THE LAW REFORM COMMISSION OF HONG KONG

PRIVACY SUB-COMMITTEE

STALKING

Consultation Paper

May 1998

The Law Reform Commission of Hong Kong

Privacy Sub-committee

Consultation Paper on Stalking

Table of Contents

Introduction Page

1. The menace of stalking

What is stalking?

Methods employed by stalkers

The right of individuals in not being harassed by stalkers

Types of stalkers

Victims of stalking

Impact of stalking behaviour on victims

Effect of stalking behaviour on individual privacy

2. Protection form harassment under existing law

I. Civil law and stalking behaviour

Intentional infliction of emotional distress

Trespass to land

Private nuisance

Watching and besetting premises

Intimidation

Harassment on highway

Defamation

Assault

Battery

False imprisonment

Involuntary admission under the Mental Health Ordinance

Protection of Children and Juveniles Ordinance

Sexual harassment

Injunctive relief for plaintiffs in tort actions

Is there a tort of harassment

Power to grant injunctions in family proceedings

Enforcement of injunctions

Invasion of privacy

Difficulties of dealing with stalking under existing civil law

II. Criminal law and stalking behaviour

Power to bind over to keep the peace or to be of good behaviour

Assault and battery

Assault occasioning actual bodily harm

Wounding or inflicting grievous bodily harm

False imprisonment

Loitering

Telephone and post office statutes

Public nuisance

Intimidation

Criminal attempt

Difficulties of dealing with stalking under existing criminal law

3. Legislation in other jurisdictions

Canada

New Zealand

New South Wales

South Australia

England and Wales

United States

4. Proposed reform

Need for anti-stalking legislation

Need for criminal sanctions

Elements of the new offence

Penalty for stalking

Aggravated stalking

Defences

Potential for abuse

Restraining orders in criminal proceedings

Bail

Mental evaluation and treatment for stalkers

Education

Need for civil sanctions

Breach of injunction

Harassment of debtors by debt collection agencies

Harassment of tenants and licensees of leased premises

Conclusion

5. Summary of recommendations and proposals

Introduction

1. On 11 October 1989, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred to the Law Reform Commission for consideration the subject of “privacy”. The Commission’s terms of reference are as follows:

“To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

(c) intrusion (by electronic or other means) into private premises; and

(d) the interception of communications, whether oral or recorded;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”

2. The Law Reform Commission appointed a sub-committee to examine the current state of law and to make recommendations. The members of the sub-committee are:

The Hon Mr Justice Vice-President,

Mortimer (Chairman) Court of Appeal

Dr John Bacon-Shone Director, Social Sciences Research Centre,

The University of Hong Kong

Mr Don Brech Principal Consultant,

Records Management International Limited

Mrs Patricia Chu Deputy Director of Social Welfare (Services),

Social Welfare Department

Mr A F M Conway Chairman,

Great River Corporation Limited

Mr Edwin Lau Assistant General Manager / Head of Personal Banking,

Hongkong & Shanghai Banking Corporation

Mr James O’Neil Principal Government Counsel (Elections),

Department of Justice

Mr Peter So Lai-yin General Manager,

Hong Kong Note Printing Limited

Prof Raymond Wacks Professor of Law and Legal Theory,

The University of Hong Kong

Mr Wong Kwok-wah Bureau Chief,

Asia Times

The secretary to the sub-committee was initially Mr Mark Berthold, Consultant. He was succeeded by Mr Godfrey K F Kan, Senior Government Counsel, in March 1996.

3. The issues raised at items (a) and (b) of the terms of reference were addressed in the Law Reform Commission report on Reform of the Law Relating to the Protection of Personal Data published in August 1994. The second Commission report on privacy was on the interception of communications. It was published in December 1996 entitled Privacy: Regulating the Interception of Communications.

4. The sub-committee submitted to the Commission in January 1998 a report on stalking behaviour. After considering the report, the Commission decided that the general public should be consulted on the subject. The text of the sub-committee report is therefore published here as a consultation paper for comment and criticism. All the conclusions and recommendations in this paper are made by the sub-committee. The Commission will reach its own conclusions and recommendations after it has considered the responses to the paper.

5. In addition to Stalking, the Privacy sub-committee has also studied the following topics: (a) civil liability and remedies for invasion of privacy; (b) the regulation of media intrusion; and (c) criminal sanctions for unlawful surveillance. Reports on these topics will be published in due course.

