SIR ELLY KADOORIE & SONS LIMITED (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS) v SAMANTHA JANE BRADLEY

Press Summary (English)

Press Summary (Chinese)

FACV No 3 of 2025

[2026] HKCFA 2

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 3 OF 2025 (CIVIL)

(ON APPEAL FROM CACV NO 194 OF 2023)

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J U D G M E N T

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Chief Justice Cheung and Mr Justice Lam PJ:

The issues

1.  Interlocutory appeals are seldom entertained by this Court. Occasionally, however, they raise important questions of law that warrant final adjudication by us.  This is one such case.

2.  This appeal raises, first, the question whether the common law of Hong Kong recognises a tort of harassment, there being no general statutory regulation of harassment, unlike the position in some other common law jurisdictions; and, if so, what its constituent elements are.  A further question is whether a company, being a legal person incapable of experiencing feelings, may nonetheless sue in harassment if the tort is otherwise available to natural persons, bearing in mind that harassment is generally understood as a wrong resulting in anxiety, distress and other similar forms of human feelings or even mental harm.  A third question is whether, assuming that an individual but not a company may sue in harassment under our law, a company may nevertheless obtain an injunction restraining the harassment of its current and former officers, employees, agents and legal representatives.  A consequential question is whether, in light of what a company may or may not do in law, it can bring an action not only in its own right but also in a representative capacity on behalf of its officers, employees, agents, and legal representatives.

The facts as pleaded

3.  Given the nature of the applications that give rise to this appeal, as will be explained, the following facts, extracted from the first instance judgment below,[1] are taken to be true for the purposes of this appeal.

4.  The defendant was employed in the plaintiff’s legal department from 2009 to 2020 and, from 2013, held the post of Director of Legal and Trust Management, heading that department.  Until early 2019, she reported to Mr Leigh, a director of the plaintiff.  In September 2020, she asserted that she would succeed Mr Leigh, but he disputed that assertion.  She pressed the Chairman, Mr Andrew Brandler, to obtain confirmation from the Kadoorie and McAulay families, who own and control the plaintiff, indicating that, absent such confirmation, she would have to consider her career options.

5.  Mr Brandler duly sought the families’ views.  They concluded that the defendant should not succeed Mr Leigh and that an external search should be undertaken.  Anticipating that this would be unacceptable to the defendant, they decided that her employment should be terminated.  On 29 October 2020, Mr Brandler gave her notice of termination.  Negotiations followed, resulting in a separation agreement and a consultancy agreement.  Under the separation agreement, the defendant was to receive termination payments totalling HK$24,920,000 upon cessation of her full time employment, conditional on her compliance; that sum was paid in full.  Under the consultancy agreement, she agreed to provide part time services upon request for three years from 1 January 2021 for a fee of HK$8,000,000 per annum.  Her full time employment ended on 31 December 2020.  On 15 June 2021, the plaintiff exercised its contractual right to terminate the consultancy agreement. 

6.  Between 1 December 2020 and early May 2022, the defendant sent over 500 emails to the plaintiff, its officers, employees and agents, including its solicitors, Simmons & Simmons.  The emails were repetitive and hostile, and contained serious allegations, including dishonesty, suppression of evidence, breaches of anti-money laundering obligations, conspiracy to injure, fraud, corporate manslaughter, breaches of law and professional conduct, modern slavery and other misconduct towards the defendant, intimidation, harassment, bullying, defamation, discrimination and victimisation, bad faith, exposure of the defendant to criminality, coercion to enter into the separation agreement and consultancy agreement, the characterisation of the agreements as “hush money” to deter reports to regulators, and alleged breaches of the agreements.  The recipients included, among others, Mr Brandler, Mr Leigh, Mr Philip Kadoorie, Mr William Mocatta, and lawyers at Simmons & Simmons.  According to the pleading, the vast majority of these allegations were wholly untrue and without factual foundation.  Some of the emails were sent to persons outside the plaintiff and Simmons & Simmons, for the purpose of making unfounded complaints about the plaintiff and its associated individuals.

7.  The defendant’s conduct, according to the statement of claim, was deliberate and sufficiently repetitive that any reasonable person would have appreciated that it would cause anxiety and emotional distress to the plaintiff, its officers, employees, agents and legal representatives.  The defendant knew, or was at least reckless as to whether, her conduct would amount to harassment causing such injury and/or financial loss.  The plaintiff attempted various self-help measures to mitigate the effects of the harassment, but these proved ineffective.

8.  By reason of the defendant’s acts, the statement of claim alleges, the plaintiff, its officers, employees and agents (including its legal representatives) have suffered loss and damage.  Significant anxiety, emotional distress and annoyance were caused to those who received, read or were targeted by the emails.  Mr Leigh suffered stress and anxiety necessitating medical attention.  Other officers, employees, agents and legal representatives experienced anxiety, distress and annoyance.  Even when, from late October 2021, the emails were sent only to the lawyers, the seriousness of the allegations required the latter to notify the plaintiff’s officers and employees, including Mr Leigh, shortly after receipt, thereby causing further distress.  The plaintiff and associated individuals were put to substantial time and expense in addressing the emails and seeking legal advice, resulting in financial loss by way of legal fees in excess of HK$10,000,000 for the plaintiff and HK$220,000 for Mr Leigh (which were paid for by the plaintiff).

9.  Bringing the action on its own behalf and on behalf of its current and former officers, employees and agents, including its legal representatives, pursuant to Order 15, rule 12 of the Rules of the High Court,^[2] the plaintiff claims against the defendant injunctive relief to restrain the defendant from continuing her acts of harassment complained of in the statement of claim; damages for harassment (to be assessed); interest and costs.

The proceedings below

10.  By a decision dated 31 May 2023, Deputy High Court Judge Herbert Au‑Yeung (as he then was) dismissed the plaintiff’s claims against the defendant with costs.[3]  The deputy judge proceeded on the basis that the plaintiff, being a corporate entity, lacks standing to sue in its own capacity in the common law tort of harassment, and that it does not share the same interest as the purported representees so as to permit a representative action on the same cause of action.  He considered it plain and obvious that the claims ought to be struck out.

11.  On appeal, the Court of Appeal,[4] accepting a new ground introduced by the plaintiff through an amendment to the amended notice of appeal,[5] held that, on the pleaded facts, the court had jurisdiction to grant a “freestanding injunction” to the plaintiff restraining the defendant from continuing the alleged harassment directed at the representees.  Whether such relief should be granted was a matter for trial, the exercise of the court’s discretion depending on the facts and circumstances established.  As both the plaintiff and the representees were entitled to invoke the court’s jurisdiction for injunctive relief to restrain the alleged harassment, they had the same interest for the purposes of Order 15, rule 12, and the plaintiff was entitled to bring the present proceedings in a representative capacity as well as in its own right.  It followed that the plaintiff’s claim for injunctive relief could not be struck out under Order 18, rule 19(1)(a) as disclosing no reasonable cause of action or as being plainly and obviously unsustainable, and that the claim, being fact‑sensitive, was not suitable for determination under Order 14A, rule 1.

12.  As regards the question of whether a corporate entity may sue in its own capacity for the tort of harassment at common law, the court considered that there was substance in the competing contentions of the parties.  For the purposes of the appeal, the plaintiff’s position was reasonably arguable, with the consequence that its claim in its own right could not properly be struck out as disclosing no reasonable cause of action, or as being plainly and obviously unsustainable.  Nor was it appropriate to determine the point under Order 14A.  The court reasoned that the action would in any event proceed in relation to the plaintiff’s claim for injunctive relief; and even if it were ultimately held that the plaintiff could not itself sue for harassment, the representees would remain entitled to pursue damages against the defendant.  Given the deputy judge’s bifurcated approach to liability and quantum, the disposition at this interlocutory stage of only the plaintiff’s claim for damages would not produce any material saving of time or costs, and there was no sufficient reason to require the court to dispose of only a small part of the action.

13.  For those reasons, the Court of Appeal allowed the appeal and gave directions for the management of the outstanding applications before the deputy judge.

Leave to appeal to this court

14.  On 19 June 2025, the Appeal Committee granted leave to appeal on the following questions:

“Question 1

Whether a ‘free-standing’ injunction can be granted to a corporate plaintiff if it could not pursue a claim for the tort of harassment as a matter of law?

Question 2

Can a corporate entity bring an action on its own based on the common law tort of harassment?

Question 3

In a representative action commenced pursuant to Order 15 Rule 12 of the RHC for the common law tort of harassment, if the representative plaintiff is a corporate entity, does it have the ‘same interest’ as the individual representees under Rule 12(1)?”[6]

Appointment of amici curiae

15.  In light of the important and novel questions of law arising on this appeal, and with a view to obtaining fuller and non-partisan assistance, Mr Bernard Man SC and Mr Jonathan Fung were appointed as amici curiae. We are grateful to them for the valuable assistance provided in their written submissions and at the oral hearing.

16.  In particular, on the question whether a company, as distinct from a natural person, may sue in harassment under our law, the amici raised the anterior question for our attention whether a tort of harassment exists in Hong Kong at all – a proposition assumed by the parties and by the courts below – and made detailed submissions on that issue.

17.  The sequence of the three questions on which leave to appeal was granted essentially followed the order in which the Court of Appeal disposed of the appeal.  However, since we are minded to address the questions substantively, as the deputy judge did at first instance, a more logical sequence is to consider Question 2 first (taking into account the anterior issue raised by the amici), followed by Question 1, and then Question 3.  Indeed, this is the sequence in which the issues are set out at the beginning of this judgment.

Question 2

18.  Question 2, as refined by the preliminary issue raised by the amici, concerns whether the common law in Hong Kong recognises a tort of harassment. If such a tort exists, what are its essential elements?  A further issue is whether a company, being a legal entity that cannot experience emotions, can nonetheless bring a harassment claim on its own, assuming the tort is otherwise applicable to natural persons.  This further question arises in light of the fact that harassment is typically understood as causing anxiety, distress, or other similar forms of human feelings or even mental harm.

19.  On these issues, we have had the benefit of reading the joint judgment of Mr Justice Lam PJ and Lord Neuberger NPJ in draft.  We agree with their conclusions for the reasons they have provided.  In particular, we agree that the tort of harassment forms part of the common law in Hong Kong.  However, it is a tort against the person and is available only to natural persons, not to limited companies.

Question 1

20.  We therefore turn to Question 1.  The question essentially asks whether, as a matter of law, a “freestanding injunction”[7] can be granted in favour of a corporate plaintiff to restrain acts of harassment directed at its officers, employees, agents and lawyers, on the assumption, now confirmed by our answer to Question 2, that under the common law of Hong Kong, a company, unlike a natural person, does not have a cause of action in the tort of harassment.

Jurisdiction to grant injunctions

21.  The jurisdiction to grant injunctions has received detailed examination in two recent decisions by the Privy Council and the UK Supreme Court respectively.  In Broad Idea International Ltd v Convoy Collateral Ltd,[8] the Privy Council revisited the familiar question of whether, under the relevant civil procedure rules, it has the power to authorise service of an originating process on a defendant outside the jurisdiction, where a freezing injunction is the sole relief sought.  It also considered the equally familiar question of whether the court may grant a freezing injunction against a party over whom it has personal jurisdiction, for the purpose of assisting enforcement through the court process of a prospective or existing foreign judgment.

22.  In Wolverhampton City Council v London Gypsies and Travellers,[9] the Supreme Court had to grapple with the question of its jurisdiction to grant injunctions against so-called “newcomers”, that is, persons who, at the time the injunctions were granted, were neither defendants nor identifiable, but were merely described as “persons unknown”. This issue arose in response to the emerging problem of unauthorised encampments within the administrative areas of several local authorities.

23.  Drawing on the expositions of the relevant principles governing the grant of injunctions in the two recent cases, we approach Question 1 by first examining the applicable principles and the established categories of injunctions, before turning to the specific situation raised in Question 1.

24.  Although placed on a statutory footing under section 21L of the High Court Ordinance,[10] it is clear that the court’s jurisdiction to grant injunctions remains equitable in nature.  Its discretionary jurisdiction to grant injunctions is, subject to any relevant statutory restrictions, unfettered. In an oft-cited passage,[11] Spry, The Principles of Equitable Remedies,[12] described the courts’ powers to grant injunctions as follows:

“The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate.”[13]

25.  This does not mean that an injunction may be granted merely in accordance with a judge’s personal sense of justice or subjective inclination. Rather, the power to grant an injunction must be exercised consistently with established equitable principles and subject to any limitations imposed by judicial precedent, legislation and the rules of court.[14]

26.  On the other hand, the jurisdiction is a flexible one, capable of development and evolution to meet the changing needs of society.[15] It exists to provide an effective remedy where legal remedies are inadequate to protect or enforce rights or interests, and may be invoked when it is “just and convenient” to do so.

