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 .