III. Possible criminal charges against a stalker under the Offences Against the Person Ordinance
A. Offences relating to assault
An assault is committed when the stalker deliberately or recklessly puts the victim in fear of the immediate application of unlawful force. Threatening acts or statements, however, are not actionable unless they bring about an apprehension of immediate violence. Following, loitering outside the victim’s home, or mere abuse and rhetoric without force do not amount to an assault.
The word “assault” is used both where there is an apprehension of the immediate application of unlawful force and where there is a “battery”. Battery is committed when there is unlawful, non-consensual physical contact. As long as there is an application of force to another person, it is not necessary to prove that the defendant had the intention to injure or that the contact has caused or threatened physical injury. Mere touching without consent or a lawful excuse is therefore enough.
If the police decide to prosecute, section 40 of the OAPO can assist the victim of a stalker where there is a direct threat to use force and there is such proximity between the stalker and the victim that the threat can have an immediate effect. This will be a question of fact in each case.
Assault causing actual bodily harm contrary to section 39 of the OAPO provides a higher penalty for assault or battery where there is actual bodily harm. Once assault or battery is proved, it remains only to prove that it caused actual bodily harm.
Section 39 of the OAPO , however, provides only a limited response to the stalker. There must first be conduct which comes within the definition of assault. It must then be proved that the assault brought about actual bodily harm. Stalkers who follow their victim, perhaps making rude gestures or shouting protestations of love and devotion at them, do not commit an assault.
B. Murder, Attempted Murder and Manslaughter
A worrying aspect of stalking is its potential to escalate into violence. This is illustrated by the case HKSAR v Tsui Chu Tin, John . The defendant, a police officer, had been in a relationship with the female victim for over a year, when she ended the relationship. He could not accept this and began stalking her, making numerous telephone calls to her home and workplace. Following complaints to the police, he was charged with three offences of Loitering Causing Concern (causing the victim reasonably to be concerned for her safety or well-being) contrary to section 160(3) of the Crimes Ordinance ( Cap. 200 ). He was granted bail with the condition not to approach or interfere with her. However, instead of complying with the bail condition, he purchased a knife and went to her flat. He spoke to her, but was ignored. He threatened to kill himself in front of her, saying that he wanted her to remember him for the rest of her life. When she left her flat to look for a public telephone, he followed her. She went to a public telephone, and told him she was talking to the police and asked him to go away. He then stabbed her repeatedly in the neck and chest. She died from her injuries, and the defendant was charged with murder. On appeal, his conviction for murder was reduced to manslaughter on the grounds of diminished responsibility. He was sentenced to life imprisonment with a minimum term of 12 years (the sentence for manslaughter is any sentence up to life imprisonment). It was revealed that he had engaged in a similar pattern of stalking with two of his previous girlfriends. In an incident with one of them, he drew his service revolver and pointed it at his head, threatening to kill himself if she did not resume her relationship with him.
The HKSAR v Tsui Chu Tin case underlines the problem of providing protection from a stalker, especially where there is diminished responsibility or some other psychiatric condition involved. Realistically, Tsui’s victim could only have been kept safe had Tsui been refused bail and kept in custody until his trial and sentence.
There is a presumption of bail in section 9D of the Criminal Procedure Ordinance ( Cap. 221 ). It is up to the prosecution to show that the right to bail should be denied in a particular case, in accordance with section 9G of the Criminal Procedure Ordinance . The prosecution has the burden of proof.