P v. C

FCMC 9655 / 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9655 OF 2005

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BETWEEN

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Coram : Deputy District Judge Melloy in Chambers (Not Open to Public)

Date of Hearing :   11, 16, 17, 21 – 22 and 24 – 25 August 2006

Date of Final Written Submissions :   1 September 2006

Date of Judgment :  26 September 2006

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J U D G M E N T

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Introduction

1.This is an application by a petitioner wife for a non molestation and ouster order against a respondent husband.  In addition she seeks an ouster order against the respondent’s mother.  The ouster orders sought are in relation to the matrimonial home, which is a public housing unit in Tin Shui Wai.  The wife seeks these orders, pending determination by the Court of a contested custody hearing in relation to the parties two children.  The summons also seeks interim custody of the two children of the family, a girl who I will call HY who was born on the 11^th April 1999 and is now aged 7 and a boy who I will call TK who turned 5 recently.  The summons also calls for a penal notice and a power of arrest to be endorsed on the order.  For the avoidance of doubt I will refer to the parties as husband and wife in this judgment.  I will refer to the husband’s mother as Madam C.

2.The matter was originally set down for eight days and was given the first available date because of the urgency surrounding the application.  On the 10^th August, a day before the hearing was scheduled to start, the husband’s solicitors came off the record.

3.On the 11^th August the husband explained to the Court that he had applied for Legal Aid.  The wife’s solicitors submitted that the matter required urgent resolution, not least because the wife was now living in a refuge for battered women with TK and had done so since the 6^th July 2006.  She is only able to remain at the refuge for three months i.e. until the 6 October 2006.  It was further submitted, on behalf of the wife, that the situation was very unsatisfactory because HY was now living with Madam C and her paternal Grandfather and Aunt in Kwun Tong.  Attempts by the Mother to see HY, with the assistance of the Social Welfare Department, had proved very difficult – in essence because the child has rejected her Mother.  The children had also not seen each other.  The husband confirmed that he had not seen TK since the 6^th July.

4.At that hearing the husband applied to adjourn all matters pending determination of his application for Legal Aid.  Direction was given by the Court that the Legal Aid department should be informed of the urgency of the situation and a request was made that the application be expedited.  Notwithstanding that, given the urgency of the situation, the automatic 42 day litigation stay was lifted in so far as it related to the application for a non molestation and ouster order.  The matter was heard, after a short adjournment, over a seven day period.

5.At the end of the hearing an order was made in the following terms, pending the custody trial and this judgment :

UPON the Petitioner’s undertaking to retain her mobile phone and the 11 taped conversations including those submitted as transcripts in this hearing on the memory of that phone;

BY CONSENT IT IS ORDERED THAT :
1)	The Petitioner and the Respondent shall have interim access to the child in the care and control of the other party as follows :
	i)	From Monday 28/08/2006 – Friday 01/09/2006 the Petitioner shall bring TK, a boy born on the 25th September 2006 and the Respondent shall bring HY, a girl born on the 11th April 1999 each day to the offices of the Social Welfare Department at Kwun Tong to enable supervised access to take place.  It is intended that the children shall see each other in a supervised environment from 4:00 – 5:00 pm.  From 5:00 – 6:00 pm the Petitioner will have supervised access to HY and the Respondent will have supervised access to TK.
	ii)	Thereafter the same arrangement will continue but at the offices of the Social Welfare Department in Tin Shui Wai.
FURTHER IT IS ORDERED THAT :
2)	The issue of custody and care and control of the two children shall be adjourned to a date to be fixed with 5 days reserved pending determination of the Respondent’s application for Legal Aid.
3)	All deponents to attend the trial for custody, including Ms Dora Lee and Ms Pak Chui Sau.
4)	An updated social welfare report be called for.
5)	Both parties have leave to file an updated affirmation in relation to custody and access 14 days prior to the adjourned hearing, if required.  No other affirmations to be filed without the leave of the court.
6)	Costs be reserved.  The Petitioner’s own costs to be taxed in accordance with Legal Aid regulations.
7)	Liberty to apply as to the terms of this order.
FURTHER IT IS DIRECTED that closing submissions be filed in court on or before the 1st September 2006.

6.Both closing submissions were filed on time.  Leave was given for the husband to file his closing submission in Chinese.

Background

7.In many ways the background to this application is a familiar one to the courts in Hong Kong.  For years the parties conducted a long distance, cross border relationship, with the wife based in Shenzhen and the husband based in Hong Kong.  On the 31^st January 1998, the parties married at San Po Kong Marriage Registry in Hong Kong.  Prior to marriage they had cohabited for six or seven years. The wife is now 33 years of age and is originally from Guangdong.  The husband is 36 years of age and was born in Hong Kong.  Prior to marriage the parties divided their time, both separately and together, between Shenzhen and Hong Kong.  They had a home in Shenzhen and when in Hong Kong they based themselves at the husband’s parents home in Kwun Tong.

8.There is some dispute concerning the original child care arrangements for the children during their early years.  This will no doubt, be the subject for further scrutiny at the custody hearing.  What is not in dispute, however, is that October 2004 the husband’s application for a public housing unit was approved.  In December 2004 the wife was granted a single entry permit and in January 2005 the husband, wife and TK moved into the new public housing unit in Tin Shui Wai. HY stayed with her Grandmother, so that she could finish the school year in Kwun Tong.  HY did not join the rest of her nuclear family in the public housing unit until July 2005.

