Sham Tsz Kit v Secretary for Justice

Sham Tsz Kit v. Secretary for Justice
Sham Tsz Kit v. Secretary for Justice
Court	Court of Final Appeal
Argued	28-29 June 2023
Decided	5 September 2023
Citation	[2023] HKCFA 28
Case history
Prior actions	Lower court decisions siding with the government: Sham Tsz Kit v Secretary for Justice [2022] HKCA 1247; Sham Tsz Kit v Secretary for Justice [2020] HKCFI 2411; ; Leave to appeal granted, Sham Tsz Kit v Secretary for Justice [2022] HKCA 1690;
Questions presented
	Is there a constitutional right to same-sex marriage under Article 25 of the Basic Law and Article 22 of Hong Kong Bill of Rights?; Does the absence of any alternative means of legal recognition of same-sex partnership constitute a violation of Article 14 of the Hong Kong Bill of Rights (on privacy) and/or Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights (on equality)?; Does the non-recognition of foreign same-sex marriage constitute a violation of Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights?;
Court membership
Judges sitting	Chief Justice Andrew Cheung; permanent judges Roberto Ribeiro, Joseph Fok, and Johnson Lam; non-permanent judge Patrick Keane

Sham Tsz Kit v Secretary for Justice [2023] HKCFA 28 is a landmark Hong Kong Court of Final Appeal case which ruled that the right to form registered partnerships is guaranteed to same-sex couples by the right to privacy under Article 14 of the Bill of Rights.

By a 3–2 decision, the court directed the government to establish an alternative framework for the legal recognition of same-sex relationships, with equivalent rights and obligations to marriage, within two years of the ruling. However, the court also ruled that same-sex couples do not have a constitutionally guaranteed right to marry.

The Court of Final Appeal delivered its judgment on 5 September 2023, following an appeal hearing held on 28 to 29 June 2023. Prior to this decision, the Court of First Instance and Court of Appeal each dismissed the judicial review.

The government has not yet implemented the decision in legislation.