A History of Harassment

The Plaintiff and the Defendant in Lau Tat Wai v Yip Lai Kuen Joey met in March 2007 in a Japanese language class where they soon developed a romantic relationship.  Four months later, the Plaintiff’s life took an unexpected turn for the worse when he tried to end the relationship with the Defendant.  From then on, the Defendant started a continual and prolonged series of intimidating and harassing acts directed not only towards the Plaintiff but also his family, friends, colleagues, superiors and neighbours.

The Defendant’s harassment took various forms - malicious emails, nuisance calls, surveillance and intrusions of privacy.  More drastic measures were also resorted to, such as false police reports resulting in the Plaintiff’s wrongful arrest and debt collector tactics involving splashing paint at his home and putting up derogatory posters about him. As a result the Plaintiff had to frequently change jobs and homes. At its extreme, he moved with his mother to a rented flat in Shenzhen to evade the Defendant, albeit unsuccessfully – she found him and splashed red paint on the iron grille.

Legal Loopholes?

At trial the Plaintiff advanced several causes of action against the Defendant, namely:

1.        The tort of intimidation

2.        Private nuisance

3.        Trespass to goods

4.        The tort of harassment

The Tort of Intimidation

The tort of intimidation succeeded in relation to paint splashing, threats to the Plaintiff’s parents’ safety and a Japan trip with the Defendant which she procured by a promise to end the relationship afterwards (which was not kept).  The court found that the elements of the tort were satisfied as there was an unlawful threat from the Defendant, who had an intention to cause harm to the Plaintiff which resulted in damage to him.  Although, as a matter of law, damage usually has to be financial (to make it sufficiently concrete) to ground a cause of action, the court held that the very fact that the Plaintiff was forced to maintain contact with the Defendant and suffered mental distress as a result was sufficient damage for this tort.

Not So Lucky

The Plaintiff failed however to establish private nuisance and trespass to goods.  The judge held that technical defects prevented him from succeeding in these two causes of action, because he failed to meet their requirements.  For private nuisance, the Plaintiff had to show that he had an interest in the premises: his offices and home where incessant phone calls were made, and his residence where paint was splashed.  This meant he had to show a right to land either as owner, tenant, reversioner or even a licensee.  Naturally, the Plaintiff had neither of these rights in relation to his office and his home was jointly owned by his parents.  Similarly, for trespass to goods which was pleaded in relation to the paint splashing of the iron grille of his home, the Plaintiff had to show he was in possession of the grille then.  Since the home was not in his name, trespass to goods was not established.

Time to Mend the Gaps

After examining the law, the court acknowledged that a tort of harassment was long overdue to protect unfortunate victims of harassment whose claims could not fit squarely in existing causes of action.  Citing England and Singapore as examples where such a tort has been introduced (the former by statute and the latter by case law), the court announced the creation of a new tort of harassment and set the parameters of it in this case. 

Firstly, there has to be harassment, defined as a course of conduct by words or action, directly or through third parties which is sufficiently repetitive in nature to cause worry, emotional distress or annoyance to another person.  The harasser ought reasonably to know his/her acts would have such an effect.  Some form of mental requirement on the harasser’s part is required, but the judge would not set the bar high: deliberate intention is not necessary and recklessness as to whether the victim would suffer damage is sufficient. The Plaintiff must have suffered damage as a result.  As to the kind of damage, anxiety caused by the harassment is sufficient, and financial loss is naturally recoverable.

Light at the End of the Tunnel

The Plaintiff was awarded special damages for his financial losses (loss of salaries, rental of outside premises and legal costs) as a result of the harassment.  Aggravated damages of HK$600,000 for the victim’s hurt feelings, dignity and pride and exemplary damages of HK$200,000 as a punitive measure and a deterrent, both of which are rarely awarded heads of damage, were also granted due to the unusual nature of this case.  Perhaps most comforting to the Plaintiff, though, was the award of an injunction restraining the Defendant from any further harassment of him and his family.

Where Do We Go From Here

A new tort has been born, but how will it grow?  In this regard, the court reminded that the development of case law is incremental.  Further advances will respond to the facts of each future case before the court.  Hopefully, legislation will be in place to provide a conclusive remedy for harassment.  For now, however, the first steps have been laid.  Hapless victims of continual harassment may now seriously contemplate seeking the court’s help as a viable solution.