9.On the 31^st August 2005, the wife served divorce proceedings on the husband based on his unreasonable behaviour.  The divorce proceedings have been acrimonious and have been played out against a backdrop of allegations made by the wife of the husband’s physical and verbal abuse of her.  The Social Welfare Department and the local police in Tin Shui Wai have been actively involved.  What is not in dispute is that on the 14^th November 2005, the husband was bound over by for a year by the Tuen Mun Magistracy for assaulting the wife.  Further the wife issued two applications for an injunction, the first being an ex parte summons dated the 30^th March 2005 and the second being an inter partes summons dated the 2^nd June 2006.  The first application sought, inter alia, a non molestation and ouster order against the husband.  There was no application made with respect to Madam C. Her Honour Judge Chu initially granted the non molestation order and a return date was fixed.  At the return date on the 4^th April further directions were given and the parties entered into mutual non molestation undertakings given on a non-admission and without prejudice basis.  On that premise the original non molestation order was discharged.  At the hearing on the 21^st June, which was in relation to the second summons, an order was made setting the matter down for trial.  Further directions and orders were made in relation to that trial.  There was also a supervised access order for the wife to see HY with the assistance of the Social Welfare Department.

10.It is then against this background that this matter came before me for final resolution at trial.

11.It is necessary, before turning to the evidence, to first look at the law presently governing applications of this nature in Hong Kong.

Historical Background to the law in Hong Kong

12.It is also perhaps worth repeating here what is self evident, namely that prior to change of sovereignty in 1997, much of Hong Kong’s legislation was based on English legislation.  Further, prior to 1997, English case law was binding on Hong Kong, whereas, along with other common law precedent, it is now persuasive.

13.Hong Kong’s Domestic Violence Ordinance came into effect on the 19^th December 1986 and is largely based on the English Domestic Violence and Matrimonial Proceedings Act 1976.

14.There have been repeated calls in Hong Kong for there to be significant changes made to our domestic violence legislation.  Calls which have become more persistent since a number of well publicized tragedies including the untimely deaths of a mother and her two children in Tin Shui Wai at the hands of the husband.

15.Other calls have been made most recently by the Law Society of Hong Kong.  Social welfare organisations, including Harmony House have also called for changes to be made to our legislation.

“There are four main recommendations, the first of which is that the scope of protection should be widened to include relationships other than marital or quasi marital relationships and also to include past as well as existing relationships.  The second proposal made by Harmony House is that domestic violence should be defined in the Ordinance, that definition to include not only physical violence but also sexual and psychological violence and that a power of arrest should be attached to the injunction not only where there is proof of serious physical violence but also where there is proof of psychological or sexual violence.  The third proposal made by Harmony House is to extend the duration of the entry and exclusion orders to a maximum of one year with quarterly review periods.  Lastly it is proposed that front line professional should receive training specifically to deal with domestic violence”.

(p.5 The Annotated Ordinances of Hong Kong - Domestic Violence Ordinance (Cap 189) annotator Anne Scully-Hill).

The law in Hong Kong

16.At present though, the law in Hong Kong is still in essentially the same format as when it originally came into force in 1986.  It is set out in the ordinance and for the avoidance of doubt I have set out the relevant sections below.

S.3 DVO

(1)   On an application by a party to a marriage the District Court, if it is satisfied that the applicant or a child living with the applicant has been molested by the other party to the marriage and subject to section 6, may grant an injunction containing any or all of the following provisions -

(a)   a provision restraining that other party from molesting the applicant;

(b)   a provision restraining that other party from molesting any child living with the applicant;

(c)   a provision excluding that other party from the matrimonial home,or from a  specified part of the matrimonial home, or from a specified area whether or not the matrimonial home is included in that area;

(d)    a provision requiring that other party to permit the applicant to enter and remain in the matrimonial home or in a specified part of the matrimonial home, whether or not any other relief is being sought in the proceedings.

(2)    In the exercise of its jurisdiction to grant an injunction containing a provision mentioned in subsection (1)(c) or (d) the District Court shall have regard to the conduct of the parties, both in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any child living with the applicant and to all the circumstances of the case.

[cf. 1976 c. 50 s. 1 U.K.]

S.5 DVO
(1)	Where, on an application by a party to a marriage, the Court of First Instance or the District Court grants an injunction whether pursuant to jurisdiction conferred by this Ordinance or pursuant to any other jurisdiction) containing a provision, in whatever terms, which-
	(a)	restrains the other party from using violence against the applicant or a child living with the applicant; or
	(b)	excludes that other party from the matrimonial home or from a specified part of the matrimonial home or from a specified area, the Court of First Instance or the District Court, as the case may be, if it is satisfied that the other party has caused actual bodily harm to the applicant or, as the case may be, to the child concerned, may, subject to section 6, at the same time as it grants the injunction or at any time during the period for which the injunction is granted, attach to the injunction a power of arrest in the prescribed form.
S.6 DVO
(1)	A provision mentioned in section 3 (1) (c) or (d) contained in an injunction granted under this Ordinance shall have effect for such period, not exceeding 3 months, as the court considers necessary.
(2)	A power of arrest attached under section 5 (1) to an injunction shall -
	(a)	be granted for such period, not exceeding 3 months, as the court considers necessary; and
	(b)	lapse on the expiry of the period for which the injunction was granted.