27.  The upshot is that the jurisdiction to grant injunctions remains capable of development and, as demonstrated by recent decisions of the Privy Council and the UK Supreme Court, is indeed still evolving.  However, such development should generally be incremental in nature.  Precedents and established categories do not operate as a straitjacket limiting the jurisdiction’s development;[16] rather, they serve as building blocks or foundational reference points from which the law may develop and evolve, analogically and incrementally, to address changing circumstances.

28.  It is therefore instructive to consider, on a non-exhaustive basis, the established categories of injunctions, before examining whether such relief may, subject to the discretionary considerations governing the grant of injunctions, be available to a corporate plaintiff, even in the absence of its own cause of action in harassment.

Where there is a cause of action by the applicant against the person sought to be injuncted

29.  Naturally, the most common established category of injunction arises where the applicant for an injunction has a cause of action against the person sought to be injuncted, and an injunction is, or is among, the available remedies.  A good example is a claim based on trespass to land.  The rationale for the injunction is that it upholds the legal right of the applicant as represented by the cause of action.

30.  Even where the cause of action, if ultimately established, would not justify the grant of a permanent injunction, the court may, depending on the facts, still issue an interlocutory injunction to preserve the status quo pending determination of the claim.  For example, the injunction may aim to preserve the subject matter of the dispute, protect a material piece of evidence, or restrain steps alleged to constitute a breach of contract, even where the underlying claim is for monetary relief only.

31.  However, the injunction may have no direct connection to the subject matter of the dispute, or to any issues or evidence relevant at trial. A Mareva injunction,[17] designed to prevent the dissipation or removal of a defendant’s assets to frustrate the execution of a future judgment, has long been recognised as a distinct and established category of relief.  While the plaintiff has a cause of action against the defendant, the freezing injunction does not relate to the substantive issues between the parties, but rather to the enforcement of any monetary judgment the plaintiff may obtain if successful at trial.

32.  The principle underlying the grant of injunctions in such situations may be variously expressed: as supporting the plaintiff’s cause of action or legal claim;[18] preventing interference with the execution of a future judgment;[19] or, more generally, upholding the proper administration of justice and preventing abuse of the court’s process.[20]

33.  Where the plaintiff has brought, or intends to bring, a claim based on a cause of action, it makes no difference whether the forum is a domestic court, a foreign court, or an arbitral tribunal, provided that the court from which the injunction is sought has personal jurisdiction over the party to be injuncted.[21]

Where the applicant has a cause of action against another person

34.  For a period of time following the House of Lords’ decision in The Siskina,[22] it was thought that the existence of a cause of action against the person sought to be injuncted was a necessary requirement for obtaining an injunction. 

35.  But that view of the law, based on a particular reading of The Siskina and the cases following it,[23] has since been wholly discarded: Broad Idea, [120].  It is now well-established that injunctions may issue where there is no cause of action against the person sought to be injuncted, but a cause of action lies against another person.  This is a natural extension of the preceding category, as such injunctions may be regarded as indirectly supporting the plaintiff’s cause of action, the proper administration of justice, or the prevention of abuse of the court’s process.  Thus, a Chabra freezing injunction[24] may be granted against a “non-cause of action defendant”.  That is, a Mareva injunction may be granted against a third party who holds or controls assets of the defendant, where the injunction is intended to preserve those assets for the purpose of enforcing any future judgment obtained against the defendant.

36.  Likewise, an injunction may be granted against an innocent third party, typically a bank, to disclose documents or information to assist a plaintiff in locating assets to which the plaintiff has a proprietary claim.[25]  This is similar to a third-party disclosure order, generally known as a Norwich Pharmacal order,[26] under which a party who, whether innocently or otherwise, has become mixed up in the wrongdoing of another may be ordered to disclose relevant information in their possession, where such information is necessary for the applicant to seek redress against the wrongdoer.  As was pointed out in Broad Idea,[27] it is not a pre-condition of the exercise of the Norwich Pharmacal jurisdiction that the applicant should have brought, or be intending to bring, legal proceedings against the wrongdoer.  It is sufficient that the applicant intends to seek some forms of lawful redress for which the information is needed. 

37.  Again, website blocking orders are a relatively new form of injunction developed to address the challenges posed by the infringement of intellectual property rights on the internet.[28]  Thus, an injunction ordering an innocent internet service provider to block a website selling counterfeit goods may be granted, even though the internet service provider has not invaded, or threatened to invade, any legal or equitable interests of the plaintiff.[29]  Nor is there any need for the plaintiff to indicate even an intention to bring proceedings against the infringer.[30]

38.  Pausing here, it can be seen that the jurisdiction to grant injunctions has been gradually extended to cases where not only is the cause of action relied on one against someone other than the person sought to be injuncted, but there is also no requirement to demonstrate a definite intention to enforce that cause of action through legal proceedings.

Where the applicant has no cause of action against anyone

39.  However, case law has clearly demonstrated that the boundaries of the equitable jurisdiction to grant injunctions are not confined to situations where the applicant has a cause of action against someone.  Injunctions have been granted in various contexts where the applicant has no cause of action against any particular person, including, and often especially, the person sought to be injuncted.  Whereas the existence of a cause of action, whether directly against the person sought to be injuncted or against another, would provide a good and principled basis for granting an injunction, the absence of a cause of action against anyone means that the court must identify some other good and principled justification for doing so. 

Post-judgment Mareva injunctions and costs order for the defendant

40.  An obvious example of a situation in which an injunction may be granted despite there being no, or no longer any, cause of action is where a Mareva injunction is issued post-judgment, that is, after the original cause of action has merged into the judgment itself.[31]  A more clear-cut case, however, is where a defendant obtains a Mareva injunction against the plaintiff, in respect of a costs order made in the defendant’s favour.[32]  In such a scenario, the defendant does not have a cause of action against the plaintiff, but merely holds a favourable costs order arising from the proceedings – an order that the plaintiff is attempting to frustrate by dissipating or removing his or her assets.

41.  This is not surprising at all.  It has been said by Lord Nicholls in his well-known dissenting judgment in Mercedes Benz AG[33] that the essential purpose of a Mareva injunction is to assist the enforcement through the court process of a money judgment, and the plaintiff’s underlying cause of action is relevant only in so far as it bears on the prospect that such a judgment will be obtained.[34]  If a prospective judgment can justify the grant of a Mareva injunction, then it follows, plainly, that an actual judgment, or even a costs order in the defendant’s favour, is sufficient as well.

Anti-suit injunctions

42.  An example of a distinctly different type is the anti-suit injunction.  Where such an injunction is sought on the basis of a contractual provision, a defendant may obtain relief to hold the plaintiff to their agreed bargain regarding where or how disputes are to be resolved.[35] In such cases, the justification for granting the injunction lies in enforcing the parties’ contractual agreement on dispute resolution, even if the defendant has no independent cause of action or counterclaim against the plaintiff.

43.  However, where there is no contractual dispute resolution clause, and the anti-suit injunction is instead obtained on grounds such as the prevention of forum shopping or oppressive or vexatious proceedings, the justification must rest on broader considerations of the proper administration of justice and the protection of the court’s own process.[36]

44.  Similarly, where a disgruntled minority shareholder having a personal animosity against the company’s chairman presented a winding up petition against the company as a means to express his disagreement and exert pressure on the chairman, an injunction to restrain the presentation of the petition was issued.[37]  The justification for the injunction was the protection of the winding up procedure from being abused.[38] Indeed, in Wolverhampton, protection of the court’s process from abuse, or preservation of the utility of its future orders, has been described as the “bedrock of many of equity’s forays into new forms of injunction”.[39]  Thus, anti-suit injunctions are justified on the basis that they serve to “preserve the integrity of the appropriate forum from forum shopping by parties preferring without justification to litigate elsewhere.”[40]

Attorney General’s duty to enforce the law

45.  Yet another type of injunction granted by the courts where there is no cause of action against anyone concerns those injunctions granted on the application of the Attorney General (or the Secretary for Justice in Hong Kong), acting either ex officio or through another person known as a relator, so as to ensure that the defendant obeys the law.[41] The explanation, or principled basis, for granting this type of injunction must be that, even though the Attorney General may not have a cause of action in his or her own right, an injunction may nevertheless be granted on the Attorney General’s application, in order to enable the discharge of the official duty to ensure that the law is upheld.  This is so regardless of whether there are others who hold causes of action but have, for their own reasons, chosen not to pursue them.  In other words, since the Attorney General is under a duty, by virtue of the office, to enforce the law and to see to it that the law is obeyed in the public sphere, that is regarded as a sufficient basis for the court to grant an injunction in aid of the Attorney General’s performance of his or her duty.  This, in our view, has a bearing on the issue in the present appeal, to which we will shortly turn.  (For the sake of completeness, it should be noted that whilst most reported cases concern the enforcement of civil law, there have also been cases involving the obtaining of injunctions in aid of criminal law enforcement.  In Hong Kong, the Use of Protest Song[42] injunction is a recent example.)

Newcomers injunctions

46.  Next, one finds the Wolverhampton type of “newcomers” injunction.  As explained, at the time when the injunction is granted, the “persons unknown” have not even come into the picture, and, by definition, there is no existing cause of action against them.  However, if and when they commit the acts prohibited, a cause of action will come into being.  In a sense, Wolverhampton concerns nothing other than a quia timet injunction that the court grants to prevent a wrongful act from occurring, rather than addressing an act that has already happened.  By definition, there is, as yet, no wrong done and thus no cause of action.  But the injunction is preventive in nature.  The justification for such an injunction can easily be based on the future cause of action which will come into existence if the preventive injunction is not granted.  The novelty of the Wolverhampton injunction lies not so much in the nature of the interest it seeks to protect, but in the breadth of its scope – being directed against the entire world,[43] a feature with which we are not concerned in this appeal.

Broadmoor jurisdiction

47.  We now turn to one final type of injunction where the applicant for an injunction does not have a cause of action of his or her own against anyone, which we would discuss in this judgment.  (While, quite obviously, other types and categories of injunctions exist, we do not find it necessary to refer to them here.)  It is also the most relevant category for our purposes, namely, the Broadmoor type of injunction based on the case Broadmoor Special Hospital Authority v Robinson,[44] as subsequently affirmed by the UK Supreme Court in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust.[45]

48.  In Broadmoor, the plaintiff authority was responsible for the management and provision of treatment of patients under condition of special security on account of their danger, violence or criminal propensities in a special hospital at Broadmoor, provided by the Secretary of State for the Department of Health pursuant to the National Health Service Act 1977 as amended by the Mental Health Act 1983.  It applied for an injunction against a patient receiving treatment at the hospital from sending out copies of a book which he had written about other patients detained in the hospital, identifying these patients and giving details of their offences and mental states.  Lord Woolf MR identified the issue of general importance raised by the appeal as “whether a statutory body is entitled to be granted an injunction in civil proceedings to support its performance of its statutory duties”.[46] At [25], his Lordship said:

“If a public body is given a statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in the statute, it has standing to apply to the court for an injunction to prevent interference with its performance of its public responsibilities and the courts should grant such an application when ‘it appears to the court to be just and convenient to do so’.”

49.  Further on, the Master of the Rolls said in [30]:

“I would accept that the authority cannot bring proceedings to protect any patients’ right to privacy or confidence. To protect other patients, the authority have to rely on the interference which the conduct of which complaint is made would have on the performance of their duties. In particular, the duty of the authority to maintain security, order and a therapeutic environment within the hospital.”

50.  In the next paragraph, the judge added:

“As far as jurisdiction is concerned therefore, I regard the court as being able on the application of the authority to grant an injunction if the grant of that injunction is justified in order to enable the authority to perform its statutory responsibilities.”

