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The Same Difference: Protecting Same-Sex Couples under the Domestic Violence Ordinance

Published online by Cambridge University Press:  16 April 2015

Puja Kapai
Puja Kapai*
Affiliation:
University of Hong Kong
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Abstract

Hong Kong recently amended its Domestic Violence Ordinance (“DVO”). During the deliberations, the issue of whether protection under the DVO ought to be extended to same-sex couples arose for discussion and has since been the subject of extensive debate. Religious and conservative groups have argued that including these groups within the DVO risks overhauling the traditional meaning of “family” and could implicitly legitimize same-sex marriage whilst others have insisted that failing to provide equivalent civil remedies under the DVO to such groups amounts to sexual orientation discrimination and is contrary to Hong Kong's international human rights commitments. This paper reviews the various arguments that have been raised against the inclusion of same-sex couples within the DVO and argues that Hong Kong's international and constitutional commitments to the principles of equality and non-discrimination require that samesex couples be brought within the purview of this legislation.

Keywords

domestic violencesame-sex couplesequalitynon-discrimination
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 4 , 2009 , pp. 1 - 33
Copyright
Copyright © Faculty of Law, National University of Singapore 2009

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References

1 [2005] 3 HKC 77, 24 August 2005, Court of First Instance (“Leung CFF’), [2006] 4 HKLRD 211 (CA), 24 March 2006, Court of Appeal (“Leung CA”), hereinafter collectively referred to as “the Leung Decisions”.

2 Part XII of the Crimes Ordinance (Cap. 100), Laws of Hong Kong (hereinafter “Anti-Buggery laws”).

3 Disparate impact theory refers to “facially neutral” legislation or policies which produce differential outcomes despite the lack of any discriminatory intent. The theory has been developed and applied in various contexts, including, inter alia, disability, education, race and ethnicity. See generally Donohue, John J. III, “Employment Discrimination Law in Perspective: Three Concepts of Equality” (1994) 92 Mich. L. Rev. 2583 Google Scholar and Hunter, Rosemary C & Shoben, Elaine W, “Disparate Impact Discrimination: American Oddity or Internationally Accepted Concept?” (1998) 19 Berkeley J. Emp. & Lab. L. 108 Google Scholar.

4 Parts of ss. 118C, 119F, 118H and 118J of the Crimes Ordinance were the subject of the challenge.

5 Legislation regulating sexual conduct has been challenged in many jurisdictions now, including Canada and Australia, among others. These challenges have raised the critical question of whether sexual conduct and rights pertaining to sexuality should be determined on the basis of privacy rather than equality. The concern has been that since those challenging such laws are homosexuals, the use of equality law and its jurisprudence carries with it the “negative” impact of hypersexualising the relationship between homosexual couples. It has, therefore, been argued that such laws are better challenged through privacy rights. See Danay, Robert, “Leung v Secretary for Justice: Privacy, Equality and the Hypersexualised Homosexual Stereotype” (2005) 35 HKLJ 545 at 547 [Danay]Google Scholar, who has been critical of the Hong Kong Courts’ approach in using equality as the basis for the Leung Decisions which, he argues, further fuels impressions of the hypersexualised relationship between homosexuals. Danay argues that the law wields tremendous power as a “discourse which claims to ‘speak the truth’” and that in doing so, it excludes other competing truths. Through this “discursive” power, the law helps create and disseminate certain conceptions of reality. By using equality, the courts in the Leung Decisions promoted the “hypersexualised homosexual stereotype”, thereby undermining the overall efforts to present homosexuals as “normal” people as opposed to individuals obsessed with acts of sexual gratification. The truth in this argument is apparent from the numerous media articles that reported on the Leung Decisions, almost all of whose headlines and by-lines mentioned the cases as yielding a victory for homosexuals’ right to have “sex” or engage in acts of “anal intercourse”. See Gentle, N., “Some gay sex laws discriminatory, government admits” South China Morning Post SCMP (22 July 2005)Google Scholar City 4 and Gentle, N., “High Court has right to review law on gay sex” SCMP (29 June 2005) City 4Google Scholar. See also “20歲同志挑戰肛交合法年齡” Oriental Daily (7 July 2005)Google ScholarPubMed, where part of the headline is translated as “anal intercourse”. In the circumstances, whilst it is clear that some cases might engage privacy rights whereas others, equality rights, one would agree with Danay that there is a critical need for the courts (and advocates) to carefully choose the relevant framework for analysis given the court's discursive power. Note, however, the response of Emerton, R in “Respecting Privacy and Affirming Equality: The Dual Significance of Leung v. Secretary for Justice for Hong Kong's Gay Community” (2005) 36 HKLJ 143 Google Scholar [Emerton, “Respecting Privacy”], where she argues that “upholding the dual aspects of the judgment is important for continuing Hong Kong's progressive jurisprudence in the fields of equality and human rights and also has positive significance for Hong Kong's gay community, by both respecting the privacy and affirming the equality of gay men in Hong Kong society'. The line of cases since Dudgeon v. United Kingdom 4 E.H.R.R. 149 Google Scholar, clearly establishes privacy as one of the relevant analytical frameworks to address the rights of homosexuals to engage in consensual sexual conduct in private without the arbitrary interference of the law.

6 Article 25, Cap. 2101, Laws of Hong Kong.

7 Cap. 383, Laws of Hong Kong.

8 The ICCPR was extended to Hong Kong by the United Kingdom's ratification of the ICCPR on 20 May 1976. By letters of notification of the treaties that would continue to apply to Hong Kong after 1997 deposited by the governments of the United Kingdom of Great Britain and Northern Ireland and the People's Republic of China with United Nations Secretary-General on 20 June 1997, the provisions of the ICCPR and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) as applied to Hong Kong would remain in force from 1 July 1997. See <http://treaties.un.org/Pages/HistoricalInfo.aspx.> Annotated versions of these letters (and detailed records of the status of specific international treaties as applied to Hong Kong prior to and post-1997) are available at the “Hong Kong Treaty Database” at <http://www.hku.hk/ccpl/hktreaty/database.html> (last visited 20 March 2009)+(last+visited+20+March+2009)>Google ScholarPubMed. Given Hong Kong's commitment to human rights principles by virtue of these and other treaty commitments, Hong Kong courts have routinely looked to these treaties for guidance in the course of interpreting domestic laws. See, for example, Ng Ka Ling (An Infant) & Anor v. Director of Immigration [1999] 1 HKC 425 Google Scholar, 26 February 1999, CFA, Mok Chi Hung Lau Wan Sze (An Infant) v. Director of Immigration [2001] 1 HKC 281, 5 January 2001Google Scholar, CFI and Secretary for Justice & Ors. v. Chan Wah [2000] 4 HKC 428, 22 December 2000Google Scholar, CFA where various international treaties and related jurisprudence have been referenced extensively. For a detailed discussion of how the Hong Kong courts have used such interpretive jurisprudence, see Samuels, H & Petersen C, J, “The International Convention on the Elimination of All Forms of Discrimination Against Women: A Comparison of Its Implementation and the Role of Non-Governmental Organisations in the United Kingdom and Hong Kong” (2002) 26 Hastings Int'l & Comp. L. Rev. 1 Google Scholar and Petersen C, J, “The Right to Equality in the Public Sector: An Assessment of Post-Colonial Hong Kong” (2002) 32 HKLJ 103 Google Scholar.