The law in England

17..In contrast the law in England and Wales has developed further. Domestic violence is now largely dealt with under the Family Law Act 1996 (FLA) and to a lesser extent by the Protection from Harassment Act 1997. Under the FLA it is possible for an application for a non molestation order to be made against someone with whom the applicant is associated i.e. not simply a spouse or cohabite. That is not presently the case in Hong Kong. Further, the factors that the court must take into account are more widely drawn as

“the court must have regard to all the circumstances of the case, including the need to secure the health, safety and well being of a) the applicant, or in a case where the court is considering making an order of its own motion, the person for whose benefit the order would be made, and b) any relevant child”.

(See para 32.3 Rayden 18^thh edition).

18.Further it is now possible to attach a power of arrest much more widely than before.

“Where the court makes an occupation order or a non molestation order and it appears to the court that the respondent has used or has threatened violence against the applicant it shall attach a power of arrest to one or more provisions of the order unless it is satisfied that in all the circumstances the applicant or child will be adequately protected without a power of arrest”.

(See para 32.7 Rayden 18^th edition)

19.That is not the case in Hong Kong. It is only possible to attach a power of arrest to an order in Hong Kong where there is evidence of actual bodily harm.

20.In so far as the duration of the order is concerned, unlike England, an order for an ouster or a re-entry order can only initially be ordered for a 3 month period. It can be extended for a further 3 months – but the maximum duration is 6 months. It is not a long term remedy. (see F v F [1989] 2 FLR 451)

Case law and definitions

21.There is very little local case law to assist the courts in Hong Kong and traditionally Hong Kong has looked to England for help in this regard. Solicitors for the wife have very helpfully referred me to a number of English precedents plus other authorities.

Molestation

22.Molestation has been defined widely and in the wife’s solicitors closing submissions I was referred in particular to the following definitions :

“…… molestation may take place without the threat or use of physical violence and still be serious and inimical to mental and physical health”

(Viscount Dilhorne in Davis v Johnson [1979] AC 264)

“It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court”.

(Ormrod LJ in Horner v Horner [1982] Fam 90)

“Molest is a wide, plain word which I would be reluctant to define or paraphrase. If I had to find one synonym for it, I would select ‘pester’.”

(Stephenson LJ in Vaughan v Vaughan [1973] 3 AII ER 449)

23.In Hong Kong “scolding” has been found to be sufficient for both a non molestation and an ouster order. (See Chan Chun Hon v Chan Lam Lai Bing Shirley [1994] 3 HKC 196).

24.In addition, there usually has to be a form of intent.

“Harassment, it has to be said, of course, includes within it an element of intent, intent to cause distress or harm”.

(Donaldson J in Johnson v Walton [1990] 1 FLR 350)

Ouster orders

25.Ouster orders are viewed seriously. It has often been said that it is a draconian order. It should only be granted in

“extreme circumstances”.

(See Davis v Johnson [1979] AC 264)

26.In determining whether an ouster order should be made the court must have regard to

· the conduct of the parties,

· their respective needs,

· their financial resources,

· the needs of any child living with the applicant,

· and to all the circumstances of the case.

27.All of these elements are of equal importance. The welfare of the child is not of paramount consideration.

The wife’s case

28.The wife’s case in essence, is that since 2003 she has been the victim of domestic abuse. She says that the situation deteriorated when the parties began to live together on a permanent basis for the first time. That was in January 2005, when she moved into a public housing unit with the husband and their younger child. In a document entitled a Timeline of Important Events helpfully produced by the wife’s solicitors, a copy of which is attached at annex 1, reference is made to an assault in February 2005. This is the first time that the wife reported an incident of assault to the police. What follows is a series of incidences, which have been documented in a variety of ways. The wife kept a diary and on occasions taped conversations/arguments with her mobile phone. Photographs have also been produced in an attempt to show evidentiary support as appropriate. The wife says that the husband is to blame, that he is hot tempered, controlling and that he has assaulted her on numerous occasions. She points to the fact that the Family and Child Protective Services Unit of the Social Welfare Department and the Police have been constantly involved with her family as further evidence in support of her case. In particular she refers to the following :

1)   February 2005 – first time the wife reported an incident to the police; accept W

2)   29/06/05 – the wife moved into a shelter for battered women, with TK following an incident; accept W sufficiently scared.

3)   31/08/05 – divorce petition was issued;

4)   14/11/05 – the husband was bound over for one year by Tuen Mun Magistrate’s court following another incident; accept W’s

5)   18/03/06 – a further serious incident occurred and the police were called; accept H’s mother’s version

6)   30/03/06 – the wife issued her first ex parte summons for an injunction. A non molestation order was made;

7)   04/04/06 – the parties entered into mutual non molestation undertakings on a “non admission basis and ‘without prejudice to each parties’ rights to challenge the other party’s allegations at the trial”;

8)  09/04/06 onwards - the wife alleges that the husband mounted a campaign of harassment and intimidation not withstanding the fact that he was bound over and had entered into a non molestation undertaking; accept W’s

9)   02/06/06 – the wife issued the present application;

10)  06/07/06 – the wife moved into a refuge for battered women.

The husband’s case

29.In contrast the husband says that either

1)   the incidences did not occur as alleged by the wife, and/or

2)   he was provoked by the wife.

30.He also says that the wife has an ulterior motive. He says that when the wife came to Hong Kong she had expected their standard of living to be much better. He says that she blamed him for this and that her dissatisfaction led to quarrels. The husband pointed out that Madam C had tried to help and had given the wife money. He says that when she had no more money to give she was also brought into the quarrels.

31.It is also the husband’s case that the wife’s actions were premeditated and that in addition to a divorce and custody of the children she also wants the public housing unit. Madam C, in support of the husband said that this is because the wife saw the public housing unit as a means to make money.

