D. Two irreconcilable case lines on the tort of harassment in Hong Kong common law
Previously, Hong Kong court usually make decision by applying the principle of Wilkinson v Downton[1], the tort of breach of confidence or the law of nuisance, all of which could cover all aspects of harassment, especially sexual harassment[2]. In recent years, Hong Kong began to deal with the problem whether to recognize the tort of harassment in common law and developed two contradictory case lines, with one case line acknowledging the existence of tort of harassment in Hong Kong common law and another case line denying it. Three sub-issues will be discussed bellow.
(a).The problem is not a pure academic issue
The first issue is whether the existence of tort of harassment in common law is just a pure academic issue, as mentioned by Hon Mr Justice Lok in Lin Man Yuan v. Kin Ming Holdings International Ltd and Another[3]. If a problem is a pure academic issue, the court should leave it and do not choose to make decision on this issue. However, the fact that courts in many cases have made their own decisions on this issue, no matter declaring that there is tort of harassment in Hong Kong common law or denying its independent status, shows that it’s no longer a pure academic issue, instead it has become a highly disputed legal issue.
(b). The unsound reasoning to deny the tort of harassment in Hong Kong common law
Addressing the first issue, the second issue is how Hong Kong court deals with the problem. Concisely speaking, there are two conflicting cases lines as shown by the following table.
On the right end of the spectrum is the case line following traditional spirit of common law declining to acknowledge a separate tort of harassment in common law. The Court of Appeal in 朱祖永訴香港警務處[4] explicitly held that there was no tort of harassment at common law in Hong Kong.[5] Two years later, Court of Appeal’s position became relaxed in the judgment of Wong Tai Wai David v HKSAR[6] which leave some room for accepting tort of harassment as a cause of action in Hong Kong common law. Despite this, in Pong Seong Teresa v Chan Norman[7], Court of Appeal affirmed the Court of First Instance judgment that there was no tort of harassment in Hong Kong common law and emphasized that ‘it would not be appropriate to set out our
views on this important and possibly far-reaching issue’[8]. In the Court of First Instance judgment[9] of Pong Seong Teresa, the court choose to follow 朱祖永 instead of Wong Tai Wai David.
The CFI explained its reason for not acknowledging the existence of the tort of harassment: ‘neither in those cases nor, indeed, in any of the cases cited by the parties did the court explain the elements of a tort of harassment at common law and what are the applicable principles governing such tort. This tends to suggest that such a tort does not exist at common law.’[10] However, this can hardly be a persuasive reasoning for its conclusion. Not explaining the elements and principle of the tort is not equivalent to non-existence of that tort. And following the logic of the reasoning, if the elements and the governing principle of the tort of harassment have been illustrated, it would be evidence that the tort exists in common law.
(c). The case line supporting the existence of tort of harassment in Hong Kong common law is more persuasive
Following the discussion above, the next sub-issue would be whether the case law supporting the existence of tort of harassment completes this task, contrary to what CFI in Pong Seong Teresa observed. This necessitates the analysis of the left end of the spectrum: the case line supporting the existence of the tort of harassment in common law of Hong Kong.
The answer would be affirmative. As observed by Hon Lok J in Lin Man Yuan v. Kin Ming Holdings International Ltd and Another[11], the judgment of Court of First Instance caseLau Tat Wai v Yip Lai Kuen Joey[12] gives satisfying answer to this question. The court move a step further from Wong Tai Wai David by deciding that Hong Kong should recognize the tort of harassment[13] and, by referring the Singapore case Malcomson Bertram &Anr v Naresh Mehta[14], proposed the principles and elements of the tort of harassment,which are summarized by Hon Lok Jas follows:
‘(i).“harassment” means 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;
(ii).the mental element required is reckless as to whether the victim would suffer injury from the defendant’s conduct ; and
(iii).the plaintiff must have suffered damage as a result of the harassment; anxiety would suffice, though the defendant must take the victim as he finds him; financial loss is also recoverable’.[15]
The principle was fully applied in a recent District Court case Law Lai Kwan v. Intrend Finance Ltd[16] concerning harassment caused by debt collectors. In this case, a lender hired a debt collector to harass claimant, whose domestic helper borrowed HK$3,000 from the debtor and failed to pay. The court not
only recognized the tort of harassment, but also awarded the claimant aggravated and exemplary damages of HK$500,000. This decision echoes with the judgment of an earlier case Etacol (Hong Kong) Ltd v Sinomast Ltd [17]which ‘signal the beginning of the development of the tort action in Hong Kong’[18] and is also about the harassment in debt collection.
