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I. What kinds of pets can be kept?

Generally, a person has the right to keep domestic animals as pets. A domestic animal is one that by habit or training normally resides with humans. It is an offence to keep certain wild animals that are protected under the Wild Animals Protection Ordinance (Cap. 170 of the Laws of Hong Kong) or the Protection of Endangered Species and Plants Ordinance, (Cap. 586) which gives effect to the CITES treaty (The Convention on International Trade in Endangered Species of Wild Fauna and Flora). The Protection of Endangered Species and Plants Ordinance prohibits the import, export and possession of certain endangered animals (or their parts) without a licence or exemption. These are listed in Part 2 of Schedule 1 of the Ordinance. The Wild Animals Protection Ordinance prohibits hunting any wild animals in Hong Kong. Furthermore, certain protected wild species cannot be disturbed or taken from the wild. These are listed in Schedule 2 of the Wild Animals Protection Ordinance.

Some CITES listed animals require the owner to get a licence from the Agriculture, Fisheries and Conservation Department (AFCD) for possession of the animal in accordance with section 23 of the Protection of Endangered Species and Plants Ordinance. Failure to get a licence may result in a fine of $100,000 (section 28 of the Protection of Endangered Species and Plants Ordinance) and the animal may be confiscated. Any person who buys a CITES listed species in Hong Kong should get a copy of the original import permit for the animal from the pet trader. The purchaser should also get a receipt from the trader showing the details of the animal’s species, identifying number and date of purchase. This information is required to apply to AFCD for a licence to possess the animal legally in Hong Kong. The AFCD website has further information on which species require licenses.

Licensing requirements should be checked with the AFCD before the animal is purchased.

A. Keeping animals in public housing

Dogs

The keeping of dogs has been banned in public housing since 1 August 2003. However, dogs of less than 20kg in weight that were kept before that date have been permitted to remain in public housing until their natural demise. Dogs kept with permission must not cause a nuisance to other residents. Any claim of nuisance would need to have been investigated and found to be substantiated twice before permission to keep the dog may be withdrawn by the Housing Authority. If animals are kept without permission from the Housing Authority, points may be deducted from the Marking Scheme. Points may also be deducted for creating a noise nuisance(e.g. the dog barking) or allowing a dog to foul a common area with faeces. For more information about the Marking Scheme for Estate Management Enforcement, please refer to the topic “Public Housing Issues” on the Senior CLIC website.

Small household pets

The Housing Authority has granted general permission for keeping small household pets including de-sexed cats. However, the keeping of wild animals, exotic animals and farm animals is not permitted.

B. Private housing and pets

In private housing, pets may be kept as long as they are not prohibited under the Deed of Mutual Covenant (DMC). A Deed of Mutual Covenant is a document that is signed by the developer and the first owners of a building after the building has been erected. The DMC is binding on all successors in title, that is, on all present and subsequent owners of property in the building. If the DMC does not mention the keeping of pets, then pets are deemed to be permitted. Judicial authority in Hong Kong has established that the keeping of pets is a normal part of the enjoyment of private premises.If pets are prohibited, the DMC should specifically say so. Keeping pets in breach of the DMC may result in legal action being taken by the Incorporated Owners (IO) against the owner of the unit concerned. However, permission to keep pets may be granted by thecurrent IO, even if the DMC does not allow them. Where such permission is sought, the IO has a duty not to refuse permission unreasonably.

The DMC must be distinguished from House Rules and similar documents drawn up by owners committees after the building is erected. Such Rules cannot invoke an outright ban on the keeping of pets if the Deed of Mutual Covenant did not prohibit pets from being kept. The Deed of Mutual Covenant overrides House Rules and similar agreements between owners. However, where animals kept in private premises cause a serious nuisance to other owners, their keeper may be liable for causing a nuisance (even where the DMC allows the keeping of pets). In such a case, action may be taken by the IO against the owner of the unit where a pet(s) is kept for causing/permitting a nuisance.

For more details about nuisance caused by pets, please refer to another topic “Neighbourhood disputes”.

II. Duties of pet owners

A. Vaccination and getting a licence for your dog

There are a number of legal obligations imposed on dog owners by the Rabies Ordinance (Cap. 421). These include a requirement that dogs five months or older must be licensed by the AFCD and vaccinated against rabies by a veterinary surgeon (sections 20 and 23 of the Rabies Regulation, Cap. 421A). Rabies vaccinations must then be repeated every three years on the renewal of the dog’s license under section 22(1) of the Rabies Regulation. Keeping a dog without a licence is an offence punishable by a fine of $10,000 (Section 20(2) of the Rabies Regulation).

B. Keeping your dog under control

There is also a duty to keep dogs under control. Under section 23 of the Rabies Ordinance, all dogs of any size must be leashed or otherwise kept under control in public places (except in country parks or when swimming at sea). In the case of dogs weighing 20 kilograms or more (large dogs) it is an offence for a person to take the dog into a public place unless the dog is securely held on a leash of not more than 2m in length or is securely tied to a fixed object on a leash of not more than 1.5m in length (section 9(1) of the Dangerous Dogs Regulation, Cap. 167D).

The dog must be tied in a manner that does not pose a danger to public safety and the safety and welfare of the dog and other animals. The requirement for leashing does not apply to a large dog which is in a country park or which is swimming at sea (section 9(2) of the Dangerous Dogs Regulation). Failing to keep a large dog under proper control or failing to keep it tied as described above is an offence and is punishable with a fine of $25,000 or imprisonment for three months (section 9(3) of the Dangerous Dogs Regulation).

C. Dogs biting people

If a dog bites a person, under section 24(1) of the Rabies Ordinance, there is a duty on its keeper to report this to the police and to keep the dog in isolation, for such period as may be specified by the officer in charge of the police station (due to the risk of rabies). Failure to comply may result in a fine of $10,000 in accordance with section 24(2) of the Ordinance. Under section 25(1), the keeper may be guilty of a criminal offence and fined $10,000 if he did not do all he reasonably could to prevent the dog from biting a person. However, under section 25(2), it would be a defence for the keeper to show the dog was deliberately provoked to bite by the person bitten or by someone else. A person may complain to a magistrate that a dog is dangerous and an order may be made that the dog be destroyed or must be kept under effective control under section 5 of the Dogs and Cats Ordinance, Cap. 167.

A keeper who is negligent in controlling his dog may also be liable under civil law if it bites a human or other animal. A duty of care will only arise where the keeper knew or ought to have known the animal was likely to cause damage. Only in rare circumstances would a keeper be held accountable for something done by a tame animal, acting contrary to its ordinary nature.