9 999 U.N.T.S. 171 (entered into force 23 March 1976), Arts. 2, 3, 17 and 26 of the ICCPR, on which Arts. 1, 14 and 22 of the HKBORO are based.

10 Although in the case of Secretary for Justice v. Yau Yuk Lung Zigo and Another (2007) 10 HKCFAR 335 Google Scholar, dated 17 July 2007 [the Zigo Lau case], the Hong Kong Court of Final Appeal (“CFA”) appears to conflate these various guarantees of equality before the law under HKBL Article 25 with the right to non-discrimination under HKBORO Article 1 and ICCPR Article 26.

11 In the case of Toonen v. Australia, the UN HRC, held that the reference to “sex” in Articles 2 and 26 of the ICCPR encompassed “sexual orientation” and that “sexual orientation” was a status protected under the ICCPR from discrimination. See Nicholas Toonen v. Australia, 50th Sess., Communication No. 488/1992, CCPR/C/50/D/488/1992, 4 April 1994, para. 8.7 [Toonen case]. See also Young v. Australia, Communication No. 941/2000, CCPR/C/78/D/941/2000, 18 September 2003; X v. Columbia, Communication No. 1361/2005, CCPR/C/89/D/1361/2005, 14 May 2007.

12 See Leung CFI, paras. 43-46. This reading has been affirmed by the CFA in the Zigo Lau case which concerned the statutory offence of buggery between homosexuals otherwise than in private pursuant to s. 118F(1) of the Crimes Ordinance. The applicants in the case, who were charged under this provision, challenged its constitutionality arguing, inter alia, that there was no statutory equivalent of this section as it might apply to heterosexual couples and that this constituted sexual orientation discrimination. The CFA held that the section has the effect of targeting a distinct group as identified by their sexual orientation and has that effect despite there being no explicit reference to homosexuals (para. 44). The CFA, however, relied on the phrase “other status” as encompassing sexual orientation discrimination (paras. 10 and 11). The phrase “other status” appearing in Article 2(1) of the ICCPR and Article 1(1) of the HKBORO has also been interpreted as including sexual orientation as a category of historically disadvantaged groups against whom discrimination is prohibited. See General Comment No. 14, Committee for Economic Social and Cultural Rights, UN Soc. E/C. 12/2000/4, at para. 18.

13 Sex Discrimination Ordinance (Cap.480), Disability Discrimination Ordinance (Cap. 489), Family Status Discrimination Ordinance (Cap. 527) and the Race Discrimination Ordinance (Cap. 602).

14 Some of the RDO's sections came into force on 3 October 2008. See L.N. 222 of 2008, L.S. No. 2 to Gazette No. 40/2008, B3755.

15 See Equal Opportunities Bill 1994, Hong Kong Government Gazette, L.S.No. 3, 1 July 1994. For the proposals and the Bills Committee on Equal Opportunities, see online: <http://www.legco.gov.hk/yr96-97/english/bills/fyr9697.htm> (last visited 29 March 2009).

16 See Hong Kong Government Gazette, 30 June 1995, L.S. No. 3 at C1660 and 28 June 1996, L.S. No. 3 at C1792.

17 This was largely expected given the results of the public consultation exercise with respect to such legislation which revealed that many people in society were still homophobic despite developing a “rights consciousness” in other respects. See also Home Affairs Bureau, Hong Kong Government, “Equal Opportunities: A study on Discrimination on the Ground of Sexual Orientation – A Consultation Paper” (Hong Kong: Hong Kong Government Press, 1996)Google Scholar. For a detailed review of the development of anti-discrimination law in Hong Kong in the early days, see Petersen C, J, “Equality as a Human Right: The Development of Anti-Discrimination Law in Hong Kong” (1996) 34 Colum. J. Transnat'l L. 335 Google Scholar and Petersen C, J, “Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong” (1997) 19 Loy. L.A. Int'l & Comp. L. Rev. 337 Google Scholar.

18 The Committee has, till date submitted two reports to the Panel on Home Affairs. Its second and final report is available at <http://www.legco.gov.hk/yr03-04/english/panels/ha/papers/ha0213cb2-737-e.pdf> (last visited 16 March 2009).

19 In this regard, note especially the Concluding Remarks of the Committee on Economic, Social and Cultural Rights (“CESCR”) in response to the HKSAR's Report to CESCR, China (Hong Kong Special Administrative Region), ICESCR, E/2006/22 (2005) 34 at paras. 202, 207 and 219. Hong Kong's Equal Opportunity Commission (“HKEOC”) has also remarked that the Government needs to consider introducing anti-discrimination legislation to cover discrimination on the grounds of sexual orientation. See Report of the Equal Opportunities Commission on the Second Report of the HKSAR in the light of the ICESCR 34th Session of CESCR (Geneva, April 2005) at paras. 8 and 9, online: <http://www.eoc.org.hk/EOC/GraphicsFolder/ShowContent.aspx?ItemID=7557 (last visited 16 March 2009). In 1999, the United Nations Human Rights Committee criticised Hong Kong's lack of legislation in this regard as a violation of its treaty obligations under the ICCPR. See Concluding observations of the Human Rights Committee (Hong Kong) in response to the Fifth Periodic Report of the Hong Kong Special Administrative Region, CCPR/C/79/Add.117 at para. 15. See also Chan, Phil C W, “The Lack of Sexual Orientation Anti-discrimination Legislation in Hong Kong: Breach of International and Domestic Legal Obligations” 9 Int. J. H. R. 1. 69–106 Google Scholar.

20 See generally Emerton, “Respecting Privacy”, supra note 5, and particularly at p. 146 where the writer states that as a result of the Leung Decisions, “any discrimination on the ground of sexual orientation by the Government or public authorities in law, policy or practice is clearly open to judicial review.” See also Lau, Holning, “Sexual Orientation and Gender Identity: American Law in the light of East Asian Developments” 31 Harv. J. L & Gender 67 at 86 Google Scholar stating that the “Leung case contributes to an ever-growing normative view that individuals have the right to live free from discrimination on the ground of sexual orientation”.

21 The case of Secretary for Justice v. Yau Yuk Lung Zigo and Another (2007) 10 HKCFAR 335 Google Scholar, dated 17 July 2007, CFA, citing the Leung Decisions, is a clear endorsement of Hong Kong's commitment to the principles of equality and non-discrimination and their relevance to all aspects of the lives of those affected by discriminatory laws.

22 Cap. 189, Laws of Hong Kong.

23 Cap. 200, Laws of Hong Kong, hereinafter “CO”.

24 Cap. 212, Laws of Hong Kong, hereinafter “OAPO”.

25 Thus, although the CO and the OAPO do not carve out specific remedies for victims of domestic violence, being general provisions to protect persons against physical harm, these laws enable a victim of domestic abuse to use these provisions when appropriate. In any event, these laws, which form part of Hong Kong's corpus of criminal laws, are triggered off alongside an application under the DVO, with respect to any offences covered by the CO and OAPO.