Chapter 1

The menace of stalking

What is stalking ?¹

1.1 Stalking, like shoplifting and vandalism, is a description rather than a legal concept.² Stalking is not a new phenomenon but it is only recently that such behaviour has been labelled as a separate and distinct class of anti-social behaviour. Celia Wells describes “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.”³ Similarly, Tim Lawson-Cruttenden defines stalking as “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.” He says that the legal term for stalking is harassment or pestering.⁴

1.2 Behaviour which amounts to harassment or molestation includes “persistent pestering and intimidation through shouting, denigration, threats or argument, nuisance telephone calls, damaging property, following the [victim] about and repeatedly calling at her home or place of work.”⁵ In its report on domestic violence, the English Law Commission stated that -

“The degree of severity of such behaviour depends less upon its intrinsic nature than upon it being part of a pattern and upon its effect on the victim. Acts of molestation often follow upon previous behaviour which has been violent or otherwise offensive. Calling at the applicant’s house on one occasion may not be objectionable. Calling frequently and unexpectedly at unsocial hours when the victim is known to be afraid certainly is. Such forms of abuse may in some circumstances be just as harmful, vicious and distressing as physical injuries.”⁶

1.3 “Harass” and “molest” have the following meanings in The New Shorter Oxford English Dictionary:

“harass 1. Trouble by repeated attacks. Now freq., subject to constant molesting or persecution. 2. Lay waste, devastate. 3. Tire out, exhaust. ...”

“molest 1. Cause trouble to; vex, annoy, inconvenience. b. Of disease: afflict, affect. 2. Interfere or meddle with (a person) injuriously or with hostile intent. Now esp. attack or abuse sexually. b. Tamper with (a thing).”

“molestation 1. The action of molesting someone or ... something; the condition of being molested; intentional annoyance, hostile interference; (esp. sexual) assault. Formerly also, vexation, distress. ...”

1.4 Richard Lingg proposes that “harass” means “a pattern of conduct, purposely committed, comprising two or more acts evidencing a continuity of purpose, directed at a specific person, which reasonably causes substantial emotional distress to the person.”⁷ The Penal Code of California defines “harasses” as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serve no legitimate purpose.”⁸ Such definitions accord with the ordinary meaning of the word “harassment”. It will be seen that the concept of “harassment” is an adequate description of both the activities engaged in by stalkers and the impact which such behaviour would have on victims of stalking.

Methods employed by stalkers

1.5 The methods employed by stalkers include various harassing behaviour such as unwelcome visits, repeated unwanted communications (whether oral, written or electronic); repeated followings; persistently sending or leaving at the doorstep unwanted gifts or bizarre articles such as pubic hair, used condoms and used sanitary napkins; paint daubing; putting up offensive notices in the street where the victim lives; watching or besetting a person’s home or place of work; damage or destruction of property; kidnapping of the victim, the victim’s family member, or pets; threatening conduct; physical and verbal abuse; rape; and murder.

1.6 Stalkers may employ unlawful means to harass their victim. For example, a stalker may make telephone calls which are of an obscene or menacing character, threaten his victim with injury to his person or property, or inflict violence on him or his family members. Such conduct can be restrained and penalized by existing criminal law. However, stalkers often engage in behaviour which is apparently harmless and entirely lawful when viewed in isolation. But seemingly innocuous behaviour, such as sending gifts, following someone down the street, or watching or besetting the access to premises, can be threatening and distressing if done persistently and against the will of the victim.⁹

1.7 The same kind of stalking behavior may be motivated by an extreme dislike of the victim or by an intense affection for the victim. But it is common that the pursuit begins with non-threatening conduct. For example, a former spouse or rejected suitor may make a telephone call, send a gift, or lie in wait outside the residence or place of work of his victim in an attempt to make amends. Although such conduct may cause the victim no more than mere annoyance or irritation, they can escalate into relentless and unwanted contact. Since some stalkers use the victim’s fear to achieve their object, they might resort to behaviour which can be threatening, dangerous or even fatal when their victim refuses to have any contact with them. Stalking behaviour should therefore be restrained at an early stage so as to prevent them from escalating into violence.

1.8 The National Victim Center in the United States describes the following behavioural pattern which is typical of a stalker:

“The stalker may attempt to woo their victim into a relationship by sending flowers, candy and love letters, in an attempt to ‘prove their love.’ However, when the victim spurns their unwelcome advances, the stalker often turns to intimidation. Such attempts at intimidation often begin in the form of an unjustified, jealous and inappropriate intrusion into the victim’s life. Often these contacts become more numerous and intrusive over time, until such collective conduct becomes a persistent pattern of harassment. Many times, harassing behavior escalates to threatening behavior. ... Stalkers, unable to establish or re-establish a relationship of power and control over their victims, turn to violence as a means of reasserting their domination over the victim. In some cases, offenders are even willing to kill their victims and themselves in a last, desperate attempt to assert their domination over the victim.”¹⁰

1.9 Stalking behaviour involves “a series of discrete, individual acts, each one building upon the next”.¹¹ A stalker may persist in stalking his victim for months or even years. One of the problems in developing an effective response to the menace of stalking is that it is difficult to predict what and when a stalker might do to his victim:

“Some stalkers may never escalate past the first stage. Others jump from the first stage to the last stage with little warning. Still others regress to previous stages before advancing to the next. It is not uncommon to see stalkers intersperse episodes of threats and violence with flowers and love letters. ... A few stalkers will progress to later stages in only a few weeks or even days. In other cases, stalkers who have engaged in some of the most serious stalking behaviors may go months or even years without attempting a subsequent contact.”¹²

The right of individuals in not being harassed by stalkers

1.10 As observed by the Manitoba Law Reform Commission, stalking interferes with the following interests of an individual:¹³

• Interest in privacy: Privacy includes the notion of being left alone, free of unwanted scrutiny, in our private lives. Stalking interferes with the victim’s privacy by following, watching or simply attending at the person’s residence or place of work, or by sending unwanted and inappropriate communications to him. As stalkers often follow their victims home, enacting anti-stalking laws can also protect the interest of individual in the well-being and privacy of his home.¹⁴

• Interest in emotional or psychological security: The victim should be protected against unjustifiable conduct which threatens self-esteem, emotional security and mental health.