Even in cases where he was not negligent in controlling his dog a keeper he may still be liable for a bite if he had previous knowledge the dog was likely to attack. A tendency on the part of the dog toward slight nipping or scratching would be insufficient to show such knowledge. For example, animals that nip and scratch during play or when excited have not been categorised as likely to attack.

There would need to be knowledge on the part of the keeper that the dog was really likely to be dangerous, before liability without negligence would arise. The best evidence of such knowledge would be that the dog had done it before.

For more about the possible legal liabilities a dog owner has to bear if his dog has bitten other persons or dogs, please refer to another topic “Neighbourhood disputes”.

D. Cleaning up after your dog

It is an offence punishable by a $5,000 fine for a person in charge of a dog not to clean up any faeces or urine the dog has deposited in a public place or the common parts of a building (section 13 of the Public Cleansing and Prevention of Nuisances Regulation, Cap. 132BK).

E. Abandonment of pets is an offence

If an Agriculture, Fisheries and Conservation Department (AFCD) officer finds a dog or cat roaming, without any person having charge of it, and it appears to have been lost or to be doing damage, it may be seized and taken to the AFCD animal management centre. At the centre, it will be checked for a microchip or other identification. Where possible, the keeper will be contacted to collect the animal. A pound fee may be charged for the animal’s release, equal to the cost of impounding and keeping the animal (section 2 of the Pounds Ordinance, Cap. 168). Animals not claimed from the AFCD within 96 hours may be assumed to be a stray or to have been abandoned by the keeper (section 22(5) of the Rabies Ordinance). Under section 4(2) of the Pounds Ordinance, such an animal may be euthanized. It is a serious offence to abandon an animal, punishable with a fine of $10,000 or six months imprisonment under section 22(1) of the Rabies Ordinance.

F. Feeding stray animals

It is not an offence to feed domestic stray animals, however leaving food around may be perceived as littering. However, under the Schedule for the Prohibition of Feeding Wild Animals Notice 1999 (Cap. 170B), the feeding of wild animals in country parks is prohibited for conservation reasons.

III. What are my legal rights regarding pet shops?

A. Animal Traders Licence

Under Reg 4(1) of the Public Health (Animals and Birds) (Animal Traders) Regulations (Cap. 139B) it is not legal to carry on a business as an animal trader without a licence. Besides, all premises used for the sale of animals are required to be licensed. Under Reg 13 of the Regulations, it is an offence to hawk an animal or bird or sell an animal that is unweaned, punishable by a level 1 fine (currently $2,000). Unlicensed trading carries a penalty of a fine at level 1 (currently $2,000). Trading from unlicensed premises carries a penalty of $1,000.

There is no separate licensing scheme for commercial breeding facilities. Along with pet shops, breeders are also considered to be animal traders under the licensing scheme. The exception which currently allows a person to sell his own pets, or the offspring of such pets, as a one off or occasional hobby breeder, is likely to be closed later this year, in response to strong public opinion that all animal traders should be licensed.

Licences are issued by the Agriculture, Fisheries and Conservation Department (AFCD) and require an animal trader to comply with health and welfare conditions set out by the Department (please click here for more information). Primary enclosures, housing facilities and outdoor areas are required to comply with the Department’s licensing conditions. Under Reg 5(3) of the Public Health (Animals and Birds) (Animal Traders) Regulations, the sale of diseased animals is prohibited. Members of the public who are concerned that licensing conditions in a pet shop/breeding establishment are not being met may contact the AFCD to investigate.

The conditions attached to an Animal Traders Licence under Reg 5(3) require that:

All dogs for sale in licensed premises have a microchip device with an individual code number implanted under the skin (this microchip provides evidence that the dog has been vaccinated for rabies by a registered veterinary surgeon in Hong Kong; or, for imported animals, a registered veterinary surgeon in the country of origin).
Before sale, dogs of over five months of age must not only have the above mentionedmicrochip implanted, but must also have a dog licence from the AFCD. This licence identifies the microchip number and the keeper of the dog (pet shop/breeder), and the licence for the dog should be transferred to the purchaser upon sale of the dog.
The pet shop or breeder must have a scanner for reading the microchip devices in the dogs for sale available for customers on the pet shop premises at all times. The purchaser of a dog should ensure the dog he is purchasing has a microchip number that correctly matches the documentation before accepting the sale. Every dog has a different microchip number which is used touniquelyidentify the dog when issuing a license for it. Under section 21(3) of the Rabies Ordinance, owning an unlicensed dog is an offence punishable by a fine of $10,000 or six months imprisonment.
All dogs must be vaccinated against distemper, parvovirus and infectious hepatitis before they can be legally sold. An animal trader is required to keep certificates for these vaccinations (issued by a veterinary surgeon) for every dog offered for sale. The vaccination certificate must state the dog’s personal microchip number. Similarly, all cats offered for sale must be vaccinated against feline panleukopaemia and feline respiratory disease. When a dog is sold the original vaccination certificate and license for that dog must be given to the new owner/keeper.

Breaches of the conditions of the Animal Traders Licence are punishable by a $1,000 fine.

B. Buyer beware

There is no general legal right to return an animal after sale and therefore purchasers should be cautious about buying animals without knowing their origin. Animals are goods and to buy one is to make a purchase of unknown quality. While there is an implied condition on sale that the animal is reasonably fit for purpose, there is no warranty as to its quality, unless such a guarantee is specifically provided by the seller. The legal rule of caveat emptor (buyer beware) applies.

At this time there is no legal requirement that prospective purchasers of animals be permitted to inspect the premises in which the animals for sale were bred. Purchasers also have no general right under the law to return animals to the breeder/pet shop if they become sick after sale. Prudent purchasers should insist on checking first hand the health and welfare of a puppy/kitten’s parents, the conditions in which the parents mated, and other breeding animals being kept by the breeder before purchasing the animal.

C. Internet sales

The conditions attached to an Animal Traders Licence are also enforceable against an Internet seller. Internet sales limit the opportunity for the buyer to check microchips, licensing, vaccinations and the health/sociability of the parents of any animal purchased. Where the buyer does not have an opportunity to check the state of the animals in detail before buying, any poor welfare or poor condition of the animals sold can be easily hidden from prospective purchasers. In particular, buyers should beware of the possibility that animals sold on the Internet may have been smuggled into Hong Kong from China where there are no animal welfare laws and the threat of rabies is of real concern.

