Stalking in Hong Kong
Prof John Bacon-Shone
Director, SSRC, HKU
Former Chairman, LRC Subcommittee on Privacy
What is stalking?
• 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
What evidence of stalking as a
significant problem in HK?
• Unfortunately, no good research
• Plenty of reports in media
• Plenty of cases in the courts
• Plenty of people complaining during the
consultation
Research elsewhere
USA: 1% women & 0.4% of men within last 12
months, half reported to police
Sweden: 4% women & 1.6% of men within last 12
months, third reported to police of whom half thought
it helped
UK:4% of women & 6% of men within last 12 months,
third reported to police
Existing legal protections in HK how effective are they?
• None of the civil or criminal remedies are
sufficient
• Difficulty in getting police action
What have others done to
address problem of stalking?
• Many jurisdictions have stalking laws:
• Canada, US, Australia, England & Wales, New
Zealand, Scotland
• US has model code - course of conduct - reasonable
fear of injury, while California style requires
“credible threat”
What have others done to
address problem of stalking?
• England & Wales 1997
• Course of conduct he ought to know alarms or causes
distress
• C of c he ought to know causes fear of violence
• Restraining orders
• Civil remedy
• 300 convictions in first year
• Fear of journalists not well founded
What are the proposals made
by LRC to address stalking?
• Course of conduct which he ought to know
amounts to harassment is guilty of criminal
offence
• Harassment serious enough to cause alarm or
distress
• Ought to know if a reasonable person in
possession of some information would think so
• No higher level offence for fear of violence as we
believe existing law would be sufficient
What are the proposals made
by LRC to address stalking?
• Defences:
• Prevention or detection of crime
• Lawful authority
• Reasonable under the particular circumstances,
taking into account Art 17 (privacy, family, home,
correspondence), Art 19 (freedom of expression)
and Art 21 (peaceful assembly) (Government does
not think we need to make references to Articles)
What are the proposals made
by LRC to address stalking?
• Penalty:
• Fine and imprisonment of up to 2 years (if
knew) or 1 year (if ought to know)
• Possibility of restraining order
• Can require counselling, evaluation or treatment
• Civil liability - damages for distress, anxiety or
loss - possible injunction with arrest powers
What concerns raised & how
can they be addressed?
Three concerns with proposals in original consultation:
1.
Hurdle too low
2.
HK branch of JUSTICE not persuaded of need rely on common law
3.
HKJA wanted reporters excluded
What concerns raised & how
can they be addressed?
1. Hurdle was raised in final report
2. There is a need for research, but clear need,
common law development largely stopped
because of laws elsewhere
3. Concern of media - concern that targets of
attention could claim stalking by reporters.
Reality - media target of judge probably was
stalking, so ridiculous to exclude reporters,
given the potential for abuse (anyone can be a
reporter in HK). Defenses should be adequate
to cover reasonable behaviour for anyone
What has happened since the
proposals - what impact?
• Experience elsewhere
• Now plenty of cases decided in UK, so little
common law development, but instead courts have
developed expertise in deciding where to draw the
line for ought to know causes alarm or distress
• Extension of Domestic Violence Ordinance, bit only
addresses cohabitation situations
What is new in the
government proposals?
•
No new analysis of experience elsewhere
•
Consider collective harassment, like UK (controversial there)
•
Consider harassment to deter lawful activities (e.g. employees of company), like
UK (controversial there)
•
Penalty – propose to not distinguish based on “knowingly”
•
Exempt news-gathering?
•
Drop references to Bill of Rights for reasonableness
•
Consider if duration of order must be specified
•
Drop certificate to exempt law enforcement
•
Remove mental health assessment powers, given Mental Health Ordinance
Q&A?
Existing legal protections in HK how effective are they?
• Assault & battery
• Assault causing bodily harm
• Wounding
• False imprisonment
• Loitering
• Public nuisance
• Intimidation
Existing legal protections in HK how effective are they?
•
Trespass to land or person
•
Private nuisance
•
Watching and besetting
•
Intimidation
•
Defamation
•
False imprisonment
•
Sexual harassment
•
Invasion of privacy
•
Domestic Violence Ordinance (recommend reform, but beyond remit)
What has happened since the
proposals - what impact?
• Experience in HK
• Continuing problem - recent case
• HAB - little interest in introducing legislation claims that restoring the economy is their priority
and claim community concern with impact of
proposals on press freedom!
• Reality is that only HKJA raised this concern and
their points are explicitly addressed
Is Stalking about privacy?
• What is privacy?
• Information privacy
• Territorial privacy
• Personal privacy
• Communications/surveillance privacy
Stalking certainly is an attack on territorial and personal
privacy and may relate to the other components as well
Why did LRC privacy subcommittee
take up this issue?
• Believe it is clearly part of the right to private life, if
not privacy
• Believe that existing protections are not sufficient