• Interest of freedom of action and autonomous decision-making: The victim should not be subjected to the control, coercion or intimidation of the stalker so as to be compelled to act in a manner inconsistent with the victim’s interests and desires.

Types of stalkers

1.11 Stalking is gender neutral behaviour, with both male and female perpetrators and victims. However, most stalkers are men. Statistics indicate that 75-80 % of all stalking cases in the United States involve men stalking women.¹⁵

1.12 It has been said that stalkers range from cold-blooded killers to lovesick teens, exhibiting a variety of psychological syndromes such as paranoia, erotomania, schizophrenia and manic depression.¹⁶ While some have a small degree of mental and emotional illness, others are suffering from a serious psychological syndrome or mental breakdown. They come from all walks of life and socio-economic backgrounds. A stalker can be an ex-lover, ex-spouse, rejected suitor, colleague, ex-employee, neighbour, gang member, disgruntled defendant, or complete stranger. Even lawyers and judges can be stalkers.¹⁷

1.13 A review of the literature on stalking reveals that at least five different categories of stalkers exist, namely, delusional erotomanics, borderline erotomanics, Former Intimate stalkers, sociopathic stalkers, and stalkers with false victimization syndrome.

(a) Delusional erotomanics

1.14 The American Psychiatric Association describes “erotomania” as a delusional disorder in which the individual truly believes that he is loved by another who may not even know of his existence. The erotomanic typically fantasizes the existence of an idyllic romantic love with someone who is of a higher social status or in a position of authority relative to him. It is common that an erotomanic seeks to establish an intimate relationship with his object of fantasy.¹⁸ The erotomanic believes that his object will return the affection if given the chance - despite the absence of any actual relationship or emotional reciprocity.¹⁹

(b) Borderline erotomanics (or “love obsessionals”)

1.15 “Borderline erotomanics” are individuals who have developed intense emotional feelings towards other individuals who they know do not reciprocate their feelings, as opposed to delusional erotomanics who do believe their feelings are reciprocated. They usually have some history of emotional engagement with the object of fantasy and are profoundly vulnerable to the victim’s trivial expressions of warmth and openness.²⁰

1.16 Borderline erotomanics also tend to vacillate between feelings of love and hate towards their victims. They exhibit a pattern of unstable and intense interpersonal relationship in which the individual alternately overidealizes and devalues another.²¹ They may express significant narcissistic or abandonment rage when their victims do not return their affection.

(c) “Former Intimate stalkers” (or “simple obsessionals”)

1.17 About 70 to 80% of stalking cases involve “Former Intimate stalkers”. Unlike erotomanics and borderline erotomanics, Former Intimate stalkers have had some personal or romantic relationship with the victim. They engage in stalking behaviour when the relationship breaks down or when they feel mistreated by the victim. They stalk their victim in an attempt to resurrect the broken relationship or to seek revenge.²²

1.18 Former Intimate stalkers are extremely insecure about themselves and suffer from low self-esteem.²³ They are often emotionally dependent on their partner and may treat them as personal possessions. Some stalkers are therefore jealous of real or imagined infidelities. They may target the current lover or spouse of their victim in an attempt to remove what they perceive to be the obstacle to reunion, or may even seek to apply force to exert control over their victim. In extreme cases, they may kill the victim rather than let the victim go. The Los Angeles Police Department therefore characterized these stalkers as individuals who “refuse to let go” after a sexual or emotional relationship ends. But a more accurate description seems to be that they “refuse to be rejected”.²⁴ Since approximately 30% of Former Intimate stalkers who make threats follow through with them and end up in what are commonly called domestic violence cases, this category of stalkers poses the greatest potential threat of violence to the victim.²⁵

(d) Sociopathic stalkers

1.19 Stalking behaviour is common characteristic of serial murderers and serial rapists. Sociopathic stalkers are distinguished by the fact that they do not seek to initiate or maintain an interpersonal relationship with their victim. They first formulate the characteristics of the “ideal victim” and then seek out individuals who fit the criteria.²⁶ Sociopathic stalkers were usually abused or rejected during their childhood. When they find themselves unable to control their environment and experience rejection again as an adult, they displace their anger onto their victims.²⁷

(e) False victimization syndrome

1.20 This kind of stalker greatly admires his victim and may go to great lengths to imitate his habits and life style. In reality, he has low self-esteem and feels inferior to the individual who is the object of his attentions. When the stalker feels that he does not measure up to this individual and believes that he is wronged or rejected by him, he would take revenge by harassing him. When confronted with the facts, he would try to rationalize his behaviour by claiming that he is the victim and that it is the individual targeted by him who is at fault. Such stalkers are usually of the same sex as their victims.