To ensure that the animal you purchase is in good health, the most prudent choice is to avoid purchasing from animal traders altogether and adopt a pet from the Society for the Prevention of Cruelty to Animals (SPCA) or other reputable NGOs.

D. Pet boarding facilities

Under Reg 2 of the Public Health (Animals) (Boarding Establishment) Regulations (Cap. 139I), all boarding establishments (including pet hotels) are required to have a licence from the AFCD. Operating such a business without a licence is an offence punishable by a fine of $2,000 (reg 4 of the Public Health (Animals) (Boarding Establishment) Regulations). The boarding establishment should have its current licence on prominent display. The AFCD also keeps a list of all licensed boarding facilities/pet hotels on its website and any persons wishing to board their animals should check that the premises has been licensed before leaving their animal alone at the facility. You may click here for the list. Any suspected acts of cruelty should be reported immediately to the police or the AFCD for investigation and possible prosecution. Consumer complaints that do not involve criminal activity should be reported to the Consumer Council. For more details, please go to “Consumer Rights“.

E. Grooming parlours or shops

While there is no separate licensing requirement for running a grooming parlour or shop, any grooming facility which provides accommodation for animals must have a pet boarding establishment licence (as described above). Many grooming facilities sell animals as well, as the business also operates as a pet shop. Grooming shops which sell animals must have an Animal Traders Licence for the premises (described above). Such a licence should be on prominent display. The AFCD also keeps a list of all licensed Animal Traders on its website. Any persons wishing to leave their animal at a grooming parlour or shop should check that the premises are safe for their animal before leaving it alone at the facility. Any suspected acts of cruelty should be reported immediately to the police or to the AFCD for investigation and possible prosecution. Consumer complaints that do not involve criminal activity should be reported to the Consumer Council. For more details, please go to “Consumer Rights“.

F. Animal adoption

Upon the adoption of a dog aged over five months, it is the duty of the adopter to have the dog’s licence transferred to his name (section 20 of the Rabies Regulation). The adopter should also ensure all vaccinations are up to date and take the animal to the vet for repeat vaccinations as necessary.

You should think twice before adopting an animal. The AFCD has prepared guidelines on things to consider before adopting animals, and also a list of NGOs from which animals are available for adoption. You may refer to the following links:
Guidelines on how to be a responsible pet owner; and
A List of Animal Welfare Organizations.

IV. Animal cruelty

Section 3(1)(a) of the Prevention of Cruelty to Animals Ordinance (Cap. 169) prohibits and punishes cruelty to all animals including mammals, birds, reptiles, amphibians, fish or any other vertebrate or invertebrate animals whether they are living in the wild or are tame. The crime carries a maximum penalty of three years imprisonment or a fine of $200,000. Prosecutions are undertaken by the police and the AFCD. Members of the public who suspect they have witnessed animal cruelty may contact the police, AFCD or the Society for the Prevention of Cruelty to Animals (SPCA) to report the matter.

Usually, for a prosecution for cruelty to succeed under section 3(1)(a), unnecessary suffering must have already been caused to an animal. Suffering need not, however, have been prolonged or to have had serious consequences for an offence to have occurred. It is also not necessary to prove the offender intended cruelty to the animal. It is enough that a normal and reasonable person would have realized the risk that the animal might suffer as a result of his actions and would have adjusted his behaviour accordingly. It is also an offence for the owner of an animal to permit another person to treat his animal cruelly by failing to exercise reasonable care to protect the animal.

It is important to note that while causing an animal to suffer is a criminal offence, failing to provide an animal with the best welfare is not a crime. In such cases a crime will only have occurred if it can be shown that the animal is likely to suffer in the future if its situation is not remedied. For example, whilst it is poor practice not to exercise a fit dog for at least an hour per day, a keeper is unlikely to be prosecuted for cruelty if he fails to do so.

Section 3(1)(g) of the Prevention of Cruelty to Animals Ordinance provides that any person who brings into Hong Kong or drives, carries, transports, removes, or has or keeps or knowingly suffers to be had or kept under his control or on his premises, any animal in any way which may cause it needless or avoidable suffering, is guilty of cruelty. This would include overcrowding animals in a confined space, or keeping a dog in a crate for a prolonged time without giving it a chance to exercise. The possibility of harm may therefore allow for a conviction.

Where an animal has been abandoned it is unnecessary to show it has actually suffered before bringing a prosecution under section 22(1) of the Rabies Ordinance. Simply abandoning the animal is a crime.

Under section 3(1)(e) of the Prevention of Cruelty to Animals Ordinance, fighting or baiting animals (or being involved with premises where this occurs) is also a criminal offence and the animals do not need to have suffered before there is criminal liability. The offence carries a maximum of $200,000 fine or three years imprisonment.

On conviction for animal cruelty, the court may make an order that the person convicted may no longer keep the animal which was treated cruelly, if there is any risk it may be so treated again. The animals will be transferred to the AFCD for euthanasia or re-homing (where suitable).

Dog or cat eating

It is a serious offence to slaughter a dog or cat for food, to use such animals for food or to sell their flesh for food (reg 22 of the Dogs and Cats Regulations). The penalty is a fine of $5,000 or six months imprisonment (reg 23).

V. Special arrangements for fighting dogs/dangerous dogs/guide dogs

A. Control of fighting dogs

It is an offence (punishable by a fine of $50,000 or six months imprisonment) to import an unlicensed fighting dog into Hong Kong. The following breeds of dog are classed as fighting dogs:Pit Bull Terrier, Japanese Tosa, Dogo Argentino, Fila Braziliero or any cross breed of these types (schedule 1 of the Dangerous Dogs Regulation). Where a dog has been classified by the AFCD as a fighting dog, the keeper has 14 days to apply to the Dogs and Cats Classification Board for a re-classification in accordance with section 17(1) of the Dangerous Dogs Regulation.

B. Control of dangerous dogs

A person may complain to a magistrate that a dog is dangerous and not being kept under proper control. Under section 5(1) of the Dogs and Cats Ordinance, a magistrate may order that the dog be destroyed or kept under effective control. If the person to whom the order is made does not comply with the order he may be fined $500 for every day on which he fails to comply with the order, according to section 5(3) of the Dogs and Cats Ordinance.

Under section 10 of the Dangerous Dogs Regulation, a magistrate may also order that a dog be classified as a “known dangerous dog” where a person has died or suffered serious bodily injury (requiring inpatient treatment in a hospital) from an attack by the dog. An order that the dog be classified as dangerous can also be made where the dog has bitten another domestic animal, resulting in that animal being killed or suffering serious bodily injury (requiring veterinary surgery under a general anaesthetic). If the dog was in any way provoked to attack then such an order will not be made.

