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