X. Civil procedures

Where a stalker commits a civil wrong, such as assault, intimidation, trespass or nuisance, the victim may bring a civil lawsuit in tort.

The stalker’s activities may be both a crime and a tort: a civil wrong. A crime is an offence against society as a whole and is prosecuted by the HKSAR Government. The Secretary for Justice has the responsibility for the conduct of criminal prosecutions, including the decision of whether or not to prosecute in a particular case. A tort is a civil wrong and can be the subject of proceedings by the person who is wronged by the stalker’s conduct. Whether or not to commence proceedings for a tort is entirely a matter for the person wronged.  A successful criminal prosecution leads to the punishment of the offender. Successful proceedings in tort lead to an award of monetary compensation to the person wronged, and where there is evidence that the wrongful conduct is likely to be repeated, an injunction may be granted to prevent repetition of the wrongful conduct.

In criminal proceedings, the prosecution must prove guilt beyond reasonable doubt, which means with certainty. In civil proceedings, proof is on the lower standard of the balance of probability, which means more likely than not. Because of the lower standard of proof, there can be a successful action in tort even if a wrongdoer has been acquitted of the criminal offence giving rise to the action in tort, or if no prosecution has been commenced.

However, civil litigation has shortcomings. The procedures are slow moving and expensive, and provide many opportunities for delay. There is also concern whether the victim has the time, ability and resources to commence proceedings.

A. The tort of intimidation

The tort of intimidation involves intentional unlawful coercion. There must be a demand by the defendant which is reinforced by a coercive and unlawful threat unless the demand is complied with. The demand must be deliberately aimed at another person and made with the intention of compelling that person to do an act they are not obligated to do or to refrain from doing an act they are legally entitled to do. It must be shown that the person to whom the demand is addressed complied with the demand because of the coercive and unlawful threat. It must also be shown that the defendant  knew or should have known that complying with the demand would cause loss and damage to that person and that the person making the demand intended to cause loss and damage to the person to whom the demand was addressed.

The tort applies where harm is inflicted on the plaintiff by the defendant’s intimidating the plaintiff or a third person whereby the plaintiff or a third person is compelled to act or refrain from acting in obedience to the wishes of the defendant. It is an inexact remedy for victims of stalking, as there must be evidence the stalker intended to coerce their victim into doing or refraining from doing something. Simply hanging around the victim does not of itself amount to coercion. A wrong may be threatened without the requisite element of coercion. Even if there is coercion, the tort cannot be invoked unless there is coercion to act or to refrain from acting because of the unlawful act. Only coercion by way of unlawful conduct is caught.

B. The tort of trespass to the person

An assault is committed if the defendant deliberately or recklessly puts a person in fear of unlawful physical contact. Acts or statements are not actionable unless they bring about fear or apprehension of immediate violence. Following, hanging around outside the victim’s home, abuse or rhetoric will not normally suffice.

A battery is committed when there is an actual infliction of unlawful force.  As long as there is an application of force to another person, it is not necessary to prove that the defendant had an intention to injure or that the contact caused or threatened any physical injury to the plaintiff. Provided the required ingredients are proved, the tort will have been committed however slight the force. Mere touching without consent or lawful excuse is therefore actionable. The tort is useful where the stalker threatens force or applies force to his victim. But a stalker may only repeatedly make telephone calls or follow his victim. Persistent following or verbal abuse is not a battery, as there is no contact between the stalker and the victim. Merely uttering annoying statements or causing a nuisance outside the victim’s home or work place is not a trespass to the person.

C. The tort of harassment

This tort involves persistent conduct which would cause, and which the defendant ought reasonably to know would cause, worry, emotional distress or annoyance to another person. The tort of harassment has some similarities with the tort of intimidation and may be seen as an extension or development of that tort. An essential difference between the two torts is that the tort of intimidation requires that the person to whom the coercion was directed complies with the coercion, whereas the tort of harassment does not require that the threats or coercion succeed in bringing about the result the defendant desired. Another difference between the two torts is that the tort of intimidation requires intention to cause loss and damage, whereas the tort of harassment addresses a course of conduct which causes worry, emotional distress or annoyance to another person.

An example of the conduct addressed by the tort of harassment is seen in Lau Tat Wai v Yip Lai Kuen, Joey , in which Anthony Chan J referred to the tort of harassment as:

“— 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.”

The plaintiff, Mr Lau, ended a brief, but intimate relationship with the defendant. Over the next six years she subjected him and his family to an intense and extreme series of malicious acts intended to harass, intimidate and generally damage his life, well-being and career. For their own protection, Mr Lau and his family moved house, gave up jobs and maintained a distance from friends. Ms Yip hacked into Mr Lau’s e-mails and downloaded all his contacts. In addition, she made numerous telephone calls to both him and his friends.

The plaintiff was awarded damages amounting to $946,673 in costs and an injunction to restrain further harassment. The injunction restrained the defendant, her servants or agents, or otherwise howsoever, from carrying out any of the following acts:

  1. causing or permitting harassment, nuisance or intimidation to the plaintiff or his named family members;
  2. causing or permitting trespass to the properties belonging to the plaintiff;
  3. entering or remaining at or coming within a distance of 30 metres from:
    1. the plaintiff’s place of residence;
    2. the plaintiff’s grandmother’s place of residence;
    3. the plaintiff’s work place;
  4. approaching or contacting the plaintiff or the said family members, whether directly or indirectly, whether by telephone or email, or otherwise;
  5. causing or permitting the printing, producing, circulating, distributing, sending, emailing, transmitting or otherwise publishing of any materials containing derogatory remarks of the plaintiff or the said family members;
  6. causing or permitting any surveillance on the plaintiff or investigation into any personal data of the plaintiff or the said family members.

This tort affords a remedy against the determined and persistent stalker, but is unlikely to assist where the conduct is at a relatively low, though unpleasant level. The impact of the defendant’s conduct on Mr Lau substantially disrupted his personal and private life, and his business activities.  In any event, it raises the question of whether the average victim of a stalker has the capacity, aptitude, time and resources to commence an action in tort. Mr Lau was legally aided.

D. Enforcement of injunctions

Breach of an injunction is a contempt of court punishable by a fine or imprisonment. Imprisonment is rarely used. A committal order, which is an order that the person who has breached the terms of an injunction be punished with imprisonment, is made only when all other efforts to control the situation have failed. Rather than impose immediate imprisonment, the court which made the injunction may, particularly on the first breach or where the breach is not that serious, accept an undertaking (a promise) from the defendant not to commit further breaches of the injunction. As breach of an injunction is not a criminal offence, the police cannot arrest a person who is in breach of an injunction, unless this is necessary to prevent a breach of the peace, or the breach itself amounts to a criminal offence. Enforcement of the injunction is a matter for the plaintiff. The plaintiff is responsible for issuing the necessary documentation to bring the defendant back before the court which made the injunction and to show that the injunction has been breached.