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Is harassment actionable?

Jan 24, 2020

It has long been uncertain as to whether a tort of harassment exists at common law in Hong Kong or not. 

In 朱祖永 v 香港警務處 (unrep., HCMP 1676/2002), the plaintiff alleged that he was harassed by police officers on several occasions and suffered emotional distress as a result. The Court of Appeal took the view that there was no tort of harassment, citing support from English authorities Patel v Patel [1988] 2 FLR 179 and the dissenting judgment of Peter Gibson J in Khorasandjian v Bush [1993] QB 727.

The Court of Appeal, however, whilst not deciding the issue conclusively indicated a different view two years later. In Wong Tai Wai David v HKSAR [2004] HKEC 1093, the plaintiff alleged that the Police Force was unreasonably suspicious that he was involved in a case of fraud and carried out incessant investigations, including round the clock surveillance, on him for a period of four years. He suffered emotional distress as a result and pleaded, amongst other things, the tort of harassment in his claim. Hon A Cheung J in the Court of Appeal observed that it was arguable that “a tort of harassment per se, or as part of a tort of intentional (or reckless) infliction of injury (physical or mental), exists at common law”. The Court therefore would not strike out the plaintiff’s claim on the basis that there was no reasonable cause of action. 

A turning point appeared to have subsequently occurred in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 where the defendant harassed the plaintiff for around four years, including sending numerous disturbing messages to the plaintiff, his friends and employers. Anthony Chan J in the Court of First Instance followed the High Court of Singapore’s decision in Malcomson v Mehta [2001] 4 SLR 454, recognising a tort of harassment because he was unable to see any reason why there should not be a tort of harassment to protect the people of Hong Kong. 

Significantly, he set out the principles and the elements of the tort of harassment as follows: 

i.    The parameters of harassment is a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person;

ii.    The mental requirement of the wrongdoer’s recklessness as to whether the victim would suffer injury from his act; and  

iii.    Damages to the victim as a result of the harassment, for example physical injury, anxiety and financial loss. 

The principles and elements of the tort were subsequently applied by judges in the Court of First Instance and the District Court including in Lin Man Yuan v Kin Ming Holdings International Ltd [2015] HKEC 1012. 

Nevertheless, the Hong Kong courts have still appeared on occasion to be of two minds. In Pong Seong Teresa v Chan Norman [2014] 5 HKLRD 60, the plaintiffs alleged that one of the defendants harassed them on several occasions including swearing at them every time they saw one another in the residential building and spray-painting on the wall outside their residence. Deputy Judge Linda Chan SC in the Court of First Instance stated that she was bound by the judgment in 朱祖永 to conclude that there was no tort of harassment at common law in Hong Kong. Even if she was free to choose whether to follow the judgment in 朱祖永 or Wong Tai Wai David, she said that she was inclined to follow the judgment of 朱祖永 because of the following reasons:

i.    The English Courts did not explain the elements of and the applicable principles governing a tort of harassment at common law which tended to suggest that such tort did not exist at common law;

ii.    The view of the learned author in Tort Law in Hong Kong, (3rd ed., 2012) that the tort of harassment existed at common law was made without consideration of the Court of Appeal's judgment in 朱祖永;

iii.    The decision in Malcomson cited by the plaintiffs for the courts in Singapore to recognise the existence of the tort of harassment should have no application to Hong Kong. It was unnecessary for common law to address a lacuna in the law in Hong Kong due to the absence of a similar statute in Hong Kong to the Miscellaneous Offences (Public Order and Nuisance) Act (Cap.184), 1997 ed in Singapore; and

iv.    The Law Reform Commission of Hong Kong, after consultation, decided not to pursue recommendations in its Report on Stalking (published in 2000) to introduce a criminal offence of harassment and a statutory remedy for a person to claim damages for any distress, anxiety and financial loss caused. 

Recently however, the Court of First Instance recognised, once again, the principles and elements of the tort set out in Lau Tat Wai. As a result of increasing doxxing activities against police officers and their family members, the Secretary for Justice and the Commissioner of Police in Secretary for Justice v Persons Unlawfully and Wilfully Conducting Etc (1957/2019) [2019] 5 HKLRD 500 applied on behalf of the general public and the police force respectively for the continuation of an injunction order restraining unnamed defendants from, amongst other things, harassing any police officers and their family members. Coleman J disagreed that the tort of harassment was not recognised in Hong Kong law and further said that “it is at least sufficiently seriously arguable that such a tort does exist as would justify proceeding on that basis when considering the potential grant of interlocutory relief”.

The question as to whether the tort of harassment exists in common law has also haunted the courts in the UK for many years and still remains unanswered. Despite the conflicting judicial approaches by the Court of Appeal in Patel and Khorasandjian in the UK, Lord Hoffman in Hunter v Canary Wharf Ltd [1997] AC 655 opined that the law of harassment had now been put on a statutory basis through the Protection from Harassment Act 1997 and it was no longer necessary to consider how the common law might have developed. 

Further development of case law regarding the tort of harassment is undoubtedly essential. History has however taught us that the existence of such a tort is likely to remain an unsettled issue at common law unless there is a definite answer from the highest court i.e. the Court of Final Appeal in Hong Kong. Legislation, as an alternative, seems to be a conclusive remedy to address acts of harassment. 

Author: Barry Hoy


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