51.  Waller LJ agreed with Lord Woolf MR:

“It seems to me that if someone interferes with the carrying out by a statutory authority of its statutory duty, there should be no reason in principle why the court should not come to the assistance of the statutory authority, and, if the circumstances make it ‘just and convenient,’ grant an injunction. Thus, for example, if a third party were to set out to frustrate the authority in its treatment of a patient, I can see no reason why the court should not grant an injunction to prevent that conduct. If a third party attempted to interfere with the discipline at Broadmoor, I would see no reason why the court should not assist the authority by injunction if necessary. The example of someone sending in letters designed to hinder the treatment of a patient, or to encourage breaches of discipline, seem to me to be situations where the court might well interfere.”[47]

52.  However, on the facts, Lord Woolf MR considered that no injunction should be granted as a matter of discretion,[48]  whereas Waller LJ also agreed but on the basis that the defendant’s conduct could not be categorised as interfering with the performance of the authority’s public responsibilities.[49]

53.  The third member of the Court of Appeal, Morritt LJ, proceeded on the basis that as a matter of statutory interpretation, the plaintiff authority had no implied power to require a patient undergoing treatment not to publish a book written by him of the kind in question and, if required, to deliver up to the authority the manuscripts and copies of it under his control.  He took the view that the implication did not arise from the duty and function of the hospital as a special hospital provided under the statutes.[50] However, the judge went on to say:

“Had I reached a different conclusion on whether the requisite power could be implied I would, in agreement with Lord Woolf MR on this point, have concluded that it could be enforced by Broadmoor. I would have rested my conclusion on the simple ground that if Parliament is to be treated as having conferred the power then it must also have intended that Broadmoor might enforce it. In my view the power would be in the nature of a statutory right conferred on a particular person or class of person to be exercised as occasion required in the performance of their statutory functions. Powers have commonly been conferred on statutory undertakings, such as railway or canal companies, entitling them to go on the land of another for some purpose. So far as I am aware it has never been suggested, let alone decided, that such undertakings may not enforce such a right by injunction if necessary. By parity of reasoning if Broadmoor has the right to require the defendant to deliver up the manuscript of his book and all copies of it in his possession or control or to prevent publication of it and needs an injunction to enforce it I can see no reason for denying the requisite jurisdiction to grant it.”[51]

Abbasi

54.  The Broadmoor jurisdiction to grant injunctions of the type mentioned by Lord Woolf MR and Waller LJ was endorsed by the Supreme Court in Abbasi. Abbasi concerned the grant of contra mundum injunctions in favour of an NHS trust prohibiting the naming of clinicians and other hospital staff involved in the care and life-sustaining treatment of children patients and the subsequent withdrawal of such treatments in a hospital run and operated by the trust under statute. 

55.  The Supreme Court held that except during the initial stage, the trust could not sue in its own name to enforce the clinicians’ rights to privacy.  If they wanted to protect their own rights, the clinicians needed to sue either separately or by a representative.[52]  However, the Supreme Court pointed out that during the life-time of a child patient, an injunction could issue, under the court’s inherent parens patriae powers, for the protection of the interests of the child or the administration of justice; or, importantly for present purposes, under the Broadmoor jurisdiction to prevent interference with the hospital trust’s performance of its statutory functions.[53] Indeed, even after the death of the child following the withdrawal of treatment as decided by the treating clinicians, the injunction could be continued, according to the Supreme Court, on the basis of the Broadmoor jurisdiction during a cooling-off period.[54]

56.  The Supreme Court observed that, if an injunction preserving the anonymity of the clinicians were not granted, the resulting abuse directed at them could adversely affect the hospital trust’s ability to provide care to its patients.[55]  The injunction served to protect the clinical team treating the child from the risk of abuse and harassment at their place of work, at home and on social media.  It would also prevent such abuse and harassment from having an adverse impact on the trust’s recruitment and retention of clinical staff who worked in the paediatric intensive care units.[56]

57.  As regards the Broadmoor jurisdiction, Lord Reed PSC and Lord Briggs JSC in their joint judgment said:

“The judgments of the majority in Broadmoor, and the endorsement of Lord Woolf MR’s statement of principle by this court in R v Rollins,[57] establish that a hospital authority (or other public authority) can apply to the court for an injunction to prevent conduct which interferes with its performance of its statutory functions, and that the court can grant an injunction where the circumstances make it just and convenient to do so…”[58]

58.  Their Lordships went on to say:

“… it is possible for the hospital authority to bring a claim which has the effect of protecting its patients (or third parties) where it relies on the interference which the conduct of which complaint is made would have on the performance of its duties.”[59]

59.  In [78], the learned judges added:

“The Broadmoor jurisdiction is available for as long as there is a risk of interference with the trust’s performance of its functions.”

60.  In [96], the two judges summarised the position:

“Another relevant cause of action is the right of a public body to apply to the court for an injunction to prevent interference with its performance of its pubic responsibilities, established in the case of Broadmoor. As we have explained, it enables a hospital authority to apply for an injunction in order to protect the anonymity of clinicians or other staff who are employed by it or are otherwise providing it with their services, where their identification could have consequences which interfered with the authority’s performance of its statutory duties.”

61.  On the other hand, Lord Reed PSC and Lord Briggs JSC indicated that there is a need for caution in relation to the grant of injunctions on the basis of the Broadmoor jurisdiction, particularly in a case where the freedom of expression may be curtailed by the injunction sought.^[60]  H (A Healthcare Worker) v Associated Newspapers Ltd,[61]  mentioned by their Lordships, was one such case.  There, the Court of Appeal refused to exercise the Broadmoor jurisdiction to grant an injunction to prevent a newspaper from publishing the name of a health authority which had employed a health worker who was HIV positive, after balancing the impact on the authority’s administration and resources against the freedom of expression in a democratic society.  However, the existence of the Broadmoor jurisdiction was never in doubt.[62]

62.  In short, it is now well-established under the Broadmoor jurisdiction that where a public body is under a statutory duty to discharge specific functions or responsibilities, an injunction may be granted upon its application to prevent interference with the performance of those duties.  This is so even if, in practice, the injunction also benefits third parties, such as employees of the public body, by protecting their rights or interests.  This holds true regardless of whether those other individuals also seek to enforce their rights or interests through the courts by applying for appropriate injunctions or other forms of relief.  The underlying rationale for such an injunction is to support the public body in the discharge of its statutory duties and responsibilities entrusted to it by law.  Put another way, where the law imposes a duty on a public body to perform a specific task in the public interest, it should also provide the necessary means to protect that body from wrongful interference in the performance of that duty.  Whether an injunction should be granted in a particular case must depend on the specific facts and all relevant discretionary considerations, including, where applicable, whether any interference with fundamental rights, such as freedom of expression, is justified.

Development of jurisdiction beyond the Broadmoor jurisdiction in the employment context – an overview

63.  Clearly, the Broadmoor jurisdiction does not directly encompass the type of situation under discussion.  However, given the current state of the law, it is legitimate to ask whether the court’s jurisdiction might be capable of further development or extension, incrementally and analogically, to cover situations where the plaintiff is not a statutory or public body serving a public interest, and the duty or responsibility in question is not imposed by statute but arises under the common law.  This is particularly relevant in the present context of employment, where an employer owes to employees a non-delegable duty under common law to take reasonable care for their safety at work, including a duty to provide a safe working environment (or, a safe place of work).^[63]

64.  For the reasons explained below,^[64] we are of the view that, in a case such as the present, where an employee is subjected to harassment by another person (whether a co‑worker, a former co‑worker, or even a third party) in the course of their employment, and where the harassment is, in substance, directed at the employer, the employer ought to have standing to seek injunctive relief to protect the employee.  Such a development or extension of the Broadmoor jurisdiction is justified in light of the special relationship between employer and employee in matters arising from the course of employment.

65.  Whilst an employee is expected to be sufficiently robust to deal, in the course of work, with unreasonable persons as a normal vicissitude of life, harassment is, by definition, well beyond what is acceptable or tolerable.  If the employer takes no steps to ameliorate the situation, it is not difficult to see that reasonably foreseeable harm to the employee’s psychological well‑being may result, potentially developing into psychiatric illness in serious cases.

66.  Though an employee may pursue his or her own claim for harassment in court, there are, as elaborated below,^[65] many practical considerations that would inhibit such a course, even if the employer were to fund the litigation.  Some may also suggest that an employee can escape the predicament by resigning.  However, as Lord Hoffmann observed with characteristic insight in Johnson v Unisys Ltd:

“It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality …”[66]

67.  A general and important characteristic of the employment relationship is the employer’s control over the employee in the conduct of the business.  Since the harassment in question arises from the conduct of that business, an employee will naturally look to the more resourceful employer to act against the harasser, who may be a co‑worker, a senior colleague, or even a customer.  If, notwithstanding the employee’s complaints, the employer decides to take no action, an employee who pursues a personal claim must bear not only the risks of litigation, but also the potential reaction of the employer to such proceedings.

68.  A responsible employer would consider taking reasonable pre‑emptive steps, including, where appropriate, a quia timet injunction, before an employee’s distress develops into an even more serious condition, if it is within its power to do so, so as to prevent such intolerable situations from recurring in the workplace.  As explained below,^[67] we see no good reason for the law to deny the employer standing to obtain injunctive relief to secure a safe working environment for its employees in such circumstances.

69.  Once it is appreciated that the interest protected by an injunction sought by the employer is the safety of the working environment, rather than the personal interests of individual employees (though their well‑being is also protected), it becomes clear that permitting such a course should not be a controversial step but one which is worthy of the most serious consideration.

70.  The amici and the defendant submitted that permitting an employer to seek injunctive relief when it has no independent cause of action for harassment would violate the general rule on standing and undermine the autonomy of employees who may sue on such causes of action.  For the reasons elaborated below,^[68] we take the view that the rule on standing admits of greater nuance.  We acknowledge that, in Abbasi, the Supreme Court held that third parties ordinarily lack standing to seek remedies to protect individuals who have causes of action but choose not to sue.^[69]  However, as the Broadmoor jurisdiction demonstrates, there can be circumstances in which the same set of facts gives rise to more than one legitimate interest or concern on the part of different persons or entities, entitling both to seek injunctive relief, even if the practical effect of granting relief to one also benefits the other.^[70]  Given the special context outlined above^[71] (which was not argued before the Supreme Court), extending these circumstances to allow an employer to seek injunctive relief against harassment of its employees in the workplace is not, per se, an usurpation of the employees’ rights to sue.  Put differently, an employee’s autonomy to pursue, or not to pursue, his or her own claim is not compromised.  In this respect, the question of the employer’s own standing to sue for an injunction is distinct from the separate question of whether it is suitable to proceed by way of a representative action for and on behalf of the employees.

71.  Having highlighted these key contextual factors relevant to the circumstances before us in this appeal, we now turn to examine more closely how the law may be developed and extended to encompass the type of case at hand, while also recognising the inherent limitations of such an approach, particularly in relation to the scope of injunctive relief available to an employer.

Common law duty to provide a safe working environment

72.  On the pleaded facts in the present case, the plaintiff, as employer, owes to its employees a non-delegable duty under common law to take reasonable care for their safety at work, including a duty to provide a safe working environment (or, a safe place of work).  In Ruffley v The Board of Management of St Anne’s School,[72] an Irish Supreme Court appeal, O’Donnell J said:

“… an employer owes extensive duties of care to an employee at common law. Those duties include the duty to provide a safe place of work… That duty can clearly extend beyond the direct actions of the employer, and to the actions of other individuals which are or ought to be foreseeable, including the actions of other employees, or indeed third parties. Thus, for example, employers have been held responsible for a failure to foresee and take steps to prevent criminal assaults suffered by an employee: Walsh v Securicor Ireland Ltd [1993] 2 IR 507. Another example might be the employee horseplay cases. If the employer knows or ought to have known of the practice, and did not take effective steps to prevent or stop such practice, then an employer may be liable to the injured employee.”[73]

73.  To these two examples, we would add the further example of conduct amounting to the tort of harassment.  We see no difference in principle between a workplace in which an employee is exposed to a reasonably foreseeable risk of physical assault or, for instance, theft by a fellow employee (current or former), or a customer, and one in which he or she is exposed to a reasonably foreseeable risk of harassment by the same individuals.  In either case, if the risk materialises, it would amount to a tort committed against the employee. Where the employer knows, or ought reasonably to know, of the risk but fails to take reasonable steps to eliminate or mitigate it, that could well, depending on the circumstances, constitute a breach of the duty to provide a safe working environment.

74.  In Waters v Commissioner of Police of the Metropolis,[74] Lord Slynn of Hadley pointed out:

“If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual.”[75]

The alleged acts in Waters essentially involved protracted harassment, bullying, and victimisation in the workplace, following the plaintiff’s complaints to her superiors of rape and buggery by a fellow police officer while they were both off duty.  These acts allegedly resulted in psychiatric harm to the plaintiff.

75.  Lord Hutton likewise said:

“I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence.”[76]

76.  The above quotes refer to the employee suffering mental harm or psychiatric injury as a result of victimisation and harassment.  This is because, where the employee’s cause of action is based on the tort of negligence, damage is a necessary element of the tort.  In the absence of physical injury, the employee must establish an actionable mental or psychiatric injury to satisfy this requirement.^[77] This requirement does not apply where the cause of action is based on a breach of the contract of employment, since contractual breaches are actionable per se, that is, without proof of damage.  However, even in such cases, damages for distress or injured feelings that fall short of psychiatric injury are generally not recoverable.^[78]  That said, in appropriate circumstances, an employee (particularly where a trade union is involved) may seek injunctive or other non-monetary relief, including quia timet relief, against the employer in respect of the breach.[79]  What is important is that none of these considerations detracts from the broader point that, depending on the facts, an employer may be held liable for harassing conduct directed at an employee by others in the workplace, or in connection with their employment.

