Hong Kong Court of Final Appeal rules in landmark public housing discrimination case

In Mr Infinger’s case, the Housing Authority (HA) had decided that he and his husband, who had married overseas, were ineligible to apply for a shared PRH unit. Mr Li’s case concerned the HA’s refusal to allow married same-sex couples to cohabit in HOS flats owned by one of them, or to transfer title without payment of a premium.

Mr Infinger and Mr Li each challenged these policies in judicial review, relying on the constitutional right to equality under the Hong Kong Basic Law (Article 25) and Bill of Rights (Article 22). Both challenges succeed at first instance and on appeal to the Court of Appeal. The HA appealed to the Court of Final Appeal.

The CFA upheld the judgments below and dismissed the HA’s appeal. It held that the HA’s policies did not meet the requirements of necessity and proportionality. They involved a total exclusion of same-sex couples from subsidised public housing schemes as ordinary families. But the HA had produced no evidence that this difference of treatment would make any significant difference to supply of subsidised housing to traditional families, or to their family plans. This was further exacerbated by the absence of any explanation as to why a less restrictive measure, such as prioritising opposite-sex married couples (or those with small children), while still allowing same-sex married couples to apply, could not be adopted.

The full judgment is available here.

Monica Carss-Frisk KC, Abraham Chan SC, and John Leung appeared for the Housing Authority in both cases, instructed by Woo Kwan Lee & Lo

Tim Otty KC, Tim Parker, and Geoffrey Yeung appeared for Mr Infinger, instructed by Haldanes

Tim Otty KC, Jin Pao SC, and Azan Marwah appeared for Mr Li, instructed by Daly & Associates

The case has been widely reported in the press, including in the New York Times, the Guardian, Reuters, the Associated Press, South China Morning Post, Hong Kong Free Press, among others.