It can be concluded that it’s wrong to allege that the case line supporting the tort of harassment do not explain the principle and elements of tort of harassment. It can be further inferred that the logic basis proposed in Pong Seong Teresa to deny the tort of harassment in Hong Kong is untenable.
Not only the logic and reasoning of Lau Tat Wai case line is more persuasive than otherwise, it is more popular in legal professionals in Hong Kong. Hong Kong courts are more likely to acknowledge the existence of the tort of harassment in recent years by following the landmark decision of Lau Tat Wai. It is also welcome in litigants’ community. One law firm even declared that ‘In 2013, the case of Lau Tat Wai established the tort of harassment as a part of the common law in Hong Kong’.[19]
E. The ad hoc status of tort of harassment in Hong Kong common law and future direction
It is too early to allege that the tort of harassment has gained its full status in Hong Kong common law just because of more persuasive reasoning and supports from legal community. One vexing point is that the recent cases following Lau Tat Wai are either from District Court or Court of First Instance and they cannot overruled the Court of Appeal cases 朱祖永 and Pong Seong Teresa. Another vexing point is the current statutory regulating harassment has not generally applicable.
For this reason, the status of tort of harassment in Hong Kong can be more appropriately described as ad hoc status. The ad hoc tort of harassment only existed in a limited scope of cases and has no universal effectiveness in common law. Everyone is waiting for the lifting of the last veil of the tort of harassment, no matter it’s an ordinance like the UK 1997 act or an CFA decision to resolve the confuse caused by the conflicting case law.
Currently, the legislation is too slow to respond to the social and judicial need of a comprehensive ordinance on harassment in Hong Kong. On the other hand, the cases law development is still immature on this problem and whether the status of tort of harassment will be fully acknowledged would be highly decided by the discretion of the judges of later court. A CFA judgment is highly needed to set down this problem in the future. Suppose CFA has opportunity to consider this problem, it is far more likely that it will follow the Lau Tat Wai line. Traditionally, Hong Kong CFA would like to make the common law development in Hong Kong to keep in step with that in UK. In a judgment decided in May 2018 HKSAR v. Choi Wai Lun[20], CFA settle down the issue regarding the defense of honest belief in the indecent assault case
involved women under 16, by following the UK Supreme Court case R v K[21].
It can be expected that CFA would also acknowledge the full status of the tort of harassment in common law by given such an opportunity, giving UK has fully settled this issue by legislation.
F. Conclusion
Nobody can deny the existence of Salome; similarly, nobody can deny the existence of the law on the tort of harassment in Hong Kong. It exists, just a bit dim and this is the source of debate and discussion among legal professionals.
The last veil of the Hong Kong tort law is either a Harassment Ordinance or a CFA decision to make the final judgment between the two case lines in common law. It can be easily expected that either by the ordinance or the CFA decision, the full status of tort of harassment would be acknowledged in Hong Kong in the near future.
[1] [1897] 2 QB 57.
[2] DK Srivastava, Charu Sharma, Anna Lui Hoi Yan and Sara Tsui Fung Ling, The Law of Tort in Hong Kong, 3rd Edn, LexisNexis 2014, 93-94.
[3] [2015] HKCFI 919, HCA 216/2008 (3 June 2015) [215].
[4] [2002] HKCA 5032; HCMP 1676/2002 (27 September 2002).
[5] ibid [6].
[6] [2004] HKCA 260; CACV 19/2003 (7 September 2004).
[7] [2015] HKCA 126; CACV 186/2014 (19 March 2015).
[8] ibid, [30].
[9] [2014] HKCFI 1480; [2014] 5 HKLRD 60.
[10] Ibid [60].
[11] [2015] HKCFI 919; HCA 216/2008 (3 June 2015).
[12] [2013] HKCFI 639; [2013] 2 HKLRD 1197.
[13] ibid [61].
[14] [2001] 4 SLR 454.
[15] Lin Man Yuan v. Kin Ming Holdings International Ltd and Another, [2015] HKCFI 919; HCA 216/2008 (3 June 2015) [221].
[16] [2017] HKDC 602; [2017] 4 HKLRD 1.
[17] [2006] HKCFI 1095; [ 2006] 4 HKC 572.
[18] Lau Tat Wai v Yip Lai Kuen Joey, [2013] HKCFI 639,HCA 1466/2011 [56].
[19]Mark Side and Anthony Marrin, ‘Court confirms tort of harassment in Hong Kong’ https://www.tannerdewitt.com/court-confirms-tort-harassment-hong-kong/ accessed 21 May 2018.
[20] [2018] HKCFA 18; FACC 11/2017 (9 May 2018).
[21] [2001] UKHL 41.