77.  In other words, where the employer knows or ought reasonably to be aware of the situation, a failure to take reasonable steps to protect employees from being harassed by another person (including a former employee, for example through harassing emails) may amount to a breach of the employer’s duty to provide a safe working environment.  This is particularly so where the conduct rises to the level of the tort of harassment against the individuals concerned.  Or, at the very least, such harassment by the ex-employee may constitute an interference with the employer’s duty, potentially resulting in a breach of its obligations to employees.  By analogy with the Broadmoor jurisdiction, this interference with the employer’s discharge of its common law duty to provide a safe place of work may, therefore, provide a basis to justify an injunction restraining the harassment of the employees in their workplace or work environment.  In the present case, this extension of the Broadmoor jurisdiction by analogy would provide a basis for the claim of an injunction by the plaintiff in its own right against the defendant in so far as the injunction relates to the plaintiff’s provision of a safe working environment for the benefit of its employees.  It does not extend to harassment of those individuals outside of their workplace or work environment, unconnected with their employment with the plaintiff.

78.  In their written case, the amici rightly note that the Broadmoor jurisdiction is defined by reference to interferences with the discharge of statutory duties and functions by public bodies serving public interests.[80]  In both Broadmoor and Abbasi, the entities involved were statutory trusts operating hospitals, whose duties were based in statute and clearly served public purposes.

Statutory duty vs common law duty

79.  As regards the source of the duties of a plaintiff seeking the injunction, it is difficult to see any principled reason why it must be confined to a statutory one.  Indeed, in Abbasi, Lord Reed PSC and Lord Briggs JSC started their discussion of the Broadmoor jurisdiction by saying:

“A second potential source of jurisdiction, discussed in Wolverhampton at para 45, is the court’s power to grant injunctions on the application of public bodies acting under statutory (or, where they exist, common law) powers.”[81] (emphasis added)

80.  This reinforces our view that whether the duty, the performance of which the injunction seeks to protect, is statutorily based or is based on the common law, is quite irrelevant.  What is important is whether, under the law, whether by statute or at common law, a body is required to perform a particular duty, responsibility, or function, and whether that performance is subject to interference.  If the answer to both questions is “yes”, the ultimate issue is whether the court should intervene by granting an injunction to restrain such interference, or whether it should stand aside and leave the body to its own devices.

81.  Although Abbasi[82]refers to “powers” rather than duties or functions, it appears clear, when the relevant parts of the judgment are read as a whole, that what ultimately justifies the Broadmoor jurisdiction is interference with the performance of the duties imposed by law on the public body in question.  Whether those duties carry with them express or implied rights or powers (as they usually do) to take action in order to discharge the duties or functions is, in our view, beside the point.  Indeed, in Abbasi, the Broadmoor jurisdiction was considered a possible basis for the grant of the injunctions not because they were necessary to uphold some implied statutory powers vested in the trust to prevent disclosure of the clinicians’ identities, but because interference with the trust’s statutory duty to provide hospital services was at stake.[83]  For this reason, we do not consider that the reference to the common law “powers” of a public body in Abbasi[84] can be discounted merely because the word “powers” was used rather than “duties,” “functions,” or “responsibilities”.

82.  Rather, it seems to us that where the law, whether by statute or general law, imposes on a public body the duty to carry out a task or discharge a function, the court could have jurisdiction to grant an injunction to assist that body in performing its legal duty, if it is just and convenient to do so. Or, put another way, there should be power on the part of the court, subject to all relevant discretionary considerations, to grant such an injunction.

83.  To hold otherwise, in the context of the present discussion, would lead to unattractive consequences.  It should be remembered that in modern times, the legislature has by written law imposed on an employer various statutory duties.  Thus, for instance, the Occupational Safety and Health Ordinance[85] requires employers to, so far as reasonably practicable, ensure the safety and health at work of all employees. If the distinction between statutory and common law duties were accepted, it would mean that interference with the performance of a public body employer’s statutory duties could be restrained by injunction, whereas interference with its non-delegable duty at common law could not.  We see no principled basis for drawing such a distinction.

Public body employer vs private corporate employer for profit

84.  A more difficult distinction, however, is the one between a public body employer and a private corporate employer for profit, so far as the possible extension of the Broadmoor jurisdiction to cover the type of situation under discussion is concerned.

85.  This distinction, if accepted, would lead to the consequence that a public body, as an employer, could apply for an injunction to restrain interference with its provision of a safe workplace or the discharge of other statutory duties imposed on it for the protection of its employees.  By contrast, similar interferences affecting a private corporate employer for profit, whether in maintaining a safe working environment or fulfilling statutory obligations owed to its employees, would not be capable of being restrained by injunction.  On the face of it, there is little apparent justification for such a distinction.  Whether the employer is a public body or a private corporate entity for profit, and whether the duty in question arises under statute or at common law, the justification for the court’s intervention by way of injunction remains the same.  That justification lies in supporting the employer’s performance of a duty imposed by law, in order to achieve the purpose for which that duty was imposed in the first place.

86.  One may even go as far to say that in a sense, this is not dissimilar to the court granting an injunction in aid of the Attorney General (or the Secretary for Justice in Hong Kong)’s discharge of his or her duty to enforce the law in the public sphere and to ensure that the law is obeyed, even though the Attorney General may not have a cause of action in his or her own right, and regardless of whether there are others who have causes of action but have chosen not to sue.

Serving a public interest vs serving a private interest

87.  However, none of these fully addresses the main point urged by the amici during the hearing against any potential development of the law in this direction beyond the Broadmoor jurisdiction.  That is, the Broadmoor jurisdiction concerns interference with the performance of a public law duty or function.  In contrast, an employer’s duty to provide a safe working environment falls within the private law sphere.  We understand the thrust of this distinction to be as follows: unlike a public body, which is entrusted with statutory duties or functions that inherently serve the public interest, an employer in the present context seeks an injunction to prevent interference with its ability to provide a safe working environment so that it can pursue its business or other private interest.

88.  We can appreciate the force of this distinction.  However, in response, it may be said that although a private corporate employer ultimately pursues its own interests, this does not negate the fact that the common law imposes a duty, grounded in the public interest, to provide a safe working environment for the protection of all employees, regardless of who their employer is.  This duty serves a broader public purpose.  Viewed in this light, extending the Broadmoor jurisdiction to encompass the present type of situation may be regarded as consistent with the underlying rationale and protective function of that jurisdiction.

89.  This also helps to delimit, at least at this stage in the development of the jurisprudence on the grant of injunctions, the types of legal duties that may be relied upon as providing a principled basis for the duty-bearer to seek an injunction to prevent interference with the discharge of those duties, in situations where it has no independent cause of action against the interference.  In other words, only where it can be established that the duties in question are imposed by law to serve an identifiable public interest may such duties furnish the principled ground necessary to justify the grant of an injunction in an appropriate case.  And of course, as we have emphasised in the overview section above,^[86] the present appeal concerns only a duty imposed by law for the protection of employees in the specific context of the workplace.  Other legal duties, arising in different contexts, may involve further or different considerations that would need to be taken into account. It is not necessary for us to say more about them here.  After all, as we have repeatedly observed, the law is, and ought to be, developed on a case-by-case basis.

90.  In the present case, which involves the wrongful harassment of employees at work, two further points raised by Ms Queenie Lau SC for the plaintiff,^[87] also help to reinforce our view that this development of the law on injunctions can be supported.  Ms Lau submitted that the harassment in question was, in truth, directed at the corporate plaintiff itself.  However, as the plaintiff is a legal entity, the offending communications were necessarily made to its officers, employees, agents, and lawyers, who were personally harassed as a result.  Although the company has no cause of action in harassment, the conduct has nonetheless caused it substantial losses.

91.  We agree that on the pleaded facts, the employees were being targeted not for anything they did but solely because they were employees of the plaintiff, and the real target was the employer and not the employees at all.  These facts, when taken together with all the other factors mentioned, and viewed in the light of the plaintiff’s legal duty to provide a safe working environment for its employees and its exposure to liability for any breach of that duty, furnish a sufficiently principled basis for the court to consider granting injunctive relief in the plaintiff’s favour.  Put another way, they provide the plaintiff with a sufficient interest and standing to seek such relief, despite the absence of a cause of action in harassment.

Leaving it to the employees to take action?

92.  As alluded to in the overview section,[88] it was strongly argued by both Mr Lavesh Kirpalani for the defendant^[89] and Mr Man SC that in situations of the kind under discussion, the affected employees may bring harassment claims in their own right, and there is therefore no need for the law to permit the corporate employer to seek an injunction, given that it has no independent cause of action in harassment.  If necessary, such actions can be funded by the employer.  In particular, Mr Man submitted that a rule conferring exclusive standing on the victim of a tort to enforce their own legal rights gives effect to the principle of individual autonomy.  Otherwise, difficult procedural issues, such as issue estoppel and the multiplicity of proceedings, may arise.

93.  As mentioned, it is important to remain focused on the employer’s duty to provide a safe working environment – a non-delegable obligation imposed by law on employers for the protection of employees.  This responsibility should not be conflated with the employees’ own rights of action to protect themselves from harassment.  From beginning to end, the duty to ensure a safe workplace lies with the employer, not the employees.  It is the employer upon whom the law places the burden to take reasonable steps to maintain a safe working environment.  Accordingly, to suggest that the law should withhold an injunction from a corporate employer seeking to discharge this duty, merely because employees have the option to initiate harassment claims for their own protection, undermines the very rationale for imposing this obligation on employers in the first place.  It effectively shifts the burden of securing a safe workplace onto the employees.  More fundamentally, such reasoning blurs the distinction between the employer’s overarching legal duty to provide a safe working environment and the employees’ personal causes of action in harassment.

94.  Practically speaking, it is easy to foresee many situations in which employees may be reluctant to bring harassment claims against the perpetrator, even if their legal costs are funded by their employer, and for entirely understandable and legitimate reasons.  After all, most employees join a company to work and earn a living.  They may have families to support and social networks to maintain.  It is not unreasonable to ask: why should the law place them in the unenviable position of having to initiate legal proceedings for harassment that arises solely as a result of their employment and is in reality aimed at their employer?  If nothing else, such a course of action may expose them to further harassment by the wrongdoer.  The mere apprehension that this might happen – and worse, that the harassment could extend to their families or friends – could well be sufficiently off-putting, even in cases where the employer offers to fund the litigation.  This is to say nothing of the uncertainty as to whether the employer will, in fact, put the solicitors sufficiently in funds, or otherwise honour its promise to indemnify the employee for legal costs, and, in particular, for any potential liability for the defendant’s costs if the latter wins.  Nor is it certain that the employer will remain financially able to do so when the time comes.  An employee might also wonder whether accepting such support means they are expected, or perhaps required, to remain in the employer’s service until the proceedings are concluded.  And what happens if they leave?  Would the funding continue?  Would they still be obliged to pursue the action, even if they no longer wished to do so after changing jobs?  And if not, would the employer nevertheless be prepared to meet the costs of an uncompleted claim – including any adverse costs that might then be payable to the other side? 

95.  These are not theoretical concerns.  They are real and practical considerations which any ordinary employee might face when deciding whether to litigate at all even if there is an offer of funding from the employer.  And they must be taken into account when we weigh the abstract principle of individual autonomy against the realities of modern employment.  It seems to us that a much more appropriate and realistic approach would be to accept, in principle, that there is no objection to a corporate employer seeking an injunction in such circumstances.  The court considering the application can then assess the practical considerations, facts, and evidence in the particular case before it.

96.  A variant of the same argument is that employees may commence proceedings against their employer for breach of the duty to provide a safe working environment, such that they would not be left without remedy even if the law does not permit the corporate employer to seek injunctive relief in order to discharge that duty.  This argument, however, is again unconvincing. The duty imposed by the common law upon employers to provide a safe working environment is intended to ensure that such an environment is in fact maintained.  It is not intended to give rise to unnecessary litigation between employers and employees, which would risk undermining, if not altogether destroying, their employment relationships.  Permitting a corporate employer to seek injunctive relief in order to comply with its legal obligation furthers the common law rationale underlying that duty.  By contrast, requiring employees to bring proceedings (which they often cannot afford) against their own employer for breach of that same obligation undermines the very purpose of the duty.  This is especially so where a more straightforward and effective alternative is open to us to adopt.  This is to say nothing of the practical difficulties already outlined if the law is to place the burden of litigation on the employees.^[90]

97.  Yet another variant of the same argument is that, since an employer’s duty is simply to take reasonable steps to provide a safe working environment, there can be no breach of that duty if the law does not permit the corporate employer to seek an injunction to prevent interference with its discharge of that duty, particularly where it has no independent cause of action.  With respect, we find this argument as circular as it is unpersuasive.  The policy underlying the imposition of a duty on all employers to provide a safe working environment is clearly promoted by allowing an employer to apply for an injunction in aid of fulfilling that duty.  Whether such an injunction should be granted in a particular case is, of course, a separate question.  A categorical denial of the employer’s right or standing to even apply for injunctive relief, regardless of whether, on the facts, such relief may be the most effective means of enabling the employer to meet its duty, would significantly undermine the purpose of the law.  A court of law exercising its equitable jurisdiction to do what is just and convenient should be very slow to hold that an injunction must be refused in all cases, including even the most deserving, thereby defeating the very object of a duty imposed by law to serve an obvious public interest.