Victims of stalking

1.21 Stalking affects people ranging from ordinary citizens to celebrities.²⁸ Although stalking cases involving celebrities attract much media attention, the overwhelming majority of victims of stalking are ordinary people who are harassed at their place of work or in a domestic context. Domestic stalking involves former lovers and spouses. This category represents 80% of all stalking cases. According to the Federal Bureau of Investigation in the United States, domestic violence is the number one cause of women’s injuries.²⁹

1.22 Since stalking is not a crime in Hong Kong and there has never been any study of the phenomenon of stalking in Hong Kong, the statistical prevalence of stalking in the territory is unknown. However, some statistics and projections on the prevalence of stalking in England, Canada, and the United States are available for our reference.

England

1.23 In England, the Police Federation estimated that 3,000 people fall victim to stalkers every year and that the overwhelming majority of them are women.³⁰ The National Anti-Stalking and Harassment Campaign in the UK reported that over 7,000 victims of stalking telephoned their helpline between January 1994 and November 1995. They estimated that about 95% of victims are women³¹.

Canada

1.24 The following are the findings of a survey carried out by the Canadian Centre for Justice Statistics. It represents a sample of 130 police departments (43% of the national volume of police cases) for 1994 and 1995:³²

(a) Out of the 7,462 reports of incidents that were classified as stalking,

• 88% of the accused stalkers were male

• 12% of the accused stalkers were female

(b) 80% of the victims were female:

• 39% were stalked by an ex-husband

• 24% were stalked by a casual acquaintance - mostly males

• 17% were stalked by a current or ex-boyfriend

• 7% were stalked by a stranger

• 3% were stalked through a work relationship

• 2% were stalked by a current husband

(c) 20% of the victims were male:

• 46% were stalked by a casual acquaintance - mostly males

• 12% were stalked by a stranger

• 11% were stalked through a work relationship

• 9% were stalked by an ex-wife

• 4% were stalked by an ex-girlfriend

(d) The majority of victims are likely to be harassed at home.

• 55% of the incidents occurred at the victim’s residence

• 11% of the incidents occurred in a commercial/corporate place

• 10% of the incidents occurred on the street or public transit

• 3% occurred at a public institution or a school

• 2% occurred in a parking lot

(e) 5% of the victims are physically injured. The survey revealed that the ongoing threat of harm from the stalker leads to severe emotional trauma for the victim. The trauma increases when stalking occurs near the victim’s home.

1.25 About 75% of the incidents involved women being stalked by men. The Federal-Provincial/Territorial Ministers Responsible for the Status of Women emphasized that women subject to violence have rights to just, timely, and effective remedies for the harm they have suffered.³³

United States

1.26 A leading forensic psychiatrist and expert on behavioral sciences, Dr Park Dietz, estimated that there are 200,000 stalkers on the street and that 5% of women in the United States will be stalked at least once during their lifetimes.³⁴ According to 1994 statistics, one million people in the United States have been stalked. The majority of them are ordinary people, mostly women, who are being pursued and threatened by someone with whom they have had a previous relationship. Approximately 80% of cases involve women stalked by ex-boyfriends and former husbands.³⁵ Of all women murdered in the United States, one half are killed by their current or former husbands or boyfriends.³⁶ The co-director of Virginians Against Domestic Violence estimates that as many as 90% of the women killed by (former) husbands or boyfriends were stalked by the killer before a murder occurred.³⁷

Impact of stalking behaviour on victims

1.27 Stalking has a serious impact on the private life and safety of many people. A review of the victims’ responses to their stalking experience indicates the presence of several Post-traumatic Stress Disorder symptoms, some of which persist for a long time even after stalking ceases.³⁸ In R v Ireland,³⁹ the defendant made numerous telephone calls to three women and remained silent when they answered. Evidence was given at the trial that the victims suffered significant adverse psychological symptoms as a result. Those symptoms included palpitations, difficulty in breathing, stress, anxiety, inability to sleep, tearfulness, headaches, dizziness, tingling in the fingers, a skin condition brought about by nervousness, and a constant feeling of being on edge. Other stalking cases show that the victims have difficulty in eating and sleeping or have nightmares over the events.

1.28 As victims of stalking can be subjected to constant harassment at home, at work and in public places, they are placed in constant fear and terror. Stalking has therefore been described as a form of “physical and psychological terrorism”. The victims often feel that they are no longer in control of their lives. Some would forever be looking over their shoulder and would never be able to trust anyone again.⁴⁰ Celia Brayfield, a novelist who was stalked for six years, said that -

“stalkers murder sleep. They destroy your sense of trust, your security and your peace of mind. They destroy your relationships and leave you feeling alone and stranded in an uncomprehending world”.⁴¹

