In 2000, the Law Reform Commission of Hong Kong recommended legal reforms to assist victims of stalking. However, the recommendation was not heeded. The torts of private nuisance and trespass to the person may assist victims of stalking to obtain compensation.
Usual types of stalking
Many scholars and law commissions (e.g. In the United Kingdom and Canada) have tried to define stalking. In its ordinary meaning, many people understand stalking as continuous acts of harassment over a period of time against a person. Common types of stalking includes being followed by a sex predator on the street, receiving continuous unwelcomed telephone calls, letters, gifts from a stalker etc.
Protection under existing civil law
1. Private nuisance
If the stalking activity does not interfere with the occupation of the victim’s property or when the victim has no interest in the property in question, the action will fail. In Ng Hoi Sze v. Yuen Sha Sha  3 HKLRD 890, the Court of Appeal held that the Plaintiff may not sue her university roommate in nuisance when the latter allegedly had sex in the Plaintiff’s presence in the hostel room because the Plaintiff had no right of exclusive possession to the hostel room. The link between the alleged wrong and properties can create peculiar problems. For example, a wife may sue her separated husband in private nuisance if he harasses her at her rented residential property. However, if such harassment takes place at the wife’s work place, she may not sue him in private nuisance as she has no property interest in the work place. She merely has permission from her employer to use the property for the purpose of work.
2. Trespass to the person
But mere repeated telephone calls or tailing a person without actual physical contact or putting the person in reasonable fear or apprehension of immediate violence may only be considered as annoyance and are not actionable under the tort of trespass to the person.
Trespass to the person
In the case of the student above mentioned (who was being stalked by her ex-teacher), she may sue in private nuisance if she was stalked at her residence. If her ex-teacher’s stalking caused her fear of immediate infliction of unlawful physical contact, she may sue her ex-teacher in the tort of trespass to the person.
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2014