Scope of the injunction that a corporate employer may obtain

98.  Of course, as mentioned,^[91] such an injunction, if granted, would necessarily be limited to the interference with the employer’s provision of a safe working environment to its employees.  It would not cover any harassing acts directed at the employees that are unrelated to their work or employment with the employer, or in their personal spheres of activities.

99.  Moreover, it would only cover the employees, and would not, for instance, extend to agents, independent contractors, or other individuals who are not, or are no longer, employed by the plaintiff.  On the other hand, the scope of such coverage need not be limited to the employer’s physical office premises.  It may extend to the homes as well as the digital platforms of employees, particularly in the post-COVID era, where remote working has become common.  All these would depend on the facts.

The “initial phase”

100.  In Abbasi, Lord Sales JSC took the view that at the “initial phase” – that is, when the child patient was still alive and the clinicians were focused on the treatment of the child (or the possible withdrawal thereof), and had not had a fair opportunity to obtain legal advice or initiate proceedings to protect their personal rights – the hospital trust had standing to act on behalf of the clinicians by applying for the necessary injunctions, even though the clinicians were not joined as parties.[92] This was so particularly when:

“… the trust is usually the employer of the clinicians involved, and so in general terms has the responsibility for their welfare in relation to their employment and more specifically owes them a duty of care to provide them with a safe working environment.”[93]

101.  In the present type of situation under discussion, as we take the view that a corporate employer may seek an injunction to restrain harassing conduct that interferes with its ability to provide a safe working environment for its employees, depending on the facts, there may be no practical necessity to consider whether the employer may also sue and seek injunctive relief on behalf of its employees in order to assert their personal rights against harassment.  This is notwithstanding that the scope of an injunction obtained by an employer in its own right is limited to harassment affecting the workplace, and does not extend to harassment occurring in the employee’s private sphere – an area which an injunction sought by the employer on the employee’s behalf might arguably encompass.  However, as this issue does not arise on the pleaded facts in the present case, particularly in the absence of any pleaded case regarding the existence of an “initial phase” or whether it has come to an end, we express no concluded view and leave the point open.

102.  For the sake of completeness, we should point out that in Abbasi, the trust was entitled to seek injunctive relief in its own right under the parens patriae jurisdiction or the Broadmoor jurisdiction, in order to prevent interference with the discharge of its statutory duties.[94]  There was, therefore, no necessity to ground the injunctions on the narrower common law duty owed by the trust to provide a safe working environment as an employer, which was mentioned by Lord Sales JSC for a different purpose in the passage just cited.  However, it does not follow that this employer’s duty to provide a safe working environment cannot, in appropriate cases, serve as a basis for a more limited form of injunctive relief in situations of the kind presently under discussion.  Indeed, as explained above,[95] it can.

Harassment of lawyers – right to legal advice at stake

103.  We now come to the position of the lawyers (Simmons & Simmons) retained by the plaintiff.  Obviously, the plaintiff cannot rely on the lawyers’ causes of action in harassment to sue.  Moreover, as they are not employees of the plaintiff, they do not fall within the scope of the injunction grounded in the plaintiff’s duty to provide a safe working environment, as previously discussed.[96]

104.  The amici have drawn our attention to a recent case decided by the English High Court, namely Titan Wealth Holdings Ltd v Okunola,[97] in which the claimants brought a claim against their former employee for breach of confidence, breach of contract and harassment.[98]  In the course of that litigation, the former employee subjected the claimants’ lawyers to abusive emails.  The claimants’ application to restrain harassment of their lawyers was dismissed by Hill J, who pointed out the “conceptual novelty of, and difficulty with, the application in that, although brought in the name of the claimants, it relates to the conduct of the defendant towards different people, namely, their lawyers”.[99]  The judge pointed out that the application was in substance “to prevent the claimants’ lawyers from being harassed, albeit that it is brought by their clients and albeit that they might also be secondary beneficiaries of it”.[100]  This approach differs quite significantly from that adopted in the earlier cases of Linemile Properties Ltd v Plater[101] and Wood v Fleming,[102] which focused on interference with a client’s right to obtain legal advice.

105.  Regardless of the position in the UK, in Hong Kong, Article 35(1) of the Basic Law specifically provides that “Hong Kong residents” shall have the right to confidential legal advice, access to the courts and choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts.  Irrespective of whether that guarantee extends only to natural persons, a company enjoys no lesser right to legal advice and representation than an individual.  The absolute right to legal professional privilege, for instance, draws no distinction between individuals and corporate entities.  Indeed, the right to legal advice and representation is one that the courts have consistently and jealously protected.  Therefore, an interference with that right should, in principle, be sufficient to justify the issuance of an injunction to prevent it.  Whether an injunction should actually be granted must depend, among other things, on how the harassment affects, or threatens to affect, the ability to obtain legal advice and representation.  This may include its impact on the choice of lawyers, the conditions attached to accepting the retainer, the fees charged, or other relevant considerations.

106.  We therefore conclude that interference with the plaintiff’s lawyers, whether arising from, or occurring in the course of, their provision of legal services, advice, or representation, may be restrained by injunction, where such interference amounts to harassment that adversely affects, or may affect, the plaintiff’s ability to obtain those services.  This is, of course, subject to the usual discretionary considerations, having regard to the facts of the case.  The purpose of such an injunction is to protect the plaintiff’s right to legal advice and representation, although it may also have the incidental effect of restraining the harassment of the plaintiff’s lawyers. However, except in exceptional circumstances, once the lawyers’ retainer by the plaintiff is terminated, any such injunction will no longer be maintainable. If harassment continues thereafter, the lawyers are expected to take legal action in their own right to protect their personal interests.

Not concerned with other causes of action

107.  For the sake of completeness, it should be pointed out that we have confined our analysis to whether, on the basis that the tort of harassment is available to individuals but not to companies, an injunction may nonetheless, as a matter of law, be issued against a defendant who has harassed officers, employees, agents, or lawyers of a corporate plaintiff, where the plaintiff itself does not have any cause of action of its own.  However, where, on the facts, the harassing conduct gives rise to a different cause of action, such as the economic tort of (intentionally) causing loss by unlawful means,[103] on the part of the plaintiff, the position is different.  That cause of action would, by itself, provide an independent basis for the grant of an injunction of broader scope, subject to the usual discretionary considerations, and other relief.  However, as this is not the pleaded case of the plaintiff, we need say no more about it.

108.  What is important to note is that once the rationale for affording the employer standing to seek an injunction against the harassment of its employees at the workplace is clearly identified, it can readily be seen that this development or extension of the Broadmoor jurisdiction does not permit an economic tort claim to be advanced by the back door without satisfying the elements of that tort.  The extension allows only injunctive relief to secure a safe working environment for employees.  By contrast, the economic tort provides remedies, such as damages, for loss caused to the employer by the defendant’s unlawful means.  While there is some overlap (the harassment of employees at work being the common element), the two are not co‑extensive.  A corollary is that, for the exercise of the extended Broadmoor jurisdiction, it is not necessary for the employer to show that it could succeed in an economic tort claim.

The present case

109.  Given our views of the law, the scope of the claim open to the plaintiff is significantly more restricted than as currently pleaded. A substantial amendment to the statement of claim is therefore inevitable, and leave to amend should be sought.  While it remains for the plaintiff to formulate a viable cause of action, several points are worth making or repeating.

110.  First, the plaintiff has no cause of action in harassment, and cannot plead one.

111.  Secondly, this does not mean that the plaintiff is precluded from seeking an injunction to restrain any interference by the defendant with its contractual or common law duty to provide a safe working environment for its employees by harassment.  However, this necessarily limits the injunction to the plaintiff’s current employees, and the scope of the injunction must be confined to their working environment, however that may be defined.  All former employees and non-employees are excluded.

112.  Thirdly, the plaintiff has not pleaded that the harassment has interfered with, or threatened to interfere with, its duty to provide a safe working environment, although this has been introduced as a ground of appeal through an amendment to the amended notice of appeal below.[104] This is not an incurable defect, but the point must be fully and properly pleaded.  Likewise, the plaintiff must plead all other matters it relies on to support its contention that it is entitled to seek injunctive relief, despite not having a cause of action in harassment.

113.  Fourthly, the plaintiff may also seek an injunction to restrain harassment of its lawyers, insofar as such conduct interferes with the plaintiff’s ability to obtain legal advice, services, and representation. Again, this requires a specific pleading.  But in the striking-out context, the omission is capable of being remedied by amendment.

Question 3

114.  Question 3 asks whether, in a representative action brought in respect of the common law tort of harassment, a corporate entity acting as the representative plaintiff has the “same interest” as the individual representees. The answer to this question follows directly from our conclusions on the first two, and it can be dealt with briefly.

115.  Order 15, rule 12(1) of the Rules of the High Court provides:

“Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.” (emphasis added)

116.  The principles governing the use of the representative procedure have recently been examined in some detail by the UK Supreme Court in Lloyd v Google LLC,[105] and they do not give rise to any difference between the parties.  As explained above, a corporate employer has no personal cause of action in harassment.[106]  However, in circumstances such as those under discussion, it may nonetheless seek injunctive relief to restrain the harassment of its employees in the workplace, or of its lawyers in the course of their professional services.  Where the harassment of both employees and lawyers is directed at the corporate plaintiff, and arises from the same series of events, the employer and the employees, or the employer and its lawyers, may be said to share a common interest or a common grievance.  In each case, they seek common relief, namely, an injunction to restrain further acts of harassment.  In the case of employees, the relief protects the workplace; in the case of lawyers, it safeguards the employer’s ability to obtain legal advice and representation.  Such relief is plainly beneficial to both the employer and the employees, and likewise to the employer as client and its legal representatives.[107] 

117.  For these reasons, the requirement of commonality is satisfied. As a matter of law, the corporate employer may seek injunctive relief not only on its own behalf, but also as a representative of its employees, so far as the harassment concerns the workplace; and as a representative of its lawyers, to the extent that the harassment interferes with the employer’s ability to seek and obtain legal advice, services, and representation.

118.  Of course, the court retains a discretion under Order 15, rule 12(1) to order that a representative action should not continue, where there are good reasons to do so, such as a potential conflict of interest, as Mr Man suggested at the hearing.  However, that is a fact-sensitive matter, and not a matter with which Question 3 is concerned.  It is also not an issue raised in the present appeal, and we do not propose to say more about it.

119.  Moreover, once the action has proceeded beyond the stage of establishing liability, and the question of injunctive relief has been dealt with (assuming liability is established), the commonality of interest comes to an end.  At that point, the plaintiff is no longer entitled to represent the employees.  If further or other relief is to be pursued, the employees or the lawyers must take over the action themselves.  The flexible approach now adopted by the courts permits the bifurcation of different issues, allowing common questions of law or fact to be determined through a representative claim, while reserving individual or case-specific issues for resolution at a later stage in the proceedings.[108]  All of this may be managed through court directions.

Outcome

120.  For these reasons, we would (1) allow the defendant’s appeal in part; (2) set aside paragraph 5 of the Court of Appeal’s Order dated 26 August 2024 and its Order dated 29 November 2024 on costs; (3) give the plaintiff liberty to apply for leave from Herbert Au-Yeung J (or, where that proves impracticable, any other judge of the Court of First Instance) to amend its statement of claim, taking into account what we say in [110] to [113] above, and limiting its own claim to injunctive relief only, within 28 days from the date of this judgment, failing which the statement of claim should be struck out and the plaintiff’s action be dismissed with costs.  None of this should prejudice (1) the plaintiff’s right to apply, at any time and in accordance with the Rules of the High Court, for leave to further amend its pleading as it may see fit; (2) the right of the representees to apply, at any stage of the proceedings, to take over the conduct of the representative claims from the plaintiff, particularly if and when the proceedings advance beyond the claim for injunctive relief.  We would also give the parties general liberty to apply for further or other directions including any extension of time from the same judge.

