If an accused in criminal proceedings cannot afford legal representation, they may seek representation for appearance in Magistrates Courts under Duty Lawyer Services for a small fee. Legal aid may also be available for appearance in higher courts.

Table 9 outlines these requirements. The prosecution has a general duty to disclose all relevant evidence, including witness statements, photographs and materials that may assist the defense, such as previous convictions and discreditable conduct of the prosecution witness or a deceased victim.^[109]

Table 10: Evidence and documents in domestic violence proceedings

Evidence

May include testimony, documentary evidence and real evidence (e.g., photographs and video recordings). Generally admissible if relevant though different weight may be given by the court.

Oral or written assertions by a witness as to a particular fact made on the basis of what they have been told by another person are not generally admissible with a few exceptions. These include:

• statements made spontaneously and closely associated with the event where there is no real opportunity of reflection or concoction
• complaints made by the victim at the first reasonable opportunity for sexual offences^[110]
• statements made by a deceased person in relation to their proprietary interest or cause of imminent death

Documents

Exchange of documents between the prosecution and defendant are similar to that of usual criminal procedures. Parties are encouraged to seek assistance from their legal counsel regarding to particular documentation requirements.

In criminal proceedings, oral testimony is usually required. A spouse can be compelled to testify for the prosecution for specified offences including assault, murder or sexual offences committed on a minor under the age of 16 years.^[111] However, the prosecution will exercise decision to compel with caution and may, by consent, use the victim's statement in evidence without requiring the victim to testify orally.^[112]

In general, the prosecution bears the legal burden to prove all elements of an offence are beyond reasonable doubt, including the absence of defense. If there is reasonable doubt regarding any elements of the offence against which the defendant is charged with, a defendant is entitled to an acquittal.^[113]

However, defendants are required to prove on a balance of probabilities any defense of insanity and in other matters where burden of proof is expressly shifted by statute onto the defendant.

Yes. Defenses that can result in a complete acquittal of the defendant include self-defense; crime prevention; duress; and involuntary intoxication. Some defenses would only result in partial acquittal, which include insanity, diminished responsibility and voluntary intoxication.

Yes. A victim may commit perjury if sworn as a witness and they make statements in a judicial proceeding that they know to be false or do not believe to be true.^[116] A conviction for perjury is punishable by a fine and an imprisonment up to seven years.

If the victim wishes to withdraw a complaint, the police will take a further statement from the victim setting out the reasons for the decision, including whether the original statement was true or not. If the complainant's new statement is inconsistent with any earlier statement and if the earlier statement was false, a complainant who acted in bad faith may commit the offence of wasteful employment of the police,^[117] and be liable to a fine of HKD 2,000 and imprisonment for six months.^[118]

Consent may be an express element of an offence or a common law defense. In either case, the burden of proof is on the prosecution.

Yes. Self-defense that is "necessary" and "reasonable" results in complete acquittal, i.e., a "not guilty" verdict.

Insanity is a defense that leads to partial acquittal. Instead of a "not guilty" verdict, the defendant will receive a special verdict (i.e., "not guilty by reason of insanity").^[121] If a special verdict is given, the trial judge must then make one of four possible orders against the defendant:

• hospital order, i.e., an order authorizing the defendant's admission into a mental hospital for detention and treatment (mandatory where the offence carries a fixed sentence such as murder)
• guardianship order
• supervision and treatment order
• order for the defendant's absolute discharge, if the defendant's mental abnormality previously went undiagnosed but can be simply treated^[122]

See Section 5.1 regarding perjury. A false statement made through inadvertence or mistake may indicate that the maker did not make the statement intentionally, and would therefore not be found guilty of perjury.

A person in Hong Kong is generally required to testify if deemed necessary.^[124] If it appears that a person within Hong Kong is likely to give material evidence on behalf of the plaintiff or the defendant, the court will issue a summons or a warrant to such person, requiring him/her to testify what he/she knows concerning the matter of the complaint.^[125]

As a general rule, a person may abstain from testifying in criminal proceedings, if to do so will expose that person's spouse to any criminal proceedings.^[126] However, the privilege against incrimination of one's spouse does not apply to relieve the victim's duty to testify in domestic violence cases. It is not considered a just cause for a victim not to answer questions or to lie in the witness box because the victim does not want the abuser to be convicted of the criminal offence with which the court is concerned.

It is for the witness to establish on a balance of probabilities that he/she has a reasonable excuse not to testify.^[127]

Table 11: Refusal to testify

Self-incrimination

While the privilege of husband and wife is not applicable in a domestic violence case, it is a just cause for not answering a question in court, where the answer would tend to imply or show that the witness has committed a criminal offence in Hong Kong for which they might be prosecuted based on the evidence they give from the witness box.^[128]

No recollection

Not considered a refusal to be sworn or to give evidence, as long as the witness has arrived in the court at the time specified, has sworn and given evidence when duly required to do so. Even if the witness cannot recall step-by-step what has happened, this cannot make a witness liable for a contempt of court.^[129]

Duress

Recognized as a defense to contempt of court. However, only applies if the threat faced by the witness is one that would have threatened a person of reasonable firmness to respond in the same way. Must be more than a mere assertion that the witness is frightened, otherwise they will still be liable for contempt of court. It is on the witness to establish on a balance of probabilities that they have a reasonable excuse not to testify.

