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 .
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.
- 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.