A human rights activist has lost an appeal against a Hong Kong court’s refusal to recognise his New York-registered same-sex marriage.

Three appeal judges on Wednesday dismissed Jimmy Sham Tsz-kit’s argument that same-sex couples had the same right to marriage as heterosexual couples.

The Court of Appeal ruled that the city’s mini-constitution granted access to the institution of marriage only to opposite sex partners and that the government had no obligation to recognise same-sex unions.

The judges also found that successful legal challenges to discriminatory policies in recent years did not justify a “short-cut” to avoid constitutional restraints that denied LGBT people the right to marry in Hong Kong.

Sham, at present in custody over subversion charges in connection with allegations he took part in an unofficial legislative primary election in 2020, asked for a judicial review in 2018.

He complained that it was unfair that he could not enjoy the same marital benefits as heterosexual couples. Sham married in the US five years before the legal challenge was launched.

The Court of First Instance in 2019 rejected the first judicial challenge against the ban on same-sex marriages and civil partnerships, launched by a lesbian woman identified only as MK, but Sham was the first to take a case to the appeal court.

Chief Judge of the High Court Jeremy Poon Shiu-chor, who prepared Wednesday’s ruling, said freedom of marriage was protected by Article 37 of the Basic Law, but that the clause specifically favoured opposite sex unions.

He ruled that must take precedence over general provisions designed to protect fundamental rights, including Article 25 which guaranteed the right to equality.

Poon highlighted that no jurisdiction recognised same-sex marriage until the Netherlands legalised it in 2001, which meant the drafters of the Basic Law, enacted in 1990, must have intended “marriage” to refer only to opposite sex couples.

“The Basic Law only prefers heterosexual marriage, which means that only heterosexual couples are entitled to recognition of their foreign marriage,” Poon wrote.

“If the same recognition is afforded to same-sex couples married overseas, they would be able to circumvent the preference enshrined in Article 37, clearly contrary to the intention of the drafters of the Basic Law.”

Poon admitted there was “difficulty or even perceived hardship” for same-sex couples who married overseas who wanted to obtain marital benefits in Hong Kong by legal means, but insisted that did not mean they could bypass existing legal provisions to “access the institution of marriage”.

Hong Kong only recognises same-sex marriage for limited purposes such as taxation, inheritance rights and civil service benefits.

The concessions were mostly achieved through legal action launched over the last few years.

The government has still to carry out a wider review of its policies on same-sex unions.