Harassment - a new remedy for an old problem

It is unfortunate, but a fact of life, that personal relationships do not always end amicably.  Emotional distress takes time to heal, but what happens if one party to the relationship refuses to let go and pursues a course of conduct aimed at persuading the other party to continue the relationship?

The recent judgment of Chan J in Lam Tat Wai v Yip Lai Kuen Joey [2013] 3HKC now provides some hope and a remedy which may be available to someone on the receiving end of an oppressive course of conduct.

The sad facts of that case were as follows.  After a four month relationship the Plaintiff decided to terminate it, but the Defendant refused to do so.  The Defendant then pursued a course of conduct over a period of nearly six years which made the Plaintiff's life a misery.  The Defendant hacked into the Plaintiff's email account and downloaded all his contacts, bombarded him with emails and sms messages (up to 120 per hour), stalked him, took rental accommodation nearby and even made false reports to the police.  As a result of this conduct the Plaintiff was obliged to resign his job on two occasions and change his telephone number and email address.  As may be expected, the Plaintiff suffered from insomnia and anxiety.

Chan J granted the Plaintiff an injunction to restrain the Defendant from further harassment, and awarded aggravated and exemplary damages based on the torts of harassment and intimidation.

The tort of intimidation "involves the defendant using unlawful threat successfully to compel another to act (or refrain from acting) in a particular manner that will cause harm."  This tort requires an unlawful threat, an intention to cause harm to the plaintiff and damages to the plaintiff.  The facts of this case supported such a finding, but the necessary element of “unlawful threat” make this remedy less readily available.

The Judge noted that some of the existing causes of action are inappropriate in dealing with a case of harassment.  He noted that in some jurisdictions there is protection through legislation and in others a recognised common law tort of harassment, which may be taken to mean "a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person."

The Judge said that he was unable to see any reason why there should not be a tort of harassment to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds.  Intrusion on privacy is difficult to prevent and it is hard for the victim to escape the harassment.

The Judge had no hesitation in holding that the facts of the case demonstrated that the time had come for Hong Kong to recognise the tort of harassment.  On the facts of this case the Judge awarded general damages, aggravated damages, exemplary damages as well as an injunction.

The tort of harassment provides a new remedy in Hong Kong for an old problem.

Martin Waldron
Partner
Hampton, Winter and Glynn
July 2013