Domestic Violence in Hong Kong and Injunctive Relief in Matrimonial Proceedings

Domestic Violence in Hong Kong and Injunctive Relief in Matrimonial Proceedings

Domestic Violence in Hong Kong and Injunctive Relief in Matrimonial Proceedings 1800 1199 Alfred Ip

A documentary recently released by BBC features the story of a young man Alex who was violently assaulted, stabbed and burnt by his abusive girlfriend Jordan. Jordan became the first female in the UK to be convicted of controlling or coercive behaviour, along with causing grievous bodily harm and is now serving a 7-and-a-half-year sentence in prison.

Whilst female is often thought to be the more typical victim in domestic violence cases, statistics from the Hong Kong Police Force show that, out of the 1,413 criminal cases involving family disputes in 2018, 339 of the cases involved a male victim, recording a 10% increase compared to the previous year.

Domestic violence is certainly not a problem that should be ignored in Hong Kong. Between 2014 and 2017, each year there have been consistently about 900 reported child abuse cases, more than 3,000 reported domestic violence cases between spouses or cohabitants and about 900 reported sexual violence cases. Studies have suggested that these figures are just the tip of the iceberg – representing only 2% of domestic violence cases occurring in Hong Kong.

 

Definition of domestic violence in Hong Kong

There is no statutory definition of domestic violence in Hong Kong. Domestic violence is a generic term which refers to abuse by a person to another in a domestic context, including between spouses, cohabiting couples, parents and children, etc. Domestic violence occurs irrespective of background, sexuality, age, disability and gender. Whilst physical abuse is often involved, the scope of domestic violence is much wider which includes sexual abuse, psychological abuse and neglect (in the case of child abuse).

Unlike the UK, there is not a specific domestic violence offence in Hong Kong. An abuser can be prosecuted for offences against the person, sexual offences and offences relating to ill-treatment or neglect of a child if the requirements of the offences are met. Whilst these general criminal offences do encompass the more obvious abusive behaviour such as physical and sexual abuse, other abuses such as emotional and psychological abuse, coercion, controlling behaviour, etc. often fall outside the scope of criminal law.

Further, victims are sometimes reluctant to report domestic violence to the police due to them being financially dependant on the abuser, feeling ashamed, being immobilised by the trauma, wanting to preserve family harmony, etc. In some cases, even domestic violence is reported, the victim might later decide not to testify. It might be difficult for the prosecution to proceed if the victim’s testimony is the key evidence of the case.

 

Injunctive relief

From a Civil and Family Law point of view, victims of domestic violence may apply for injunctive relief under the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) (the “DCRVO”). The DCRVO empowers the Court to grant a range of injunctions against spouses, former spouses, cohabitants, former cohabitants and some other relatives. Cohabitants include same-sex couples who live together as a couple in an intimate relationship.

Within matrimonial or family proceedings, the following injunctive relief can be sought under the DCRVO:

  • A non-molestation order preventing the use or threat of violence by the respondent against the applicant or a specified minor;
  • An ouster order removing the respondent from or preventing him from returning to the matrimonial home, the residence of the applicant or a specified area of that residence; and
  • An occupation order requiring the respondent to permit the applicant or a specified minor to enter and remain in the matrimonial home, the parties’ common residence or a specified area of that residence.

The above injunctions will only be awarded when the applicant or the specified minor has already been molested by the respondent. Molestation has been widely interpreted by the Court to cover any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the Court. Whilst violence is molestation, no physical violence is required for the Court to find molestation. Scolding and sending hate mail have previously been held to be sufficient to find molestation.

In making the orders, the Court will consider the following factors:

  • Who has the legal or beneficial interest in or a contractual or legal right to occupy the common residence;
  • The impact of the injunction on the relationship between the parties and the other family members residing with them;
  • The conduct of the parties;
  • The respective needs and financial resources of the parties including the availability of alternative accommodation;
  • The best interest and needs of the minor; and
  • All the circumstances of the case.

It is worth noting that the Court considers an ouster and occupation order a draconian award and tends to grant such orders only in extreme circumstances and as the last resort.

A breach of the terms of an injunction is considered contempt of court and the applicant may apply for the respondent to be committed to prison. Alternatively, if the applicant or the specified minor has suffered violence to the level of actual bodily harm, the applicant may at the same time as making the application for the injunction apply for an authorisation of arrest to be attached to the injunction. The effect of an authorisation of arrest is that a police officer can arrest the respondent without warrant if he reasonably suspects the respondent of being in breach of the injunction.

Depending on the specific facts of the case, the following ancillary orders may be sought together as the above injunctions:

  • Variation of any existing custody or access order in relation to the specified minor;
  • An injunction preventing the respondent from disposing of the matrimonial home or other family assets; and
  • An injunction preventing the removal of children from Hong Kong and/or ordering their return.

In addition to resorting to the criminal justice system and civil proceedings, victims of domestic violence may seek support and assistance such as shelter service offered by the government and some non-governmental organisations. The Social Welfare Department has also published procedural guidelines for handling domestic violence and child abuse cases for professionals from various disciplines, including the medical profession, police, schools, etc.

 

Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws – so kindly get in touch with us to find out how we can help.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Alfred Ip

Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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