26 See “The People's Crusade” HK Magazine (27 February 2008), online: <http://hk-magazine.com/feature/people-s-crusade> (last visited 12 March 2009)+(last+visited+12+March+2009)>Google Scholar reporting on the 800-strong protest march against fundamentalist right-winged Christians on account of their distortion of the public debate on the question of protecting same-sex couples under the DVO. See also 500 Rally in Hong Kong Against Christian Right Movements, Chinese in Vancouver (15 February 2009), online: <http://www.chineseinvancouver.ca/2009/02/500-rally-in-hong-kong-against-christian-right-movement> (last visited 21 March 2009) +(last+visited+21+March+2009)>Google ScholarPubMed.

27 Particularly, those advocating same-sex marriage rights for homosexual couples since the call for protection against violence from a homosexual partner threatens to undermine their fight for marriage rights. Therefore, in similar movements worldwide, and notably in the United States, the call to protect same-sex couples against violence has been silenced. See for example, Foster, Sheila Rose, “The Symbolism of Rights and the Costs of Symbolism: Some Thoughts on the Campaign for Same-sex Marriage” (1998) 7 Temp. Pol. & Civ. Rts. L. Rev. 319 Google Scholar.

28 For example, the South China Morning Post conducted various “investigations” during the summer of 2008 to determine the extent of the homophobic environment in Hong Kong. Upon visiting various love hotels, journalists posing as either heterosexual or homosexual couples found that at four out of seven hotels, they were unable to rent rooms when they posed as a same-sex couple. The hotels turned them away, stating that it was hotel policy not to rent rooms to same-sex couples. The “investigation” reveals that in Hong Kong, sexual orientation discrimination is rife and that there is clearly a need to address this through effective legislation. See “Love Hotels Discriminate Against Same-Sex Couples” SCMP (6 July 2008)Google Scholar. The Equal Opportunities Commission (“EOC”) has commented that given the sensitive nature of homosexuality and the divergent views in the community, the Government has no plan to introduce such legislation presently. See Chow, Vivienne, Chui-Yan, Yau, “Lack of Legal Recourse Leaves Homosexuals Open to Discrimination” SCMP (13 July 2008)Google Scholar.

Also telling is the resignation of John Green, the director of studies at Li Po Chun United World College who quit the school over a contract he believed to be discriminatory against samesex couples. The matter came to light when the terms of the employment contract had been changed to include a definition of marriage as “between a man and a woman.” Since the school provided partners of married staff with benefits, this clearly resulted in discrimination against unmarried and / or same-sex couples. See “Li Po Chun Same-Sex Marriage Row” SCMP (16 February 2008)Google Scholar.

29 See Baklinski, Thaddeus M, “Hong Kong Legal Amendment May Lead to Change in Traditional Meaning of Family” LifeSiteNews.com (16 January 2009), online: <http://www.lifesitenews.com/ldn/printerfriendly.html?articleid=09011606> (last visited 12 March 2009) Google Scholar.

30 Ibid. In similar vein, many of the responses to the public consultation exercise on the amendment to extend the DVO to same-sex couples, have argued that any such change threaten to shake the very core foundations of our society. See infra notes 73-85 and accompanying text.

31 Other examples of sexual orientation discrimination that have been discussed in the context of Hong Kong are the issues of same-sex marriage in Hong Kong, recognition of same-sex marriage contracted abroad, public housing, rights of a surviving partner upon intestacy and tax benefits. For a discussion of some of these, see Chung-yan, Chow, “Gay and Lesbian Wed in Benefits Protest” SCMP (26 March 2002) 7 Google Scholar; Warren, Robin A., “Comment: Gay Marriage – Analyzing Legal Strategies for Reform in Hong Kong and the United States” (2004) Pac. Rim L. & Pol'y J. 711 at 801–802 Google Scholar and “Legal Row Looms on Same-sex Wedlock” SCMP (14 July 2003)Google Scholar. See also Shamdasani, Ravina, “Fight Over Sexual Discrimination” SCMP (18 August 2003)Google Scholar.

32 See Amnesty International Hong Kong, Submission to the Bills Committee on the Domestic Violence (Amendment) Ordinance 2007, dated 27 September 2007, LC Paper No. CB(2)2739/06-07(02), online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc610928cb2-2739-2-e.pdf> (last visited 29 March 2009)+(last+visited+29+March+2009)>Google Scholar.

“Extend Anti-Violence Protection to Same-sex Cohabiters” Petition, Women's Commission of Hong Kong SAR, Hong Kong Ten Percent Club, Midnight Blue, Huan Wo Benshe, Rainbow of Hong Kong and Rainbow Action, dated 7 January 2009, online: <http://www.wchk.org/dvo2008-e.php> (last visited 20 March 2009). Among these groups, Christian and Catholic denominations have expressed support for the legal protection of homosexuals from various forms of discrimination in the context of housing and employment. See “Hong Kong Church and Homosexuals Find Common Ground in Breakthrough Dialogue” Union of Catholic Asian News (9 January 2009), online: <http://www.ucanews.com/2003/09/10church-and-homosexuals-find-common-ground-in-breakthrough-dialogue/> (last visited 20 March 2009)+(last+visited+20+March+2009)>Google Scholar.

33 See infra notes 60-78 and accompanying text. See also “Hong Kong Activists and Christian Legislators Clash over Inclusion of Same-sex Cohabitants under Domestic Violence Law” Fridae (12 January 2009), online: <http://www.fridae.com/newsfeatures/printer.php?articleid=2374> (last visited 11 March 2009) +(last+visited+11+March+2009)>Google Scholar, reporting that although the Democratic Party had pledged during the September elections in 2008 that all its legislators would vote in favour of the proposed amendment to include same-sex couples within the DVO, legislator Wong Sing-chi, a Protestant, publicly opposed the bill. He and several other legislators of the Democratic Party belonging to various religious denominations have asked that they be exempted from voting.

34 Gunther, J & Jennings M, A, “Sociocultural and Institutional Violence and their Impact on Same-Gender Partner Abuse” in McClennen, J C & Gunther, J, eds., A Professional Guide to Understanding Gay and Lesbian Domestic Violence: Understanding Practice Interventions (Lewiston, NY: Edwin Mellen Press, 1999) at 29–34 Google Scholar [McClennen & Gunther, “Understanding Practice Interventions”].

35 “Gay Domestic Violence Rampant in China” Advocate.com (17-19 February 2007)Google Scholar citing a study done by a prominent Lesbian, Gay, Bisexual and Transexual [“LGBT”] civil rights group in Hong Kong, online: <http://www.advocate.com/news_detail_ektid42127.asp> (last visited 26 March 2009). See also “Gays 60 percent more prone to domestic violence, survey says” Indo-Asian News Service (15 February 2007)Google Scholar. See also a report titled “同性伴侶家庭暴力研究問卷調查報告” (dubbed the “Gay Coalition Report on Homosexual Violence in Hong Kong”) Women's Coalition of HKSAR's submission on “Domestic Violence (Amendment) Bill 2007” LegCo Paper No: CB(2)2769/06-07(10), prepared for and on behalf of the Administration for the Bills Committee; Ip Cheung Sau, Heidi, “Same-sex Violence in Hong Kong” (Paper presented at Columbia University, 7-8 February 2003)(New York: Columbia University, 2003) at 26–27 and 成 報, 15 February 2007]Google Scholar. 逾三成女同性戀者曾受家暴。港聞版 A09 (“Over 30% of same-sex female homosexuals face domestic violence”).