32.The husband argued that there was no reason for him to act as the wife alleges. He says that it would only cost more money and lead to more trouble.

33.Further, although he is aware that the wife does not necessarily have to show actual physical violence in order to obtain the injunction, he pointed out that none of the later incidences involved any physical violence in any event. Rather they were minor matters all to do with their every day life. He says that the wife also breached her undertaking to the court during that time.

34.In contrast he says that he was very aware of the ramifications of the binding over order and that he did nothing at all to breach that order.

35.The husband also says that it would not be beneficial to grant the order against Madam C as her presence is good for the children and she presently has the responsibility of taking HY to and from her home in Kwun Tong to HY’s school in Tin Shiu Wai. The husband maintains that it would be very cruel to deny Madam C the opportunity to stay in the matrimonial home in between these times.

The issues

36.There are a number of issues which need to be determined by the court in this case as follows :

1)   Notwithstanding the existing non molestation undertakings should there be a non molestation order to replace the existing undertakings ? The wife seeks an order that the husband by himself, his servants or agents or otherwise be restrained from assaulting, molesting, harassing or threatening her.

2)   Is it legally possible for the wife to oust Madam C from the matrimonial home ?

3)   Should the husband also be ousted from the matrimonial home ?

4)   If so what time limits should be imposed ?

5)   If granted should a penal notice and a power of arrest be endorsed on the order ?

The evidence

37.I must now turn to consider issues, the law and the parties’ evidence as set out in the parties affirmations and as given orally during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the husband or the wife, or one of the other witnesses, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition I have had the opportunity to observe the demeanor of the parties’ and the other deponents whilst they gave evidence in court.

38.On some occasions I found the wife’s evidence more credible than the husband’s and on others I found the husband’s evidence more credible than the wife’s. Ms Wong, a social work officer with the Family and Child Protective Services Unit, in contrast struck me as being extremely credible. I also wish at this juncture to record the court’s gratitude for the fact that she came to court to give evidence whilst she was still on leave.

39.Ms Wong gave evidence that the family had been referred to her by the Police in February 2005. Ms Wong told the court that she spoke to the wife maybe 40 or 50 times and saw her in face to face interviews on 10 – 15 occasions. She said that her prime concern was for the wife and children’s safety. She also saw the husband on 5 or 6 occasions and spoke to him over the telephone on a further 10 – 20 times. She confirmed that the wife had told her that the couple had conflicts over money and that she had been verbally threatened and physically assaulted. Ms Wong recommended that the wife keep a diary. In answer to questions put by the husband Ms Wong made the telling point that

“ ….. even at the Police Station, they said your family was a regular customer of their’s”.

Alleged Incidents of domestic violence

February 2005 – Husband assaults wife and wife reports the matter to the police for the first time.

40.The husband admits that there was physical contact between him and the wife, but he denies assaulting her.

41.The wife said in her oral evidence.

“I asked him for money for household expenses. He did not give me. We quarrelled for a short while and he hit me. I called the Police. He slapped me on my ear. A Policeman came. The Policeman asked me if I wanted to press charges. After all we are husband and wife. I said that I wouldn’t. Then the Policeman asked me if I needed a social worker. I said yes”.

42.I find the wife’s evidence more credible here. I find that the husband did assault her on this occasion.

29/06/05 – the wife moved into a shelter for battered women, with TK following an incident

43.The wife’s version of events is set out in her affirmations and was described in detail during her oral evidence. The wife had found a job as a school janitor. She had arranged for TK to be cared for by a neighbour. She was to pick him up from the neighbour after she finished work at 5:00 pm. She said that the husband became very angry. He picked up a stool and threw it on the ground with such force that the leg of the stool broke. The wife’s evidence, is that the husband threatened her. He said

“…… if you dare, you can try to go to work now and when you come back I will beat you to death”.

44.The wife said she was very scared. She saw Ms Wong and arrangements were made for her and TK to go to a refuge for battered women.

45.The wife then said that Madam C contacted her and told her that she needed to come to take care of HY as she was going to work. The wife said in her oral evidence. I told Madam C.

“I was very afraid … His Mother said ‘Stop pretending to be afraid. Come and take your daughter. I guarantee that he will not harm you’. So I went with my son”.

46.The wife said that the husband, Madam C and the husband’s father scolded her for taking the son to the refuge and they would not let her take him back with her. She said

“…… I was afraid. I left alone”.

47.It is the wife’s evidence that she returned to the matrimonial home because she wanted to care for her children. She checked with the housing manager and he told her that as a registered occupant she had a right to live in the unit. She said

“At that time the children were on summer vacation. He [the husband] wanted me to take care of the children. He told me that I could come back but that I could not answer back or stir up trouble”.

48.The husband did not deal with this incident in his affirmations. However in his oral evidence he gave this version of events.