1.29 Stalking behaviour may cause severe emotional trauma to the victim. Many stalking victims suffer psychological distress as a result. “They reach a ‘breaking point’ where they can find few areas in which to feel secure; they become nervous and then paranoid, and they go to great lengths to change their situation.” ⁴² The harassment may increase in magnitude and frequency so as to substantially interfere with the victim’s private life. In an attempt to avoid the stalker and to find safety, the victims are forced to change their lifestyles. They may change their telephone number, move to another district, quit their job or even refuse to go outside. A former Los Angeles County District Attorney described stalking in the following terms:

“This is terrorism, pure and simple. ... Somebody’s life is destroyed by it, somebody’s life becomes enveloped by it. Everything that they do - when they are asleep, when they are awake - is somehow connected to it. ... There is somebody constantly focused on them with an obsession.”⁴³

1.30 The Police Federation in England made a similar observation:

“it is frightening enough knowing that your every move is being watched, that you are being followed. But what if you are being trailed day after day, bombarded with unwanted letters, flowers and gifts, plagued with telephone calls and even go to collect your child from school to find a stranger has beaten you to it. It can ruin your life and that is what is happening now to ordinary people, mainly women.”⁴⁴

1.31 A worrying characteristic of stalking is that it can escalate into violence. Some stalkers put the victim in fear of violence in an attempt to exercise control and domination over their victim. The stalker may or may not intend to carry out their threat. But if the stalker does carry out his threat, the effect on the victim or his family could be deadly serious. Non-violent harassment can also be devastating. The unrelenting and unremitting pursuit and a presence in the victim’s daily life at every turn can disrupt or destroy the whole life of the victim. As the emotional and practical effects of the stalking experience are substantial and may last for many years, the law should afford protection to individuals who are harassed by stalkers.

Effect of stalking behaviour on individual privacy

1.32 There is a divergence of opinion within the Privacy sub-committee as to whether stalking falls within the remit of the privacy reference. The minority opinion, which is represented by Professor Wacks, is that stalking behaviour does not lead to a loss of privacy. The objection to stalking is not that the privacy of the victim has been invaded, but that it has resulted in the victim not being able to move freely and lead a normal life. These are issues which are peripheral to the privacy concerns of an individual. This view is best represented by the following passage written by Professor Wacks in his book on Personal Information:

“To claim that whenever an individual is the subject of attention or when access to him is gained he necessarily loses ‘privacy’ is ... to divest our concern for ‘privacy’ of much of its intuitive meaning. Having attention focused upon us or being subjected to uninvited intrusions upon our solitude are objectionable in their own right, but our concern for the individual’s ‘privacy’ in these circumstances is strongest when he or she is engaged in activities which we would normally consider ‘private’. The Peeping Tom is more likely to affront our conception of what is ‘private’ than someone who follows an individual in public.”⁴⁵

1.33 Professor Wacks points out that the idea of “privacy” as applied in our proposals must be consistent and coherent. He says that the main concern of “privacy” is the use of personal information about an individual. All the proposals made or to be made by the Privacy sub-committee, whether they are on data protection, interception of communications, surveillance, intrusion upon seclusion, public disclosure of private facts, or media intrusion, revolve around the idea of personal information. By following or observing another in public, the person being followed or observed cannot claim that intimate or sensitive information about him has been wrongfully obtained. Even if it is accepted that personal information of an intimate or sensitive nature could be obtained in such circumstances, the information cannot be reasonably withheld by him; it is he who put the relevant data in the public domain, and such data are accessible to anyone who happens to be on the streets. If the stalker has unlawfully collected personal data about his object, he may be liable under the Personal Data (Privacy) Ordinance. And if he has intruded upon the privacy of his object by unlawful surveillance, he would be liable for the new tort of invasion of privacy or charged with a surveillance offence, such as will be proposed in our reports on Civil Liability for Invasion of Privacy and Criminal Sanctions for Unlawful Surveillance. Stalking activities overlap with surveillance but some activities which amount to harassment cannot properly be considered as surveillance. Professor Wacks agrees that stalking is a social problem and that legislation is rightly called for. However, he doubts whether proposals on stalking could properly be dealt with under the rubric of privacy. Although there is an element of privacy in stalking cases, stalking is an issue which goes beyond the remit of the sub-committee.

1.34 The sub-committee recognize that it is not easy to see at first sight the relationship between stalking and privacy. How can a stalker be accused of interfering with the privacy of his object when he merely follows him down the street or waits outside his residence or place of work? By following and observing his victim in the streets or other places which are accessible to the public, the stalker is unlikely to obtain any personal information about his victim which the latter would want to keep to himself. Similarly, it is difficult to imagine how the privacy of an individual can be invaded when a stalker seeks to maintain contact with him by making a telephone call or sending a letter or gift to him. The stalker has not intruded into his victim’s premises nor has he obtained any personal information about his victim which the latter is unwilling to disclose. This raises the question whether stalking has anything to do with privacy.

1.35 Neither stalking nor harassment is included in one of the four specific areas mentioned in our terms of reference. Many stalkers have no intention to acquire or disclose personal data about their victims. They can often harass their victims without intruding into their private premises or intercepting their communications. However, the fact that none of the four topics listed in our terms of reference refers to the harassing behaviour of stalkers does not preclude us from embarking on a study of the legal issues involved in stalking. The task of the Privacy sub-committee, as we see it, is to examine whether legislative or other measures are required to provide protection against undue interference with the privacy of the individual. The reference to acquisition and disclosure of personal data, intrusion into private premises and interception of communications merely exemplifies the circumstances in which an undue interference with privacy may occur.