An order for classification as a dangerous dog can also be made if the dog has a history of repeatedly attacking people without any provocation.

A dog which has been classified as dangerous must be neutered within 90 days and kept muzzled and leashed when in a public place. It must also wear a special collar to identify it. Failing to comply with these conditions for keeping a known dangerous dog may result in a fine of $25,000 or three months imprisonment.

C. Special arrangements for guide dogs

While taking dogs into licensed food premises and onto public transport is generally prohibited, such restrictions do not apply to guide dogs for the blind.

VI. Travel and pets

A. Importing your pet into Hong Kong

1. Dog or cat

It is necessary to have secured a permit from the AFCD before importing a pet dog or cat into Hong Kong. A permit may be issued to a pet owner by the AFCD after an application has been made on the prescribed form and a fee of $432 has been paid. The application for a permit can be downloaded from the AFCD webpage.

Quarantine periods of at least four months may be enforced against animals from jurisdictions where rabies is still considered a risk. Dogs and cats imported directly from rabies free countries, which are Australia, New Zealand, UK, Ireland, Fiji, Hawaii and Japan, normally will not be required to undergo quarantine. However animals imported from these seven countries must still be accompanied by a prescribed Animal Health Certificate to show they are disease free. The requirements for an Animal Health Certificate can be downloaded from the AFCD webpage.

The Certificate requires veterinary certification that the animal has, within the past year, been vaccinated against parvovirus, distemper and infectious hepatitis (for dogs) or cat flu and infectious enteritis (for cats). The animal would normally also need to have resided in the country from which it will enter Hong Kong for at least six months (or from birth).

It will also be necessary for dogs and cats aged five months and older to have been vaccinated against rabies within the past year before being importedfrom Austria, Bahamas, Bahrain, Belguim, Bermuda, Brunei, Canada, Cayman Island, Cyprus, Denmark, Finland, France, Germany, Gibraltar, Guam, Iceland, Italy, Jamaica, Luxembourg, Malaysia, Maldives, Malta, Mauritius, Norway, New Caledonia, Papua New Guinea, Portugal, Seychelles, Singapore, Solomon Islands, South Africa, Spain, Sweden, Switzerland, The Netherlands, Taiwan, USA (Continental), Vanuatu and the Virgin Islands. The Certificate which must accompany the animal can be downloaded from the AFCD website.

For dogs and cats imported from other countries not listed above (including China) a minimum of four months quarantine should be expected. They should be micro chipped before import and fully vaccinated against parvovirus, distemper and infectious hepatitis (for dogs) or cat flu and infectious enteritis (for cats). A Health Certificate showing the animal’s vaccination history must accompany the animal. Details of the requirements for certification are available on the AFCD website.

For animals to be imported from China a permit must be sought before entry. The permit is available for download from the AFCD website.

It is also a requirement that dogs and cats imported from China must have an Animal Health Certificate showing the animal has been fully vaccinated against parvovirus, distemper and infectious hepatitis (for dogs) or cat flu and infectious enteritis (for cats). This certificate must accompany the animal. The Animal Health Certificate requirements can be downloaded here.

As there are only two quarantine facilities operating in Hong Kong, space should be booked in the kennel/cattery on Hong Kong Island or Kowloon at least three months in advance. Dogs of five months of age and older will be licensed on entering Hong Kong and, if not already so vaccinated, they must be vaccinated against rabies.

Importing a disability or guide dog

Special permits are granted for the import of service dogs (e.g. guide dogs) and quarantine periods are usually waived if the animal has an Animal Health Certificate declaring it has been vaccinated for parvovirus, distemper, infectious hepatitis and rabies. The application for a permit to import a disability or guide dog can be downloaded from the AFCD website.

Information on the Rabies antibody test are detailed on the AFCD website.

A declaration regarding the type of service provided by the dog must also be completed. This can be downloaded from the AFCD’s website.

The requirements for the Animal Health Certificate for a service dog can be downloaded here.

2. Birds

The fee for importing a pet bird is $344.

Pet birds may be imported with a special permit where the AFCD does not consider there is risk of Avian Flu. The bird must have been quarantined for 21 days prior to export and checked for Avian Flu. The bird must also be accompanied by a health certificate signed by a vet within 5 days before export. The requirements for a pet bird import permit can be downloaded from the AFCD website.

3. Rodents and reptiles

The fee for importing pets of this nature is $344.

A special permit must be obtained before the animal can be imported to Hong Kong. Mammals must have been kept indoors for six months prior to import (or from birth) and must show no signs of rabies. Chinchillas must be over 12 weeks old and certified as bred in captivity. The permit application can be downloaded from the AFCD website.

Pet turtles must be certified as free of salmonellosis. The application for a permit for importing a pet turtle can be downloaded here.

For reptiles, the AFCD has a list of approved species and some pets may not be permitted entry. A permit should always be sought and where necessary the owner of a snake may be required to pay for an expert snake handler to handle the snake during inspection. The application for an import permit can be downloaded here.

B. Taking your pet with you when you leave Hong Kong

Overseas countries have their own import requirements and many will require advance planning and vaccinations before the animal can be transported abroad. In Hong Kong there are a few commercial companies that can assist with the logistical arrangements for moving pets to countries abroad. If it is truly impossible to take the animal to the new country and the owner is migrating permanently then careful arrangements should be made for its re-homing with friends in Hong Kong. Giving animals to already overcrowded animal shelters is not usually in the best interests of an animal which has known the security of a private home. Giving the animal to strangers met on the Internet may result in it ending up abandoned or imprisoned in a puppy/kitten breeding farm.

FAQ

1. Can I keep animals in public housing?

The Housing Authority has granted general permission for keeping small household pets including de-sexed cats. However, the keeping of wild animals, exotic animals and farm animals is not permitted.

For more details, please refer to Daily Lives Legal Issues > Laws relating to pets > What kinds of pets can be kept? > A. Keeping animals in public housing .

2. How can I know if a private housing prohibits keeping of pets?

However, where animals kept in private premises cause a serious nuisance to other owners, their keeper may be liable for causing a nuisance (even where the DMC allows the keeping of pets).

For more details about this issue, please refer to Daily Lives Legal Issues > Laws relating to pets > What kinds of pets can be kept? > B. Private housing and pets .