“The Petitioner said that she was going to work. I said what about our elder son. Then the Petitioner said either I could take him to school or Madam W, our neighbour could take him. The Petitioner was in a hurry. She didn’t want to speak. I said that we had to solve the problem. .. I wanted to discuss it with her. But she became angry – said it was my problem – solve it yourself. She said her working hours were 8:00 am – 5:00 pm. She said she had not enough time either. At this point she picked up a bag of things and threw it on top of the table and said that it that case none of us can eat. I won’t go to work – alright. At the same time she threw the school bag at me – with great force. There was some pushing and pulling between us and because of that the leg of one of the chairs was out of place. The Petitioner said it involved 2 chairs and more than one leg. That was not true. She was very unhappy that the leg of the chair was damaged. At that time she asked me to change all of the furniture in the home. She said that if I didn’t change all the furniture that she would not come back. I took no notice of her. I changed my clothes and left. In the evening when I got home I could not find the Petitioner and my son. But the Petitioner did not notify me of where she had gone. Later the Social Welfare Department contacted me …… The Petitioner took TK to Kwun Tong so that we could talk about arrangements for our daily life. The Petitioner came to my home in Kwun Tong. The Petitioner put forward some conditions to me and my family. One of the conditions – my monthly income should be handled by her. If I did not agree – she would not return to the Tin Shui Wai home. Another condition she needed to do part time work. The Petitioner returned TK to my Mother and left. Several days later the Petitioner saw that I did not respond to her conditions. But she went to the doorway of our Tin Shui Wai home. I said that she could come back to my home, but she had to agree to one condition, she must not stir up trouble again at home”.

49.I am of the view that the reality probably lies somewhere between these two versions events. I am satisfied though that the wife was sufficiently scared that she took the extreme step of leaving home with her son to live in a refuge for battered women. I am equally sure that she only returned home because she was concerned about the children.

14/11/05 – incident reported to the Police. Wife pressed charges. Husband was bound over for one year by Tuen Mun Magistrate’s Court.

50.On the 13^th November there was a very serious incident which is described by the wife in her third affirmation. The wife repeated it in her oral evidence. The level of tension continued to be very high within the home. The wife had stopped washing the husband’s clothes and she suspected him of having an extra marital affair. I will not repeat all of the evidence here. However, the wife said that there was an altercation concerning a toy vehicle and a box for storing toys.

“…… I pushed away the box. He angrily said – why did you push away the box. And he swore at me. I said nothing. I went back into my room. Alone. My daughter was in the living room. I closed the door – but it was not locked. The Respondent kicked open the door and rushed into my room. He broke down the door and the door fell down, very close to me and nearly hit me. The door fell down on my bed and nearly hit me. He rushed in and slapped me on my face. He slapped me on the left cheek. He grabbed my neck with great force. I told him to let go and not to scare the children. He let me go at once. He picked up part of the broken door – like a stick and he pointed it at my nose and asked me what I wanted. I answered back – what do you want ? He said that I was answering him back and he swore at me. I chose not to say anything. I thought he might hit me again”.

51.The wife was taken to hospital and reference was made to an accident and emergency report exhibited. She decided to press charges and made a police report – also exhibited. A photograph shows redness around her neck. The brief facts, repeat the wife’s version of events above. The wife agreed to the husband being bound over in the sum of HK$1,500 for 12 months.

52.The husband concedes in his first affirmation that he slapped his wife once and that he was bound over as a result. In his second affirmation he gives his version of events in detail. He admits to throwing a toy car at her in the run up to the incident. He then went on to say

“I admitted that the door did fall off the hinges but H [the wife] knew well that the door was not fixed to the hinges securely since installation because of the poor workmanship. I hurt my leg and bled. H laughed at me loudly and said provoking words ….. I slapped her once. I did not put my hands around her neck or try to strangle her at all. I did take up a wooden beam up from the ground and used it to hammer the broken hinges on my way out of the bedroom. H was exaggerating and was not telling the whole truth”.

53.In his oral evidence the husband expanded on the incident. I will not repeat all of his evidence here. In a nut shell though he said that there was an argument and that he was provoked. Although I accept that to an extent I also find the wife’s evidence entirely credible.

54.The husband said in his oral evidence

“I admit that I did hit her. I was wrong and the promise that I gave the court is always in my mind”.

“ …… I did damage the door as a result of something said by her …… I also injured my leg and my leg was bleeding. But I was really upset when she said you deserved it. When she saw me bleeding. We had been husband and wife for 10 odd years. When she saw me bleed she said I deserved it. Then because of this I quarrelled with her. I said what do you mean I deserve it – then I gave her a slap …… I slapped her once. I was wrong – but the Petitioner was not entirely right”.

55.I find that the wife’s version of events was largely the correct one and that the husband did not simply slap her once as he suggests.

18/03/06 – a further incident occurs and the police are called

56.Although the tension within the matrimonial home continued and there were a number of minor incidences, the next major incident occurred on the 18^th March 2006. This incident involved both the husband and wife and Madam C. It also directly involved the children.

57.The wife’s version of events is that all three adults left the matrimonial home together. She says that Madam C then scolded her in the street for leaving TK on his own at home. She says that she then returned home. The wife says that the police came and commented that all three adults were equally at fault.

“ …… Suddenly, without any provocation, the Respondent balled his hands into fists and started screaming and swearing at me, and threatened to kill me. The Respondent’s mother immediately clung onto him to stop him from attacking me. The Respondent’s mother tried to calm the Respondent by telling him that his life was valuable and mine was cheap, and it would not be worth getting himself into trouble by hitting me”.

58.The wife then called the police again.

59.The husband says that he left home as he had an appointment with his lawyer. Madam C left with HY and then he received a telephone call from Madam C, when she realized that the wife had left the matrimonial home, leaving TK on his own. He then called the police at Madam C’s suggestion. He denies threatening the wife.