121.  We would make a costs order nisi that the defendant shall have the costs of the Amended Summons of 3 February 2023 including the costs of the hearing before the deputy judge, 50% of the costs of appeal before the Court of Appeal, and 50% of the costs of appeal before us.  In this regard, we bear in mind that the argument that the plaintiff might obtain injunctive relief notwithstanding the absence of a cause of action in harassment was raised only at the appellate stage, before the Court of Appeal.  At first instance, the sole substantive issue was whether the plaintiff had a viable claim in harassment.  The costs of the amendment to the statement of claim as well as any costs thrown away by the amendment will, of course, be dealt with by the judge hearing the application for leave to amend.

Mr Justice Lam PJ and Lord Neuberger of Abbotsbury NPJ:

122.  We agree with the joint judgment of the Chief Justice and Mr Justice Lam PJ.  In this joint judgment, we address the following questions, (a) whether the common law in Hong Kong recognises a tort of harassment; and (b) if the answer to (a) is in the affirmative, whether a company can have a cause of action in harassment.  For the reasons set out below, our answer to (a) is “yes” and our answer to (b) is “no”.

A.      Is there a tort of harassment in Hong Kong?

A1.    The existing case law

123.  In the courts below, it was accepted, or at least assumed, that the tort of harassment existed in Hong Kong.  However, the amici curiae[109]have raised the question whether that assumption is justified.

124.  We were told by Ms Lau SC,[110] counsel for the Plaintiff that there have been 24 judgments in the District Court or High Court in which it has been held or assumed that the tort exists or may exist.  Our subsequent research demonstrates that this is correct: the list of cases set out in the Appendix below (“Previous Cases”) records that over the past two decades, the Court of First Instance and the District Court between them delivered judgments in 32 cases arising in different contexts recognizing the tort of harassment in this jurisdiction.

125.  More particularly, in 11 High Court cases and 13 District Court cases it was held that the tort exists, and in four High Court cases and four District Court cases, it was held that the tort arguably exists.  Most of these decisions are quite recent but they go back to 2013.  By contrast, there has been one High Court and one District Court case where it was held that the tort did not exist, and two High Court cases and one District Court case where the issue was discussed but not ruled on.

126.  Accordingly, the analysis of the Previous Cases shows that there is a very strongly prevailing judicial view that the tort of harassment exists, but it is not completely clear.  Therefore, as the amici curiae suggest, it is appropriate for this Court to address, and rule on, the question whether the tort exists.

A2.    The correct approach

127.  There is no doubt that a common law court can recognise, or to put it more starkly, create, a new tort.  As Lord Nicholls of Birkenhead expressed it in In re Spectrum Plus Ltd: [111]

“In common law countries much of the basic law is still the common law. The common law is judge-made law.  For centuries judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations.  That is still the position.  Continuing but limited development of the common law in this fashion is an integral part of the constitutional function of the judiciary.  Had the judges not discharged this responsibility the common law would be the same now as it was in the reign of King Henry II.  It is because of this that ‘the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live’: see Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 377.”

128.  However, the power to create a tort, involving as it does the creation of new rights and duties, is one which the Courts should exercise cautiously.  As Lord Nicholls went on to say in the next paragraph of his judgment:

“Judges do not have a free hand to change the common law.  Judicial development of the common law comprises the reasoned application of established common law principles, of greater or less generality, in current social conditions.  Development of the common law by the judges in any one case is usually marginal. Occasionally it is more far-reaching, as in Donoghue v Stevenson [1932] AC 562.  In all cases development of the common law, as a response to changed conditions, does not come like a bolt out of a clear sky. Invariably the clouds gather first, often from different quarters, indicating with increasing obviousness what is coming.”

129.  Further, when considering whether to extend the common law, it is appropriate for the courts “to give consideration to the respective roles, in relation to the development of [the relevant] area of the law, of the courts, the executive and the legislature”, as Lord Reed JSC put it in R (Prudential plc) v Special Commissioner of Income Tax.[112]  And in that case, reflecting the views of the majority of UK Supreme Court, he added that “[i]n doing so, it is necessary to have regard to the measures taken (or not taken) in this area by the executive and the legislature, after consultation and consideration of a wider character than can be carried out by courts determining disputes between particular parties”.

130.  Having said that, as in the case of almost every power, the power of the court to extend the law carries with it an implied duty on the court – a duty encapsulated by Lord Nicholls’s reference to “the responsibility of keeping this law abreast of current social conditions and expectations”.[113]  If people are able to behave in a way which most members of society would consider to be unacceptable and harmful to others, it would risk undermining the rule of law if the courts were unable to take appropriate steps to deal with such behaviour.

131.  Bearing these principles in mind, we turn to the question of whether this Court should hold that the tort of harassment exists in Hong Kong.

A3.    Is there a need for a tort of harassment?

132.  As the sheer number of the Previous Cases show, harassment is not an isolated event in Hong Kong, and that is unsurprising.  With the increasing use of the Internet for emails, blogs, text messages and the like, it has never been simpler to bombard people with electronic material.  The ease and readiness for acts of harassment to be perpetrated in the digital age with doxxing and internet bullying speak volumes for the need to have the tort in place.  More generally, it would appear that, when using some electronic means of communication, many people appear to lose their inhibitions or sense of propriety in a way which does not seem to apply when they are using paper communications.

133.  Further, the absence of any suggestion in the media that there was anything wrong with the many Previous Cases in which the High Court and District Court held that the tort of harassment may or does exist, also tends to support the notion that it is appropriate to acknowledge the existence of the tort.  If the existence of the tort had, even arguably, inappropriately interfered with freedom of expression, one would have expected to see some adverse comments in the media about the Previous Cases; yet it was not suggested that there had been any such comments.

134.  The position in other common law countries supports the need for a claim in harassment.

135.  In England and Wales, the legislature enacted the Protection from Harassment Act (“the 1997 Act”) in 1997, which not only rendered harassment a civil wrong, but also made it a criminal offence.

136.  Before the 1997 Act, the English courts appeared to be moving towards accepting the existence of a tort of harassment. Thus, Bingham MR in Burris v Azadani[114]said that “the view … that there is no tort of harassment” cannot “be upheld”.  He then referred with apparent approval to Khorasandjian v Bush,[115] where, having held that it would be “ ‘ridiculous’ if the law was that the making of deliberately harassing and pestering telephone calls to a person was only actionable [in nuisance] in the civil courts if the recipient of the calls happened to have the freehold or a leasehold interest in the premises”,[116] the Court extended the law of nuisance to such a case.  In Hunter v Canary Wharf Ltd,[117]the majority of the House of Lords disapproved this extension of the law of nuisance to cover acts of harassment generally as wrong in principle.  However, there was general sympathy for the proposition that the court should develop a separate common law tort of harassment were it not for the existence of the 1997 Act – per Lord Hoffmann, Lord Cooke of Thorndon, and Lord Hope of Craighead.[118]

137.  In 2024, the Australian Federal Parliament effectively created a statutory tort of harassment in the form of serious invasions of privacy, through adding a new schedule 2 to the Privacy Act 1988 (Cth), following a 2014 recommendation of the Australian Law Reform Commission.[119]  It is right to record that in 2009 Perram J sitting in the Federal Court in Habib v Commonwealth (No 2),[120] had rejected the notion that there was a common law tort of harassment, but that was more than 15 years ago, and at a time when the tort was beginning to make an appearance in our courts in Hong Kong.

138.  In New Zealand, the Harassment Act 1997 enables a party who is being harassed to obtain injunctive relief, but not (apparently) damages, and it also criminalises harassment.  However, harassment is linked to fear for the claimant’s safety.  In 2010, Woodhouse J at first instance refused to recognise the existence of an independent tort of harassment in Siemer v Chief Justice of the New Zealand Supreme Court.[121]  Again, that was more than 15 years ago, and the plaintiff was unrepresented – and had a hopeless case as he was relying on a single act (namely the Solicitor-General authorising what was subsequently held to be a justified raid on the plaintiff’s home).  The following year, in a very full paper, the New Zealand Law Commission stated that it was “still arguable, although not strongly, that there may be a common law tort of harassment”.[122]

139.  In Ireland, section 10 of the Non-Fatal Offences Against the Person Act 1997 created a new offence of harassment.  In the recent Court of Appeal case of Meehan v Ireland,[123] Allen J referred to section 10 as criminalising “[a]ny person who, without lawful authority or reasonable excuse, by any means including the use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her”, and who thereby “intentionally or recklessly seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other”.  He continued:

“The High Court application and the appeal were argued on the assumption that there was an equivalent or broadly equivalent tort of harassment – or stalking and harassment – and I am content to decide the appeal on the basis on which it was argued. Clearly some, at least, of the elements of the crime of harassment are actionable in civil law. I leave over the issue as to whether there is in law a separate tort of harassment – and if there is, the parameters of any such tort – to a case in which it is argued.”

140.  In Canada, there are a number of decisions which go different ways.  The courts of some provinces have rejected the notion that there is a common law tort of harassment – see for example the first instance 2019 Saskatchewan case of McLean v McLean.[124]  In the first instance 2024 Ontario case of The Estate of Sulochana Shanthakumar by her estate trustee, Santha Kumar Mylabathula v Royal Bank of Canada,[125]it was said that the Ontario courts did not “generally” recognise a tort of harassment.  However, a number of first instance Ontario judges have thought otherwise,[126] and in 2021 in the first instance case of Caplan v Atas,[127] it was specifically held at first instance that there was a tort of internet harassment, and in the 2023 first instance case of Howlett v Northern Trust Company,[128] it was held to be arguable that there was such a general common law tort of harassment.  In British Columbia “the issue of whether the tort of harassment exists in British Columbia remains unsettled” – see Besler v What the Fungus.[129]  An impressively thorough consideration on the question of whether there should be a tort of harassment, and the state of the Canadian case law on the topic is to be found in the first instance 2023 Alberta decision in Alberta Health Services v Johnston.[130]  In that case, Feasby J reached the conclusion that the courts of Alberta should recognise the common law tort of harassment.

141.  In Singapore, as long ago as 2001, in the first instance case of Malcomson Nicholas Hugh Bertram v Nareh Kumar Mehta,[131] Lee Seiu Kin JC, at first instance, considered that the tort of harassment should be recognised by the courts.  And in Tee Yok Kiat v Pang Min Seng, after referring to that case and saying that “[n]one of the parties questioned the existence of this tort in our law”, the Court of Appeal went on to conclude that  “the tort of harassment would also have been made out on the evidence”.[132]  In 2014, the Singapore Parliament enacted the Protection from Harassment Act 2014, which abolished the common law tort “to avoid doubt” – see section 14.

142.  In this context, it is right to mention that after the decision in Tee Yok Kiat, Choo Han Teck J in AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan[133] said he was “not convinced that a cause of action exists presently at common law to found a claim in the tort of harassment”.  He explained that “I doubt that a clear and comprehensive law on harassment as a civil cause of action can be effectively formulated in a judicial pronouncement”.  He did not question the need for such a law: it was the appropriateness of the courts creating the tort that he questioned.

143.  The Federal Court of Malaysia recognised the tort of harassment in the 2016 case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor.[134]

144.  Thus, with the possible exception of some provinces in Canada, the law in all the common law countries to which we have been referred has accorded protection against harassment, with many going so far as to criminalise it (although New Zealand and Ireland arguably accord only relatively limited protection in civil courts, while more clearly imposing sanctions on harassment through the criminal courts).  Unsurprisingly, it cannot be pretended that there is consistency, but the general picture that emerges from this brief survey of other common law jurisdictions is that at least some protection against harassment is appropriate.

145.  In those circumstances, particularly as (i) to do otherwise would involve effectively abolishing the tort which the lower courts have generally assumed to exist for well over ten years, and (ii) there is no sign of the legislature creating a statutory tort, it seems clear that this Court should declare that there is a tort of harassment in Hong Kong, unless there is a good reason to the contrary.

146.  We turn then to consider the reasons which could be advanced to the contrary.

A4.    It should be left to the legislature to create a new tort

147.  The amici curiae raised the possibility that it would be more appropriate for this Court to leave the question whether there should be a tort of harassment to the legislature.  That partly depends on the extent to which the creation of a tort represents a radical departure from the presently understood law.  It also depends on the extent to which one can be confident that the creation, as well as the development, of the tort can safely be left to the courts which do not have the same ability to canvass opinions and experiences as the legislature.