3. If my dog bites someone, what should I do?

If your dog bites a person, as a keeper of the dog, there is a duty on you to report this to the police and to keep the dog in isolation, for such period as may be specified by the officer in charge of the police station (due to the risk of rabies). Failure to comply may result in a fine.

You may be guilty of a criminal offence and be fined if you did not do all you reasonably could to prevent your dog from biting a person. Pursuant to a complaint being lodged, a magistrate may rule that a dog is dangerous and an order may be made that the dog be destroyed or must be kept under effective control.

If you are negligent in controlling your dog, you may also be liable for compensation in a civil action if it bites a human or other animal. Even in cases where you were not negligent in controlling your dog, you may still be liable for a bite if you had previous knowledge the dog was likely to attack.

For more details, please refer to Daily Lives Legal Issues > Laws relating to pets > Duties of pet owners > C. Dogs biting people .

4. I am planning to run a pet shop. What are the things that I need to be aware of?

Under the Public Health (Animals and Birds) (Animal Traders) Regulations (Cap. 139B) it is not legal to carry on a business as an animal trader without a licence. Besides, all premises used for the sale of animals are required to be licensed.

The conditions attached to an Animal Traders Licence under Reg 5(3) of the Public Health (Animals and Birds) (Animal Traders) Regulations require that:

All dogs for sale in licensed premises have a microchip device with an individual code number implanted under the skin.
Before sale, dogs of over five months of age must not only have the above mentioned microchip implanted, but must also have a dog licence from the AFCD.
The pet shop or breeder must have a scanner for reading the microchip devices in the dogs for sale available for customers on the pet shop premises at all times.
All dogs must be vaccinated against distemper, parvovirus and infectious hepatitis before they can be legally sold. An animal trader is required to keep certificates for these vaccinations (issued by a veterinary surgeon) for every dog offered for sale. The vaccination certificate must state the dog’s personal microchip number. Similarly, all cats offered for sale must be vaccinated against feline panleukopaemia and feline respiratory disease.

For more details, please refer to Daily Lives Legal Issues > Laws relating to pets > What are my legal rights regarding pet shops?

5. What acts amount to committing the offence of cruelty to animals?

Usually, for a prosecution for cruelty to animals to succeed, unnecessary suffering must have already been caused to an animal. Suffering need not, however, have been prolonged or to have had serious consequences for an offence to have occurred. It is also not necessary to prove the offender intended cruelty to the animal. It is enough that a normal and reasonable person would have realized the risk that the animal might suffer as a result of his actions and would have adjusted his behaviour accordingly. It is also an offence for the owner of an animal to permit another person to treat his animal cruelly by failing to exercise reasonable care to protect the animal.

If you want to know more, please visit Daily Lives Legal Issues > Laws relating to pets > Animal cruelty .

6. I am going to migrate to another country. Other than giving away my dog, what else can I do?

Instead of leaving your dog behind, you may consider taking your dog with you. Overseas countries have their own import requirements and many will require advance planning and vaccinations before the animal can be transported abroad. In Hong Kong there are a few commercial companies that can assist with the logistical arrangements for moving pets to countries abroad. If it is truly impossible to take the animal to the new country and the owner is migrating permanently then careful arrangements should be made for its re-homing with friends in Hong Kong. Giving animals to already overcrowded animal shelters is not usually in the best interests of an animal which has known the security of a private home. Giving the animal to strangers met on the Internet may result in it ending up abandoned or imprisoned in a puppy/kitten breeding farm.

For more information, please visit Daily Lives Legal Issues > Laws relating to pets > Travel and pets .

I. What is Stalking?

There is currently no criminal offence of “stalking” in the laws of Hong Kong. Following the recommendations for an anti-stalking law by the Law Reform Commission of Hong Kong in its October 2000 Stalking Report , a Consultation Paper on Stalking was issued by the Constitutional and Mainland Affairs Bureau in December 2011. Both papers recognize the need to criminalise stalking.

However, there is no comprehensive definition of “stalking” due to the various forms stalking can take. Contributors to the Law Reform Commission 2000 Report variously referred to stalking as “ the pursuit by one person of what appears to be a campaign of harassment or molestation of another, usually with an undertone of sexual attraction or infatuation” and “behaviour which subjects another to a course of persistent conduct, whether active or passive, which taken together over a period of time amounts to harassment or pestering”. The 2011 Consultation Paper proposed anti-stalking legislation which would be designed “ to protect the innocent from being pursued in any way that places the victim in constant fear or anxiety” .

Stalking can therefore involve any of the following:

persistent pestering and intimidation through shouting, denigration, threats or argument;
persistent silent, abusive or nuisance telephone calls;
damaging property;
keeping the keys of premises occupied by a former spouse or partner, and entering those premises without permission, particularly when some evidence of that entry is left behind;
persistent following;
persistent and unwelcome contact by phone, text, letter, WhatsApp or other information or communication technology;
repeatedly calling the person to whom the conduct is directed at their home or place of work;
declarations of love, often reinforced with threats of self-harm or suicide if the declared love is not reciprocated;
threats of violence to the victim, or the victim’s family members, particularly when linked with demands for the victim to meet the stalker or reciprocate the stalker’s declared love, or both; or
persistent sending of unwanted and unwelcome gifts to the victim’s home, place of work or school.

The common factor in stalking is therefore unwelcome, persistent and debilitating conduct directed towards the victim. The motive for such conduct is irrelevant.

Many stalkers, however, are obsessed with “love” for their victims. The stalker may make declarations of love, or threats of suicide or intent to inflict self-harm to attract the victim’s attention, particularly when the victim is known to be alone and afraid. These expressions of intent to inflict self-harm can be made directly, through fax messages, e-mail, social networking sites, or phone. Unwanted presents can be left at the victim’s home, workplace or school. This can lead to severe disruption in the victim’s personal and work life.

II. Responding to the stalker

As stalking is not currently a criminal offence in Hong Kong, consideration must be given to protection under existing Hong Kong laws. Criminal offences under the Offences Against the Person Ordinance ( Cap. 212 ), the Crimes Ordinance ( Cap. 200 ), the Theft Ordinance ( Cap. 210 ), the Summary Offences Ordinance ( Cap. 228 ) and the Public Order Ordinance ( Cap. 245 ) may be committed, depending upon the particular facts and the intention of the stalker.

