Legal update: The complaint process in domestic violence cases

There is no criminal offence of “domestic violence”.  Domestic violence is a general term used to describe all acts of violence; threatening behaviour; physical, sexual or emotional abuse used by one person to control or dominate another, in a family environment.  An assailant can be prosecuted under the Crimes Ordinance (Cap. 200) for sexual and related offences such as rape, incest, indecent assault and criminal intimidation, and under the Offences Against the Person Ordinance (Cap. 212) for murder, manslaughter, wounding, assault, forcible taking or detention of a person, wilful assault, and the ill treatment, neglect or abandonment of a child.

Investigation

The police investigate allegations of domestic violence.  There is a Designated Domestic Violence Investigation Unit in each police district.

There has been in the past a tendency for the police to view non-serious domestic violence complaints as minor and similar to noise nuisance complaints and accordingly not provide victims with information on related support services, issue police report numbers, nor record any details of the complaints.  However the police have now formulated a set of policies and procedures for effective handling of domestic violence cases with clear professional guidelines for the classification and handling of such cases.  Officers are encouraged to handle and investigate complaints with sympathy and understanding in addition to a professional, fair and impartial manner.

The police have classified domestic conflict cases into three categories, namely
(1) Domestic Violence (Crime) (2) Domestic Violence (Miscellaneous) and (3) Domestic Incident (Including Dispute).  A Domestic Violence (Crime) is a criminal case involving violence of a serious nature.  Domestic Violence (Miscellaneous) are cases involving common assault and a breach of the peace.  Domestic Incidents are family related incidents not involving violence or a breach of the peace that occurred between parties such as disputes, nuisance, annoyance or other minor conflict.

On receiving a complaint of a Domestic Conflict Report, an officer of the rank of Sergeant or above will be deployed to the scene of the family conflict.  The police operate a Central Domestic Violence Database (“CDVD”) as an electronic database of information on past domestic violence or domestic incident.

The CDVD features an alert system of high-risk cases for closer surveillance.  All officers will check against the CDVD as well as an Emergency Referral Questionnaire and will apply an Action Checklist designed to identify risk factors and make risk assessments of the likelihood of continuance and recurrence of domestic violence.

The police will take appropriate measures such as detaining the offender, providing safe accommodation, counselling and other support services.  The police will also provide a Family Support Service Information Card to facilitate follow up contact with the service agencies.

Where referral to the relevant department for follow up is deemed necessary the police will take the initiative to arrange referral whether the subject is consenting or not.

Prosecution

The decision to prosecute is made by the Department of Justice and not the victim.  A prosecution will be brought where there is sufficient evidence that affords a reasonable prospect of conviction and it is within the public interest to pursue.  The views of the victims are considered in deciding whether a prosecution is within the public interest which includes the family circumstances and the likely effect of a prosecution on the members of the family.  In serious cases the public interest will require a prosecution even if the victim does not wish to cooperate.

In non-serious cases that proceed to Court the assailant will be afforded bail but with conditions to live apart and not to contact the victim.  Domestic Violence prosecutions are handled by the Courts in the same manner as non-domestic cases.

Sentencing and Rehabilitation

Upon conviction particular sentencing options apply and programmes are available in a probation order for the assailant (batterer) to be ordered to participate in an Anti-Violence Programme (AVP) such as the Batterer Intervention Programme (“BIP”) and the Educational Programme on Stopping Domestic Violence (“EPSDV”).

The binding over procedure can also be an effective method of disposal where the parties are reconciled; there is no history of violence but there is a concern over a potential future breach of the peace.  A bind over is a promise by the accused to the Court to be of good behaviour for a period of time fixed by the court.  It is not a criminal conviction.

BIP and EPSDV are mandatory on assailants if ordered by Court as a condition of a Probation Order.  BIP and EPSDV are run by the HK Social Welfare Department.  Assailants subject to bind overs and those that are not subject to any Court order can also participate in the BIP and the EPSDV as volunteers.

References:

Social Welfare Department – Procedural Guide for Handling Intimate Partner Violence Cases (Revised 2011)

Social Welfare Department – Procedural Guidelines for Handling Adult Sexual Violence Cases (revised 2007)

Philip Swainston

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you would like to discuss any of the matters raised in this article, please contact:

Philip Swainston
Consultant | E-mail

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.