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I. What is domestic violence?

The Depa rtment of Justice’s Policy for Prosecuting Cases Involving Domestic Violence refers to “domestic violence” as “a general term which describes a range of behaviour often used by one person to control or dominate another with whom they have, or have had, a close or family relationship. It is often a series of abusive incidents, whether physical or not, that has a cumulative effect on the victim. Domestic violence may be broadly described as any criminal offence which arises out of violence, threatening behaviour or physical, sexual or emotional abuse, between adults who are or have been intimate partners, or else between family members.”

For the purposes of police intervention, domestic violence is described in the Hong Kong Police Force document: Role and Responsibilities of Police Officers Attending Domestic Violence Incidents, as “any incident involving an assault, or breach of the peace between parties who could generally be described as married or having a family relationship” . This “family relationship” also includes co-habitants or lovers, and a relationship between spouses who are separated or divorced.

Domestic violence can involve abusers and victims of either sex, though the majority of abusers are male.

II. Domestic and Cohabitation Relationships Violence Ordinance

Under the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ), an application can be made by an eligible person to the District Court or the Court of First Instance, and the court may grant an injunction which either:

  • restrains the offender from using violence against the applicant or a child living with the applicant; or
  • excludes the offender from the matrimonial/shared home or from a specified part of the matrimonial/shared home or from a specified area, regardless of the ownership of the property.

Where the court is satisfied that the abuser either has caused actual bodily harm to the victim or is likely to do so, a Power of Arrest may be attached to the injunction. This“power of arrest”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 police can use all necessary power including entry to a building by reasonable force to make the arrest. The arrested person will be brought before the Court of First Instance or the District Court, which ever made the injunction, to answer for the breach of the injunction (“the breach” here refers to the abuser not abiding by the requirements set out in the injunction).

If you or your children or other family members are assaulted or threatened by your spouse/partner or a person listed in Part C, you should report the matter to the police. For any emergency, please call 999.

How long do these injunction orders last?

The maximum length of time for an injunction order is 24 months. The order can be renewed once if the court sees it to be appropriate.

Can I apply for an injunction order without informing the abuser?

The Court may make an order at first without the abuser being told about it. In other words, you may apply to the Court without telling the abuserwhat you are going to do. However, the written order must be sent/given to the perpetrator before it can have any effect. You must therefore take steps to ensure that you are in a place of safety until the order has been served.

How can I apply for the injunction orders?

The application forms for injunction orders can be obtained from a solicitor, the Legal Aid Department, or the Family Court Registry.

Legal Aid Department

Telephone: 2537 7677
Fax: 2537 5948
Website: http://www.lad.gov.hk/eng/ginfo/5day.html
E-mail: ladinfo@lad.gov.hk

Family Court Registry

Address: M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong
Telephone: 2840 1218
Fax: 2523 9170
Website: http://www.judiciary.gov.hk/en/others/contactus.htm#FC
E-mail: familycourt@judiciary.gov.hk
Opening hours: Monday to Friday 9:00 a.m. to 1:00 p.m.; 2:00 p.m. to 5:00 p.m.; Saturday 9:00 a.m. to 12:00 noon (Closed on Sundays and Public Holidays)

Due to the complexity of the procedures, it is recommended that you instruct a solicitor to act for you if at all possible. Provided your case has merit and you are financially eligible you may qualify for Legal Aid. If you do not qualify for Legal Aid, you will be responsible for paying the costs of your solicitor.

A. Spouse or former spouse

Section 3 of the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ) enables the District Court to grant an injunction to an applicant who has been molested by their spouse or former spouse. The injunction may contain a provision restraining further molestation. It may also restrain the abuser from entering or remaining in the victim’s residence or a specified part of that residence. This is so whether or not the residence is the common residence or matrimonial home of the parties.

There is no definition of “molestation” in the Domestic and Cohabitation Relationships Ordinance. In P v C Deputy District Judge Sharon Melloy, as she then was, commented on the lack of authority of the definition of molestation at the time. She stated:

Molestation has been defined widely and in the wife’s solicitors closing submissions I was referred in particular to the following definitions:

“…… molestation may take place without the threat or use of physical violence and still be serious and inimical to mental and physical health…… It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court…… Molest is a wide, plain word which I would be reluctant to define or paraphrase. If I had to find one synonym for it, I would select ‘pester’……In Hong Kong “scolding” has been found to be sufficient for both a non-molestation and an ouster order…… In addition, there usually has to be a form of intent. Harassment, it has to be said, of course, includes within it an element of intent, intent to cause distress or harm”.

