L v. K

FCMP 239/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 239 OF 2014

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D E C I S I O N

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Introduction

1.This is the trial of the Originating Summons issued by the Applicant on 11 September 2014 for injunctive reliefs against the Respondent under the Domestic and Cohabitation Relationships Violence Ordinance, Chapter 189 (“DCRVO”).  The injunctive terms sought under the Originating Summons are as follows :-

“1. The Respondent whether by herself, his servants or agents or otherwise be strictly enjoined and restrained from assaulting, molesting, annoying or otherwise interfering with the Applicant;

2. The Respondent be prohibited from entering or remaining in the premises of xxx,xxxx Sun Chuen, xxxx Road, Sai Kung, New Territories, Hong Kong and do remain away for a radius of one hundred meters from the said premises;

3. ………..

4.  ………..”

2.The Applicant is the mother in law of the Respondent.  The Applicant, by way of an ex parte application filed on the same day of 11 September 2014, obtained an Interim Injunction Order as per the terms of paragraphs 1 and 2 of the Originating Summons.  The returnable date of the ex parte application was 8 October 2014 at 9:30 a.m.

3.At the hearing on 8 October 2014 and in the presence of the Respondent, the Originating Summons was adjourned for trial on 16 December 2014 at 10:30 a.m. with 1 day reserved.  Directions were granted for the filing and exchange of Affirmations and parties’ attendance for trial. At the hearing, the Interim Injunction Order dated 11 September 2014 was extended together with the attached Authorisation of Arrest was extended.  It was further ordered that the Respondent do provide his residential address to the Court and to the Applicant’s Solicitors by 4:00 p.m. on 10 October 2014.

4.As at today’s hearing, the Respondent had not filed any Affirmation in opposition nor had he provided his residential address to the Court or to the Applicant’s Solicitors.  The Respondent had not attended the hearing either.

5.Since the Respondent was in Court on 8 October 2014 and had been informed of the date of trial, the trial proceeded in his absence.  

The Law

6.Section 3A (1) of the DCRVO provides :-

“(1) The District Court may, on an application made by a person, if satisfied that the applicant has been molested by a relative of the applicant, grant an injunction against that relative.

(2) ………

(3) ……….

(4) Subject to section 6, an injunction granted under subsection (1) may, whether or not any other relief is being sought in the proceedings, contain any or all of the following provisions –

(a) a provision restraining the respondent from molesting the applicant;

(b) a provision prohibiting the respondent from entering or remaining in –

(i) the residence of the applicant;

(ii) a specified part of the residence of the applicant; or

(iii) a specified area whether or not the residence of the applicant is in that area, whether or not the residence is the common residence of the applicant and the respondent.

7.Section 6 (1) of the DCRVO provides:-

“(1) A provision mentioned in section 3 (1)(c) or (d), 3A (4)(b) or (c) or 3B (1)(c) or (d) contained in an injunction granted under section 3, 3A or 3B shall have effect for a period, not exceeding 24 months, as the court considers appropriate.

(2) An authorization of arrest attached under section 5 (1) to an injunction shall –

(a) have effect for a period, not exceeding 24 months, as the court considers appropriate; and

(b) expire upon the expiry of the validity period of the injunction.

The Applicant’s case

8.Mr. Ip for the Applicant seeks continuation of the Interim Injunction Order dated 11 September 2014 on the same terms for the maximum period of 24 months provided for under the DCRVO (see section 6 (1) of the DCRVO).  It was submitted that there had been no change in circumstances which warrant the discharge or amendment of the injunctive terms granted by this Court.  There is no such application either from the Respondent.

Discussion

9.In the absence of any affirmation in opposition from the Respondent, this Court would still have to consider the evidence of the Applicant and decide, on balance of all probabilities, whether the threat or violence which hitherto existed leading to the granting of the Interim Injunction Order would continue or likely to continue so that there ought to be an extension of the said Interim Injunction Order and if so, for what period.  

10.The Applicant under oath adopted the contents of her Affirmation filed earlier for the ex parte application as her evidence in chief.  She testified that after the last hearing in Court on the 8 October 2014, she received several telephone calls in her mobile with no caller display.  This happened on and off within the few days after the last Court hearing.  She was 99% sure those calls were made by the Respondent even though she did not pick the line because all her friends and relatives would have displayed the caller number.  As stated in her previous Affirmation, it was only the Respondent who had called her without displaying the phone number.  She testified that she was really scare about the Respondent.  Moreover, there was no voice mail left with her phone mail box after those no caller display call was not picked by her.

11.Further, after the hearing on 8 October 2014, she had accompanied her daughter (that is, the wife of the Respondent) to Sai Kung Police Station once to assist police investigation over an outstanding case concerning the Respondent.  She was being informed by the Police that the Sham Shui Po Police Station was also looking for the Respondent.  She testified that she wanted to make a report also to the Police about those calls but such request was not entertained by the Police on that occasion.  It was only her daughter who gave a statement to the Police.

12.I have enquired with Mr. Ip for the Applicant as to whether there are any incoming calls records from the mobile phone company for me to look at as to the frequency of those no caller display calls made to the Applicant.  Unfortunately, I was informed by Mr. Ip that such records had not been arranged. 

13.I am minded that injunctive reliefs are draconian protective measures which ought not to be lightly granted save and except in cases of necessity and urgency.  Once granted, the continuation of the same requires cogent evidence that it is just and equitable to do so having regard to all the circumstances of the case.  Regard must also be given to the terms of the injunctive reliefs sought so that they are not too wide or general or oppressive in scope and the required duration. 

14.On the evidence available, I am satisfied that the Applicant is still under threat of violence requiring protection of the Court though might not be imminent.  However, I am not persuaded this is an appropriate case for continuation of the Interim Injunction Order on the same terms and for the maximum duration of 24 months.   I am also not persuaded that the Authorisation of Arrest should continue and will be removed accordingly.

Orders

15.Upon review of the terms of the Interim Injunction Order and having given full consideration of the available evidence and all the circumstances, I now grant the following Injunction Order to replace the Order dated 11 September 2014 which is to take immediate effect for a duration of 6 months up to and including 24 June 2015 unless further extended or amended by the Court :-

“(1) The Respondent whether by himself, his servants or agents or otherwise be strictly enjoined and restrained from assaulting, molesting, annoying or otherwise interfering with the Applicant;

(2) The Respondent be prohibited from entering or remaining in the premises of xxx,xxxx Sun Chuen, xxxx Road, Sai Kung, New Territories, Hong Kong; and

(3)  Penal Notice be endorsed on this Order.”

16.As the Respondent’s address is unknown, I also direct that there be substituted service of this Order on the Respondent by advertising once in the South China Morning Post within 14 days from the date of this Decision.

17.I also ordered that the Respondent do pay the costs of these proceedings including all costs reserved, to be taxed if not agreed. 

18.There be liberty to the Respondent to apply to vary or discharge this Order on 48 hours’ notice to the Applicant.

Mr Stephen K.W. Yip of Messrs. Ho & Ip, Solicitors for the Applicant

Respondent in person, being absent