Jailed gay rights activist loses appeal to have Hong Kong marriage laws reviewed

The appeal of former activist Jimmy Sham Tsz-kit, seeking to have overseas same-sex marriages recognized in Hong Kong, was dismissed in court.   

In the Court of Appeal in the High Court, Sham declared that since his foreign same-sex marriage is not recognized under Hong Kong law, he and his husband cannot enjoy the rights and benefits afforded to heterosexual married couples in Hong Kong.  

Sham claimed to be a homosexual and had married his husband - a Hong Kong permanent resident- in New York in 2013 since Hong Kong currently grants recognition for the marriage of one man and one woman yet excludes all others.  

“The laws deprive homosexual married couples of the legal protection that should follow from their marital status,” Sham noted, “which is highly unfair and discriminatory.”  

Previously in November 2018, Sham applied to have the laws of Hong Kong judicially reviewed after finding out his husband would be unable to inherit their home.  

Sham argued the laws failed to provide legal recognition of same-sex partnerships, complaining about the violation of the laws to his right to equality and protection against discrimination of his sexual orientation.  

After the dismissal of his appeal in May 2020, Sham issued another application for appeal for judicial review, which was heard today.  

The court handed down the judgment to reject Sham’s application, and he will be asked to pay for the respondent’s costs.  

“Article 37 of the Basic Law only protects heterosexual marriages and accordingly restricts the right to equality and privacy and cannot establish the right of same-sex couples to marry,” said the judge.  

Besides, rights in foreign marriages outside of Hong Kong will not be recognized in Hong Kong since the Hong Kong Bill of Rights Ordinance didn’t provide articles to grant the government duty for protecting it, according to the judge.  

Sham used to be an activist and a former Sha Tin District Council member.  

He participated in the 2014 Umbrella Movement and 2019 protests and was arrested as one of the 47 pro-democracy activists charged under the national security law in February last year.  

Sham is now in detention since he and 29 other defendants pleaded guilty to “conspiracy to commit subversion” during the trial on August 18 in the West Kowloon District.