60.Madam C in her oral testimony put it thus :

“I and HY went out and then when I was in the street I saw the Petitioner. In that morning my son had to see the lawyer. He left first. He went out first followed by me and HY. TK was still sleeping. In the street HY told me – Mama is behind us. I turned round and saw her. I said TK is still at home – how can you come out ? She shouted at me – ‘I can do whatever I like. What is it to do with you ? I said – ‘you just left your son at home alone that is very dangerous. Go back home now’. But she ignored me. She still walked behind me. In the middle of the street I said ‘if you still refuse to go home I will tell my son to call the police’. She remained standing there. I then telephoned my son. I told him that TK was alone at home. I told him to call the police. When she heard that she at once turned around and walked hurriedly away”.

61.Madam C said that when she returned to the matrimonial home she found a policeman there. After he left

“The Petitioner angrily said to me – you people could call the police so can I. She then telephoned the police saying ‘I am afraid. I have been threatened. Soon after that the policeman returned”.

62.When asked if anyone had threatened the wife, Madam C replied

“In fact I was surprised why she would say such a thing”.

63.Having seen all three parties give evidence, I am inclined to believe Madam C’s version of events. Madam C evidence was generally credible. She came across as a Grandmother trying her very best to do what was right in extremely difficult circumstances. It seems to me that the wife was in the wrong for leaving TK unattended and that she has probably exaggerated this incident as a result. It is interesting to note that the police did not take any further action, even though, if the wife’s version of events was to be believed, the husband was in breach of his binding over order.

09/04/06 onwards – campaign of harassment and intimidation allegedly mounted by the husband against the wife.

64.As has been stated above, the wife issued her first ex parte summons inter alia for a non molestation undertaking and ouster which culminated in both parties entering into mutual non molestation undertakings. The wife then issued her second application, which is based primarily on a series of incidents which she says shows that the husband had mounted a campaign of harassment and intimidation against her. She says that on this basis both the husband and Madam C should now be ousted from the matrimonial home. These incidences, are set out in the time line attached at annex 1. Generally speaking I find the wife’s evidence credible in this respect. The husband says in his closing submissions that I have to ask who is more believable, him or the wife. I agree. In general terms I find the wife to be more believable and generally I accept the evidence that she has adduced in support of this part of her case. In so doing the wife has relied on her diary entries, the four taped conversations and photographs – to support her contention. I have also had the opportunity to observe both parties reactions whilst giving oral evidence in court. Although I do not intend to go through all of these incidences – some 13 in total, I would like to highlight the following :

65.13/04/2006 – the wife claims that the husband deliberately sabotaged the washing machine, because she would not wash his clothes. In a letter from the wife’s solicitors reference is made to this and the fact that when the repair man came

“he informed our client that the breakdown had been caused by human sabotage, as sellotape had been stuck on top of the power socket. Once the sellotape was removed, the washing machine worked fine”.

66.The husband denies any involvement. I find the wife’s evidence more credible.

67.25/04/2006 – the wife claims that on this occasion and others the husband deliberately turned the television up very loudly, in order to prevent her from sleeping. The court was referred to photographs of the living room in the matrimonial home from which it was clear that the television set (which was very large) was situated on the wall adjacent to the wife’s bedroom. There was no door separating the wife’s room from the living room. The husband denied turning up the volume, pointing out that it was not possible to do so as they were living in a public housing unit. He said the neighbours would have complained. I am of the view that even if the television was turned up slightly in such close quarters it would cause great annoyance to the person in the adjoining room.

68.12/05/2006 – the husband prevented the wife from installing a plastic folding door to her bedroom. Since the incident of the 13/11/2005, the wife had not had a door for her bedroom. This appears to have been a cause of considerable friction. The husband said that it had been agreed in a meeting between both parties and the social welfare officer, Ms Wong that a curtain would be installed instead of a door. This seems to be accepted by the wife, although all along she wanted simply to have the door repaired, but the cost was too high. Later she found that the cost of installing a plastic folding door would not be as expensive. She therefore arranged for workmen to install a plastic door. The husband objected.

69.When asked about this by the husband, Ms Wong said the wife

“ …… wanted to have the door repaired. But you refused that on many occasions. Madam P would like to ignore you, but I advised her, if she ignored you, that might lead to further domestic violence events in front of the children. In this matter I think you are unreasonable”.

70.I agree.

71.Television aerial – the wife complained that the husband frequently disconnected her television aerial. The husband denied this saying that the wife’s allegations were fanciful. I do not agree. I think it entirely plausible in these circumstances that the husband acted in the way alleged by the wife.

Non-molestation order

72.It is clear from the evidence that there was molestation and indeed physical assault committed by the husband against the wife prior to the parties’ entering into non molestation undertakings on the 4^th April 2006. Thereafter, I am of the view that the molestation, in terms of the definitions set out above, was ongoing i.e. although there was no actual physical violence there was a high degree of harassment and intimidation deliberately perpetrated by the husband against the wife. It went beyond mere scolding.

73.Although the non molestation undertakings had perhaps had the effect of preventing actual physical violence, that was all. The situation between the husband and wife remained extremely tense and hostile.

74.Consequently it seems to me that although the parties are not presently residing under the same roof, that the wife does have grounds for a non molestation order. I will therefore release both parties’ from their previous undertakings. I will grant the wife a non molestation order against the husband.

Can Madam C be ousted from the matrimonial home?

75.As I have set out above it is not presently possible in Hong Kong, under the existing domestic violence legislation, for a wife to oust an associated party from the matrimonial home i.e. someone who is not either a spouse or a cohabite. Therefore the application as framed is not legally possible. The wife’s lawyers have referred me to English authority in this respect. I assume that this is in the alternative. Quoting an English text book, they argue that

“ …… under the Supreme Court Act 1981, it is possible for the court to exclude someone other than a party from the matrimonial home. In Jones v Jones, for example, the Court of Appeal granted an ouster injunction against the husband’s mistress, whom he had installed in the matrimonial home. Of course, following Richards v Richards it would seem to be necessary for the party seeking an injunction to be able to establish some legal or equitable right on which to base the application. This could, at least in some cases, be founded on the wife’s right as an occupier to exclude a trespasser”.