1.36 Whether stalking can be considered as a privacy concern depends very much on how the concept of privacy is or should be perceived. Different people have different perceptions about the content of the right of privacy. Some see it as the right to be let alone and others see it as a complex of different interests. For example, the Australian Law Reform Commission considered that privacy is comprised of three privacy interests, namely, territorial privacy, privacy of the person and information privacy. Ruth Gavison, on the other hand, suggests that the concept of privacy consists of a complex of three elements, namely, secrecy, anonymity and solitude.⁴⁶ No matter which definition we are talking about, it seems that stalking does not fit in well with the meaning of privacy described above. However, the conclusion is different if the concept of “private life” is used in considering whether stalking amounts to an interference with privacy. In this connection, we note that the equivalent of “privacy” in the Chinese text of both the International Covenant on Civil and Political Rights (“ICCPR”) and the Hong Kong Bill of Rights Ordinance (Cap 383) is “private life” and not “privacy”.⁴⁷ Since the right of privacy in Article 8 of the European Convention on Human Rights is described as the right to respect for an individual’s “private life”, we have consulted the relevant jurisprudence on the European Convention in order to ascertain the scope of the protected interest under Article 17 of the ICCPR.

1.37 The European Court of Human Rights did not give an exhaustive definition of the notion of “private life” under Article 8. However, it did give some guidance as to its meaning for the purposes of the Article. In Niemietz v Germany, the Court held that-⁴⁸

“it would be too restrictive to limit the notion [of private life] to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.

There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that ... it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not.”

1.38 According to Harris et al, the Court in that case endorsed “a long practice of the [European Commission of Human Rights] in which it had sought to extend the concept of private life beyond the narrower confines of the Anglo-American idea of privacy, with its emphasis on the secrecy of personal information and seclusion.”⁴⁹

1.39 Indeed the Nordic Conference on the Right of Privacy defined the right to privacy as covering the following matters:⁵⁰

• “harassing a person (e.g. watching and besetting him or subjecting him to nuisance calls on the telephone)”; and

• “importuning by the Press or by agents of other mass media”.

1.40 The Conference also declared that “intrusion upon a person’s solitude, seclusion or privacy” is a form of invasion of privacy. Paragraph 13(a) of the Declaration makes it clear that stalking behaviour, as now understood, should fall within the scope of the law of privacy:⁵¹

“An unreasonable intrusion upon a person’s solitude, seclusion or privacy which the intruder can foresee will cause serious annoyance, whether by the intruder’s watching and besetting him, following him, prying on him or continually telephoning him or writing to him or by any other means, should be actionable at civil law; and the victim should be entitled to an order restraining the intruder. In aggravated cases, criminal sanctions may also be necessary.” (emphasis added)

1.41 It is beyond dispute that an aspect of privacy is freedom from interference with an individual’s private space. The traditional view is that “private space” covers home, hotel rooms and other premises in which an individual is said to have a reasonable expectation of privacy. In the light of the European Court decision in Niemietz v Germany, which extended the concept of private life to include the establishment and development of personal relationships, it is arguable that the idea of private space is no longer confined to those areas in which the person has some exclusive rights of occupancy where secrecy or confidentiality can be maintained.⁵²

1.42 One of the basic states of privacy described by Alan Westin is that of “anonymity”. He explains that:

“[this state of privacy] occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance. He may be riding a subway, attending a ball game, or walking the streets; he is among people and knows that he is being observed; but unless he is a well known celebrity, he does not expect to be personally identified and held to the full rules of behavior and role that would operate if he were known to those observing him. In this state the individual is able to merge into the ‘situational landscape’. Knowledge or fear that one is under systematic observation in public places destroys the sense of relaxation and freedom that men seek in open spaces and public arenas.”⁵³

1.43 Following or observing another in a public place or in the common area of a building is a form of surveillance even though it is done overtly and without the assistance of technical aids. It has a restrictive influence over the private life of the subject. Persistent following and observation is shattering to the subject particularly where it is accompanied with unwanted communications. The subject has no way of knowing when and where he will be put under surveillance. He simply loses control of his own life.

1.44 As pointed out by Gavison, attention alone can cause a loss of privacy to the subject even though no new personal information about him becomes known.⁵⁴ The state of being alone does not exist merely in a secluded place. A person can wander in solitude in the streets or on a beach. But he cannot enjoy peace of mind if he believes that he might be followed by someone he dislikes. We think that the traditional notions of “solitude” and “seclusion” are insufficient to describe that aspect of private life which involves interaction with other people. The development of human relationships forms part of an individual’s private life. Whether such interaction takes place in a secluded environment is immaterial. There is an interference with an individual’s private life as long as he has reason to believe that his movements may be tracked by another.⁵⁵ It would be deplorable if the law of privacy did not offer any protection in circumstances where the stalking activities do not involve an intrusion upon the solitude or seclusion of the object. The majority of the sub-committee therefore believe that harassment constitutes an undue interference with an individual’s private life.