A child of any age can be a witness for the prosecution or for the defense, although whether they should be called as a prosecution witness is a matter for the judgment of the prosecution in each case.^[130] If the prosecution decides that the child's evidence is necessary, the child can be brought to court under a witness summons in the same way as an adult witness. A child witness is to be regarded as a competent witness unless the contrary is shown, and the law requires that a child's unsworn evidence be received whether or not the child would otherwise have been competent.^[131]

The corroboration rule has been expressly abolished in Hong Kong to ensure that the credibility of evidence given by a child witness would not be doubted without reasonable grounds.^[132]

Child witnesses may also provide evidence in alternative ways — see Section 4.2.2 — however, it should be noted that it is generally not desirable to call a child to be a witness due to concerns that the child may have conflicting loyalties, or a higher degree of loyalty towards one parent.^[133]

The fact that the victim is a minor may affect the types of offences being charged and the strength of the case against the abuser.

Where the victim is a minor, the prosecution may charge the abuser with offences applicable only when the victim is a minor under a certain age. These offences include the offence of exposing a minor under the age of two whereby life is endangered and the offence of ill treatment or neglect by those in charge of child or young person under the age of 16.^[134]

There is no criminal offence in Hong Kong that focuses specifically on domestic violence, not even under DCRVO. Criminal liabilities associated with domestic violence acts are governed under various ordinances relating to other criminal offences. Conviction would likely lead to imprisonment, while the term varies according to the seriousness of the underlying crime, with maximum penalties ranging from one year's imprisonment (common assault) to life imprisonment (murder, attempted murder, manslaughter, wounding with intent, rape and attempted rape).

This response therefore takes into consideration relevant sentencing practices and domestic violence cases involving defendants with no prior history of violence as acknowledged by the court or previous criminal convictions, whether arising from domestic violence or otherwise.

As a starting point, the prosecutor will advise the court during sentencing of the victim's perspective and circumstances, where an abuse of trust in a domestic context may be regarded as an aggravating factor. If the defendant has previously committed, and been convicted of, a "specified offence" (as defined in the Organized and Serious Crimes Ordinance (Cap. 455)), the prosecutor will provide the court with relevant materials and information regarding the nature and extent of harm caused, be it directly or indirectly, to any person, presumably including family members in a domestic violence context.

From a review of the relevant case law:

• Courts generally consider domestic violence as a serious offence that call for greater deterrence during sentencing,^[136] particularly those involving serious injuries to the victim.^[137]
• Defendants with no criminal record or prior history of violence are taken into consideration during sentencing.^[138] However, the court retains discretion in deciding whether or not to actually reduce sentences on this basis.^[139]
• Even where the court is willing to reduce the sentence, it will not be very significant.^[140] A defendant may also run into the risk of receiving a higher sentence, even with a clear record and guilty plea, if the higher court considers the lower court has erred in taking a starting point that is manifestly inadequate.^[141]
• Abusers are often charged with wounding with intent in domestic violence cases.^[142] While there are no sentencing guidelines for this offence and the appropriate sentence depends on all the circumstances of each case, the range of the imprisonment, namely three to 12 years, is not a sentencing tariff. The court is not obliged to impose three years' imprisonment as a minimum term.^[143] Therefore, three years' imprisonment may serve as a reference point for the sentencing of a first-time offender in respect of wounding with intent.

Victims of domestic violence may apply for injunctive relief under DCRVO (see Section 4.1). Given such orders are made in civil proceedings, laws relating to the disobedience of court orders ("civil contempt") will apply when one violates an existing order for protection.

There is no case law at the time of writing regarding a violation of injunction orders granted under DCRVO. However, DCRVO itself provides that the court, when satisfied that the abuser either has caused actual bodily harm to the victim or is likely to do so, a power of arrest may be attached to the injunction.^[144] This power of arrest allows the police to arrest the abuser when the abuser is reasonably suspected of breaching the injunction by reason of violence,^[145] or by entering into or remaining in the area specified in the injunction. The arrested abuser will then be brought before either CFI or DC depending on the court making the injunction, to answer for the breach of the injunction, i.e., not abiding with the requirements stated in the injunction.^[146] The injunctions would last for a maximum of 24 months and can be renewed once.^[147]

Apart from the penalties mentioned in Section 5.5.1, the defendant may also be ordered by a court to participate in an "Anti-Violence Program," such as the Batterer Intervention Program and the Educational Program on Stopping Domestic Violence under a Probation Order.^[148] Probation services are provided by the SWD whereby the abuser will be subject to statutory supervision of a probation officer for a period of one to three years.

According to the Victims Charter issued by the Hong Kong police, victims have the right to ask to be notified of the abuser's pending release or escape from penal custody, provided they have given the Commissioner of Correctional Services their current address and telephone number.^[151]