Whether or not to prosecute in a particular case is a matter for the police to decide. Guidelines for the commencement of prosecution are set out in the Prosecution Code , issued on 7th September 2013. The main determining factor for a prosecution is whether the evidence in the particular case shows a reasonable prospect of success. In a criminal prosecution, guilt must be proved beyond reasonable doubt.

III. Possible criminal charges against a stalker under the Offences Against the Person Ordinance

A. Offences relating to assault

A person convicted of a common assault contrary to section 40 of the Offences Against the Person Ordinance (OAPO) ( Cap. 212 ) is liable to a maximum punishment of imprisonment for one year.

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.

IV. Possible criminal charges against a stalker under the Crimes Ordinance

A. Criminal damage

Under section 60 of the Crimes Ordinance ( Cap. 200 ), a person who without lawful excuse destroys or damages any property belonging to another with the intention of destroying or damaging the property, or does so through recklessness, commits an offence punishable on conviction with a maximum penalty of life imprisonment. Criminal damage occurs where property is unlawfully destroyed or damaged. Criminal damage is given a wide interpretation, and includes not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness. Graffiti falls within this definition as, even though it can be removed, until it is removed, there is an alteration in substance to, for example, the wall upon which the graffiti has been written. Section 60 of the Crimes Ordinance therefore applies where, for example, a stalker, perhaps for revenge or out of annoyance that the victim has refused requests to meet, damages the victim’s car by scoring the paint work with a key or writing graffiti on the outside of the victim’s home.

Property, for the purposes of section 59 of the Crimes Ordinance includes, among other things, any programme or data held in a computer or computer storage medium. Destroying or damaging such property includes misusing a computer. A computer is misused when it is made to function in a way other than that established by its owner, when any programme in the computer is altered or erased, or when a programme or data is added to the computer. A stalker who misuses the victim’s computer, perhaps as an act of revenge for the victim not responding to requests to meet or for rejecting gifts sent by the stalker, commits criminal damage.

B. Certain acts of intimidation prohibited

Under section 24 of the Crimes Ordinance , any person who threatens another person with injury to the person’s reputation or property, or with any illegal act with intent to alarm the person so threatened or to cause the person so threatened to do an act they are not legally bound to do, or to cause the person so threatened to omit to do an act they are legally entitled to do commits an offence punishable upon summary conviction by a fine of $2,000 and imprisonment for two years and upon indictment , by imprisonment for five years.

Section 24 of the Crimes Ordinance addresses conduct which is directed towards alarming the victim. It extends to conduct directed to force the victim to meet the stalker or remain in contact with the stalker by threats of injury to the person, reputation or property if they do not. The threat can be to injure the person, reputation or property of a third party, for example a family member, if that is done with the intent specified in the section. Section 24 provides a possible protection against the stalker, but it is cumbersome and depends upon action by the police. This depends on the particular case and the sufficiency of evidence.

For more details, refer to the other topic: Domestic violence and assistance .

C. Loitering

Under section 160(1) of the Crimes Ordinance , it is an offence, punishable upon conviction by a fine of up to $10,000 and imprisonment for up to six months, to loiter in the common parts of a building with intent to commit an arrestable offence. According to section 3 of the Interpretation and General Clauses Ordinance ( Cap. 1 ), an arrestable offence is an offence for which the sentence is fixed by law (e.g. murder) or for which the offender may be sentenced to imprisonment for a term exceeding 12 months (e.g. assault occasioning actual bodily harm) and an attempt to commit such an offence. Under section 160(2) of the Crimes Ordinance , it is an offence, punishable upon conviction with imprisonment for up six months, to loiter in the common parts of a building and to wilfully obstruct any person using that place. Section 160(3) makes it an offence, punishable upon conviction by imprisonment for up to two years, to loiter in a public place or in the common parts of any building and cause any person reasonably to be concerned for their safety or well-being. The common parts of a building are the entrance area, lobby, passageways, corridors, staircases, landings, rooftop, lifts, escalators, cellar, toilets, water closets, wash houses, bath-houses or kitchens which are in common use by the occupiers of the building, as well as any compound, garage, car park, car port or lane.

Where there is a prosecution and conviction, concerns arise whether the sentences are sufficient to reflect the conduct involved and to act as a deterrent to stalking. In HKSAR v Au Pak Chung the defendant was convicted of loitering causing concern contrary to section 160(3) of the Crimes Ordinance . The defendant loitered in a public playground, and by his presence there, caused the victim, a schoolgirl, reasonably to be concerned for her safety or well-being. He stood in front of a group of schoolgirls, bent down and looked up the victim’s skirt. The victim said she was frightened because she did not know what would happen next. The defendant eventually moved away, but remained in the vicinity, looking at other schoolgirls. He was sentenced to imprisonment for two months after appeal.

D. Where cases involve both criminal intimidation and loitering causing concern

HKSAR v Pearce Matt James illustrates the possibilities for the victim of a stalker of both criminal intimidation contrary to section 24 of the Crimes Ordinance , and loitering causing concern contrary to section 160(3) of the Crimes Ordinance e. The defendant and the victim (a teacher) had a short-lived relationship. When it ended, the defendant, on various occasions, went to the school where the victim worked. He carried placards and handed out leaflets containing disparaging remarks about the victim. In her evidence at the trial, the victim said the defendant had approached her despite her requests to leave her alone, thrown beer on her, poked her, and broken into her residence without her consent. She said, “ I was very frightened, I was devastated, I was upset, I was humiliated, and I cried ”. The defendant was convicted on 15 charges variously of criminal intimidation and loitering causing concern and sentenced to a total of 42 weeks’ imprisonment. His appeals against each conviction were dismissed, but his sentence was reduced to a total of eight months’ imprisonment.

In this case, there was clear evidence of the defendant’s conduct. It continued over a long period of time, and there were reliable witnesses to that conduct. In any event, the defendant did not dispute the facts, but on the criminal intimidation and loitering charges, he argued he was entitled to do what he did, relying on Article 27 of the Hong Kong Basic Law , which provides that Hong Kong residents have freedom of speech, freedom of the press and of publication, freedom of association, of assembly, of procession and of demonstration. In dismissing that argument, Deputy High Court Judge Line (as he then was) stated: “ I take what the Appellant has argued here to be really an attack on the constitutionality of both section 24 and 160(3) of the Crimes Ordinance . If a law does offend the Basic Law, then the courts will strike it down if the circumstances justify it. The circumstances require the court to look at considerations of necessity and proportionality. Both these provisions have now long withstood the passage of the Bill of Rights. Indeed, section 160 has been amended in the light of the passing of the Bill. I have no doubt these criminal provisions exist for good reason; that they are lawful; that they are necessary to protect people from certain sorts of conduct, and that they are proportionate to the mischiefs they seek to control. It would be a very sad day if a man could hound someone out of their job in Hong Kong merely by saying, “I’m allowed to do that because I have the right to demonstrate”. Accordingly, the constitutional challenge to the intimidation and the loitering, in my judgment, fails .”

