VIII. Personal legal action taken by the victim of abuse
A. Private prosecution
The victim of a domestic abuse related offence could commence a private prosecution under section 14 of the Magistrates Ordinance ( Cap. 227 ) where, for whatever reason, the police do not charge the abuser with a criminal offence. Such procedure, however, is unusual. The victim will not likely have the capacity, resources, time or inclination to use section 14 .
B. Civil actions in tort
A victim of domestic abuse could commence a civil action in tort against the abuser for trespass or intimidation. A tort is a civil wrong, the normal remedy for which is monetary compensation. An action for trespass or intimidation could include an application for an injunction to restrain future violence or intimidation. Whether or not to order an injunction is entirely at the discretion of the court hearing the case. The court’s decision will depend upon the circumstances of the particular case and the circumstances and conduct of the parties involved. The victim must show there is a strong likelihood of the repetition of the conduct complained of in the proceedings and that an injunction is necessary to prevent that repetition. An injunction will not be granted where damages are an adequate remedy or where the damage complained of in the proceedings is trivial. A breach of an injunction is a contempt of court and punishable either by a fine or by imprisonment depending on the circumstances of the particular case.
Breaching an injunction ordered in proceedings for trespass or intimidation is not in itself a criminal offence, though the conduct leading to the breach could result in a prosecution for a criminal offence e.g. assault occasioning actual bodily harm contrary to section 39 of the Offences Against the Person Ordinance ( Cap. 212 ). As breaching an injunction for trespass or intimidation is not in itself a criminal offence, the police cannot arrest the person in breach simply because of the breach. The victim has the responsibility for bringing the person in breach before the samecourt which made the injunction to answer for the breach.
However, where an injunction is ordered in proceedings under the Domestic and Cohabitation Relationships Violence Ordinance ( Cap. 189 ) and the court is satisfied the abuser has either caused actual bodily harm to the victim or will likely do so, a Power of Arrest may be attached to that injunction. This enables the police to arrest the abuser where the abuser is reasonably suspected of breaching the injunction by reason of violence or by entering into or remaining in the area specified in the injunction. The arrested person will be brought before the Court of First Instance or the District Court, which ever court made the injunction, to answer for the breach. The court may deal with the breach by a fine or by ordering a term of imprisonment.
However, it is suggested that actions in tort for trespass or intimidation will not be practical, and will be particularly impractical where the parties remain living in the same household because of the inherent difficulties which would then arise and the complexity and costs of the legal proceedings.