Each case will depend on its own particular facts, but the day to day meaning of “molestation” is to annoy, disturb or persecute, especially with hostile intent or injurious effect. Molestation does not necessarily require violence or threats of violence, but its meaning extends to conduct which is sufficiently harassing, demeaning, belittling, and degrading as to call for the intervention of the court. The other meaning of molest is to be subjected to unwanted or improper sexual activity. Even without the threat or use of violence, or being subjected to unwanted or improper sexual activity, molestation can be seriously detrimental to physical or mental health.

For example, in P v C the wife alleged a number of incidents of violence, that the husband was hot tempered and controlling, and had mounted a campaign of intimidation and harassment against her.

B. Cohabitants or former cohabitants

Under section 3B of the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ), an injunction may be obtained by a party to a cohabitation relationship who has been molested. Section 3B is not gender specific. The injunction can restrain the abuser from further molesting the cohabitee, and where there has been molestation; restrain the user from entering the victim’s residence or a specified part of that residence. This is so whether or not the residence is the common residence of the parties. In deciding whether or not a cohabitation relationship exists, the court looks at all the circumstances of the case.

Some relevant, though not exclusive factors are:

  1. whether the parties are living together in the same household;
  2. whether the parties share the tasks and duties of their daily lives;
  3. whether there is stability and permanence in the relationship;
  4. the arrangement of sharing of expenses or financial support, and the degree of financial dependence or interdependence, between the parties;
  5. whether there is a sexual relationship between the parties;
  6. whether the parties share the care and support of a specified minor;
  7. the parties’ reasons for living together, and the degree of mutual commitment to a shared life;
  8. whether the parties conduct themselves towards friends, relatives or other persons as parties to a cohabitation relationship, and whether the parties are so treated by their friends and relatives or other persons.

C. Other family members

Apart from spouses, former spouses, cohabitants and former cohabitants, the following categories of persons are also within the scope of injunction orders under the Domestic and Cohabitation Relationships Ordinance :

  • a Child of the victim or a child who lives with the victim;
  • Victim’s step-father, step-mother, step-grandfather or step-grandmother;
  • Victim’s father-in-law or mother-in-law who is the natural parent, adoptive parent or step-parent of the victim’s spouse;
  • Victim’s grandfather-in-law or grandmother-in-law who is the natural grandparent, adoptive grandparent or step-grandparent of the victim’s spouse;
  • Victim’s son, daughter, grandson or granddaughter (whether natural or adoptive);
  • Victim’s step-son, step-daughter, step-grandson or step-granddaughter;
  • Victim’s son-in-law or daughter-in-law who is the spouse of the victim’s natural child, adoptive child or step-child;
  • Victim’s grandson-in-law or granddaughter-in-law who is the spouse of the victim’s natural grandchild, adoptive grandchild or step-grandchild;
  • Victim’s brother or sister (whether of full or half blood or by virtue of adoption);
  • The brother or sister (whether of full or half blood or by virtue of adoption) of the victim’s spouse;
  • The victim’s step-brother or step-sister;
  • The step-brother or step-sister of the victim’s spouse;
  • The victim’s uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption);
  • The uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption) of the victim’s spouse; or
  • The spouse of any brother, sister, step-brother, step-sister, uncle, aunt, nephew, niece, cousin.

III. Domestic violence acts: Possible fatal criminal offences

A. Murder

Depending upon the force used, its consequences, and the abuser’s intention in using that force, the abuser may be charged with murder or manslaughter. Murder is the unlawful killing of a person where the abuser had the intension of killing or causing grievous bodily harm. The abuser who uses violence intending to kill or intending to cause the victim grievous bodily harm therefore commits murder if the victim dies. Murder is a common law offence but punishable under section 2 of the Offences Against the Person Ordinance ( Cap. 212 ). The only penalty for murder is imprisonment for life.

B. Manslaughter

Where violence is inflicted with no intent to kill or to cause grievous bodily harm but the victim dies, the abuser may be convicted of manslaughter. Manslaughter is any unlawful killing which is not murder. Inflicting violence is an unlawful act. It is also a dangerous act. If at the same time, it is an act which is likely to injure another person and, inadvertently, that person dies, the abuser is guilty of manslaughter. The punishment for manslaughter is any sentence up to and including life imprisonment.

IV. Domestic violence acts: Possible non-fatal criminal offences

A. Attempted murder

Where violence is inflicted with the intent to kill but the victim survives there may be a conviction for attempted murder. Attempted murder is punishable with any sentence up to and including imprisonment for life.

B. Common assault

A person convicted of a common assault contrary to section 40 of the Offences Against the Person Ordinance (OAPO) ( Cap. 212 ) commits an offence and is liable to imprisonment for one year.