36 Merrill G, S & Wolfe V, A, “Battered Gay Men: An Exploration of Abuse, Help-Seeking, and Why they Stay” Vol. 39(2) Journal of Homosexuality, 1–30 CrossRefGoogle ScholarPubMed [Merrill & Wolfe, “Battered Gay Men”].

37 Note, however, the emergent research which debunks the myth of sexual roles based on biology. Indeed, the fluidity of sexuality regardless of biological sex is a subject matter that has been extensively written on. For this discussion in the context of domestic violence generally, see Littleton, Christine A, “Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women” (1989) U. Chicago Legal F. 23, at 28], n 20Google Scholar; Califia, Patrick, Sex Change: The Politics of Transgenderism 1 (San Francisco, USA: Cleiss Press, 1998)Google Scholar and Butler, Judith, Bodies that Matter: On the Discursive Limits of Sex (New York, USA: Routledge, 1993)Google Scholar, arguing that even sex is a social construct.

38 Merrill & Wolfe, “Battered Gay Men”, supra note 36; Merrill G, S, “Ruling the Exceptions: Same-sex Battering and Domestic Violence Theory” in Renzetti, C M & Miley, C H, eds., Violence in Gay and Lesbian Domestic Partnerships (Binghamton, NY: Harrington Park Press, 1996) 9–22 Google Scholar; Renzetti C, M, Violent Betrayal: Partner Abuse in Lesbian Relationships (Newbury Park, CA: Sage, 1992)CrossRefGoogle Scholar; and Tully C T, “Hate Crimes, Domestic Violence and the Lesbian and Gay Community” in McClennen & Gunther, “Understanding Practice Interventions”, supra note 34 at 13-28.

39 Despite these similarities, however, there is a critical need to appreciate the different causes for such violence between gay men and lesbian women and, therefore, the need for targeted attention to each unique group with a view to devising appropriate services and mechanisms for their use. See McClennen, J C, Summers, B & Vaughan, C, “Gay Men's Domestic Violence: Dynamics, Help-seeking Behaviours and Correlates” 14(1) (2002) Journal of Gay and Lesbian Social Services at 23–49 [McClennan, Summers & Vaughan]CrossRefGoogle Scholar. See also Knauer, Nancy J, “Same-sex Violence: Claiming a Domestic Sphere While Risking Negative Stereotypes” (1999) 8 Temp. Pol. & Civ. Rts. L. Rev. 325 Google Scholar.

40 See infra notes 41 and 44 and accompanying text.

41 Note the Hong Kong Broadcasting Authority's (“HKBA”) determination that a government-produced documentary entitled “Gay Lovers” on the subject of two gay couples in Hong Kong was inappropriate in its content and time of broadcast given the conservative nature of Hong Kong society and as such, had violated the HKBA's Generic Code of Practice on Television Programme Standards. See LC Paper No. CB(1)2033/06-07 at para. 44.

42 This gendered and hetereonormative paradigm underlying the understanding of domestic violence issues has been highly criticised by feminists but increasingly so, by those working with gay and transgender persons. See Bentley, Rosalind, “In a Fashion, it Was a Sick Game of Hide and Seek” Star Tribune (29 October 1997) E1 Google Scholar.

43 See McClennan, Summers & Vaughan, supra note 39.

44 A survey of the attitude of medical professionals towards domestic violence generally, revealed that medical practitioners’ personal beliefs about family and domestic violence affected their perception of their own role as healthcare providers. Doctors servicing the emergency department in Hong Kong hospitals were found to be inadequate in their management of domestic violence victims because of their own commitment to values such as family unity and the private nature of domestic violence. They also perceived intervention measures in Hong Kong as less effective than intervention for other problems such as drug abuse, AIDS, etc. See T-w, Wong, Chung, MM, Yiu, JJ, “Attitudes and Beliefs of Emergency Department Doctors Towards Domestic Violence in Hong Kong” Emergency Medicine (1997) 9 at 113–116 Google Scholar. This being the attitude towards victims generally, one can only imagine the influence of these factors in the service given to a homosexual victim of domestic violence.

45 Recent reports relating to the separate deaths of two transgender women and a gay man in Turkey, all of whom, despite seeking police assistance on account of violence and threats of violence from their partners or others in the community, received no help, paint a telling picture of the prejudice harboured by many in society. It is suspected that the reasons for non-assistance were closely related to the prejudicial attitude of the community and the police towards the lives led by the homosexual and transgender community in Turkey. See Birch, Nicholas, “Was Ahmet Yildiz the Victim of Turkey's First Gay Honour Killing?” (19 July 2008), online: <http://www.independent.co.uk/news/world/europe/was-ahmet-yildiz-the-victim-of-turkeys-first-gay-honour-killing-871822.html> (last visited 29 March 2009)Google Scholar and Human Rights Watch, NY, “Turkey: Transgender Activist Murdered” (12 March 2009), online: <http://www.hrw.org/en/news/2009/03/12/turkey-transgender-activist-murdered (last visited 29 March 2009)Google Scholar.

46 The argument is that the fact that these couples are violent towards each other reflects the “unnatural”, “evil” and “sick” nature of homosexual relationships and that by entering into such relationships, the victims disentitle themselves from legal recognition and protection. See Capital Gains and Losses” Annual Report of the National Gay and Lesbian Taskforce 1999, online: <http://www.ngltf.org/press/gains99.html> (last visited 20 March 2009). See also Culture Facts October 1998, Family Research Council (“FRC”), online: <http://www.frc.org/culture/cu98j4.html> (last visited 20 March 2009)+(last+visited+20+March+2009)>Google Scholar, and Culture Facts December 1998, FRC, online: <http://www.frc.org/culture/cu9812.html> (last visited 20 March 2009)+(last+visited+20+March+2009)>Google Scholar. These articles go to show how, increasingly, groups around the world have been using these arguments as part of their rhetoric against the recognition of same-sex couples with a view to discrediting the movement. See also Danay, supra note 5.

47 For example, the loss of employment, family, friends and access to basic services, once they are “discovered” a homosexual, if the fact is not already known by some. Jaden, Patricia T & Thoennes, Tancy, Full Report of the Extent, Nature, and Consequences of Intimate Partner Violence: Findings. From the National Violence Against Women Survey, NCJ 181867 at 30 (July 2000), online: <http://www.ncjrs.org/pdffiles1/nij/181867.pdf> (last visited 15 April 2009)+(last+visited+15+April+2009)>Google Scholar, cited in Bartlett, Katherine, Harris, Angela & Rhode, Deborah, Gender and the Law: Theory, Doctrine and Commentary (New York, USA: Aspen Publishers, 2002) at 627 Google Scholar.

