Stalking in Hong Kong

1
Stalking in Hong Kong

• Prof John Bacon-Shone
• Director, SSRC, HKU
• Former Chairman, LRC Subcommittee on Privacy

2
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

3
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

4
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
• UK4 of women 6 of men within last 12 months,
  third reported to police

5
Existing legal protections in HK -how effective
are they?

• None of the civil or criminal remedies are
  sufficient
• Difficulty in getting police action

6
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

7
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

8
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

9
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)

10
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

11
What concerns raised how can they be addressed?

• Three concerns with proposals in original
  consultation
• Hurdle too low
• HK branch of JUSTICE not persuaded of need - rely
  on common law
• HKJA wanted reporters excluded

12
What concerns raised how can they be addressed?

• Hurdle was raised in final report
• There is a need for research, but clear need,
  common law development largely stopped because of
  laws elsewhere
• 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

13
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

14
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

15
QA?
16
Existing legal protections in HK -how effective
are they?

• Assault battery
• Assault causing bodily harm
• Wounding
• False imprisonment
• Loitering
• Public nuisance
• Intimidation

17
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)

18
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

19
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

20
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