An assault is committed when the abuser intentionally or recklessly puts a person in fear of the immediate application of unlawful force. There must be an apprehension of immediate physical contact. The abuser who raises his fist towards the victim or threatens the victim with a weapon commits common assault provided there is such proximity between them that the victim apprehends (fears) the immediate infliction of violence.

An act of battery is committed when there is an actual infliction of a non-consensual unlawful physical contact. As long as there is contact with or an application of force to the body of another person, it is not necessary to prove that the abuser intended to injure or that the contact has caused or threatened any physical injury. Mere touching without consent or lawful excuse is therefore enough to be considered battery.

The spouse or cohabitee who strikes at the victim, threatens her/him with an item, or punches her/him therefore commits a common assault whether or not there is any injury or harm.

C. Assault occasioning actual bodily harm

Section 39 of the OAPO provides a higher penalty for an assault or battery where actual bodily harm occurs. There must first of all be conduct which amounts to an assault or battery. Once that is proved, it remains only to prove that it occasioned actual bodily harm. There is no requirement for intent to cause actual bodily harm, even though such intent will often be present in fact in domestic abuse situations where the motive for the force is to teach the victim a lesson and assert the abuser’s authority over the spouse or cohabitee. Actual bodily harm is any hurt or injury which interferes with the health or comfort of the victim. It need not be permanent but must be more than trifling. It includes recognisable psychiatric illness (see English cases: R v Ireland; R v Burstow ) as well as physical injury but does not include fear, distress or panic.

D. Wounding with intent to do grievous bodily harm

Any person who unlawfully and maliciously wounds or causes any grievous bodily harm to any person with intent to maim, disfigure, or disable any person, or to do some other grievous bodily harm, is guilty of an offence contrary to section 17 of the OAPO which is triable upon indictment. Offences under section 17 are punishable by imprisonment for life. A wound is defined as an injurywhere the continuity of the skin is completely divided. Grievous bodily harm is a really serious injury. This will be a question of fact in each case. The harm need not be permanent. It alsoincludes psychiatric injury. Examples of grievous bodily harm would be the loss of vision in an eye, a ruptured kidney or other internal injuries which interfere with the victim’s comfort or enjoyment of life.

The word “malicious’’ requires an intention to do the kind of harm that was in fact done, or recklessness whether or not such harm should occur. The prosecution must prove beyond reasonable doubt that the abuser intended to wound or cause the victim serious injury, or was reckless whether or not such harm should occur. Recklessness in this context means having the foresight that the particular harm might be done, and yet going on to take the risk of that harm resulting: see Sin Kam Wah v HKSAR and English cases R v G; R v Cunningham. This depends on all the circumstances of the particular incident, in particular what was said and what was done. A section 17 offence can be committed without any direct contact between the abuser and the victim, for example, by instructing a dog to attack another person. See: HKSAR v Cheung Yuk Kin, Joseph .

E. Wounding or inflicting grievous bodily harm

Any person who unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument, commits an offence contrary to section 19 of the OAPO . A section 19 offence is punishable by imprisonment for three years.

The words “wound”, “grievous bodily harm” and “unlawfully and maliciously” have the same meaning as in section 17 of the OAPO . As in section 17 , the wounding or grievous bodily harm must be unlawful.

V. Domestic violence acts: Possible offences contrary to the Crimes Ordinance

Where force or violence is used to obtain, or attempt to obtain, sexual gratification, the abuser may have commited rape, assault with intent to rape, attempted rape or indecent assault contrary to the Crimes Ordinance ( Cap. 200 ). Criminal intimidation (threatening injury) contrary to section 24 of the same Ordinance may also be a possibility where the abuser’s conduct falls short of an actual assault.

A. Criminal Intimidation (Threatening injury)

Under section 24 of the Crimes Ordinance ( Cap. 200 ) anyone who threatens another person with injury to their body, reputation or property, or who threatens another person with any illegal act with intent to alarm the person so threatened, or with intent to cause the threatened person to do an act they are not legally bound to do, or to cause the threatened person to omit to do an act they are legally entitled to do, commits an offence punishable upon summary conviction by a fine of $2,000 and imprisonment for two years, and upon indictment by imprisonment for five years.

Section 24 of the Crimes Ordinance addresses conduct directed towards alarming the victim. The threat can be to injure the body, reputation or property of a third party, for example a family member, if that is done with the intent specified in this section. This section addresses what may be referred to as intimidatory conduct by an abuser directed towards domination of the victim. Examples of conduct coming within section 24 of the Crimes Ordinance are seen in HKSAR v. Pearce Matt James . The defendant staged protests outside the school where a former girlfriend was employed and threatened the headmasters of the school by sending them letters saying he would continue such protests to inform pupils, members of staff and parents that there was a thief in the school, unless his former girlfriend returned a painting which he alleged she had stolen from him.

