Providing an overview and recent developments in the law of protection against

domestic violence in Hong Kong, and evaluate whether the current legal
framework is effective

Domestic violence is not clearly defined in the legal frame work of Hong Kong.
According to UK home office, it is defined as a pattern of behaviors involving physical,
sexual, economic and emotional abuse, alone or in combination. Generally, victims of
domestic violence usually hesitate to seek assistance, because they are emotionally
involved and economical dependent on the abusers. The problem is magnified in
Hong Kong because of the patriarchal setting of the society and housing problem.
The HK legal frame work dealing with domestic violence is made up of
provisions in various pieces of legislation, which either imposes criminal sanctions on
acts of violence or provides civil remedies to domestic violence.
On the one hand, the criminal legislative framework tackles acts of violence.
The enforcement is irrespective of the relationships between the abusers and the
victims and independent of where the acts of violence take place. It holds the
perpetrators liable under the Offences against the Person Ordinance or the Crime
Ordinance.
On the other hand, in addition to Domestic Violence Ordinance, the Protection
of Children and Juveniles Ordinance and Mental Health Ordinance offer victims of
domestic violence with additional civil protection in light of their special
circumstances and needs. For example,
i) Protection of children and juvenile ordinance grants a supervision order
or appoints legal guardian in respect of a child or juvenile who is in
need or care or protection.
ii) Mental Health Ordinance allows mentally incapacitated person be
received into the guardianship of a suitable person.
iii) Domestic Violence Ordinance seeks to empower individuals in certain
specific relationships and their children to apply to the court for an
injunction order against molestation by the other parties in such
relationships.
For almost twenty years, these legislations was not reviewed. The Law Reform
Commission recommended revisions to the DVO in respect of stalking and child
custody was of no effect. Following the Tin Shui Wai tragedy in april 2004, the Law
Society of Hong Kong and the Woman’s commission recommended revisions to
Domestic Violence Ordinance, which initiated the recent development of DVO.
The DVO was enacted in 1986, based on the English Family Act 1976. The
purpose of DVO is to enable victim to be temporarily segregated from the abuser and
freed from molestation under the protection of an injunction order. Therefore, both
parties are allowed time and space to cool down and solve their problems.
In the amendment bill 2007, they were five major amendments in the
ordinance.
i) It extends the coverage of potential respondents in section 3, rather
than narrowly confining on person in current spousal or cohabitation
relationship. It focuses on the specific relationships between two
parties, irrespective of whether they are living under one roof.
ii) For children to be entitled protection under DVO, they not necessary
live together with the applicants.
iii) A child now has standing to apply for an injunction in his/ her own right
and with the assistance of a next friend against molestation.
iv) It empowers the courts to attach a power of arrest if it reasonable
believes that respondent will likely causes bodily harm to the applicant
or the child concerned, not necessary to have actually caused the harm.
v) The maximum duration of the injunction order and the related power of
arrest are extended from a maximum of six months to two years.
At the same time, in the granting of a non-molestation order under the DVO,
the abusers are required to attend an anti-violence programme approved by the
director of social welfare.
Afterwards, various political parties expressed their views on extending the
scope of protection to same-sex cohabitants. Yet, the religious and parent groups wre
worried that that the bill would lead to successful legal challenges by those pushing
for the recognition of same-sex marriages under the Marriage Ordinance. In
response to their opinions, the Domestic Violence (Amendment) Bill 2009 was
released, which clear delineated different categories of protected person.
i) Section 3 for Spouses, former spouses and their children
ii) Section 3A for persons in immediate or extended familiar relationships
iii) Section 3B for cohabitants in intimate relationships
In summary, the amendment has expanded the scope of protection under the
Ordinance and strengthened the power of enforcement by attachment of
authorization of arrest to injunction and extension of the validity of injunction by
loosening the restriction.
Despite the amendment to the bill, it is at issue whether the current legal
framework provides sufficient protection to domestic violence.
Firstly, no specific ordinance is available to elderly to obtain injunction against
domestic violence. With reference to the protection of children under the Children
and Juveniles Ordinance, it is arguable whether the government should enact an
 ordinance of similar legal effect to protect elderly. The purpose of the Children and
Juvenile Ordinance is to protect children who require guardianship because their
health, development or welfare has been neglected or avoidably impaired under
abuse. Similarly, the elderly can apply the Mental Health Ordinance, which has the
power to issue a guardianship order to appoint a guardian to make decisions on
behalf of a mentally incapacitated person, including an elder. Besides, elderly can
also apply under the DVO against molestation by their family. Apparently, the legal
framework is effective to fight against the domestic violence.
Disappointingly, there were many drawbacks to the existing DVO:
1. The absence of definition of domestic violence, while a definition is
adopted in the New Zealand Domestic Violence Act 1995. It at least
provides a basic guideline to the court to ensure uniformed level of
protection given to those who are most vulnerable. Hence, the legislation
is uncertain and unclear for those in need of its protection.
2. The breach of an injunction granted under the ordinance is not a criminal
offence, but regarded as contempt of court. The deterrent effect is
weakened and police focus less on the execution, while breach of a
protection order in New Zealand is a criminal offence which involves a
maximum penalty of six-month imprisonment and a fine of up to NZ 5000
3. It is plausible that domestic abuse fall short of physical violence and
attack. Therefore, a stalking ordinance should be established to include
non-physical aspect of the abuse.
4. The court may have placed too much emphasis on maintaining parental
contact of the children. Sometimes, protecting children from a threat of
violence is a more important consideration than maintain regular contact
with both parents. Especially, children in violent homes are much more
likely to become abusive themselves when they grow up.
On balance of probability, even though the recent development of the
domestic violence ordinance has widened the scope of protection, there still exists a
number of loopholes in the legal framework against domestic violence. Therefore,
the current legal framework is ineffective in protecting against domestic violence.