E. Procurement by threats

Procurement by threats contrary to section 119 of the Crimes Ordinance is committed where a person procures another person by threats or intimidation to do an unlawful sexual act in Hong Kong or elsewhere. Procurement by threats is punishable upon conviction by imprisonment for up to 14 years.

According to section 117(1A) of the Crimes Ordinance , an unlawful sexual act is committed if, and only if, that other person:

has unlawful sexual intercourse;
commits buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or
commits buggery or an act of gross indecency with a person of the same sex.

‘Unlawful sexual intercourse’ for the purposes of section 119 of the Crimes Ordinance is sexual intercourse for which there is no consent. ‘Procurement’ means to get by special effort, to bring about, to acquire or to obtain something that otherwise would not be acquired or obtained.

A good example of a section 119 offence is HKSAR v Wong Dawa Norbu Ching Shan . The victim engaged in unwanted sexual intercourse with the defendant because of his threats to publish a nude photograph of her on “YouTube” and “Facebook”, and to send the photograph to her boyfriend. A similar situation of a defendant threatening to post nude photographs of the victim on the Internet unless she agreed to have sexual intercourse with him arose in HKSAR v Liang Fu Ting . As a result of the defendant’s threats, the victim had unwanted sexual intercourse with him on two occasions.

Procurement by threats overlaps with blackmail, contrary to section 23 of the Theft Ordinance. In cases such as Wong Dawa Norbu Ching Shan and Liang Fu Ting , the section 119 charge may well be the most appropriate one. Both cases may be seen as examples of stalking in the sense that the defendants engaged in a persistent course of contact to wear down the victims to obtain unwanted sexual intercourse.

V. Possible criminal charges against a stalker under the Theft Ordinance

A. Blackmail

Blackmail, contrary to section 23 of the Theft Ordinance ( Cap. 210 ), is committed where a person, with a view to gain for himself or another or with intent to cause loss to another, makes an unwarranted demand with menaces. A demand with menaces is unwarranted unless the person making it does so in the belief he has reasonable grounds for making the demand and the use of the menaces is a proper means of reinforcing the demand. Blackmail is punishable on conviction by imprisonment for 10 years.

Blackmail would be committed by a person who, for example, has had video-recorded sexual intercourse with the victim and then sends the victim messages, either directly or through information and technology systems, demanding more intercourse or the payment of money to stop the video being made public. An example of this situation is HKSAR v Chai Mei Kwan , where 20 months’ imprisonment was imposed after the defendant’s plea of guilty. After having sexual intercourse with the victim, the defendant sent him SMS messages demanding money. In another SMS, she told him there was a video of their intimacies which could be distributed to “everyone”. In sentencing, Deputy District Judge Joseph To remarked, “ There are two aggravating factors in this case. Firstly, the defendant did not just utter empty words; she had equipped herself with the video clip showing her and the victim in compromising circumstances. Secondly, the threatened means of dissemination via the computer must have filled the victim with alarm; it is common knowledge that the Internet knows no borders and once uploaded, information is difficult to erase.”

The case HKSAR v Chai Mei Kwan involved demands for money. A charge of blackmail could also be brought where the stalker threatens the victim with violence: for example, unless the victim meets or engages in sexual intercourse with the stalker. Similarly, blackmail would be committed where the threat is to injure a family member or to damage the victim’s property or the property of family members unless the victim, for example, agrees to meet or engage in sexual intercourse with the stalker. If sexual intercourse occurs after such threats, conceivably a charge of rape contrary to section 118 of the Crimes Ordinance ( Cap. 200 ) could be brought on the basis that there was no consent to sexual intercourse because of the threats. If the sexual activity falls short of sexual intercourse, if the stalker is a female, or if the stalker and the victim are of the same gender, a charge of indecent assault contrary to section 122 of the Crimes Ordinance could be brought, again on the basis that there was no true consent to the sexual activity because of the threats made by the stalker.

B. Burglary

Burglary contrary to section 11 of the Theft Ordinance is committed if a person enters any building or part of a building as a trespasser with the intention of stealing something in the building, inflicting grievous bodily harm on anyone in the building, raping any woman in the building, or doing unlawful damage to the building or anything in the building. Burglary is punishable by 14 years’ imprisonment.

Entry as a trespasser means that the entry is without the permission of the occupier or without any lawful justification. There is no requirement that the entry be forced. Using keys to enter a building without any right to use those keys, or entry through an open door or an open window without any right or permission to do so is trespassing.

Unlawful damage includes causing a computer within the building to malfunction, unlawfully erasing any programme in a computer, or unlawfully adding any program or data to the contents of a computer in the building or a computer storage medium in the building.

Burglary is committed even if nothing is stolen, no one is injured, or no damage is caused to the building or its contents, provided the intention to steal, inflict grievous bodily harm, commit rape or do unlawful damage is present at the time of entry as a trespasser. It is also burglary if a person who has entered any building or part of a building as a trespasser steals or attempts to steal anything in that building or part of it, or inflicts or attempts to inflict grievous bodily harm on any person in the building.

A stalker who enters the victim’s premises intending to steal or commit unlawful damage therefore commits burglary. Similarly, entering with intent to do unlawful damage is burglary. This could, for example, be the intention to write an endearing or threatening message on a wall inside the premises.

It would not, however, be burglary if the intention is to leave a pre-prepared message, for example, on a table in the premises to let the victim know the premises have been entered. It would similarly not be burglary if the purpose of the entry is simply to look around, for example, to check whether the victim has formed a new relationship or a new partner has moved in.

VI. Possible criminal charges against a stalker under the Summary Offences Ordinance

A. Offences in connection with telephone calls or messages, or telegrams

Section 20 of the Summary Offences Ordinance ( Cap. 228 ) may provide some protection from telephone calls made by a stalker. It is an offence punishable by a fine of $1,000 and imprisonment for two months to send any message by telegraph, telephone or wireless telegraphy which is grossly offensive, or of an indecent, obscene or menacing character. It is also an offence under the same section to send any message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety to any other person ( section 20(b) ), or to persistently make telephone calls without reasonable cause for any of those purposes ( section 20(c) ).