This is not an offence which can be used frequently because it is often difficult to get evidence of the offence, but it is available in appropriate cases.

B. Rape

As the law stands at present, though it is currently (2013) under review, a man who rapes a woman commits an offence contrary to section 118 of the Crimes Ordinance ( Cap. 200 ) and it is punishable with imprisonment for life. Rape occurs where a man has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and at the time the man knows the woman does not consent or is reckless about whether or not she consents. The word “unlawful” means without consent.

The prosecution must prove that the accused had sexual intercourse with the victim who at the time did not consent to that intercourse. The minimum evidence is lack of consent which can take many forms, e.g. saying “No”, putting up resistance, or attempting to escape from the attacker. Submission, as in recognising the inevitable and not resisting, is not consent.

Marital rape, (or spousal rape or partner rape) is non-consensual sexual intercourse in which the perpetrator is the victim's spouse or female partner. An English case R v R established that a wife does not, by entering into a marriage with her spouse, give an open ended commitment to sexual intercourse at all and any time with her spouse. The court held there was no longer any justification for the marital exception to rape. A wife has the right to decide whether or not sexual intercourse shall occur. The husband who forces his wife to have sexual intercourse with him irrespective of her consent commits rape. The same applies to a female cohabitee. It is a question of fact in each case whether the sexual intercourse occurred, and whether that was without consent or without the male having an honest, even though (objectively) unreasonable, belief in consent. See English case: DPP v Morgan .

C. Attempted rape

According to section 159G of the Crimes Ordinance , a person is guilty of an attempt to commit an offence where, with the intention of committing the full offence, he does an act which is more than merely preparing to commit the intended offence. A husband or male cohabitee who intended to have sexual intercourse with his spouse or cohabitee but fails because, for example, the victim resists, can be convicted of attempted rape provided the evidence shows clearly what was intended, and that but for resistance or the fortuitous intervention of a third party, the complete offence would have been committed, see e.g. HKSAR v Law Wing Hong .

Where the abuser’s conduct falls short of rape or attempted rape there may still be a conviction for indecent assault, assault occasioning actual bodily harm or common assault depending upon the circumstances of the particular case. There could also be a conviction for assault with intent to commit an arrestable offence contrary to section 36(a) of the Offences Against the Person Ordinance . Rape is an arrestable offence as it is punishable with more than twelve months imprisonment as are the other offences already referred to. Section 36(a) of the Offences Against the Person Ordinance is punishable by imprisonment for two years.

D. Indecent assault

A person who indecently assaults another person commits an offence contrary to section 122 of the Crimes Ordinance and it is punishable with imprisonment for ten years. Unlike rape, indecent assault is not gender specific. It can be committed by a male upon a female, a male upon a male, a female upon a male or and a female upon a female.

Most indecent assaults will clearly be of a sexual nature. The issue is whether right minded persons would consider the conduct indecent or not. The prosecution must prove that the accused intentionally assaulted the victim, that the assault and the circumstances in which it was committed are capable of being considered as indecent by right minded individuals and that the accused intended to commit that assault.

VI. Domestic violence acts: Other offences

A. False imprisonment

False imprisonment is complete deprivation of the victim’s liberty for any length of time, however short, without lawful cause. It is an offence contrary to common law. It is also a tort actionable by the person falsely imprisoned (Please refer to VIII. Personal legal actions taken by the victim of abuse > B. Civil actions in tort for more details on tort ). Incarceration in the accepted sense of the word is not necessary. It is sufficient that the victim has been unlawfully prevented from leaving the place where they are.  The abuser who threatens force and intimidates the victim into remaining where they are can commit the offense of “false imprisonment”. It is enough that the victim has been unlawfully prevented from leaving the place where they are, e.g. a house or a motor vehicle.

False imprisonment would occur, for example, where a wife is forbidden to leave the matrimonial home unless she first agrees to sexual intercourse. The same would apply to a female cohabitee. A male cohabitee might similarly be intimidated into remaining in the joint home unless they first engage in sexual activity. The demand for sexual activity is not a pre-condition for a conviction for false imprisonment. It is enough that there is a total and unlawful prevention of the victim leaving the place where they are. A spouse or cohabitee might be prevented from leaving the home because the defendant does not want them to go out on an evening with friends perhaps out of concern they might develop a friendship with someone new. In each case the questions are whether or not there has been a complete deprivation of the victim’s right to leave the place where they are and whether or not that deprivation was without lawful justification.

