The Court of Appeal has dismissed a legal attempt by activist Jimmy Sham who sought to have same-sex marriages overseas recognised in Hong Kong.

Sham had launched a judicial review in 2018, arguing that the SAR government should recognise the marriage he and his partner entered into in 2013 in New York.

The Court of First Instance rejected the legal challenge, with the judge saying Sham's application was wrong in principle and too ambitious.

Sham then launched an appeal in July this year, with his lawyer arguing that differential treatment from heterosexual couples violated the principle of equal rights for all.

Handing down the judgement on Wednesday, the Court of Appeal said that Article 37 of the Basic Law states the freedom of marriage in Hong Kong is protected by law, but noted that the provision only provides access to the institution of marriage to heterosexual couples, not same-sex relationships.

"The legal context in the present instance refers to the state of the domestic law on marriage in April 1990. Like their current forms, all the relevant statutory provisions at the time defined or referred to marriage as a voluntary union for life of one man and one woman to the exclusion of all others," the judgement wrote.

"Same-sex marriage was only recognised legally for the first time in the world when the Netherlands provided for it in 2001. Self-evidently, the drafters of the Basic Law must have only used the term 'marriage' in [Article 37 of the Basic Law] in the traditional sense of being a union between a heterosexual couple. Any suggestion otherwise is divorced from reality."

"Whatever the position might be under the foreign law on marriage, it does not detract from the application of [Article 37 of the Basic Law] in Hong Kong," it added.

The court noted other cases in which same-sex couples sought the benefits arising from their relationship, but said if one was looking to have same-sex marriage overseas recognised here, the individual would face the "insurmountable hurdle" of Article 37 of the Basic Law.

It said if the SAR government is to recognise same-sex marriages registered overseas, it would create an "inherent incompatibility" between them and same-sex couples who wanted to marry in Hong Kong but could not do so.

The Court of Appeal ruled that the judge was correct in dismissing the applicant's initial review, and ordered Sham to pay for the legal costs.

It's not immediate known if Sham would appeal against Wednesday's ruling.

An NGO for the LGBT+ community, Pink Alliance, called the court's decision a disappointment, but said it did not come as a surprise.

Its chief executive, Jerome Yau, told RTHK that the Court of Appeal in general has taken a more conservative approach in handling cases related to marriage equality.

"Right now, the courts have dealt a significant blow, in terms of how to advance marriage equality in the courts," Yau said.

"At the same time, I must caution with a note that this case can be appeal to the Court of Final Appeal. If the litigant decides to file an appeal, it means it's not quite over yet."
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Last updated: 2022-08-24 HKT 17:55