Giving “wireless telegraphy” its practical and contemporary meaning as the transfer of information between two or more points that are not connected by an electrical conductor, section 20 extends to messages sent by social network apps for smartphones through the Internet: e.g. WhatsApp, Line or Skype. This interpretation accords with section 19 of the Interpretation and General Clauses Ordinance ( Cap. 1 ) (IGCO), which requires legislation to “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”.

Section 20 requires the message to be grossly offensive, or of an indecent, obscene or menacing character. Whether or not this is so is fact specific. However, giving section 20 a purposive interpretation as required by section 19 of the IGCO , the phrase “menacing character” covers persistent silent telephone calls. As discussed in R v Ireland and R v Burstow , repeated telephone calls, including silent calls, could cause the victim to apprehend immediate and unlawful violence and, depending on the particular circumstances, be of a menacing character.

Sometimes, persistent telephone calls, particularly silent calls, from a stalker during the night can be particularly disruptive and harmful to mental or physical health, particularly if the victim is known to be alone and afraid. As established in English cases R v Ireland and R v Burstow , recognisable psychiatric illness can amount to bodily harm (but this does not include fear, distress or panic). The stalker can be charged with Assault Occasioning Actual Bodily Harm contrary to section 39 of the Offences Against the Person Ordinance .

Ireland made persistent silent telephone calls to three women, who consequently suffered psychiatric illness. Ireland’s conviction on three counts of assault occasioning actual bodily harm (equivalent to section 39 of the Offences Against the Person Ordinance of the Laws of Hong Kong) was upheld: psychiatric injury can amount to actual bodily harm, and since repeated telephone calls could cause the victim to apprehend immediate and unlawful violence, his conduct could amount to an assault. Burstow conducted an eight month campaign of harassment against a woman using both silent and abusive telephone calls. She was fearful of personal violence and suffering from a severe depressive illness. His appeal against conviction for unlawfully inflicting grievous bodily harm contrary to the equivalent of section 19 of the Offences Against the Person Ordinance of the Laws of Hong Kong was dismissed on the grounds that psychiatric injury could amount to grievous bodily harm.

Both Ireland and Burstow indicate possible protections are available to the victims of stalkers in Hong Kong by using the Offences Against the Person Ordinance . The problem is that in proving the case, there is the issue of the time and cost involved, and the question of whether the particular case comes within the guidelines for the commencement of a prosecution under the Department of Justice’s Prosecution Code 2013 .

VII. Possible criminal charges against a stalker under the Public Order Ordinance

A. Disorderly conduct in a public place

Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, is guilty of an offence contrary to section 17B(2) of the Public Order Ordinance ( Cap. 245 ) and is liable on conviction to a fine at level 2 of Schedule 8 of the Criminal Procedure Ordinance ( Cap. 221 ) (currently $5,000) and to imprisonment for 12 months.

This section provides a potential response to a stalker who uses threatening, abusive or insulting words likely to cause a breach of the peace. An example is HKSAR v Chan Kwai Hung . The defendant behaved in a disorderly manner in a public place by positioning a black recycle bag containing a mobile phone with a camera lens under the skirt of a female. There were a number of people nearby, any one of whom could have discovered what he was doing. Had they done so, the court was satisfied that what the defendant did would have caused sufficient outrage to make it likely that one or more of them would not confine themselves simply to the force required to effect the arrest of the appellant. A witness to the event grabbed the straps of the bag from Chan in order to stop him. Chan was convicted after trial and sentenced to 14 days’ imprisonment. His appeal against conviction was dismissed, but his sentence was altered to a Community Service Order of 160 hours.

Section 17B(2) affords some protection to the victim of a stalker where the stalker’s conduct amounts to an actual or threatened breach of the peace. It does not, however, address cases in which a stalker simply follows the victim or contacts the victim through electronic communication systems. Such systems distance the victim from the stalker. In neither case is there disorderly conduct in a public place. Persistently contacting the victim through electronic communication systems, however, may involve an offence contrary to section 20 of the Summary Offences Ordinance .

VIII. Possible criminal charges against a stalker for common law offences

A. Outraging public decency

Outraging public decency is an offence contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance ( Cap. 221 ). This offence again affords potential protection to the victim of a stalker where there is an act of such lewd, obscene or disgusting character as constitutes an outrage of public decency. The maximum penalty is imprisonment for seven years or a fine. It potentially affords protection where the stalker follows his female victim in a public place, and takes or attempts to take an upskirt photograph or exposes himself indecently to the victim. There are obvious difficulties, however, in applying the offence to simple following or contacting, especially where the contract is made through information and communication technology systems.

B. False imprisonment

False imprisonment is complete deprivation of the victim’s freedom to leave a place for any time, however short, without lawful cause. It is an offence contrary to common law and also a tort. Incarceration in the accepted sense of the word is not necessary. It is sufficient that the victim is unlawfully prevented from leaving a place. A stalker who threatens force and intimidates the victim into remaining where they are commits false imprisonment.

False imprisonment is a common law offence. The maximum penalty is seven years’ imprisonment and a fine according to section 101I of the Criminal Procedure Ordinance .

IX. Possible preventative action against stalkers

A. Arrest for breach of the peace

Although breach of the peace is not an offence in common law, a person may be arrested without warrant for this. There is a power of arrest where a breach of the peace has been committed in the presence of the person making the arrest; or the person making the arrest reasonably believes that a breach of the peace is imminent; or where a breach has been committed, and it is reasonably believed that a renewal is threatened. A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or in their presence to their property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. A person arrested for breach of the peace may be charged with an offence which has a breach of the peace as an element of the offence, or bound over to keep the peace and to be of good behaviour, or simply released.

The powers of judges and magistrates to bind over to keep the peace or to be of good behaviour is derived from common law and from statute. Preventive action can be taken against potential offenders before an offence is committed. The purpose is to prevent breaches of the peace before they occur, not to punish the arrested person for breaching the peace. The courts have wide discretion about whether or not to bind over. A binding over order can be made if a judge or magistrate is satisfied that there is a risk that the person before the court is likely to cause a breach of the peace in the future.

section 109I of the Criminal Procedure Ordinance ( Cap. 221 ) gives judges and magistrates the power to require any person before the court to enter into a recognisance with or without sureties to keep the peace for a specified period of time and be of good behaviour. Failure to comply may lead to imprisonment and, if there is a further breach of the peace, all or part of the recognisance may be forfeited. There is no power to commit to prison for breaching the recognizance.