B. Breach of the Peace

A person may be arrested without warrant for a breach of the peace without a warrant. There is a power of arrest where a breach of the peace is committed in the presence of the person making the arrest; or the person making the arrest reasonably believes that a breach of the peace is imminent; or where a breach has been committed and it is reasonably believed that a renewal is threatened. A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or to their property while it is in their presence, or a person is in fear of being harmed through an assault, an affray, a riot, unlawful assembly or some other disturbance. A person arrested for a breach of the peace may be charged with an offence which has a breach of the peace as an element of the offence, or bound over to keep the peace or to be of good behaviour, or simply released.

The powers of judges and magistrates to bind over to keep the peace or to be of good behaviour derive from common law and statute. Preventive action can be taken against potential offenders before an offence is committed. The purpose is to prevent breaches of the peace before they occur, not to punish the arrested person for breaching the peace. The courts have wide discretion about whether or not to bind over. A binding over order can be made if a judge or magistrate is satisfied that there is a risk that the person before the court is likely to cause a breach of the peace in the future.

Section 109I of the Criminal Procedure Ordinance ( Cap. 221 ) gives judges and magistrates the power to require any person before the court to enter into a recognizance with or without sureties to keep the peace for a specified period of time and/or be of good behaviour. A breach of the recognisance, for example by committing another offence, will result in all or part of the recognisance being forfeited in addition to any punishment imposed on the offence putting the defendant in breach of the recognisance.

The police cannot arrest anyone for breach of the peace if there is no violence or risk of violence. Mere disturbance, for example shouting protestations of love and affection to the spouse or cohabitee who has taken refuge in other premises and asking them to return home without making any threats of consequences should they not do so does not amount to a breach of the peace. Actions not involving violence or a threat of violence do not amount to a breach of the peace even though neighbours might be disturbed or upset by the shouting.

VII. Role and Responsibilities of Police Officers Attending Domestic Violence Incidents

If there is evidence of a crime, the perpetrator should be arrested, irrespective of the victim’s wishes. All the offences already referred to depend upon the police taking action in the particular case. For various reasons, such as lack of alternative accommodation, fear, or a desire to continue the relationship and a belief that criminal proceedings will prevent that happening, a victim of abuse may be reluctant to cooperate with the police.

To combat domestic violence, child abuse, sexual violence, elder abuse, juvenile crime and child pornography, the Hong Kong Police Force has set up the Child Protection Policy Unit. It is responsible for devising and formulating Police Force policies and procedures for handling cases in these areas, and for ensuring a coordinated police response to reports of these cases. Therefore, all the police officers who deal with these incidents are professionally and specially trained in the area of domestic. You do not have to worry about their knowledge and experience in dealing with your particular situation.

A. Primary concerns of the police

According to the Hong Kong Police Force document: Role and Responsibilities of Police Officers Attending Domestic Violence Incidents, the primary concerns of the Police as a law enforcement agency are:

  1. to  protect the victim and his/her children from attack;
  2. to ensure that they are not subject to any risk of further violence, at least in the short term;
  3. to take firm and positive action against the alleged offender and to investigate  any offences that may have been committed;
  4. to serve a Domestic Incident Notice on the alleged offender; and
  5. to refer the victim and/or the alleged offender to appropriate support and counselling services.

Police policy is that wherever possible, two officers, one of each gender should attend the incident. According to their code of conduct, the victim should be interviewed by an officer of the same gender, if available, and separately from the perpetrator to ensure privacy and safety. The victim will never be asked in the presence or hearing of the abuser if he/she wants to bring a criminal complaint against the abuser and whether he/she would be prepared to give evidence at court hearing.

If the perpetrator is arrested, the arresting officer should explain the procedure and inform the victim of the arresting officer's number and the name of the Police Station to which the abuser will be taken. If there is insufficient evidence to support the report or accusations against the abuser, the situation and reasons should be explained to the victim as well.

The police officer shall also give some information about support services and hotlines for practical and emotional support.

B. Domestic Incident Notice

One of the obligations of police officers attending a domestic violence incident is to serve a Domestic Violence Notice on the alleged abuser if there is insufficient evidence to support a prosecution. The action may be taken by the police officers at the scene or by the Duty Officer if the victim and alleged offender are taken to a Police Station for further enquiry, or by the crime officers conducting a criminal investigation of the incident.

This form notifies the alleged abuser of the nature of the allegations against them, names the complainant and sets out the date and place of the incident. The Notice serves as a record of the police visit and operates as a warning to the alleged abuser of the possibility of criminal charges under the Offences Against the Person Ordinance or the Crimes Ordinance if there is a repetition of the abusive conduct. The reasons why there will not be a prosecution at this time must be explained to the victim.

