The Domestic and Cohabitation Relationships Violence Ordinance and relief available to complainants of domestic violence in Hong Kong25Nov2019
Gender-based violence is one of the most pervasive human rights issues faced around the globe. 25 November marks the United Nations International Day for the Elimination of Violence Against Women seeks to raise awareness of the unique abuses girls and women face worldwide including rape, politically motivated physical violence, and intimate partner (domestic) violence.
Although women are statistically more likely to experience violence against them than men, it is recognised in Hong Kong that domestic violence can be perpetrated by and against people of any gender and is not limited to violence against women by men. In instances of domestic violence, the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) (the DCRVO) offers various forms of injunctive relief to complainants of domestic violence in Hong Kong,
Who can apply under the DCRVO?
The relief available under the DCRVO relief is not limited to spouses of offenders or former spouses of offenders. The DCRVO expressly provides that both opposite sex and same-sex cohabitation relationships fall within its scope, as do any children or a wide range of relatives living with the applicant.
Do the parties to a DCRVO application need to be living together?
The cohabitation requirement is interpreted broadly. The DCRVO does not require that the parties to the application cohabit, but rather use cohabitation as one of the markers of the nature of the relationship in question. That is, if other relevant factors are present in the circumstances of the relationship such as whether there is a sexual relationship between the parties, whether there is a sharing of expenses and financial dependence or interdependence between the parties, and whether the parties share the care of a child, it may not be necessary to satisfy the court that the parties live together.
What is considered to be ‘violence’?
In Hong Kong, it is recognised that domestic violence is not limited to physical violence. In considering applications made under the DCRVO, the court must be satisfied that the applicant (or a specified minor on whose behalf the application is made) has been ‘molested’ before an order for an injunction against the respondent can be made. Molestation has been widely interpreted by the courts to go beyond violence and threats of violence. It also includes such other actions as financial, verbal, and emotional abuse, persistent and unwelcome messages by any physical or electronic means, damaging property belonging to the applicant, and stalking or otherwise monitoring the movements and/or communications of the applicant.
What can the courts do?
There are various orders open to the court to make in applications made under the DCRVO. The three principal forms of injunctive relief are ouster orders, re-entry orders, and non-molestation orders.
Ouster orders restrain the respondent from entering or remaining in the home of the applicant (and/or specified minor), a specified section of that home, or any other specified area (for example a specified school or workplace) for as long as the injunction remains in effect.
A re-entry order requires the respondent to allow the applicant to re-enter and remain in a specified property. While there is no cohabitation requirement to obtain an ouster order, there is in respect of re-entry orders.
As its name suggests, a non-molestation order restrains the respondent from molesting the applicant and/or specified minor for as long as the injunction remains in effect and will usually broadly cover the respondent’s actions and those done for her/him by any third party.
The court can also order mandatory counselling for the respondent under the Social Welfare Department’s Anti-Violence Programme.
Depending on the circumstances of the case the court may attach an authorisation of arrest to the injunction which offers the complainant immediate protection from the violence in question.
If you are currently or are at immediate risk of experiencing domestic violence, you can call 999 or make a report to your nearest police station. There are also various shelters in Hong Kong in which you may seek refuge in urgent circumstances.
The scope and application of protective measures in Hong Kong both in respect of legislation and policy have some way to come when compared with other comparable common law jurisdictions. However, there is ongoing progress being made in our understanding of the causes and effects of domestic violence both psychologically and societally. This, along with a greater focus on domestic violence education in schools and the wider community gives hope not only for improvements to the methods with which the courts and authorities can deal with domestic violence in Hong Kong but for better education to stop causes of violence at their roots.
Tanner De Witt has extensive experience in making applications under the DCRVO. If you or someone you know is experiencing violence at home and would like to make an application under the DCRVO, or if you would like to find out more about these applications, please contact Joanne Brown or Philip Swainston on 2573 5000. For more information on DCRVO applications and the process of making a complaint to the police for breaches of orders made under the DCRVO, please see the following articles on our website:
Joanne Brown and Elizabeth Seymour-Jones
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:
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.