societal aim. Even if there was any rational connection, the measure was wholly disproportionate and manifestly without reasonable foundation that led to contradictory policy consequences and socially insubstantial benefits.

CFA therefore concluded that the 7-year residence rule is an unjustifiable contravention of the right to social welfare in accordance with law conferred by Article 36. Madam Kong's appeal was unanimously allowed.

W v Registrar of Marriages (FACV No. 4 of 2012)

W was born in 1975 in Hong Kong and registered as a male at birth. W was later diagnosed to have gender identity disorder and had an operation for "sex change" from male to female transsexual person in 2008. The Hospital Authority certified her gender as female. She was issued with a new Hong Kong identity card and passport stating her sex as female.

W wished to marry her male partner but the Registrar of Marriages refused to register the marriage on the basis that she did not qualify as a "woman" under Section 40 of the Marriage Ordinance ("MO"), which provides that marriage is "the voluntary union for life of one man and one woman to the exclusion of all others". Further, Section 20(1)(d) of the Matrimonial Causes Ordinance ("MCO") provides that "A marriage… shall be void on any of the following grounds only ... (d) that the parties are not respectively male and female."

W was granted legal aid to seek judicial review against the Registrar's decision.

It was submitted by W that the Registrar had misconstrued Sections 40 of the MO as W was wrongfully regarded as a man instead of a woman. Alternatively, the provisions were unconstitutional as the law failed to recognize the post-operative male-to-female transsexual as a "female" and a "woman" and was inconsistent with Article 37 of the Basic Law which provides that "The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law" and also Article 19(2) of the Hong Kong Bill of Rights ("HKBOR") which provides that "The right of men and women of marriageable age to marry and to found a family shall be recognized".

Both the Court of First Instance and Court of Appeal ruled against W.

W was granted legal aid to appeal to the Court of Final Appeal ("CFA").

The CFA considered the English authority of Corbett v Corbett (otherwise Ashley) [1971] which is against W. The UK court decided that marriage is the voluntary union for life of one man and one woman to the exclusion of all others. It found that the post-operative male-to-female transsexual in that case was not a woman at the date of her marriage and the marriage was void. It emphasized the fact that marriage is essentially a relationship between man and woman with procreative intercourse as the essential constituent of a marriage at common law. The case is acknowledged as authoritative in English law regarding the common law incapacity of a post-operative male-to-female transsexual to marry in her acquired gender.

Upon examination, CFA found that the legislative intent underlying Section 40 of the MO and Section 20(1)(d) of the MCO is to endorse the decision in Corbett. If the question was solely concerned with the statutory interpretation of MO and MCO, there would be no alternative but to hold that W cannot be treated as a "woman" for the purpose of marriage. However, the question then is whether a different result is reached under the Basic Law and the HKBOR.

CFA held that the legal rules as to marriage must not operate to impair the very essence of the right to marry protected under the Basic Law and the HKBOR. The Basic Law are living instruments intended to meet changing needs and circumstances. In present day, procreation was no longer regarded as essential to marriage and there was no justification for regarding the ability to engage in procreative sexual intercourse as a condition of marriage and thus deducing purely biological criteria for ascertaining a person's sex for marriage purposes. The psychological, post-operative and social dimensions of the transsexual person's sexual identity should not be ignored at the time of the proposed marriage. In view of the medical advances and social development, the purely biological criteria for determining sexual identity is considered as inadequate.

The criteria applied in Corbett and also the construction of the relevant provisions in the MO and the MCO were therefore regarded as too restrictive and incomplete in that they are limited to a person's biological features existing at the time of birth and are treated as immutable. They ignore the psychological and social elements of a person's sexual identity and ignore any sex reassignment treatment that has occurred, and does not permit a full assessment of the sexual identity of an individual for determining whether such person has the right to marry. They fail to give proper effect to the constitutional right guaranteed by Article 37 of the Basic Law and 19(2) of the HKBOR.

CFA by a majority allowed W's appeal and held that it is necessary in principle that a remedial interpretation should be given to Section 40 of the MO, that is, the references to "woman" and "female" to be read as capable of accommodating post-operative male-to-female transsexual persons for marriage purposes and as allowing account to be taken of the full range of criteria for assessing sexual identity, viewed at the date of the marriage or proposed marriage.

W should in principle be granted a declaration that she is in law entitled to be included as "a woman" within the meaning of Section 40 of the MO and therefore eligible to marry a man.