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) 26 HKCFAR 385, [2023] HKCFA 28 [1]
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
Case opinions
Majority	Ribeiro PJ and Justice Fok PJ, joined by Justice Keane NPJ
Concur/dissent	Chief Justice Cheung
Concur/dissent	Justice Lam PJ

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. 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.

In a 3–2 decision (with Chief Justice Cheung and Justice Lam PJ dissenting), the court found that the government's failure to alternative means of legal recognition of same-sex partnerships violated the rights of same-sex couples, and 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 unanimously ruled that same-sex couples do not have a constitutionally guaranteed right to marry. In response to the judgment, the government introduced a bill in the Legislative Council to implement the decision in July 2025, but was overwhelmingly defeated.