Chapter 2

Protection from harassment under existing law

I. Civil law and stalking behaviour

2.1 Stalking activities cause psychological harm, emotional distress, or personal injury to the victims. They may have to incur therapy, removal and accommodation expenses, and suffer a loss of income. In carrying out their campaign of harassment, stalkers may commit a tort such as assault, intimidation, trespass to land, nuisance, or intentional infliction of emotional distress. The victim may, in such cases, bring a civil suit against the stalker in tort. The law of tort can provide a remedy in damages or by way of injunction.

Intentional infliction of emotional distress

2.2 An act or statement which is calculated to infringe the “legal right to personal safety” of another and which does, in fact, cause physical harm to him through the medium of his mind, may be actionable under the principle stated in Wilkinson v Downton.⁵⁶ This principle overcomes the limitations inherent in the tort of assault which requires that the threatened personal violence be immediate. In Janvier v Sweeney,⁵⁷ the court upheld an award of damages for illness by nervous shock resulting from malicious lies and threats. More recently, the court in Burnett v George⁵⁸ granted an injunction against the defendant who had repeatedly made harassing telephone calls to the plaintiff. The order restrained him from “molesting or otherwise interfering with the plaintiff by doing acts calculated to cause her harm”. Judge Nigel Fricker QC suggested that the courts in Janvier and Burnett recognized as a separate actionable tort, distinct from assault and battery, “personal injury by molestation”, i.e. “actual impairment of health caused by molestation by another person when the wrongdoers intended or realized that his conduct was likely to cause impairment to the health of the victim.”⁵⁹

2.3 The tort recognized in the above cases is useful where there is no physical impact or threat of the application of force. However, many stalkers never intended to harm their victims. They may be suffering from delusional disorder or merely desire to make amends. Even if they do have the requisite intent, the tort provides no remedy where the shock does not result in actual bodily harm. Although the term “nervous shock” is now understood as referring to “recognisable psychiatric illness with or without psychosomatic symptoms” or “recognisable and severe physical damage to the human body and system caused by the impact, through the senses, of external events on the mind”,⁶⁰ mere emotional distress is not actionable under this tort. ⁶¹

Trespass to land

2.4 The law of trespass to land protects occupiers against physical intrusion into their private premises. It affords no protection to occupiers where the stalking behaviour does not involve trespass to premises. Furthermore, the protection does not extend to persons who do not have any proprietary interests in the premises in question.

Private nuisance

2.5 Stalking behaviour may constitute the tort of private nuisance if it interferes with the ordinary and reasonable enjoyment of the victim’s property.⁶² Private nuisance covers unreasonable interference with the use and enjoyment of land by smoke, smell, smoke, noise, and vibrations.⁶³

2.6 The making of relentless and harassing telephone calls by stalkers may amount to a nuisance.⁶⁴ In Khorasandjian v Bush, the court held that the inconvenience and annoyance to the occupier caused by unwanted telephone calls and the interference thereby with the ordinary and reasonable use of the property are sufficient damage for the purposes of the tort.⁶⁵ The number and frequency of calls and whether the calls are made at late hours of the night are relevant in determining liability.⁶⁶

2.7 As nuisance is based on the right to peaceful occupation of real property, it cannot provide the legal basis for personal protection against stalking conduct which does not interfere with the occupation of property. Nor can it afford protection where the victim or his child is harassed at his place of work or school. Furthermore, since nuisance is a tort to land, a person who has no right in the land cannot sue in private nuisance.⁶⁷ Recently, the Court of Appeal in Khorasandjian v Bush departed from this principle. The plaintiff in that case was pestered and threatened by unwanted telephone calls made by her ex-boyfriend to her parents’ home. An injunction was granted restraining him from “using violence to, harassing, pestering or communicating with” the plaintiff. Dillon LJ regarded it as-

“ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.”⁶⁸

The majority of the Court of Appeal therefore held that the right to sue for an injunction, on the ground of nuisance, to restrain persistent harassment by unwanted telephone calls should extend to the spouse and children of the householder.⁶⁹ However, this decision has been overruled by the House of Lords in Hunter v Canary Wharf Ltd.⁷⁰ Their lordships upheld the traditional view that an action in nuisance will only lie at the suit of a person who has a right to the land affected.⁷¹ A mere licensee on the land has no right to sue.

Watching and besetting premises

2.8 A stalker may harass his victim by watching, besetting or obstructing the access to premises. In Lyons & Sons v Wilkins,⁷² the court held that picketing by workers which was accompanied by violence, obstruction, annoyance or molestation was actionable in tort. It stated that:

“to watch or beset a man’s house with a view to compel him to do or not to do what is lawful for him not to do or to do is wrongful and without lawful authority unless some reasonable justification for it is consistent with the evidence.”⁷³

Intimidation

2.9 The essence of the tort of intimidation is “intentional unlawful coercion”. It consists of two ingredients:⁷⁴

• a threat of, or actual, unlawful conduct by the defendant deliberately aimed at another person with the intention of compelling the other person to obey the wishes of the defendant by doing an act or refraining from acting; and

• the other person was coerced to act or refrain from acting by the threat or unlawful act.