48 See McClennan, Summers & Vaughan, supra note 39 and recent incidents in Turkey, supra note 45.

49 See generally, DVO and infra note 107 and accompanying text.

50 This process commenced in late 2005 in response to, among other things, Recommendation 1 of the Hong Kong Law Reform Commission Report on Stalking, October 2000, online: <http://www.hkreform.gov.hk/en/docs/rstalks-e.pdf> (last visited 15 April 2009)and Recommendations 33-35, Chapter 11, Hong Kong Law Reform Commission Report on Child Custody and Access, March 2005, online: <http://www.hkreform.gov.hk/en/docs/raccess-e.pdf> (last visited 15 April 2009) the latter of which focused on the special measures required in the context of joint parental responsibility in cases involving family violence. Both reports are online: <http://www.hkreform.gov.hk>.

51 The DVO came into force in Hong Kong in 1986 and is largely modeled on the United Kingdom's Domestic Violence and Matrimonial Proceedings Act 1976, which has since been repealed and replaced by the provisions of Part IV of the Family Law Act 1996. The Domestic Violence, Crime and Victims Act 2004 expressly acknowledges lesbian and gay couples as possible victims of domestic abuse, enabling same-sex couples to obtain restraining orders thereby ensuring that lesbian and gay victims of domestic abuse have access to the same protections as married or heterosexual cohabiting couples.

52 The DVAB 2007, No. 24 of 2007 was gazetted on 15 June 2007, see L.S. No. 3 to Gazette No. 24/2007, C653/ LC Paper No: B200706153. It came before the Legislative Council for its First Reading on 27 June 2007. After the First Reading, a Bills Committee was promptly set up on 29 June 2007 to deliberate on the proposed amendments (“the Bills Committee”).

53 See Legislative Council Brief No: HWF/CR 1/3281/01, issued by the Health, Welfare and Food Bureau on 13 June 2007, online: <http://www.legco.gov.hk/yr06-07/english/bills/brief/b33_brf.pdf> (last visited 29 March 2009).

54 Note that one of the purposes of the amendment ordinance is stated to be to enable an application for and the granting of injunctions against molestation by victims’ “children, parents, grandchildren, grandparents, brothers, sisters, uncles, aunts, nephews, nieces, and cousins or by the spouses of such relatives or by the relatives of their spouses”. See Domestic Violence Amendment Ordinance 2008 (a)(ii) and particularly, s. 3A(1), LC Paper No: 2008 Ord 17-08. Given the long list of family members and their relatives intended to be covered, nothing in the DVAO 2008 suggests the need to establish cohabitation between the applicant and the respondent at any point in time. See also Women's Commission, Domestic Violence (Amendment) Bill 2007, Paper for discussion on 27 July 2007, commissioned by Labour & Welfare Bureau, July 2007 at para. 5, reiterating that “all the protected persons, irrespective of whether they are residing with their abusive spouses or relatives, will enjoy the same protection under the new law”.

55 See DVAO 2007, online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/general/bc61.htm> (last visited 16 March 2009).

56 LC Paper No. CB(2)2696/06-07, Bills Committee on Domestic Violence (Amendment) Bill 2007, Minutes of the First Meeting on 20 July 2007, dated 10 September 2007, online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/minutes/bc610720.pdf> (last visited 29 March 2009). The issue was in fact raised by many members at the House Committee Meeting even before the Bills Committee was constituted. See Legal Service Division Report on the Domestic Violence (Amendment) Bill 2007, Paper for the House Committee Meeting on 29 June 2007, LC Paper No. LS94/06-07, dated 26 June 2007 at paras. 7(b) and 9, online: <http://www.legco.gov.hk/yr06-07/english/hc/papers/hc0629ls-94-e.pdf> (last visited 16 March 2009) [Legal Service Division Report]. See also deliberations of the Subcommittee on the Strategy and Measures to Tackle Domestic Violence, in the minutes of the Subcommittee meetings on 15 June and 20 September 2006, LC Paper Nos. CB(2)223/06-07 and CB(2)285/06-07, and the Background Brief on the Review of the Domestic Violence Ordinance (Cap. 189) for the meeting of the Panel on 8 January 2007, LC Paper No. CB(2)723/06-07(04), discussing the preliminary proposals for the amendment of the DVO.

57 See Legal Service Division Report, supra note 56 and LC Paper No. CB(2)2456/06-07(03), Background Brief prepared by the Legislative Council Secretariat on the Review of the Domestic Violence Ordinance (Cap. 189) for Bills Committee on Domestic Violence (Amendment) Bill 2007, dated 11 July 2007, online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc610720cb2-2456-3-e.pdf> (last visited 29 March 2009).

58 Cap. 181, Laws of Hong Kong.

59 For a discussion of the debate on same-sex marriages in Hong Kong and the possible way forward, see Rwezaura, Bart, “To Be or Not To Be: Recognition of Same-sex Partnerships in Hong Kong” (2004) 34 Hong Kong L. J. 557 Google Scholar.

60 LC Paper No. CB(2)1948/07-08(01), Legislative Council's Bills Committee on Domestic Violence (Amendment) Ordinance 2007, Coverage of Cohabitation Relationships in Domestic Violence Ordinance, dated May 2008, online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc610527cb2-1948-1-e.pdf> (last visited 29 March 2009) [the Government's Paper on Cohabitation Relationships, May 2008] at para. 3(a). This has been the Government's position since the outset wherein it responded to numerous deputations made by the Alliance for the Reform of the Domestic Violence Ordinance, the Association for Concern for Legal Rights of Victims of Domestic Violence, Civil Rights for Sexual Diversities and Amnesty International Hong Kong Section, all of whom called for the extension of the scope of the DVO to cover same-sex relationships, mainly on the grounds that to exclude them, would be tantamount to discrimination on grounds of sexual orientation and that this would be contrary to Hong Kong's international obligations pursuant to the ICCP, Art. 2(1). See LC Paper No. CB(2)2739/06-07(01), Labour and Welfare Bureau / Social Welfare Department, Supplementary Information Requested by the Bills Committee at the Meeting of 20 July 2007, dated September 2007 [Supplementary Information Requested by Bills Committee] at para. (b), online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc610928cb2-2739-1-e.pdf> (last visited 29 March 2009) and LC Paper No. CB(2)98/07-08, Minutes of the 2nd Meeting on 28 September 2007, dated October 2007, the Government's response at paras. (e) – (g), online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/minutes/bc610928.pdf> (last visited 29 March 2009). For individual deputations by these groups, visit <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc61_d.htm> (last visited 29 March 2009). For the Government's summary of and response to deputations made to the Bills Committee, see LC Paper No. B(2)330/07-08(01), online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc611113cb2-330-1-e.pdf> (last visited 29 March 2009).

61 See Supplementary Information Requested by Bills Committee, supra note 60 at para. (b) and Government's Paper on Cohabitation Relationships, supra note 60, at para. 3(a).

62 Government's Paper on Cohabitation Relationships, supra note 60, at para. 3(b).

63 Supra note 60, at para. 3(c). Under the inherent jurisdiction of the court, applicants may seek injunctions and a variety of such related orders for protection.

