1. What is Stalking?
There is currently no specific criminal offence on “stalking” in the laws of Hong Kong, nor comprehensive definition of “stalking”. Its various aspects are governed, in different extent, by the laws in Hong Kong. Since 2000, there has been call for reform in this area. The Law Reform Commission of Hong Kong in its October 2000 Stalking Report 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”. A Consultation Paper on Stalking was issued by the Constitutional and Mainland Affairs Bureau in December 2011 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 and unwelcome contact by phone, text messages, letters or other information or communication technology; or
- repeatedly calling the person to whom the conduct is directed at their home or place of work.
To know more about this topic, please visit Daily Lives Legal Issues > Stalking > What is stalking? .
2. My ex-lover persistently calls me and sends text messages to me. It causes me great disturbance. Because of this, I suffer from mental distress and need to see a doctor. Has my ex-lover committed any offences?
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 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, or to persistently make telephone calls without reasonable cause for any of those purposes.
Section 20 extends to messages sent by social network apps for smartphones through the Internet: e.g. WhatsApp, Line or Skype.
Sometimes, persistent telephone calls, particularly silent calls, can be disruptive and harmful to mental or physical health, particularly if the victim is known to be alone and afraid. As established in English case law, 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.
To know more about this, you may go to Daily Lives Legal Issues > Stalking > Possible criminal charges against a stalker under the Summary Offences Ordinance > A. Offences in connection with telephone calls or messages, or telegrams .
3. If a stalker is not prosecuted, what can a victim do?
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. 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.
For more details, please refer to Daily Lives Legal Issues > Stalking > Civil procedures .
4. What happens if someone has breached an injunction?
Breach of an injunction is a contempt of court punishable by a fine or imprisonment. Imprisonment is rarely used. 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 it is necessary to prevent a breach of 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.
To understand more about this, please go to Daily Lives Legal Issues > Stalking > Civil procedures > D. Enforcement of injunctions .