148.  On the first aspect, Baroness Hale of Richmond in the House of Lords case of OBG Ltd v Allan[135]considered “the question [as being] whether this is simply the development of established principles of the common law to meet the demands of the modern world or whether it is a more radical step which should be left to Parliament”.  She continued:

“The great strength of the common law is that the judges are free to develop it on a case by case basis as new factual situations arise.  There comes a point when, as Scrutton LJ once said, ‘If there is no authority for this it is time that we made one’: see Ellerman Lines Ltd v Read [1928] 2 KB 144, 152.  But on what basis do the judges decide to make authority where there was none before? Or to modify or adapt such authority as there is? There is no easy answer to this.  Whatever we do must be consistent with the underlying principles and policy of the law.  It must not overstep that indefinable line between the development and elaboration of existing principles and the making of brand new law which is unquestionably the province of Parliament.  It must work with, rather than against, the grain of legal policy.  It must go forward when the law is going forward and draw back when the law is drawing back.”

149.  It seems clear from the UK cases culminating with Hunter v Canary Wharf Ltd,[136] that even more than twenty years ago, when electronic communication was far less prevalent than it is now, experienced common law judges favoured developing the common law to be extended to include the tort of harassment.  More recently, but more than ten years ago, the top court in Malaysia took the same view.  The top court in Singapore was sympathetic to the idea, and the Irish Court of Appeal was open to the idea.  And a number of Canadian judges were too.

150.  Further, it is not as if harassment would be an entirely novel concept in tort law.  The law of nuisance covers many areas of harassment (but only where the plaintiff is harassed in property in which he or she has a legal interest),[137] and as long ago as 1905 the law recognised a tort on the facts of Wilkinson v Downton[138](where a single, egregious statement caused psychiatric damage to the recipient).

151.  Accordingly, we have little difficulty in concluding that it is consistent with the principles expressed by Baroness Hale for the courts to extend the common law to embrace the tort of harassment.  But, even if it is appropriate in principle for the courts to adopt a tort of harassment, we must still consider whether it is a matter best left to the legislature in practice.

152.  No doubt bearing in mind theconcern expressed in the Singapore case of AXA Insurance v Chandran,[139] Mr Man SC urged us to be cautious about the development of the tort, submitting that we should at least consider leaving it to the legislature to lay down the precise limits of the tort, including the defences that could be available to a defendant.  But there is no basis for suggesting (and we do not think Mr Man actually suggested) that it would be better for the Court to withhold the development of the tort (or even to put the clock back to the pre-2013 stage by holding that the lower courts were wrong in recognising the tort) pending any enactment by the legislature.  On the contrary, the experience in Hong Kong since 2013 indicates that it would be better for the tort to be developed by the common law.

153.  In this respect, the experience in the United Kingdom sheds light on whether the courts are up to the task in formulating the boundaries of the tort of harassment.  Even though with the enactment of the 1997 Act the tort of harassment in the United Kingdom is a statutory one, there is no statutory definition of harassment.  The boundaries and ingredients of the tort have had to be elucidated by judicial decisions through careful balance being struck between the freedom of expression and protection against emotional harm and interference with private and family life.[140] 

154.  Though there is no statutory equivalent of the 1997 Act in Hong Kong, the fundamental rights of freedom of expression and the rights to private and family life are protected by the Basic Law and the Hong Kong Bill of Rights,[141] and must of course be taken into account by the courts when considering a harassment claim.

155.  In light of the large variety of circumstances in which victims may seek redress against harassment, the boundaries of the tort have to be worked out by paying regard to local circumstances and the contexts in which the claims come before the courts.

156.  Mr Man’s concerns about the difficulties in formulating the precise limits of the tort and possible defences are understandable.  However, so long as the courts appreciate that the proper boundaries of the tort are dictated by (a) the need to protect a claimant’s interests in mental well-being and freedom from emotional harm as well as interests in private and family life; and (b) the fact that such interests have to be balanced against the rights of others in freedom of speech, there is no objection to the tort being recognized under the common law.

157.  The exact ingredients and boundaries of the tort can be mapped out and refined on a case-by-case, albeit principled, basis which is the classic methodology adopted by the common law in its development.  As Lord Nicholls of Birkenhead observed in Majrowski v Guy’s & St Thomas’s NHS Trust:

“Courts are well able to separate the wheat from the chaff … Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable…”.[142]

158.  The courts in Hong Kong are familiar with the balancing exercise and well positioned to take on the task of developing the tort of harassment by case law.  Over the years, our courts have to conduct similar exercises in striking the balance between different fundamental rights which are protected under the Hong Kong Bill of Rights and the Basic Law.[143]

159.  The fact that the courts of Hong Kong should be able to develop and adapt a tort of harassment successfully is not merely based on general experience.  As the Previous Cases show, the development of the tort by the courts in Hong Kong over the twelve years since Lau Tat Wai v Yip Lai Kuen Joey[144] does not appear to have generated any difficulties, let alone any insuperable difficulties, in achieving a just result balancing the interests of the claimants and those of the defendants.

160.  Furthermore, it is not as if harassment is a novel concept in our laws.  Hong Kong statutes contain provisions referring to “harassment” in different contexts.[145] Courts at different levels have been adjudicating cases brought before them with reference to those statutory concepts.  Further, these statutory prohibitions show that harassment is indeed regarded as wrongful and actionable in our society.  As the Previous Cases demonstrate, in the past two decades, our courts delivered over 30 judgments in cases arising in different contexts, and which recognized the tort of harassment in this jurisdiction.

161.  Therefore, we conclude that there cannot be any objection to the development by the courts, as opposed to the legislature, of a tort of harassment in Hong Kong.

A5.    The legislature has decided not to create a new tort

162.  In the Prudential case,[146] one of the reasons that the majority of the UK Supreme Court decided not to extend the common law right of legal advice privilege to accountants, was that “the sort of extension to the currently understood law of LAP sought by the appellants has been (i) reported on by two committees, (ii) discussed in a parliamentary committee, and (iii) proposed to the executive.  Despite thinking it appropriate to extend LAP to certain other professions … Parliament has apparently chosen not to extend LAP to accountants giving tax advice”.

163.  It is therefore potentially relevant for present purposes that in December 1998, the Law Reform Commission Sub-committee on Privacy issued a consultation paper on stalking, and following the consultation, produced a Report (“the Report”) nearly two years later.[147]  In Chapter 10 of the Report, there was a recommendation that both a criminal offence of harassment[148] and a civil tort of harassment be created and that a successful claimant in a civil case should be able to obtain damages and/or an injunction.[149]

164.  It was not until December 2011 that the Administration reacted by issuing a Consultation Paper on Stalking (setting out the recommendations in the Report).[150]  The public consultation led to a paper produced by the Legislative Council Panel on Constitutional Affairs (“the Paper”) in 2014.[151]  The Paper reported that “[t]here was no public consensus as to whether an anti-stalking legislation should be introduced” and “[a] key focus of the public response … was the impact the proposed offence might have on press freedom and freedom of expression/demonstration”.[152]  The Paper recorded that a consultant had been instructed “to study [and report on] the operation of anti-stalking legislation in” various countries, but the consultant’s report did not find favour with the Panel.[153]  Accordingly, the Paper concluded that “the Administration is of the view that there are no favourable conditions for us to pursue the matter further”, but would in due course “make a final decision on the way forward”.[154]

165.  Although there is therefore an argument that this Court should not recognize a tort of harassment because the Administration had consulted about introducing such a law and had decided not to do so, we were not pressed strongly with that argument.  And rightly so.  First, the consideration given to the issue by the Administration is relatively historic, and at a time when the use of the internet, especially for doxxing, bullying and the like, was less intense than it is now.  Secondly, the key difficulty with the proposed legislation as shown by the public response was the impact that an offence of harassment might have on press freedom and freedom of expression.[155]  Thus, the proposed civil tort was linked to a criminal offence, and therefore the decision not to proceed with creating a criminal offence resulted in the proposed civil tort falling away effectively as a by-product.  Thirdly, the Panel did not have the benefit of seeing that the civil tort could be successfully implemented by the courts without concerns being expressed in the media.

166.  In 2021, the legislature enacted the Personal Data (Privacy)(Amendment) Ordinance[156] adding, inter alia, Section 64(3A) and (3C) to the Personal Data (Privacy) Ordinance Cap 486 to create the offences of disclosing personal data without consent with intent to cause specified harm or being reckless as to whether such harm would be caused.  One of the purposes of this piece of legislation was to provide criminal sanctions against doxxing.  The legislative exercise was conducted against the background of our courts issuing anti-doxxing injunctions based on, inter alia, claims of harassment.[157]  Under Section 64(6), the specified harm includes harassment, molestation, pestering, threat or intimidation to the person, bodily harm or psychological harm to the person and harm causing the person reasonably to be concerned for the person’s safety or well-being.

167.  It is thus absolutely clear that our legislature is not against the criminalization of conducts which constitute harassment.  Further, the legislature did not see fit to interfere with the civil remedies provided by the tort of harassment as developed by the courts under our common law.

168.  Accordingly, we do not see the existence, contents or consequences of the Report or the Paper as a hurdle to this Court recognising a common law tort of harassment.

A6.    The proposed new tort would overlap with established torts

169.  In Merlin Entertainments Plc v Cave,[158] Elisabeth Laing J (as she then was) alluded to the scenario where a defendant committed the torts of defamation and harassment by repeatedly making defamatory statements and considered whether an interim injunction should be granted when justification was relied upon.  The interest protected by the tort of harassment was not the reputation of a claimant but the emotional harm occasioned by the oppressive and unreasonable conduct.  Thus, the Judge held that an interim injunction could be appropriate where the harassment has additional elements of oppression or unpleasantness distinct from the contents of the statements.[159]

170.  Likewise, claimants in many of the Previous Cases tended to rely on additional causes of action in making harassment claims.[160] There is no principle of law which precludes such a course from being taken.  If a claimant can make good his claims in respect of all the causes of action, the court should grant him judgment on all the claims.

171.  Hence, the mere fact that a claimant can seek redress by suing on other causes of action (for example defamation or intimidation) would not lead to the conclusion that there should not be protection afforded to him by a tort of harassment.

172.  However, when the substance of the claim and the real grievance of a claimant arising from the acts of a defendant stems from reputational damage, the court must have regard to the policy behind the limits of the tort of defamation in considering the extent to which the tort of harassment should give him remedy which he could not obtain for defamation.  Thus, Warby J (as he then was) observed in Sube v News Group Newspapers Ltd[161]that in a case where the expression of opinions is not unlawful from the perspective of defamation law, discrimination law, or data protection law and when it is plain that reputational concerns looms large in the factual matrix, the court should adopt a cautious approach to a claim in harassment based on the same conduct.

173.  Though we are not concerned with a plaintiff advancing claims in defamation, the above discussion is relevant in highlighting that the fact that a plaintiff could have other causes of action does not as a matter of law prevent it from relying on a cause of action based on the tort of harassment if the plaintiff could establish all the elements of that tort.

A7.    Conclusion on this issue

174.  Accordingly, we conclude that it is appropriate for this Court to confirm that in Hong Kong, there is a common law tort of harassment.

B.     The characteristics of the tort of harassment

B1.    Introduction

175.  As has happened in the UK, the practical and fair course is to let the courts develop the precise characteristics of the tort of harassment on a case-by-case basis in accordance with the classic common law approach.  That militates against too rigid a definition of the tort.  However, it is important to bear in mind that principle plays an equally important part in the development of the common law, and so it is also relevant that there have also been a number of cases from which it is possible to derive some guidance.

176.  In that connection, Chow JA, giving the judgment of the Court of Appeal in this case,[162] gave a definition of harassment in the following terms:

“In summary, in the present state of the development of the tort of harassment in Hong Kong, in order to make out a cause of action in this tort, the victim of harassment has to show that:

(1) the harasser, directly or through third parties, has, by a course of sufficiently repetitive, unreasonable and oppressive conduct, caused, and which he ought reasonably to know would cause, worry, alarm, emotional distress or annoyance to the victim;

(2) the conduct complained of must, objectively, amount to harassment (in the ordinary sense of that word);

(3) the harasser either intends to cause harm or injury to the victim by his harassing conduct, or is reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and

(4) to complete the tort, the victim must have suffered actual damage caused by the harassment. For this purpose, physical harm, including anxiety, distress, (a fortiori) recognised psychiatric illness, and financial loss would suffice.”[163]

177.  Subject to one point, we would characterise this as a good working definition of the ingredients of the tort of harassment.  We put our approval in that way because (i) we would not want to close off the possibility of the courts in the future refining or even altering this definition as a result of experience, and (ii) we consider that component (4) requires a little refinement (as we explain in section B5 below).

178.  The possibility of the definition needing reconsideration reflects the point we have emphasised, namely that it is for the courts to work out the precise parameters of the tort of harassment. That may be a particularly telling point in the present context, given that means of communication are changing and future technological developments may require adjustments or additions to the working definition.  Subject to that, we will discuss briefly the four components.

