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Following is the speech by the Secretary for Justice, Ms Elsie Leung on "Gender Violence - The Legal Position in Hong Kong" at the 50th Anniversary Celebration Symposium of the Family Planning Association of Hong Kong today (July 20).
Ladies and Gentlemen,
I am very pleased to be invited by the Family Planning Association of Hong Kong, and to speak on the topic of "Gender Violence - the Legal Position in Hong Kong" at its 50th Anniversary Symposium.
Although at first glance the word "violence" suggests use of physical force, it seems now to be internationally accepted that the word includes acts that "inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty" which may or may not involve use of actual physical force. Although the acts that may constitute violence are not necessarily sexual in nature, they often are.
Violence, regardless of whether it is gender-based or not, and regardless of whether it is manifested via sexual acts or not, is unacceptable to the Administration and should be abhorrent to society at large.
Prior to elaborating on the legal position on gender violence in Hong Kong, I would first point out that the language in our legislation is often gender neutral, and does not, on the face of it, focus on protection for women. It must however, be recognised that due to factors such as conventional preconceptions of the role of women, the disparity between the physical strength of men and women, or the disparity in financial capabilities, women are often the victims of acts of violence. As a matter of reality, the legislation would therefore operate to protect a greater number of women than men.
I will now say a few words on the relevant pieces of legislation.
Offences against the Person Ordinance
The most obvious piece of legislation that goes towards prohibition of physical violence is the Offences against the Person Ordinance. This piece of legislation pertains to crimes such as murder and assault.
Crimes Ordinance
Another piece of legislation that goes towards the prohibition or deterrence of violence is the Crimes Ordinance. Part XII of the Ordinance pertains to sexual and related offences. Some of the provisions are gender specific, for example, section 118 (in relation to rape), section 118D (buggery with a girl under 21), section 123 (intercourse with a girl under 13), section 124 (intercourse with a girl under 16), section 126 (abduction of an unmarried girl under 16), section 127 (abduction of an unmarried girl under 18 for sexual intercourse), and section 132 (procurement of a girl under 21) are all directed at protecting females.
Section 118C (homosexual buggery with or by a man under 21), section 118F (homosexual buggery committed otherwise than in private), section 118H (gross indecency with or by a man under 21), section 118I (gross indecency by a man with a male mentally incapacitated person), section 118J (gross indecency by a man with a man otherwise than in private), and section 118K (procuring gross indecency by a man with a man) have men as the target group for protection.
The other sections (such as section 122 which penalises indecent assault, section 129 which prohibits trafficking in persons to or from Hong Kong, section 131 which penalises persons who cause prostitution, and section 137 which penalises living on the earnings of the prostitution of others) in Part XII, are gender neutral, although the sad reality is that women are, more often than not, the victims of such offences.
The above two pieces of legislation are not specifically focused on the issue of inter-spousal violence.
Domestic Violence Ordinance
A third piece of legislation that is more specific to violence in the home environment is the Domestic Violence Ordinance. The object of the Ordinance is to offer protection against domestic violence. The molested party may apply for an order from the court restraining the other party from molesting the applicant and any child living with the applicant, or from entering the matrimonial home. Again, although the language in the legislation is gender neutral, the majority of the group that benefits from the provisions comprises women.
The above three pieces of legislation are relevant for overt acts of violence. I will now proceed to outline some other legislation that is aimed at control or prohibition of less overt acts of violence against people in general and women in particular.
Control of Obscene and Indecent Articles Ordinance and Film Censorship Ordinance
The objects of these Ordinances are to control the distribution and transmission of articles, which consist of, have or contain material that is obscene or indecent (including material that is violent, depraved or repulsive). Pornographic publications and films are also subject to control. The themes of many of these articles or films often revolve around or are linked to violence and/or sexual violence, and, still more inaccurately and unacceptably, women are often depicted as enjoying such violence. By imposing control over these materials, the Administration is sending out a signal to producers of these articles that the content of their products does not qualify for general publication. It is also intended that a yardstick of what constitutes acceptable (or unacceptable) behaviour is set out and people would draw analogies from the same.
Apart from the creation of criminal offences, the Administration has also enacted laws that discourage discrimination or covert acts of indirect violence against people in general and women in particular.
