A. Introduction
The harassment is a mysterious concept and neither legislation like the Protection from Harassment Act 1997 in UK nor case law succeeded in explain what harassment is, except some academic attempt to define it as ‘something sustained and intended to distress’[1]. It covers a range of activities from unwanted sexual advances to battery and annoying activities such as nuisance telephone calls.[2] Likewise, the tort of harassment is also obscure and fragmentary in many common law jurisdictions and Hong Kong is also no exception, no matter statutory law or common law.
However, contrary to what many people may think, there is tort on harassment in Hong Kong. Unlike other torts like battery or private nuisance, it’s like Salome[3], who performs the ‘Dance of the Seven Veils’ but unexpectedly stopped after unveiling six layers of her dim veils. Everyone is wondering when the dance will resume and waiting the revealing of the full body of the charming creature by lifting her last veil. Similarly, even though the existence of the tort of harassment can be discerned in both statutes and common law in Hong Kong, its full body is still covered by limitation and uncertainty, which is expected to be lifted by future legislators or judges.
With this in mind, this essay seeks to clarify the legal position regarding the tort of harassment in Hong Kong. First, the legal position in other common law jurisdictions will be concisely explored. Secondly, the tort of harassment to specified groups of people stipulated in statutory law will be discussed. Thirdly, two conflicting case law dispositions on whether tort of harassment exists in Hong Kong will be accessed. Finally, the future direction of legal development regarding this issue will be predicted with a short conclusion.
B. The tort of harassment in major common law jurisdictions
The harassment per se is not recognized as a distinct tort and cause of action in common law tradition. In the case Patel v Patel[4], Waterhouse J observed that ‘in the present state of the law there is no tort of harassment’[5]. However, this is not end, but just the embarking of the story of the tort of harassment.
One possible explanation of judges’ reluctance to acceptance harassment as an independent ground of tortious claim is that existing legal framework is enough to regulate the harassment issues in the society. However, as Lee Seiu Kin JC has observed, the fast development of technology has brought great changes in lifestyles like the urbanization, widespread availability of leisure time and change is in communication, which in turn produce social problems never existed before.[6] The existing legal framework become powerless to regulate all harassment actions and the absence of a tort of harassment may become a ‘serious blot on our jurisprudence’ as commented by Millet LJ.[7]
Currently, this problem is nearly settled down in United Kingdom (UK) with the Protection from Harassment Act 1997 and Equality Act 2010 in UK. In United States, the s46 of Restatement of Torts (Second) also deal with harassment issue. But many common law jurisdictions are still in struggle on whether to accept harassment as an independent cause of action. However, the case law has expressed a trend to acknowledge the tort of harassment in common law. In Canada, although traditionally a party complaining of harassment must ‘graft the claim onto an existing cause of action’[8], in Merrifield v The Attorney General[9], the Ontario Supreme Court acknowledged that the tort of harassment exists in Ontario and should been recognized as a cause of action in Ontario[10]. In another Singapore case Malcomson v Mehta[11], the High Court of Singapore held that the time has come for the recognition of a tort of harassment in Singapore[12].
The situation is more complex in Hong Kong. On one hand, the tort of harassment to some specified group of people has long been acknowledged and regulated in several ordinances. On the other hand, Hong Kong common law is also featured with urgent need for a recognizance of a full tort of harassment. Both of the two issues will be discussed in detailed in the following sections.
C. Hong Kong Statute statutory law has acknowledged the tort of harassment to specified groups of people
Although there is still no equivalent ordinance of the Harassment Act in 1997
in Hong Kong, this does not means that the legal problem of all harassment issues can only be governed by case law. Actually, there are several ordinances addressing the harassment to special groups of people.
People suffered from sexual harassment can be protected by Sex Discrimination Ordinance (Cap 480). The Equal Opportunity Commission has ‘successfully conciliated sexual harassment complaints and made employees pay compensation to the victims’[13]. What’s more, the Sex Discrimination Ordinance ‘creates the tort of sexual harassment in Hong Kong’[14] and provides comprehensive protection to the victim of unlawful sexual harassment in employment, education and other specific circumstance. It not only provides a detailed meaning of sexual harassment[15], but also grants generous remedies for sexual harassment ranging from compensatory damages, equitable relief to punitive or exemplary damages.
Similarly, there are several other legislations regulating the harassment on other specific groups of people. Race Discrimination Ordinance (Cap 602) creates the tort of race harassment in Hong Kong. Disability Discrimination Ordinance (Cap 487) creates the tort of harassment to disable persons. What’s more, Landlord and Tenant (Consolidation) Ordinance (Cap 7) provides the protection of tenant from “act calculated to interfere with the peace or comfort”[16] which amounts to harassment.
It’s worth to note that the current statutory protection on the harassment is related to the discrimination and the purpose of these legislations is to protect some fragile groups of people, ranging from women, disabled persons to minority races, from discrimination, and the harassment exists as derivatives of the discrimination behaviors. The ancillary features of these independent torts of harassment obstruct their application on the harassment cases outside the scope of these ordinances.
In recent years, endeavors to extend the legislation protection of harassment on a wider scope have been tried in many instances. In 2000, Law Reform Commission of Hong Kong released the Report on Stalking to recommend the introduction of a criminal offence of harassment. Even though the Law Reform Commission later decided not to pursue such recommendations, it published another report called The Regulation of Debt Collection Practices in 2002 to address the issue of debt collection and recommended to create a criminal offence of harassment of debtors coercing another person to repay a debt by the method of harassment.
It’s clear that current Hong Kong statutory law has creates the tort on harassment in certain circumstances, but the statutory regulation of tort on harassment is still fragmentary with a highly limited scope of application, which is inconsistent with a pressing social need for a more comprehensive legal regulation on harassment. It leaves the problem that how to deal with the harassment issues outside the scope of these ordinances by common law, which will be explored in the next section.
[1] W.V.H.Rogers, Winfield & Jolowicz Tort, 18th Edn, Sweet & Maxwell 2010, 146.
[2] Martin Lishexian Lee, ‘The Need for a Tort of Harassment’, (2001) 26 Alternative Law Journal 119, 119.
[3] Salome is a biblical figure. She is also the main character in Oscar Wilde’s play Salome, in which she requests from her stepfather tetrarch Herod the head of John the Baptist on a silver platter as a reward for dancing the ‘dance of the seven veils’.
[4] [1988] 2 FLR 179.
[5] Ibid 182.
[6] Malcomson v Mehta , [2001] 4 SLR 454.
[7] Fine Robert v McLardy Eileen May, [1998] EWCA 3003 (6 July 1998).
[8] Allen M.Linden and Bruce Feldthusen, Canadian Tort Law, 10th Edn, LexisNexis 2015, 66-67.
[9] 2017 ONSC 1333.
[10] Merrifield v The Attorney General, 2017 ONSC 1333 [718].
[11] [2001] 4 SLR 454.
[12] ibid 464F (at §62).
[13] DK Srivastava, Charu Sharma, Anna Lui Hoi Yan and Sara Tsui Fung Ling, The Law of Tort in Hong Kong, 3rd Edn, LexisNexis 2014, 99.
[14] ibid 94.
[15] Sex Discrimination Ordinance (Cap 480) s 2.
[16] Landlord and Tenant (Consolidation) Ordinance (Cap 7) s 119V.