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.

owever, 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.

IX. Victims of domestic violence might berequiredto give evidence

Once a report has been made to the police and a prosecution has commenced, witnesses, including victims of offences, can be brought to court and required to testify under provisions in the Magistrates Ordinance ( Cap. 227 ) and the Criminal Procedure Ordinance ( Cap. 221 ).

It is not fatal to the success of a prosecution if the victim does not appear to testify at the trial of the alleged abuser. Provided there is sufficient other evidence available to enable the prosecution to prove guilt beyond reasonable doubt there can still be a conviction.

However the problem with domestic violence is that it generally occurs in private, which restricts the opportunity for witnesses. Neighbours who overheard an argument may understandably be reluctant to become involved. It is unlikely that there will be any CCTV evidence available where the incident occurs inside private premises. Where CCTV recordings are available and are of sufficiently good quality to show the incident leading to the prosecution, the recordings are admissible in evidence. CCTV recordings are direct evidence and not hearsay, see: HKSAR v Chan Wai Kei .

Police officers attending a domestic abuse incident may have been equipped with audio visual cameras as a part of their uniforms. Depending on the quality of the recordings it may be possible to proceed with a prosecution even if the victim is uncooperative. The abuser may have made verbal, written or audio/video admissions to the police which may be sufficient for a conviction.

There can be a conviction solely upon those admissions provided the prosecution proves with certainty the admissions or confessions were made by the abuser of his/her own free will, and not coerced or forced.

The victim of domestic violence may have called the police for immediate protection without thinking of the possible long term consequences, or the police may have been called by a neighbour who saw or heard an argument between the parties. In those situations, the victim may be reluctant to become a prosecution witness. If this is the situation, ideally the victim should tell the police about this at the scene or at least as soon as possible. Though whether or not to charge the abuser or to continue an investigation in the particular case is a matter for the police to decide, realistically, if the victim is uncooperative, this is something for the police to consider as it may affect the sufficiency of evidence and the likelihood or otherwise of a conviction. If there is no other worthwhile evidence available, the authority may decide not to prosecute or not to continue with the prosecution.

Once the Department of Justice has decided to lay charges against the abuser, there are procedures that can be used to compel or force the victim or other witnesses to attend the trial of the abuser. The witnesses, including the victim, may be issued with a witness summons that compels them to attend the court. Failing to obey the summons, or refusing to answer questions or telling lies while in the witness box in court after being affirmed or being sworn in as a witness, are all criminal offences which can result in severe penalties, including imprisonment.

It is not considered a just cause for a victim or other witness not to answer questions or to tell lies in the witness box because the victim does not want the abuser to be convicted of the criminal offence with which the court is concerned.

However, there is a just cause for not answering a question in court where the answer would tend to imply or show that the witness has committed a criminal offence in Hong Kong for which they might be prosecuted based on the evidence they give from the witness box.

Where a victim of domestic violence becomes un-cooperative with the police a bind over may be the practical way to proceed. In those situations, the prosecution could agree to offer no evidence on the charge or charges brought against the abuser if the abuser agrees to be bound over and not to seek an order for costs against the prosecution, in which case the abuser will be found not guilty. The abuser could agree, for example, to be bound over to keep the peace and be of good behaviour for 12 months in the sum of $3,000.  This means that if the abuser does not keep the peace and is not of good behaviour during the next 12 months, he will have to pay the $3000. The bind over could give the victim some protection in that the potential loss of the $3,000 recognisance if the bind over is breached may make the abuser think again before resorting to further violence during the period of the bind over.

A. The spouse as a prosecution witness

Section 57 of the Criminal Procedure Ordinance ( Cap. 221 ) enables a spouse to be a   prosecution witness where:

  1. it involves an assault on, or an injury or threat of injury to, the husband or wife of the accused;

  2. it involves causing the death of, an assault on, or an injury or threat of injury to, a child of the family who-
    1. at the material time was under the age of 16 years or was a mentally incapacitated person; or
    2. at the time when the evidence is given is a mentally incapacitated person;
  3. it is a sexual offence alleged to have been committed in respect of a child of the family who-
    1. at the material time was under the age of 16 years or was a mentally incapacitated person; or
    2. at the time when the evidence is given is a mentally incapacitated person; or
  4. it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a), (b) or (c).

This covers cases of domestic violence where the spouse or former spouse is the victim. In those situations the spouse or former spouse can be served with a witness summons requiring their attendance at the trial of the alleged abuser. Cohabitees who are the victims of domestic violence can similarly be witnesses for the prosecution. They can be compelled to attend court by issuing a witness summons to them.