(Para’s 20-22 p. 413, Family Law and Practice 2^nd edition by Peter D Reekie and Richard Tuddenham)

76.Here the wife is a registered occupier. The husband is the registered tenant. I was not, however, referred to any equivalent provision in Hong Kong legislation, which may have enabled this cause of action to be followed.

77.In any event, it is accepted that Madam C is now living in Kwun Tong. She confirmed this to me in the witness box. She is not presently living in the matrimonial home. The wife is afraid that if the husband is ousted from the matrimonial home that Madam C will move back in. As a registered occupier the wife should take whatever practical measures she deems appropriate to prevent Madam C from doing so. As the law is presently framed I do not think that I have the power to oust her in any event.

Should the husband be ousted from the matrimonial home ?

78.As referred to above, in determining whether an ouster order should be made the court must have regard to

·  the conduct of the parties,

·  their respective needs,

·  their financial resources,

·  to the needs of any child living with the applicant.

·  and to all the circumstances of the case.

79.The court needs to balance these competing factors.

The conduct of the parties

80.As set out above, I have in the main believed the wife’s evidence when it comes to issues pertaining to the parties conduct. In so far as the conduct of the husband is concerned - post the parties’ entering into non molestation undertakings - although there has not been actual physical violence it is clear that the husband has continued to molest the wife in other ways and that this behaviour has been ongoing.

The parties’ respective needs and their financial resource

81.The husband and wife both have limited financial resources. The wife’s financial resources are extremely limited. She is a recipient of Comprehensive Social Security Assistance, not in her own right as she has not lived in Hong Kong for over seven years, but in her capacity as a guardian of the children. She has no where else to live, other than in the matrimonial home. At present she needs a home for herself and TK.

82.The husband, as the wife’s solicitors pointed out in their closing submissions, was extremely cagey about his financial resources and employment status. It is also clear that he is able to live with his family in Kwun Tong, as he has done in the past. His daughter, HY, is living there at present and in his evidence he said that he presently spends a couple of nights a week at the Kwun Tong flat in any event.

“ …… but where the respondent can obviously find alternative accommodation, an ouster order will usually be made. Baggott v Baggott [1986] 1 FLR 377”.

(p. 22 - The Annotated Ordinances of Hong Kong - Domestic Violence Ordinance (Cap 189) annotator Anne Scully-Hill)

83.I do find therefore that the husband is easily able to live in Kwun Tong, at least in the short term.

The needs of any child living with the applicant

84.In this scenario TK is living with the wife in a refuge for battered women. On any analysis of the facts this is far from ideal and although the interests of the child are not paramount, here as in other family law legislation, this is nevertheless a very important consideration for the court to take into account.

All the circumstances of the case

85.The court also has to take into account all the circumstances of the case. Here there do not appear to be any additional circumstances other than as set out above.

86.Bearing the above in mind and the balancing act that the court is asked to perform, I am of the view that this is a case where the husband ought to be ousted from the matrimonial home and I do so order. The wife has said in her closing submission that she would not object to the husband being given a period of 7-14 days to move out. Consequently the husband shall have 7 days from today to move out of the matrimonial home.

Time limits

87.An ouster order can only initially be made for a three month period. It is not meant to be a long term solution to a problem. Consequently the ouster order will be for a three month period. An extension of a further three months can be requested if necessary.

Power of arrest

88.I am satisfied that there has been actual bodily harm in the past, although admittedly not in the immediate past. Nevertheless I will make an order attaching a power of arrest and a penal notice to the order.

Costs

89.As to costs, I am satisfied that the wife should have her costs. She is legally aided and she has had to make this application. Therefore costs shall be to the wife to be taxed if not agreed. The wife’s own costs are to be taxed in accordance with legal aid regulations.

Mr Joseph Li of Messrs Joseph Li & Co for the Petitioner

The Respondent acted in person

TMELINE OF IMPORTANT EVENTS

(RE : DOMESTIC VIOLENCE AND HARASSMENT)

1. Domestic violence started in 2003.

2. 2003 – August 2005 (Petition) – 5 to 6 incidents where R punched and slapped P in front of the children. [Affirmation p. 102 Bundle A]

3. Feb 2005 – R assaulted P First time reported to police. R given a verbal warning. [Affirmation p. 102 Bundle A]

4. 22/5/2005 – R threw tv remote control at P [Affirmation p. 160 – 161 Bundle A]

5. 7/6/2005 – R smashed an alarm clock and kicked a door whilst arguing with P [Affirmation p. 161 Bundle A]

6. 29/6/2005 – mid – July 2005 – 29/6/2005 was P’s first day of job as school janitor – R smashed chair against floor and threatened to hurt P if she dared to go to work. P went to battered women’s shelter until mid-July 2005. P took children with her but R took children back home by force. [Affirmation p. 161 Bundle A]

7. 13/11/2005 – “Strangulation incident” – R broke P’s bedroom door – slapped her on left side of face and ear – R pointed wooden beam at P and intimidated her – R arrested and bound over on 14/11/2006. [Affirmation p. 103 – 105 Bundle A, Med Report p. 419 Bundle B, Photo p. 422 Bundle B, Brief Facts, Case Summary and Case Report p. 425 – 427 Bundle B]

