Police arrest procedures for breaches of Injunction Orders made against violent spouses and cohabitants under the Domestic and Cohabitation Relationships Violence Ordinance Cap 189

Nov012016

Introduction

The Hong Kong Police Force recently reviewed procedures for the handling of cases involving breach of an Injunction Order with an authorisation of arrest attached made under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) (“DCRVO”).

Injunction order

Section 3 of the DCRVO provides that if the District Court is satisfied that the applicant or a specified minor of the applicant has been molested by the spouse or former spouse of the applicant, the Court may grant an injunction containing:

  1. a provision restraining the respondent from molesting the applicant;
  2. or from molesting a specified minor;
  3. a provision prohibiting the respondent from entering or remaining in the residence of the applicant; or a specified part of the residence; or a specified area whether or not the residence of the applicant is in that area (the residence does not have to be the common residence or matrimonial home of the applicant and the respondent);
  4. a provision requiring the respondent to permit the applicant to enter and remain in the common residence or matrimonial home.

Under Section 3A the Court may grant an injunction against a relative of the applicant, and Section 3A(2) provides a long definition of who is a “relative”.

Cohabitants

Section 3B extends the power of the Court to grant injunctions (see (a) to (d) above) against the applicant’s cohabitant and former cohabitant.  Section 3B(2) lists the relevant factors to be considered by the Court in each particular case when determining whether the parties are in a cohabitation relationship.

Attachment of authorisation of arrest

Section 5 of the DCRVO provides that where the Court grants an injunction pursuant to section 3, 3A or 3B the Court may attach to the injunction an authorisation of arrest if it is satisfied that the respondent has caused actual bodily harm to the protected person or the Court reasonably believes that the respondent is likely to cause actual bodily harm.

An authorisation of arrest may be attached to the injunction at the time the injunction is granted or at any time during the validity period of the injunction.

Once an authorisation of arrest is attached, a police officer may arrest without warrant any person whom he reasonably suspects of being in breach of the injunction.  Upon arrest the respondent cannot be released and will be taken before the Court as soon as practicable but in any event before the expiry of the day after the day of his arrest.

Limitation

Section 6 provides for an injunction order to have effect for such period the Court considers appropriate but should not exceed 24 months.  An authorisation of arrest attached to an injunction shall likewise have effect for a period determined by the Court which cannot exceed 24 months and shall expire upon the expiry of the validity period of the injunction.

Applications for injunction orders under the DCRVO are usually made ex-parte (without notice to the respondent) and the initial Injunction Order will run until an inter-parties hearing of which the respondent will be given notice.  The injunction order is effective when served upon the respondent.

Further provisions of note

In respect of parties to a cohabitation relationship the Court should not attach an authorisation of arrest to an injunction order unless it is satisfied having regarded to the permanence of the cohabitation relationship it is appropriate in all the circumstances to do so.

Section 7A of the DCRVO allows the Court to vary or suspend a custody or access order.

In addition at the time the Court makes an injunction order it can include provision requiring the respondent to participate in any programme aimed at changing the attitude and behaviour that led to the granting of the injunction.

The police revised procedures

The police advise that in those cases where an authorisation of arrest is attached to an injunction order, the order containing the authorisation of arrest should be served to the Criminal Records Bureau by hand as soon as possible.  The order should be accompanied by a covering letter containing the full name; Hong Kong identity card number (passport number / home visit permit number) of all parties to the order and the police report number (if any).  The Criminal Records Bureau is open 24 hours every day.

The police must have a copy sealed order served with the Criminal Records Bureau before they can respond to and act upon the order.

The applicant must notify the Criminal Records Bureau of any variation or extension of the order.

Comment

In most incidents of domestic violence a call is made to the police.  In those circumstances where a formal police complaint is made a police report number is issued.  The applicant’s statement in support of the application for the injunction order should cite or attach a copy of the police complaint.  It should be noted that the police do not require, even in the absence of a police report number, a copy of the applicant’s affirmation made in support of the injunction.

The police protocol does not require additional service of a sealed copy order at the local police station.  However, it is good practice, where there is an existing police report on domestic violence to provide a sealed copy order to the investigating team or to the duty officer at the station where the report was made.

The applicant should have the telephone number of the investigating team or the duty officer, to hand to call if there is a breach of the injunction but if it is urgent, the applicant should first use the police emergency number.  The applicant should have a sealed copy Injunction Order in case police acting on an emergency call have not yet confirmed the authorisation for arrest with the Criminal Records Bureau.

For further information, please contact:

Philip Swainston
Consultant | Email

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.