Where the proceedings are in the District Court or the Court of First Instance a witness summons may be obtained under section 34 of the Criminal Procedure Ordinance ( Cap. 221 ). Disobeying a witness summons, refusing to be sworn in or refusing to give evidence without just cause is punishable as contempt of court.

B. Evidence given by children (Persons under 14 years of age)

A child of any age can be a witness for the prosecution or for the defence. Whether they should be called as a prosecution witness is a matter for the judgment of the prosecution in each case. The younger the child the less likely they will be to give cogent evidence.

It is generally not desirable for a child to be a witness against the parent or the cohabitee of the parent as that can put the child in a very difficult situation of conflicting loyalties. There is also the consideration that particularly where the abuser is the cohabitee of the child’s parent, loyalty to the parent can result in evidence being exaggerated.

However where the prosecution decides that the child's evidence is necessary and the proceedings are in magistrates court, the child can be brought to court under a witness summons in the same way as an adult witness can be brought to court under a witness summons under section 21 of the Magistrates Ordinance ( Cap. 227 ). Section 4 of the Evidence Ordinance ( Cap. 8 ) requires that a child’s evidence in criminal proceedings shall be given unswornwhether the proceedings are in Magistrates Court, the District Court or the Court of First Instance.

Where the proceedings are in District Court or the Court of First Instance a witness summons may be obtained under section 34 of the Criminal Procedure Ordinance ( Cap. 221 ).

X. Assistance

A. Social Welfare Department

Hotline:
2343 2255

Operating Hours:
Monday to Saturday: 9:00 a.m. to 10:00 p.m.
Sunday and Public Holidays: 1:00 p.m. to 10:00 p.m.

Website:
http://www.swd.gov.hk/vs/english/promote_new.html

Outside the above operating hours, callers who dial up the Hotline Service of the Social Welfare Department can leave their message on the recording machine or press “0” to approach social workers of designated non-governmental organizations for assistance.  In case of emergency, callers can dial “999” to seek assistance from the Police.

B. Referral lines for Refuge Centres for Women  offering 24-hour Admission (Addresses are kept confidential)

Four refuge centres for women, including the Dawn Court, Wai On Home for Women, Harmony House, Serene Court and Sunrise Court, provide temporary accommodation and support services for female victims of domestic violence and their children.  Social workers of the refuge centres provide counselling and conduct therapeutic and educational programmes for the residents to help them overcome their traumatic experiences and rebuild self-confidence.  The four refuge centres accept admission round-the-clock.

Serene Court

Telephone: 2381 3311
Website: http://www.cfsc.org.hk

Sunrise Court / Wai On Home for Women / Dawn Court

Telephone: 8100 1155
Website: http://womenrefuge.poleungkuk.org.hk/en_index.html

Harmony House

Telephone: 2522 0434
Website: http://www.harmonyhousehk.org

C. Referral Lines for Shelter and Crisis Centre - 24-hour Admission

The Family Crisis Support Centre

The Family Crisis Support Centre (FCSC) operated by Caritas-Hong Kong provides a time-out facility and an integrated package of services for helping people under extreme stress or facing a crisis to manage their emotions and seek a positive solution to family problems, including domestic violence.

Hotline: 18288
Website: http://fcsc.caritas.org.hk

Multi-purpose Crisis Intervention and Support Centre (CEASE Crisis Centre)

The CEASE Crisis Centre, operated by the Tung Wah Group of Hospitals, is a crisis intervention and support centre which aims to provide comprehensive support to victims of sexual violence and individuals / families facing domestic violence or in crisis.  Services provided include a 24-hour hotline, crisis intervention / an immediate outreach service for adult victims of sexual violence and elder abuse. It operates after the office hours of the Social Welfare Department, and can provide short-term accommodation for victims when it is temporarily not suitable for them to return home, or short-term accommodation for those individuals / families in crisis.

Hotline (Address kept confidential): 18281
Website: http://ceasecrisis.tungwahcsd.org

D. Men facing domestic violence

Family Crisis Support Centre

Hotline: 18288
Website: http://fcsc.caritas.org.hk/

Multi-purpose Crisis Intervention and Support Centre (CEASE Crisis Centre)

Hotline (Address kept confidential): 18281
Website: http://ceasecrisis.tungwahcsd.org

Temporary Shelter / Urban Hostel for Single Persons

If temporary accommodation is required, you may apply for temporary shelter at the urban hostel for single persons through the referral of social workers.  The Urban hostel for single persons provides short-term accommodation and counselling for needy persons so as to help them find alternative long-term accommodation.

