Balaoro Marietta S v Secretary for Justice [2020] 1 HKLRD 1138

Philip Dykes SC (leading Azan Marwah) appeared for the applicant in the Court of First Instance in Balaoro Marietta S v Secretary for Justice [2020] 1 HKLRD 1138.

M was a Philippine national and “pre-operative trans man” working as a foreign domestic helper in Hong Kong. In 2014, the LGBTS Christian Church HK (the LGBTS Church) was registered under the Societies Ordinance (Cap.151), with M as Pastoral Leader and Founding Pastor. In 2017, M was arrested by officers of the Immigration Department for, amongst other offences, having knowingly and wilfully celebrated or pretended to celebrate a marriage, not being legally competent to do so, contrary to s.33 of the Marriage Ordinance (Cap.181) (MO). Subsequently, M was formally informed that no charge would be laid against him. In 2018, M declined a request to perform a same-sex religious marriage ceremony for fear of prosecution. M’s solicitors then wrote to the Director of Public Prosecutions (DPP) asking for confirmation that the performance of religious same-sex marriage ceremonies did not constitute a criminal offence under the MO and, therefore, would not expose M to the risk of prosecution. The DPP refused. M then applied for leave to apply for judicial review, in which M: (i) sought a declaration that the performance of the ceremonies of Holy Matrimony and Holy Union according to the rites observed by the LGBTS Church (the HMHU Ceremonies) between consenting same-sex adult couples did not contravene s.30 of the MO; and (ii) challenged the DPP’s decision not to provide the confirmation requested by M.

Held, refusing leave, that:

(1) For the purpose of s.30 of the MO, “marriage” meant “the voluntary union for life of one man and one woman to the exclusion of all others”. The HMHU Ceremonies for same-sex couples could not by definition be “marriages” for the purpose of s.30. Such ceremonies as performed by the LGBTS Church would not bring about the legal consequences of a marriage. The ceremony was legally null and void and of no effect under Hong Kong law. That did not mean, however, that such act was unlawful or prohibited by law. More particularly, a minister or any person who performed such ceremony would not be celebrating a marriage properly so-called, and he could not therefore be celebrating a marriage “contrary to any other provision of [the MO], or knowing that any provision of [the MO] has not been complied with” within the meaning of s.30 (R v Bham [1966] 1 QB 159 applied). (See paras.28-31.)

(2) It was not, however, the general function of the civil court in an application for judicial review to give any advisory opinion, or prior assurance to M that his past or proposed conduct would not give rise to any criminal liability. Save in exceptional circumstances, the court would not entertain an application by a member of the public against the Government for a declaration that certain past or proposed conduct was lawful (Imperial Tobacco Ltd v Attorney General [1981] AC 718 applied; R (Rusbridger) v Attorney General [2004] 1 AC 357 followed). (See paras.32-35.)

(3) The present case was not one where, unusually, the interests of justice would require that M should be able to obtain the ruling of the civil court before embarking on, or continuing with, the performance of the HMHU Ceremonies for same-sex couples. Neither was there a “live practical question” to be determined. While M was previously arrested on suspicion of contravening s.33, he was never prosecuted and there had been no threatened prosecution since. Even if there was a possibility that criminal proceedings might be initiated for a past or proposed course of action, that would not by itself be an exceptional circumstance justifying a declaration by the civil court of criminality or non-criminality of such course of action. On the contrary, that would be a positive reason against the civil court making such a declaration (Amstrad Consumer Electronics plc v British Phonographic Industry Ltd [1986] FSR 159 applied; Leung v Secretary for Justice [2006] 4 HKLRD 211 distinguished). (See paras.36-39.)

(4) It was no part of the DPP’s functions to provide legal services to private individuals, or proffer advice to them as to whether or not certain past or proposed conduct constituted or would constitute a criminal offence. If M’s past or proposed conduct did not constitute any criminal offence, he did not require any confirmation from the DPP. If the position was unclear, he was legally represented, and should turn to his lawyers for advice. If his conduct or proposed conduct gave rise or would give rise to criminal liability, the DPP had no power to give any general or specific undertaking or assurance that no prosecution would be instituted against him. What M was seeking was not any guidelines from the DPP on how he would exercise his prosecutorial discretion in relation to the offence created by s.30, but a confirmation that his proposed conduct did not constitute any offence and he would not be at risk of prosecution for such conduct. The DPP was entitled not to provide such confirmation (R (Pretty) v DPP [2002] 1 AC 800 applied). (See paras.15-16, 40-42.)

(The above headnote is taken from HKLRD)

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