Registrar Of Marriage, Hong Kong Case Study 2022

Case Study
W v Registrar Of Marriage, Hong Kong
10/19/2019

Contents
Introduction............................................................................................................... 2
Facts observed in the processing of the case.......................................................................2
Statutory provision in the case........................................................................................ 3
Legal issues in the case................................................................................................. 3
Appellate history of the case.......................................................................................... 5
Outcomes of the case................................................................................................... 6
Judicial Remedies....................................................................................................... 6
Ratio Decendi............................................................................................................ 7
How did the court of final appeal interpret the relevant legislation?..........................................7
Applying and distinguishing the cited authorities.................................................................8
What use did the court of final appeal make of non-Hong Kong Authorities?..............................9
Impact of the decision in the case on Hong Kong law...........................................................9
Impact of the decision on the public...............................................................................11
Conclusion.............................................................................................................. 11
Bibliography............................................................................................................ 13
1

Introduction
In Hong-Kong till the present time, constitution, legislation and even society doesn’t identify
the place of homosexuality or same-sex relationship but after 150 years of the struggle to
people succeed to get the Lesbian, Gay, Bisexual and Transgender (LGBT)1 as their identity
and government given as the legal identity and invested the equal right to every one without
any discrimination on the basis of gender. This assignment will discuss the detailed case
study of W (as identified in the petition in the court of Appeal, Hong Kong) whose regular
struggle changed the legal and religious identity of marriage in Hong Kong.
Facts observed in the processing of the case
 In the area of medical science sexual identities is not identified only on the biological
features of one’s born but also identify the psychological identity as the legal and
honoured identity.
 Concept of the Transsexual is a medical condition and this condition is accepted by
Hong Kong as well.
 Surgical process of sex reassignment surgery is irreversible process and approved by
the hospital authority.
 A legal and valid certificate is necessary to be issued by the hospital authority and this
certificate has the legal identity in the government.
 Hong Kong government has rules to issues the new passport and identity card to the
people on the basis of their ‘Sex Changed Certificate’ issued to them by the hospital
authorities2.
1 Kelley Loper, ‘W v Registrar of Marriages and the Right to Equality in Hong Kong’ (2011) 41 Hong
Kong LJ 89.
2 Athena liu ‘Exacerbating Corbett: W v Registrar of Marriage’ (41) 759 (2011) Hong Kong LJ
2

Statutory provision in the case
1. Section 40 of Marriage Ordinance MO3was referred by the marriage registrar to resist
W from marriage because the provision in the above section are
(1) Marriage shall be according the christen marriage rituals
(2) Marriage ceremony include a Man and Women for Marriage
Registrar was providing the definition of women on the above basis and that was right,
2. section 20(1)(d) of the Matrimonial Causes Ordinance (“MCO”)4
3. Right to marry in a constitutional right provided by the Article 37 of the Basic Law
Article 19(2) of the Bill of Rights5.
Legal issues in the case
The Court of Final Appeal heard the all relevant facts of the case and identified the following
points as the issue in the case
1. Does the marriage registrar was in confusion about the Marriage Ordinance at the
time of denying W from getting married with her male partner stating her as a male.
The Court of Final Appeal argued on the issues on the following basis-
On the basis of the hearing of Corbett v Corbett Hong Kong accepts that the definition in the
(MO) is exclusion of other biological identities.
And same definition was prescribed by the registrar in the name of the woman is identified
from the birth.
3 (Cap. 181) Marriage Ordinance 2019
4 section 20(1)(d) (“MCO”)
5 Article 19(2) of the Bill of Rights
3