2.10 The tort covers cases in which harm is inflicted on the plaintiff by the defendant intimidating the plaintiff or a third person whereby the plaintiff or third person is compelled to act or refrain from acting in obedience to the wishes of the defendant. This action is not normally available to victims of stalking because the stalker may not have intended to coerce the person to whom the threat is addressed into doing or refraining from doing something. The stalker may threaten to commit a crime or tort without the requisite element of coercion.

Harassment on highway

2.11 In Thomas v National Union Mineworkers (South Wales Area),⁷⁵ the plaintiffs sought an injunction to restrain picketing which fell short of obstruction. The court held that unreasonable harassment of working miners who seek to exercise the right to use the highway for the purpose of going to work would be tortious:⁷⁶

“Suppose an individual were persistently to follow another on a public highway, making rude gestures or remarks in order to annoy or vex. If continuance of such conduct were threatened no one can doubt but that a civil court would, at the suit of the victim, restrain by an injunction the continuance of the conduct.”⁷⁷

Defamation

2.12 A stalker who makes a statement which tends to injure the reputation of his object is liable in defamation. Mere insult or vulgar abuse, whether it be spoken or written, will not suffice. Moreover, the defamatory statements must have been published to a third party. A private communication between the stalker and his victim cannot give rise to liability for defamation.

Assault

2.13 An assault is committed when the defendant attempts or threatens to commit a battery whereby the plaintiff is put in reasonable fear or apprehension of an immediate infliction of an unlawful physical contact. Threatening acts or statements are not actionable unless they are of such a nature as to put the victim in fear or apprehension of immediate violence.

Battery

2.14 A battery is committed when there is an actual infliction of an unlawful physical contact with the plaintiff. As long as there is an application of force to the person of another, it is not necessary to prove that the defendant has an intention to injure or that the contact has caused or threatened any physical injury to the plaintiff. Mere touching without consent or lawful excuse is actionable. An unwanted kiss, for example, may be a battery even though the defendant is not hostile.⁷⁸ The tort is useful where the stalker applies force to the person of his object. But a stalker may only repeatedly make telephone calls or follow his object. Persistent following or verbal abuse do not amount to a battery even though the object suffers psychiatric illness as a result.

False imprisonment

2.15 False imprisonment is complete deprivation of the plaintiff’s liberty for any time, however short, without lawful cause. It is not necessary that the plaintiff be incarcerated. It is enough that the plaintiff has been unlawfully prevented from leaving the place in which he is, e.g. a house or a motor vehicle. A threat of force whereby the plaintiff is intimidated into remaining in a place of safety is sufficient. But watching and besetting a residence or other premises without any show of force will not amount to a false imprisonment.

Involuntary admission under the Mental Health Ordinance

2.16 Stalkers often have personality disorders. Many of them may even suffer from mental illness. Where a stalker who is subject to the jurisdiction of the Court appears to be “mentally incapacitated”, his relative or spouse may ask the court to make an order directing an inquiry as to whether he is “incapable, by reason of mental incapacity, of managing and administering his property and affairs”.⁷⁹ In the event that the stalker is found to be “mentally disordered and incapable, by reason of mental disorder, of managing and administering his property and affairs”, the court may order him to be admitted into a mental hospital as an involuntary patient.⁸⁰ This procedure is useful only if the stalker appears to be mentally incapacitated and those who are entitled to apply are willing to bring proceedings under the Mental Health Ordinance (Cap 136). Furthermore, even if the stalker is found to be mentally disordered, he may not be admitted into mental hospital if he is still capable of managing his affairs. Such stringent requirements render the provisions ineffective in combating stalking activities.

Protection of Children and Juveniles Ordinance

2.17 The Director of Social Welfare has power to protect juveniles and children from “moral or physical danger” under the Protection of Children and Juveniles Ordinance (Cap 213). Whenever the Director of Social Welfare has reason to believe that any child or juvenile is likely to be exposed to any moral or physical danger, he may make any order regarding the control and custody of the child and may require any person into whose charge he shall place the child to enter into a bond to treat the child well. Any person who fails to perform any obligation imposed by the bond is guilty of an offence.⁸¹

Sexual harassment

2.18 Sexual harassment which is unlawful under the Sex Discrimination Ordinance (Cap 480) is actionable as a tort in the District Court.⁸² The Equal Opportunities Commission also has power to serve an enforcement notice on a person who has committed an unlawful act of sexual harassment and require him not to commit or repeat the act in question.⁸³ Persistent sexual harassment in breach of the enforcement notice may be restrained by an injunction granted by the District Court.⁸⁴ A person “sexually harasses” another if -

• the person engages in unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person would have anticipated that the other would be “offended, humiliated or intimidated”; or

• the person engages in conduct of a sexual nature which creates a “sexually hostile or intimidating work environment for her”.⁸⁵

Injunctive relief for plaintiffs in tort actions