Compassionate Rehousing

Compassionate Rehousing is a form of housing assistance, which aims at providing assistance to individuals and families who have genuine and imminent housing needs, but cannot solve the housing needs by themselves.  Under this scheme, conditional tenancy can also be recommended to help those who are under going divorce proceedings (including victims of spouse battering) and having genuine housing needs while awaiting the court decision on their divorce applications.  People in need of the service may apply to the social workers concerned.

E. Organisations for lesbian victims

Les Corner
Telephone:5281 5201(with Whatsapp)
Email:lescorner2015@gmail.com
Website: https://www.facebook.com/lescorner2015

F. Organisations for gay victims

Rainbow of Hong Kong
Telephone: 2769 1069
Website: http://rainbowhk.org/en-intro.html

G. Organisations for child abuse victims

Against Child Abuse
Telephone: 2755 1122
Website: www.aca.org.hk

*For elder abuse, please refer to “ Elder Abuse ” under the SeniorCLIC website.

FAQ

1. How can the law protect someone from domestic violence?

Under the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ), an application can be made by an eligible person to the District Court or the Court of First Instance, and the court may grant an injunction which either:

  • restrains the offender from using violence against the applicant or a child living with the applicant; or
  • excludes the offender from the matrimonial/shared home or from a specified part of the matrimonial/shared home or from a specified area, regardless of the ownership of the property.

Where the court is satisfied that the abuser either has caused actual bodily harm to the victim or is likely to do so, a Power of Arrest may be attached to the injunction. This“Power of Arrest”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 application forms for injunction orders can be obtained from a solicitor, the Legal Aid Department, or the Family Court Registry.

If you or your children or other family members are assaulted or threatened by your spouse/partner or other family members, you should report the matter to the police. For any emergency, please call 999.

For more details, please visit Daily Lives Legal Issues > Domestic violence and assistance > Domestic and Cohabitation Relationships Violence Ordinance .

2. Is the law also protecting cohabitants or former cohabitants?

Yes. Under section 3B of the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ), an injunction may be obtained by a party to a cohabitation relationship who has been molested. Section 3B is not gender specific.

Apart from spouses, former spouses, cohabitants and former cohabitants, other family members listed in the Ordinance are also within the scope of injunction orders under the Domestic and Cohabitation Relationships Ordinance .

For more details, please refer to Daily Lives Legal Issues > Domestic violence and assistance > Domestic and Cohabitation Relationships Violence Ordinance > B. Cohabitants or former cohabitants and C. Other family members .

3. Can a man be charged with raping his wife or cohabitant?

Yes. Marital rape (or spousal rape or partner rape) is non-consensual sexual intercourse in which the perpetrator is the victim's spouse or female partner. A wife does not, by entering into a marriage with her spouse, give an open ended commitment to sexual intercourse at all and any time with her spouse. A wife has the right to decide whether or not sexual intercourse shall occur. The husband who forces his wife to have sexual intercourse with him without her consent commits rape. The same applies to a female cohabitee.

To understand more about this issue, please see Daily Lives Legal Issues > Domestic violence and assistance > Domestic violence acts: Possible offences contrary to the Crimes Ordinance > B. Rape .

4. I am abused by my family member. I have alerted the police but they said that there is not enough evidence to support a prosecution. What may happen?

Police officers may serve a Domestic Violence Notice on the alleged abuser even if there is insufficient evidence to support a prosecution. This form notifies the alleged abuser of the nature of the allegations against them, names the complainant and sets out the date and place of the incident. The Notice serves as a record of the police visit and operates as a warning to the alleged abuser of the possibility of criminal charges. The reasons why there will not be a prosecution at this time must be explained by the police to the victim.

To know more about this issue, please visit Daily Lives Legal Issues > Domestic violence and assistance > Roles and responsibilities of police officers attending domestic violence incidents .

5. I am abused by my wife. I have alerted the police but then I do not want to give evidence in court. What can I do?

The victim of domestic violence may have called the police for immediate protection without thinking of the possible long term consequences, or the police may have been called by a neighbour who saw or heard an argument between the parties. In those situations, the victim may be reluctant to become a prosecution witness. If this is the situation, ideally the victim should tell the police about this at the scene or at least as soon as possible.

Realistically, if the victim is uncooperative, this is something for the police to consider when deciding whether or not to charge the abuser or to continue the investigation, as it may affect the sufficiency of evidence and the likelihood or otherwise of a conviction. If there is no other worthwhile evidence available, the authority may decide not to prosecute or not to continue with the prosecution.

To know more about giving evidence in court, you may visit Daily Lives Legal Issues > Domestic violence and assistance > Victims of domestic violence might be required to give evidence .

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