64 See LC Paper No. CB(2)2289/07-08, Report of the Bills Committee on Domestic Violence (Amendment) Bill 2007, dated 13 June 2008, online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/reports/bc610618cb2-2289-e.pdf> (last visited 29 March 2009), LC Paper No. LS94/06-07, Report of the Bills Committee on Domestic Violence (Amendment) Bill 2007, Paper for the House Committee Meeting on 30 May 2008, dated 29 May 2008, online: <http://www.legco.gov.hk/yr06-07/english/hc/papers/hc0629ls-94-e.pdf> (last visited 29 March 2009), and the Government's Paper on Cohabitation Relationships, May 2008, supra note 60.

65 Hong Kong Government, Press Release, “Proposal to Amend Domestic Violence Ordinance to Cover Same-Sex Victims” (10 January 2009), online: http://www.info.gov.hk/gia/general/200901/10/P200901090267_print.htm> (last visited 16 March 2009)+(last+visited+16+March+2009)>Google Scholar.

66 Supra.

67 Supra note 60, at para. 6. See also Government of the Hong Kong SAR: Chief Executive's Policy Address, 2008-09, Chapter 3, Investing for a Caring Society (HKSAR: Hong Kong SAR Government Printer, 2008) at 56 Google Scholar.

68 See Background Brief Prepared by the Legislative Council Secretariat for the Meeting on 8 December 2008: Proposed Amendments to the Domestic Violence Ordinance, dated 2 December 2008, LC Paper No. CB(2)341/08-09(04), online: <http://www.legco.gov.hk/yr08-09/english/panels/ws/papers/ws1208cb2-341-4-e.pdf> (last visited 20 March 2009).

69 Section 2 of the DVAO 2008 and L.N. 184 of 2008, L.S. No. 2 to Gazette No. 26/2008, B3479.

70 See LC Paper No. CB(2)559/08-09(01), Labour and Welfare Bureau, LegCo Panel on Welfare Services: Proposed Amendments to the Domestic Violence Ordinance, dated 10 January 2009, available at http://www.legco.gov.hk/yr08-09/english/panels/ws/papers/ws0110cb2-559-1-e.pdf, last visited 26 April 2009.

71 It has been proposed that the injunction order could contain any or all of the following provisions: (1) a provision restraining the other party to the cohabitation from molesting the applicant or a specified minor; (2) a provision excluding the other party from their common residence or from a specified part of their common residence, or from a specified area; and (3) a provision requiring the other party to permit the applicant to enter and remain in their common residence or in a specified part of their common residence. See LC Paper No. CB(2)341/08-09(04), supra note 68, at para. 10.

72 See supra notes 26 to 33 and accompanying text.

73 See “Hong Kong Activists and Christian Legislators Clash over Inclusion of Same-sex Cohabitants under Domestic Violence Law” Fridae (12 January 2009), online: <http://www.fridae.com/newsfeatures/printer.php?articleid=2374> (last visited 11 March 2009)+(last+visited+11+March+2009)>Google Scholar.

74 See LC Paper No. CB(2)559/08-09(01), supra note 70, at para 8 and LC Paper No. CB(2)341/08-09(04), supra note 68 at para. 15.

75 See LC Paper No. CB(2)341/08-09(04), supra note 68, where the Government repeats some of the arguments made earlier against the inclusion of same-sex couples within the DVO and canvasses further arguments to this effect. The terms in which the paper summarises the arguments against the coverage of same-sex couples within the DVO serves to further divide the community on the issues. The fact that the Government does this is disappointing in the light of its earlier assurances with respect to its stance on this further amendment. One is left wondering whether the Government seeks to exploit the division within the community and is taking advantage of the recent change of heart of some legislators, which is unsettling; or whether it remains genuinely committed to the change given that the morality-based arguments it has put forward as the “community's views” fail to escape the bite of the legal arguments against the status quo. In fact, this sudden change of ‘heart’ on part of the Government was one of the primary reasons leading to the protests in January 2009, against fundamentalist right-winged Christian groups, who were accused by the Civil Movement Network (a new alliance formed in response to the growing distortion of public debates in Hong Kong) of hijacking issues of public debate and misrepresenting them, contributing to the entrenchment of an intolerant society in Hong Kong. Primarily, the group accuses Christian fundamentalists of having a “Taliban mentality” and of misrepresenting the case for extending protection of the DVO to same-sex couples as a “Trojan Horse” for same-sex marriage. More particularly, the group accused teachers and parents in positions of authority within the society of misusing their position by encouraging people to use a template letter written by them for submission to LegCo in response to the proposed extension of the DVO to same-sex couples. Some groups stand accused of doing so in a manner which made parents feel compelled to comply with the wishes of their children's schools. Several such groups have sprung up in protest such as the “Concerned and Action Group Against Religious Hegemony”. Given the Government's recent position and the recent retractions of some legislators of the Democratic Party, these events bred further confusion, distrust and a lack of public confidence in the need for and the meaning of these reforms. Unfortunately, the ones needing the change most are left to suffer. See particularly LC Paper No. CB(2)559/08-09(10), Submission to the Legislative Panel on Welfare Services on Inclusion of Same-sex Couples Under the Proposed Amendments to the Domestic Violence Ordinance Cap 189, Spiritual Seeker's Society Hong Kong, dated 31 December 2008, accusing religious groups of distorting the agenda and of misrepresenting spiritual scriptures.

76 These arguments have been discerned from the various submissions to the LegCo Bills Committee on the DVAB 2007 (“the Bills Committee”) and newspaper articles citing the positions of different groups in Hong Kong.

77 See LC Paper No. CB(2)2769/06-07(07), Hong Kong Alliance for Family (“HKAF”), Submission on the Domestic Violence (Amendment) Bill 2007, dated 28 September 2007 Google Scholar [HKAF's Submission 2007], arguing that including former spouses or cohabitees risked sending the wrong message to the community, namely, that cohabitation is equivalent to marriage. Similarly, Parents for the Family Association were in general not in favour of extending the scope of “relatives” to cover as many people as the DVAB 2007 proposed. See LC Paper No. CB(2)2456/06-07(04), 28 September and 20 July 2007. However, in the most recent round of consultations, the Hong Kong Alliance for Family has asked the Government to explain why it has changed its position from its original stance against the coverage of same-sex couples within the DVO and has reiterated that if the Government intends to propose the said change, then it should extend the DVO to apply to all persons living in a shared household, such as domestic helpers, elders and all cohabitees, to avoid giving the public the misimpression that it now recognises same-sex marriages as “family” units. See LC Paper No. CB(2)2029/07-08(02), Submission from Hong Kong Alliance for Family on the Administration's latest proposal regarding the coverage of cohabitation relationships in the Domestic Violence Ordinance, dated 21 May 2008 (Chinese version only) [HKAF's Submission 2008]. The HKAF, however, did state that it supports the equal protection of all members of society from all forms of violence.

