In Hong Kong, there is no specific legislative or common law defense of Battered Woman Syndrome for a person charged with violent crimes such as attempted murder, manslaughter and wounding. General defenses, such as self‑defense, are difficult to establish and have not been successful when relying solely on a history of abuse. Table 12 sets out some alternative defenses.
Table 12: Potential defenses for victims charged with a violent offence against their abuser
Provocation/Diminished responsibility
Partial defense only. Can reduce a charge of murder (which has a mandatory life sentence if convicted) to that of manslaughter. Judge can take into account at sentencing mitigating circumstances such as a history of abuse.
Diminished responsibility is available to women suffering from such abnormality of mind (which could stem from abuse) as a substantial impairment of their mental responsibility.
In cases involving provocation,[152] courts have agreed that minor incidents in combination with a history of abuse can be considered provocation. Weight given to any history of abuse will be at the discretion of the court. If the offence is sufficiently serious, a history of abuse may have less weight as a mitigating factor.
Hong Kong law does not otherwise expressly take into account a history of abuse as a mitigating factor relevant to the guilt or innocence.
Self defense
Severe bodily harm inflicted on a person, particularly one who was unable to defend themselves from prior attacks, would support such a defense.
Full defense is more likely to succeed when the defendant's actions were committed during an abusive incident.
Insanity
Full defense is available if the defendant proves that they were suffering from a defect of reason, stemming from a disease of mind, at the time of the offence. Battered woman syndrome is not recognized as a sufficient cause for the defense of temporary insanity.
See also Section 5.3.5.
DCRVO is only applicable to certain categories of relationships (see Section 4). Where the relationship between the abuser and the employee falls within the scope of DCRVO, the court may issue an ouster order to prohibit the abuser from entering the victim's workplace, which may include their place of residence.[153]
If the relationship between the abuser and the employee does not fall within the scope of DCRVO (including foreign domestic workers who are required to reside with the employer under Hong Kong immigration laws), the court may still issue other orders pursuant to its inherent powers.
Yes. In Hong Kong, employers have a common law duty to take reasonable care of its employees' safety and to provide and maintain a reasonably safe place of work for employees. Employers are also required to reasonably maintain the health and safety of its employees in the workplace.[154]
If the abuser threatens an employee in the workplace, including at home in a work-from-home arrangement, the employer has an obligation to take reasonably practicable steps to prevent the employee from those threats. This may include providing an alternative working facility for that employee if practicable. An employee may terminate the employment contract without notice or payment in lieu if, among other things, "he reasonably fears physical danger by violence or disease such as was not contemplated by his contract of employment expressly or by necessary implication" or "he is subjected to ill-treatment by the employer."[155] This also applies to foreign domestic workers.[156]There is no statutory entitlement but the Labor Department encourages employers to adopt family-friendly employment practices.[157]
As a matter of market practice, Hong Kong employers are starting to pay more attention to employee's well-being, with some including "domestic and family violence support leave" in employment handbooks. Many employers also allow employees to take paid or unpaid leave to take care of their close family members.[158]
Employers are also careful not to discriminate against employees who have responsibility to care for an immediate family member (i.e., related by blood, marriage, adoption, or affinity[159]). It is unlawful to discriminate on the ground of family status in the terms and conditions of employment or access to benefits (including annual leave or other types of leaves), facilities or services.[160]No. In Hong Kong, the spouse/other party to a recognized civil partnership may apply to join the sponsor for residence as a dependent. An application for extension of stay will be considered only when the applicant continues to meet this eligibility criteria, as dependents and the sponsor remains a bona fide Hong Kong resident living in the HKSAR. However, the director of immigration (and immigration officers) also have wide discretion[161] over the assessment of all visa applications. Each application is assessed based on its own merits and background, so it is possible that this could be exercised in cases of domestic violence.
For visa extensions, if the abuser is willing to continue sponsorship of the victim's dependent visa, the immigration officer may still approve the application even if they are living apart or in the process of getting a divorce.
There are no immigration remedies available. Spouses and foreign domestic workers are not eligible for visa extensions given their visa categories, however they may be able to extend their legal stay in Hong Kong as a visitor if the immigration officer decides to exercise their discretion.
The statutory regime is not favorable to foreign domestic workers. They are unable to obtain immigration remedies even if they suffer from domestic violence in the workplace. The default position is that foreign domestic helpers are not entitled to become permanent residents after the usual eligibility criteria, which is seven years of residence. Foreign domestic workers are normally admitted for a period of two years or until two weeks after termination of contract, whichever is earlier. If an abused foreign domestic worker wishes to remain in Hong Kong to settle any legal disputes, they may be able to extend their stay as a visitor but there would be no working rights. They will also need to pay for the visa extension, as well as food and shelter during the period. See also Section 4.4.2.
Yes; see Section 6.5.1. The court should give due consideration to the wishes of the minor, as well as the testimony of the other spouse if this constitutes material information. In any event, the welfare of the minor is of first and paramount consideration.
No. The current land law regime in Hong Kong does not provide specific protection for domestic violence victims. However, in usual circumstances, both the landlord and the tenant cannot terminate the tenancy before its expiration unless either has breached the vital terms of the agreement that entitles the other party to forfeit or terminate the tenancy.
Early termination may be possible with the existence of a valid break clause, which may be exercisable by either party by giving prior notice at a certain time during the tenancy. Where any nuisance or annoyance has been caused, for example by domestic violence, the landlord may bring an action against the tenant for nuisance or breach of express covenants (if any).
A landlord would only be prevented from terminating a tenancy lawfully where they have unlawfully deprived a tenant of occupation of any premises or intentionally interfered with the peace or comfort of the tenant.[164]No. A tenant cannot terminate the tenancy before its expiration, unless in the following circumstances:
- there is a valid break clause that may be exercisable by either party by giving prior notice at a certain time during the term of the tenancy
- the landlord interferes with the tenant's quiet enjoyment[165]
- the landlord derogated from his grant[166]
- there is a breach of express covenants by the landlord (if any)