8. Jan 2006 (approx) – R resumed harassment – instigate argument over trivial matters – threw bag of nuts at P’s head [Affirmation p. 106 Bundle A]

9. 30/1/2006 – (Chinese New Year incident) – P grabbed R’s sleeve to try to prevent him from taking H Y out without her consent, but R hit P’s arm causing bruising [Affirmation p. 120 – 121 Bundle A, Diary entries Chinese p. 465 – 466 Bundle B / English p. 545 Bundle B]

10. 18/3/2006 – R lunged at P but was restrained by T. R threatened to “chop to death”. Police were called. [Affirmation p. 106 – 108, p. 122 Bundle A, Diary entries Chinese p. 486 – 487 Bundle B / English p. 555 Bundle B]

11. 9/4/2006 R kept asking T K if he was scared and R would call police for him – R stood at kitchen doorway wouldn’t let P pass – R intimidating body language – stood very close to P and sprayed saliva on her fact. Police were called. [Affirmation p. 174 – 176, Bundle A, Letter p. 619 – 620 Bundle A, Letter p. 624 – 627 Bundle A, Diary entries Chinese p. 514 – 519 Bundle B / English p. 567 – 569 Bundle B]

12. 13/4/2006 – Washing machine not working. (21/4/2006 – repairman told P it was human sabotage) [Affirmation p. 174 Bundle A, Letter p. 628 Bundle B, Diary entries Chinese p. 525 – 526 (13/4) & p. 531 Bundle B (21/4 )/ English p. 572 – 573 (13/4) & p. 575 (21/4)]

13. 25/4/2006 – P turned tv down 2 notches for T K to sleep – R and se scolded P – R wanted to strike P but T swept his arm away – R stretched legs across bathroom and wouldn’t let P pass – R tried to dismantle P’s light – R slept in P’s bed then made off with her blanket – R took photographs of P each time she went to the toilet. Police were called. [Affirmation p. 174 Bundle A, Letter p. 632 Bundle B, Diary entries Chinese p. 538 – 540 (13/4) Bundle B / English p. 580 – 582 Bundle B]

14. 26/4/2006 – P discovered her hair conditioner, hair gel and facial cleansing milk deliberately emptied [Affirmation p. 174 Bundle a, Letter p. 632 Bundle B, Diary entries Chinese p. 538 – 540 Bundle B / English p. 580 – 582 Bundle B]

15. 10/5/2006 – R prevented P from putting T K to bed. Audio recording made by P. [Transceipt p. 374 – 379 Bundle A, Diary entries Chinese p. 675 – 677 Bundle B / English p. 742 – 743 Bundle B]

16. 12/5/2006 – R prevented P’s workman from installing a plastic folding door to P’s bedroom . [Letter p. 650 – 652 Bundle B, Diary entries Chinese p. 679 – 681 Bundle B / English p. 745 – 747 Bundle B]

17. 13/5/2006 – R tried to prevent P from taking T K to a computer lesson. Audio recording made by P. [Transcript p. 360 – 373 Bundle A, Diary entries Chinese p. 681 – 683 Bundle B / English p. 747 – 748 Bundle B]

18. 14/5/2006 R refused to tell P where H Y was after he took her out of the matrimonial home the night before. Audio recording made by P. [Transcript p. 380 – 388 Bundle A, Diary entries Chinese p. 683 – 684 Bundle B / English p. 748 – 749 Bundle B]

19. 16/5/2006 – After turning home from a trip to PRC, P discovered that her tv aerial had been disconnected. [Letter p. 653 Bundle B, Diary entries Chinese p. 685 – 686 Bundle B / English p. 750 – 751 Bundle B]

20. 17/5/2006 – P asked R not to disconnect her tv aerial again – R and T launched into a tirade against P. Audio recording made by P. [Transcript p. 279 – 359 Bundle A, Affirmation p. 176 Bundle A, Letter p. 653 Bundle B, Diary entries Chinese p. 686 – 688 Bundle B / English p. 751 – 753 Bundle B]

21. 19/5/2006 – 23/5/2006 – Hoi Yee’s hospitalisation – R complained to police that P had fed expired fever medicine to H Y – R took H Y to live in T’s Kwun Tong flat after discharge – multi disciplinary case conference concluded no child abuse on 1/6/2006 [Affirmation p 180 – 181 Bundle A, Letter p. 644 – 649 Bundle B, Affirmation p. 180 – 181 Bundle A, Letter p. 644 Bundle B, SWD Report p. 85 – 87 Bundle A, Diary entries Chinese p. 689 – 701 Bundle B / English p. 753 – 765 Bundle B]

22. 11/6/2006- R kept telling T K not to eat the food prepared by P and told T K that P had nearly caused H Y to die [Affirmation p. 199 Bundle A, Diary entries Chinese p. 735 – 737 Bundle B / English p. 796 – 798 Bundle B]

23. 4/7/2006 – R discovered P’s tv antenna twice – R used a derogatory term to refer to p in front of T K [Affirmation p. 194 – 195 Bundle A, Diary entries Chinese p. 735 – 737 Bundle B / English p. 796 – 798 Bundle B]

24. 5/7/2006 – R accused P of deliberately preventing him from using bathroom – looked like he wanted to hit P with his bag [Affirmation p. 194 – 195 Bundle A, Diary entries Chinese p. 737 – 739 Bundle B / English p. 798 – 800 Bundle B]