A further organisation, the Hong Kong Sex Culture Society (“HKSCS”) submitted a similar view, see LC Paper No. CB(2)2103/07-08(06), Submission from Hong Kong Sex Culture Society on the Administration's latest proposal regarding the coverage of cohabitation relationships in the Domestic Violence Ordinance, dated 26 May 2008 (Chinese version only) (27 May 2008) [HKSCS's Submission]. The HKSCS additionally suggested bringing such provisions into effect under an entirely separate ordinance, as opposed to amending the DVO.

78 These are the terms in which the argument has been advocated by the Government in its numerous papers to the LegCo Bills Committee. The choice of wording is curiously similar to that recently adopted by Cardinal Joseph Zen in his press release on the likely impact and dangers of such an amendment if brought under the DVO. Finally, the Society for Truth and Light (“STL”) also took a firm stance against this position in the light of the “message” that such inclusion of same-sex couples within the DVO would send to the community. See LC Paper No. CB(2)2029/07-08(01), Submission from The Society for Truth and Light on the Administration's latest proposal regarding the coverage of cohabitation relationships in the Domestic Violence Ordinance, dated 20 May 2008 (Chinese version only) (27 May 2008).

79 Which reads, “To provide protection of persons from domestic violence and for matters ancillary hereto” and is translated as 本條例旨在對人提供使其免受家庭暴力侵害的保護，以及就附帶事宜訂定條文 in Chinese.

80 Which reads, “This Ordinance may be cited as the Domestic Violence Ordinance” and is translated as 本條例可引稱為《家庭暴力條例》 in Chinese.

81 Various submissions have been made to LegCo to the effect that the DVO should be amended to apply to households as opposed to families. See various individual submissions sent to the Bills Committee at <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc61_d.htm> (last visited 29 March 2009). See particularly, the submission of the HKSCS on this point. Supra note 77, HKSCS's Submission. In fact, this stance has been taken up by many Protestant and Christian legislators of the Democratic Party, who oppose the amendment on account of the Chinese version of the DVO's reference to “family” which, many argued, could lead to the legalisation of samesex marriage. See “Hong Kong Activists and Christian Legislators Clash over Inclusion of Samesex Cohabitants under Domestic Violence Law” Fridae (12 January 2009), online: <http://www.fridae.com/newsfeatures/printer.php?articleid=2374> (last visited 11 March 2009) +(last+visited+11+March+2009)>Google Scholar.

82 This is in effect the argument implicit in two of the foregoing arguments, namely, the family values and the slippery-slope arguments.

83 See particularly s. 2(2) DVO, stating that “this Ordinance shall apply to the cohabitation of a man and a woman as it applies to marriage and references in this Ordinance to “marriage” and “matrimonial home” shall be construed accordingly.

84 Indeed, the STL took the strongest position on this point. It commented that based on the successes of numerous judicial review applications in recent years that once cohabiting homosexuals are included within the scope of the DVO, the concerned individuals will gain confidence to bring a judicial review application against the discriminatory impact of the Marriage Ordinance to break down this barrier against the legal recognition of such unions. This is seen as the “back-door” route to their ultimate “goal” and the STL was of the view that they should be prevented from achieving this. The STL also asked the Government to substantiate with evidence, its reasons for including same-sex couples within the DVO, failing which, confidence in the Government's assurances that it had no intention to sanction same-sex marriages was threatened. Supra note 78.

85 This is the position of the STL, supra note 78.

86 This phrase is usefully borrowed from Lau, Holning, “Straight or Gay, Domestic Violence Affects us All” SCMP (17 May 2007) [“Holning Lau”]Google ScholarPubMed.

87 Supra.

88 This argument has been reiterated by various groups including the HKAF, the STL and the HKSCS. See supra notes 75-78.

89 This Chapter sets out all the fundamental rights and freedoms of the residents of Hong Kong.

90 HKBORO, Cap. 383.

91 Leung CFI at paras. 34-42 and Leung CA at paras. 41, 56.

92 Leung CFI at para. 44 and Leung CA at para. 46, endorsing the same.

93 Leung CA at para. 46. This view was canvassed by Mr. Justice Hartmann in Leung CFI based on the decision the Toonen case, supra note 11. See also Emerton, “Respecting Privacy”, supra note 5 at 145, noting that Leung CFI was the first time Hong Kong courts recognised sexual orientation discrimination as a prohibited ground of discrimination under the HKBL and the HKBORO.

94 Referring to the finding of discrimination by the CA in the Leung CA decision, the CFA in the Zigo Lau case, expressed that even where differential treatment on grounds of sex, race or sexual orientation is found, if the Government is able to justify the differential treatment in accordance with the proportionality test, then that differential treatment will not be treated as constituting “discrimination” and, therefore, would not be considered an infringement of the constitutional right to equality. See Zigo Lau, para. 22, per Chief Justice Li. In the circumstances, the mere difference in treatment will no longer constitute an infringement of the right to equality per se. To this extent, the Leung Decisions have been qualified by the CFA's application of the tests for discrimination and justification, before a finding of discrimination can be made.

95 Leung CA at para. 51.

96 See the Toonen case, supra note 11.

97 Leung CFI at paras. 107-108.

98 [2002] 2 HKLRD 612 (“Lau Cheong”) at 641, referred to extensively by Hartmann J in Leung CFI at para. 109 ff.

99 Leung CFI at para. 112. In so stating, Hartmann, J relies on Lord Hoffman's dictum in R (Alconbury Ltd) v. Environment Secretary [2001] 2 WLR (HL) 1389 at 1411 Google Scholar, where a distinction is drawn between rights of “high constitutional importance” and those involving resource allocation.

100 Leung CFI at para. 110, citing Hope, Lord in R v. DPP, Ex Parte Kebilene [2000] 2 AC 326 at 381 Google Scholar.

101 Leung CFI at para. 123.

102 (1992) 2 HKPLR 164.

103 Ibid at 179.

104 Note EOC v. Director of Education [2001] 2 HKLRD 690 Google Scholar, which was an application for judicial review of the Secondary School Places Allocation System (SSPA) in Hong Kong and resulted in a court declaration that the SSPA was illegal by virtue of its discriminatory impact on a group of people; and the Leung Decisions.

105 See Government's Paper on Cohabitation Relationships, May 2008, supra note 60, at para. 6.

106 Interestingly, the DVO can be used by a person who has undergone a sex-change operation and, thus, although biologically a man, a woman cohabiting with another woman is entitled to protection under the DVO. In these circumstances, the claim that this has in any way affected our understanding of a family and our values is not true. The writer is very grateful to Dr. Sam Winter for drawing this point to her attention. Likewise, Roddy Shaw and his partner Nelson Ng have succeeded in obtaining tax relief from Hong Kong authorities by filing as a couple, although they contracted their marriage as a gay couple in Toronto, although their union is not recognised in Hong Kong as a valid marriage. See Leonard, Arthur S., ed., Lesbian Gay Law Notes, November 2003, online: <http://www.qrd.org/qrd/usa/legal/lgln/2003/11.03> (last visited 29 March 2009) Google Scholar. See also in this regard the submissions of the Hong Kong Women's Coalition on Equal Opportunities (“HKWC”), commenting that such blanket exclusion of same-sex couples from the DVO could result in anomalies, for e.g. where children of one of the partners from a former marriage stay with the cohabiting homosexual couple, that child (by way of next friend) would not be able to apply for relief under the DVO if the perpetrator is not a “relative” as defined by the DVAO 2008. See LC Paper No. CB(2)2769/06-07(02), Hong Kong Women's Coalition on Equal Opportunities - Anti Domestic Violence Programme's submission on Domestic Violence (Amendment) Bill 2007 (28 September 2007) [“HKWC's Submission”], online: <http://www.women.gov.hk/download/safety_english_final.pdf> (last visited 29 March 2009)+(last+visited+29+March+2009)>Google Scholar.