Marital Rape
Many believe that as a general rule, a man cannot be guilty as a principal of rape upon his wife, for the wife is in general unable to retract the consent to sexual intercourse which is a part of the contract of marriage, and that he may only be guilty of rape upon the women who is or was his wife if there is in force a separation order or a decree of judicial separation or a decree nisi of divorce, or an injunction restraining him from molesting his wife or an undertaking in lieu of such an injunction. This is incorrect. In the case of R v R [1992] 1 AC 599, the House of Lords held otherwise: a man who raped his wife was liable to be convicted for rape whether or not they were in separation, and this view was accepted by the Hong Kong Court of Appeal in HKSAR v Chan Wing-hung [1997] 3 HKC 472, albeit that was a case which was not concerned with a charge of rape. The Prosecutions Division of my Department has not in recent times declined to initiate a prosecution for rape on the basis of the marital relationship but I would add that no such case was referred to us by the Police. When the issue went before the Legislative Council Panel on Administration of Justice and Legal Services on the 16 May 2000, some Honourable Members queried whether the public, the Police or even lawyers knew that marital rape was a crime. My Department has taken steps to remind the Police, Social Welfare Department, non-governmental organizations (NGOs) involved in welfare services and women groups that a man who rapes his wife is liable to be convicted for rape. Some Honourable Members also expressed the view that although promoting greater public awareness that marital rape was a crime was a good thing, it nevertheless would not be the same as amending the law to make it clear beyond doubt that marital rape was a crime. Their views have been reflected to the relevant policy bureaux.
Competence and compellability of spouses as witness for prosecution
In the same meeting, the issue concerning competence and compellability of a spouse to testify against an accused person to whom he or she is married was also raised. In 1988, the Law Reform Commission published a report on the competence and compellability of spouses giving evidence. A bill was introduced by the Administration in 1990 to implement the recommendations but it was eventually defeated. The Administration is presently reviewing the relevant rules of evidence and the LRC's recommendations and will consider whether a further Bill should be introduced after consultation with the Police, Home Affairs Bureau, Social Welfare Department, legal profession, women groups and NGOs involving in welfare service . However, on the narrow issue of competence and compellability of a wife to testify against her husband in respect of offences specified in Schedule 2 of the Criminal Procedure Ordinance, Cap.22l, a wife would be competent (but not compellable) to testify against her husband on a charge of any of such offences, including incest, rape and other sexual and related offences, and a limited selection of offences under the Offences Against the Person Ordinance (Cap.212).
Criminal Procedure Ordinance
The law also endeavours to ensure that the criminal trial process becomes a less intimidating or traumatizing experience for victims in sexual offence cases. To this end, Part IIIA of the Ordinance was enacted to provide for the giving of evidence by vulnerable witnesses by live television link or by video recorded evidence subject to certain conditions being met.
The procedure is designed to minimise or completely eliminate the need for the witness to face a courtroom full of people or to confront his or her attacker face to face again.
Ongoing efforts are being made to improve our laws to ensure a level playing field for all. One recent effort in this regard is the abolition of the corroboration rules in sexual offences by way of amendment to the Evidence Ordinance.
Evidence Ordinance
The Evidence (Amendment) Ordinance 2000 was enacted by the Legislative Council on 21 June 2000 and came into operation on 30 June 2000. This Ordinance abolished the corroboration rules in sexual offences. From the time the Ordinance comes into operation, evidence from complainants in sexual offence cases will be treated in the same way as evidence from other witnesses in any other kind of cases. Their evidence no longer has to be corroborated and the judge is not automatically required by the nature of the offence to give a warning on the danger of convicting on uncorroborated evidence where there is no corroboration.
The corroboration rules have been criticized for, amongst other things, discouraging victims in sexual offence cases to come forward to report the matter or assist with the prosecution of the alleged offenders because of the fear that they would be unreasonably challenged and attacked in court. With the abolition of the rules, hopefully victims would feel more confidence in the criminal justice system.
The Administration is mindful of the concerns of the community over violence in general and gender violence in particular. A working group on sexual violence has been formed in response to a motion debate that took place in the Legislative Council on 12 April 2000. One of the tasks of the group is to review and consider the existing laws and ascertain where, when and how improvements to the laws can be made. The conclusion will no doubt be made public in due course.
Events like the one being held today are good opportunities for exchanges of information between different disciplines and the Administration and are extremely constructive. The opportunity to participate in such events is appreciated. Thank you very much.
End/Thursday, July 20, 2000
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