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DH-pastor fails to get assurance of non-prosecution for performing same-sex marriages

08 April 2020

By The SUN

Balaoro (left, in red robe) officiates at an LGBT wedding in Mar 2018 (From the LGBTS Facebook page)

A lesbian domestic worker who is also a church leader, has lost his bid to challenge the Director of Public Prosecution's decision not to give him an assurance that he won't be taken to court for performing same-sex marriages in future.

Marietta (who prefers to be called Marrz) S. Balaoro, founder and pastor of the LGBTS Christian Church HK, had sought leave for judicial review of the DPP's decision not to issue him with a Confirmation of Non-Criminality and No Risk of Prosecution.

But in his written judgment handed down on Mar 4, High Court Judge Anderson Chow rejected Balaoro’s application for lack of merit.

“In my view, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success,” the judge said in his judgment.

Chow also said that he found no basis for allowing the applicant to amend a form that would allow him an extension for applying for leave.

Balaoro, described in the judgment as a “pre-operative trans-man” was previously arrested on Aug 24, 2017 on suspicion of breaching his condition of stay by taking up an unapproved employment when he “knowingly and willfully celebrated or pretended to celebrate a marriage, not being legally competent to do so.”

He was also accused of having misrepresented himself as a civil celebrant.

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He was allowed to post police bail until Dec 13, 2017, when he was told that he would not be prosecuted. This was affirmed in a letter to his solicitors by the Hong Kong Immigration Department two days later.

On Jan 8, 2018, Balaoro, who said he was also the founder and volunteer officer of the LGBT group, Filguys Association Hong Kong, said one of his parishioners asked him to perform a same-sex religious ceremony according to the rites of his church. Other members made similar requests afterwards. But because of his previous arrest, Balaoro said he turned them down for fear of prosecution.
On May 2 of the same year, his solicitors from Vidler & Co wrote to the DPP asking for confirmation that (1) conducting or participating in same-sex marriages did not constitute a criminal offense and therefore (2) the applicant would not risk prosecution if he did the said acts.

Balaoro (left) at another LGBT wedding: Same-sex marriages are not recognized under HK laws
Balaoro, through his solicitors, said same-sex marriages do not violate sec 30 and 33 of the Marriage Ordinance because the law only covered marriages between a man and a woman.

Section 30 provides that “any minister or civil celebrant who “wilfully celebrates a marriage contrary to any other provision of this Ordinance, or knowing that any provision of this Ordinance has not been complied with”, shall be guilty of an offence and shall be liable to a fine at level 5 and imprisonment for 2 years.”

Section 33, on the other hand states that any person who “knowingly and willfully celebrates or pretends to celebrate a marriage, not being legally competent to do so”, shall be guilty of an offence and shall be liable to a fine at level 5 and imprisonment for 2 years.

As the Ordinance specifically allows marriage only between a man and a woman, the prohibition against lack of authority to solemnize the ceremony does not extend to same-sex marriages.
Sec 4 of the Ordinance provides, “Marriages entered into in Hong Kong on or after [7 October 1971) shall imply the voluntary union for life of one man with one woman to the exclusion of all others and may be contracted only in accordance with the Marriage Ordinance.”

Government prosecutors did not contest this argument. But in his reply dated Jun 1, 2018, the DPP still declined to provide the requested confirmation.

“The common law in this regard is clear – no immunity or pardon can be granted in advance,” the Director said.

Judge Chow upheld the Director’s decision and said: “I am satisfied that the DPP is legally entitled not to provide the Confirmation of Non-Criminality and No Risk of Prosecution sought by the Applicant in the present case.”

The judge also declined to rule on a dispute between the parties on whether the applicant is a “minister” of a church for the purpose of the Ordinance. Since the word “minister” is not defined in the Ordinance, he said he would not rule on the issue and would “leave it open for future determination should it become necessary to do so.”

Judge Chow ordered Balaoro to pay the Secretary for Justice’s costs of the proceedings, to be taxed if not agreed. He said Balaoro’s own costs are to be taxed in accordance with legal aid regulations.
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