107 See Amnesty International Hong Kong's latest submission to the Bills Committee, arguing against the use of the term “household” to address such circumstances since it is tantamount to imputing a lack of “family-like” circumstances to a same-sex relationship which would be “ludicrous” and “insulting”. See LC Paper No. CB(2)2057/07-08(02), Submission from Amnesty International Hong Kong Section on the Administration's latest proposal regarding the coverage of cohabitation relationships in the Domestic Violence Ordinance, dated 23 May 2008, online: <http://www.legco.gov.hk/yr06-07/english/bc/bc61/papers/bc610527cb2-2057-2-e.pdf> (last visited 29 March 2009).

108 As to the full list of people who are now covered by the DVO, see ss. 3 and 3A of DVAO 2008.

109 Prior to the amendment in 2008, ss. 2(2) and 3 enabled children or a man or a woman in cohabitation to use the DVO.

110 The argument that could be raised in objection to this is that if it were the intention to cover acts of violence between intimate partners of any kind, whether cohabiting or not, then the DVO would extend such protection to these couples also and that it is precisely in the context of the “home” that parties are thought to become vulnerable and so the law provides such protection. However, this argument overlooks the fact that the DVO has now extended its reach beyond traditional “familial” relationships and has also taken into consideration the fact that extended family members, though not resident in the same house, may still pose a threat of violence to other family members. By extension, therefore, given the fact that same-sex couples do reside together, surely, they must fall within the intended scope of coverage. The case may be said to be different (although increasingly weak) for dating couples. Given that most jurisdictions have now moved to protection against “intimate partner violence” in recognition of the fact that relationships today are of a different nature and people need civil remedies in order to protect themselves in relationships of intimacy, whatever their constitution, it is high time Hong Kong followed suit. As to this argument, see HKWC's Submission, supra note 106.

111 See Holning Lau, supra note 86.

112 Leung CA at para. 50.

113 (1995) 98 CCC (3d) 481 (Ont. CA). This case was very similar to the claim advanced by Leung.

114 This part of the judgment was also cited by Ma CJ in Leung CA at paras. 137, 139.

115 It is true that not all groups advance this as the basis for denying protection to same-sex couples altogether; there are those who believe that they are entitled to equal protection but just not under this particular ordinance (DVO). See HKSCS's Submission and statements made by Cardinal Joseph Zen, supra notes 76-78 and accompanying text.

116 See generally, LegCo Panel on Welfare Services, Proposed Amendments to the Domestic Violence Ordinance, LC Paper No. CB(2)559/08-09(1), January 2009. The specific benefits are said to be to enable victims to obtain remedies which are tailored to the circumstances of spouses or heterosexual cohabitants with intimate quasi-spousal relationships, i.e. to prevent an abuser from entering or remaining in the common residence, enabling a cool-off period to work things out or to require an abuser to permit the victim to return and remain in the place of common residence, among other things. These special civil remedies are grounded in the recognition of the sensitivity of such matters in the context of intimate relationships.

117 See supra notes 31 and 106.

118 Indeed, in a local survey conducted in Hong Kong by the Social Policies Research Institute of the Hong Kong Polytechnic University in 2003, it was found that “more than 90 percent of those interviewed agreed that homosexuals should have equal rights in terms of work, education, choice of spouse and religious beliefs, and close to 80 percent agreed that both homosexual and heterosexual partners should have equal rights in terms of forming a family. In addition, 73.6 percent agreed that companies should extend the same benefits as those of a heterosexual spouse to homosexual partners, such as housing, medical insurance, etc. Finally, 61 percent supported their equal rights in terms of adopting children, and more than 80 percent agreed that they should have equal rights in terms of inheriting each other’ s properties as a spouse. As for Christians, more than 70 percent agreed that homosexuals should have the right to form a family, and close to 70 percent said they should have the right to adopt children.” See LC Paper No. CB(2)1101/02-03(01), Hong Kong Christian Institute, Hong Kong Christian Institute's Submission to the Legislative Council on SAR Government's Implementation of the International Covenant on Economic, Social and Cultural Rights, dated 7 February 2003, online: <http://www.legco.gov.hk/yr02-03/english/panels/ha/papers/ha0207cb2-1101-1e.pdf> (last visited 29 March 2009)+(last+visited+29+March+2009)>Google Scholar.

119 See Declaration on the Elimination of Violence against Women, Art. 1, which stipulates, “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”, online: <http://www2.ohchr.org/english/law/pdf/eliminationvaw.pdf> (last visited 20 March 2009).

120 See particularly Petersen C, J, “Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The Development of the Gay and Lesbian Rights Movement in Hong Kong” (1997) 19 Loy. L.A. Int'l & Comp. L. Rev. 337 Google Scholar.

121 Indeed, the Chief Secretary of Hong Kong at that time commented that once the HKBORO came into force, the legislation criminalising such acts would be subject to legal challenge and indicated that it would not be able to withstand the challenge in the light of the HKBORO and the ICCPR. See Official Report of the Proceedings, Hong Kong Legislative Council 1989 (11 July 1990).

122 For a detailed discussion of Hong Kong's functional constituency system and its implications for universal suffrage in Hong Kong, see Young, Simon, Can Functional Constituencies Co-Exist with Universal Suffrage, CCPL Occasional Paper 14/05, January 2005, online: <http://www.hku.hk/ccpl/pub/occasionalpapers/documents/occasionalpaper14-SimonYoung.pdf> (last visited 29 March 2009)Google Scholar.

123 See supra notes 35 and 44 and accompanying text.

124 See supra note 35. It is also worth making the point that given the extensive international research that has been conducted on the prevalence of violence between homosexual partners and the obstacles they face in seeking help, Hong Kong need not wait for local trends to this effect to be proven. Rather, the Government ought to take a proactive stance and strive to provide the necessary support for these groups and introduce training for relevant frontline staff immediately. See supra notes 35, 39 and 44.

125 See Access Property Economics Limited, “The Cost of Domestic Violence to the Australian Economy” Partnerships Against Domestic Violence, an Australian Government Initiative, 2004, online: <http://www.accesseconomics.com.au/publicationsreports/showreport.php?id=23&searchfor=200 4&searchby=year> (last visited 29 March 2009)+(last+visited+29+March+2009)>Google Scholar, Liang, Leslie & Bobic, Natasha, The Economic Costs of Domestic Violence, Australian Domestic and Family Violence Clearing House, April 2002, online: <http://www.austdvclearinghouse.unsw.edu.au/PDF%20files/Economic_costs_of_DV.pdf> (last visited 29 March 2009)Google Scholar.