B2.    Repetitive conduct which may cause distress

179.  The tort requires a degree of repetition on the part of the defendant.  It is not enough that there is a single incident, however unpleasant.  In that connection, the tort differs from that in the case of Wilkinson v Downton,[164] where, as mentioned above, a single egregious statement was held to be actionable.  However, there are significant hurdles to be overcome before a single statement can be actionable,[165] partly because of the importance to be attached to freedom of expression.  While freedom of expression is obviously a significant factor to bear in mind when a communication or a series of communications is claimed to be unlawful, it clearly carries much more weight when a single communication, however egregious, is said to be actionable, than when an unreasonable series of communications, designed to harass the recipient, is involved.

180.  The first component also contains a requirement as to what the defendant knows or ought to know about the likely effect of his or her conduct.  The threshold of reasonableness is objective, but it has to be read together with the third component, which, as explained in section B.4 below, is not.

B3.    The conduct must amount to harassment

181.  The second component ensures that the court concentrates on the central characteristic of the tort.  In a sense, this component can be said to involve circularity.  But if the operation of the tort of harassment is to be properly policed by the courts, it appears to us to be important that the court addresses the question in context in which the conduct occurs,[166] and is seen to address the question, whether the defendant’s conduct does amount to harassment in the ordinary sense of the word.

B4.    Intention or recklessness

182.  Clearly, an intention on the part of the defendant to cause to distress will suffice, but the more difficult question is what if any state of mind less than intentionality will suffice.  In the Court’s view, recklessness would be enough – i.e. not caring whether or not distress would be caused.  But it appears to us that it would be wrong to go further and to hold that a defendant would be liable for harassment if he or she was simply negligent about causing distress.  It also does not seem to be unfair on claimants to draw the line under recklessness: the great majority of harassers will be liable if the test is limited to intentionality or recklessness.  We appreciate that there is an argument for saying that recklessness is too high a hurdle for a claimant to be required to cross.  However, any lower hurdle, such as negligence, would represent an unusual test in principle (as it would render a negligent defendant liable for “mere” mental distress), and it would involve this Court going further than the lower courts in the many Previous Cases have gone – or apparently found it necessary to go.  At this stage, when this Court is formally recognising the tort for the first time, it is sensible for us to be cautious rather than brave.  As we have emphasised, the characteristics of this tort, like any other common law tort, can be developed or even changed if experience demonstrates that it is appropriate to do so, provided, of course, that any development or change accords with principle.

B5.    Damage caused

183.  Since the tort is concerned with protecting people from being distressed or worse as a result of harassment, it appears logical, and consistent with the need for a cautious approach when creating a tort, to require the plaintiff to suffer distress before the tort is established.  Unlike a case such as Wilkinson v Downton,[167] where a single statement gives rise to a cause of action, and so there is a strong argument for requiring psychiatric injury, it appears to us that distress or upset will suffice in the case of harassment.  But there must be some significant adverse emotional reaction on the part of the plaintiff before he or she has a cause of action in harassment.

184.  The amici curiae made the valid point that damages for “mere” mental distress as opposed to psychiatric injury were, as a general rule, not available for those with claims in tort;[168] and they added that there was a “floodgates” risk if it was held to be available in a harassment claim.  However, given that in the great majority of cases of harassment, the defendant’s aim, or at any rate, the objectively likely effect of the defendant’s actions, is to cause distress to the plaintiff, it would seem rather perverse to hold that it would be insufficient for a plaintiff to establish a claim in harassment if he or she had only suffered mental distress.  Accordingly, it seems to us that we are justified in departing from the general rule in the present case, and that the floodgates will remain unbreached.

185.  The one point on which we may depart from the Court of Appeal’s formulation of the fourth component of the tort is that, at least on one reading, they appear to suggest that the tort is complete if only financial loss is suffered by a plaintiff as a result of the harassment.  In our view, the plaintiff must suffer some distress or worse as a result of the defendant’s actions before he or she can sue for harassment.  As we have explained, that conclusion appears to be an appropriate requirement of the tort, both as a matter of principle (as an intention to cause distress, or recklessness as to whether distress is caused, is a central ingredient of the tort), and because, when developing the law, the court should err on the side of caution.

186.  At least in the absence of compelling evidence that it would be appropriate to do so, to hold that economic loss alone would suffice to justify a claim in harassment would also seem inconsistent with the general approach of the common law.  Thus, Lord Hoffmann said in OBG Ltd v Allan[169] that “it is a commonplace that the law has always been very wary of imposing any kind of liability for purely economic loss”, pointing out that “[e]ven liability for causing economic loss by negligence is very limited”.

187.  Accordingly, we conclude that a plaintiff who has only suffered economic loss as a result of the defendant’s harassing behaviour cannot bring proceedings for harassment.  We develop this point a little further in the next section, Section C.

188.  Having said that, while financial loss on its own will not found a claim in the tort of harassment, at least as presently advised, we incline to the view that a plaintiff with a valid claim in harassment because they have suffered mental distress, can recover damages for any financial loss they have suffered as a result of the harassment, and therefore our doubts about the Court of Appeal’s formulation of component (4) is very limited.

B6.    Defences

189.  The topic of defences to harassment was not much discussed in argument, but it is clearly an issue with which the courts have to grapple.  Although the 1997 Act left the English courts to work out the precise characteristics of the tort of harassment, it did specifically identify three potential defences,[170] namely:

“It is a defence for a person charged with an offence under this section to show that —

(a) his course of conduct was pursued for the purpose of preventing or detecting crime,

(b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another’s property.”

190.  Section 64(4) of the Personal Data (Privacy) Ordinance provides for defences along similar lines:

“In any proceedings for an offence under subsection (1), (3A) or (3C), it is a defence for the person charged to establish that —

(a) the person reasonably believed that the disclosure was necessary for the purpose of preventing or detecting crime;

(b) the disclosure was required or authorized by or under any enactment, by any rule of law or by an order of a court;

(c) the person reasonably believed that the disclosure was made with —

(i) for an offence under subsection (1)—the data user’s consent; or

(ii) for an offence under subsection (3A) or (3C)—the relevant consent of the data subject; or

(d) the person —

(i) disclosed the personal data solely for the purpose of a lawful news activity as defined by section 61(3) or a directly related activity; and

(ii) had reasonable grounds to believe that the publishing or broadcasting of the personal data was in the public interest.”

191.  In our view, consideration of these defences confirms the conclusion that it is safe for the court to develop the tort, as they are just the types of defence that one would expect the judges to developin striking the right balance between freedom of expression and protection of individual’s interests.  That should not be taken as a blanket approval of these specific defences without qualification – or indeed as an indication that there could be no other defences.  The three points we make are (i) the nature of the statutory defences in the 1997 Act do not undermine the view that it is appropriate for the court to develop a common law tort of harassment, (ii) it is for the courts in Hong Kong to develop the law on defences to the tort as part of the development of the tort of harassment generally, (iii) as a general proposition, section 4(3) of the 1997 Act and section 64(4) of the Personal Data (Privacy) Ordinance set out the sorts of defence one would expect the courts to develop in the absence of statutory rules or guidelines, and (iv) in the application of these defences, the personal obsession of a defendant cannot afford him or her any defence.[171]

C.     Can a company sue for harassment?

192.  If mental distress or some graver forms of mental problems is required as an essential ingredient of the tort of harassment, it seems to us to follow inexorably that a company cannot pursue a claim for harassment at least on its own behalf.  That proposition is supported by authority.

193.  In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd[172] Ribeiro PJ (with whom the other members of this Court agreed) approved and applied the following reasoning of Gray J in the English High Court case, Collins Stewart Ltd v The Financial Times Ltd:[173]

“It seems to me that the essence of an award of aggravated damages in libel is not making good damage to the claimant's reputation as such but rather compensating the claimant for the extra injury to his or her feelings. ... If that be the correct analysis of the proper function of aggravated damages, it seems to me to follow that aggravated damages are in principle not available to a corporate claimant. The reason is that … a company has no feelings to injure and cannot suffer distress.”

194.  In a similar vein, Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[174] held in the context of a claim in privacy:

“[A company] is endowed with legal personality only as a consequence of the statute law providing for its incorporation … of necessity, this artificial legal person lacks the sensibilities, offence and injury …”

195.  If a company cannot suffer distress for the purpose of claiming aggravated damages, it must surely follow that it cannot suffer distress for the purpose of maintaining a claim in harassment.

196.  Ms Lau mounted a spirited argument to the effect that this would mean that there was a gap in the law of harassment as one could conceive of circumstances where a harassment campaign against a company led to the company losing business, and it would seem wrong that in such a case the company was without remedy.  There is no evidence of there being many, or indeed any, such incidents, and we would be reluctant to expand the new tort into an area which it did not naturally fit in order to deal with a problem whose existence is no more than a matter of speculation.  Further, as discussed in the joint judgment of the Chief Justice and Lam PJ, the company as employer is not completely without recourse.  Based on its duty to provide a safe working environment to its employees, it can seek injunctive relief against a defendant who targets the corporate employer by harassing its employees in the course of their employment.

197.  Ms Lau also suggested a company could suffer emotional harm vicariously through its employees suffering distress, and that this was a corollary of a company being liable for the wrongful acts of its employees.  The argument is based on a non-sequitur.  The fact a company can be liable to an employee as a result of another employee hitting the first employee at their place of work, does not mean that the company has the right to sue the second employee on some sort of vicarious basis because of the harm caused to the first employee.  More generally, as Buxton LJ expressed it in the English Court of Appeal case of The London Borough of Islington v University College London Hospital NHS Trust:[175]

“Islington claims for the direct infliction of financial loss arising from UCH's negligence towards Mrs J. That has been recognised since as long ago as Cattle v Stockton Waterworks (1875) LR 10 QB 453 as an area into which the law will not easily enter: see the treatment in Clerk & Lindsell on Torts (18^th edition), paras 7-126 to 7-128. This diffidence is in truth only a particular example of the inability of a party to build on a wrong to someone else: Lord Wright in Bourhill v Young [1943] AC at p 108.”

To much the same effect, Lord Denning MR said in the earlier English Court of Appeal, Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd:[176]

“In many of the cases where economic loss has been held not to be recoverable, it has been put on the ground that the defendant was under no duty to the plaintiff. Thus where a person is injured in a road accident by the negligence of another, the negligent driver owes a duty to the injured man himself, but he owes no duty to the servant of the injured man – see Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716, 731: nor to the master of the injured man – Inland Revenue Commissioners v. Hambrook [1956] 2 Q.B. 641, 660.”

The last part of that quotation is particularly in point.

198.  It is true that Roz Mawar JC in the Malaysian High Court awarded damages to a company for harassment in respect of losses incurred in contacting customers and legal expenses,[177] but it does not appear that it was argued in that case that a company could not claim in harassment.  More powerfully, when considering the 1997 Act in its original form, Lord Nicholls expressed the view that it was “tolerably clear that, although the victim must be an individual, the perpetrator must be a corporate body”.[178]  That view was confirmed by the UK legislature, which in 2005 added a subsection (5) to section 7 of the 1997 Act stating that “References to a person, in the context of the harassment of a person, are references to a person who is an individual”.

199.  In addition, it appears to us that, where a company suffers financial loss as a result of a defendant harassing its employee, the company may very well have a claim against the defendant based on the economic tort of causing loss by unlawful means.  Because that point was not examined fully in argument and it is not necessary to decide the point, it is inappropriate to consider it in any detail, let alone to express a view on it.  We note that in OBG Ltd v Allan, Lord Hoffmann described “[t]he essence of the tort” of causing loss by wrongful means as being “(a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant”.[179]  It is perhaps also worth mentioning that, two paragraphs later, he said that “subject to one qualification, acts against a third party count as unlawful means only if they are actionable by that third party.  The qualification is that they will also be unlawful means if the only reason why they are not actionable is because the third party has suffered no loss.”

200.  It may be that SEKSL could raise a claim based on causing loss by unlawful means in this case.  However, it would, we think, require an amendment to its statement of claim.  Further, the question of whether SEKSL could succeed in such a claim depends not only on it being able to plead and succeed in establishing some new facts, but also to satisfy the court that those facts mean that all the necessary ingredients of the economic tort are present.

Mr Justice Bokhary NPJ:

201.  For the reasons they give, I concur in the result proposed by the Chief Justice and Mr Justice Lam PJ.  What I add is on the existence of a Hong Kong common law tort of harassment.

202.  In my view, there is at Hong Kong common law a tort of harassment.  More by way of description than exhaustive definition, I would say that it consists essentially of a prolonged course of deliberate conduct directed at the tort victim causing – as the tortfeasor knew or ought reasonably to have known that it would cause – a degree of annoyance or distress so substantial as to amount to emotional harm.  As to the mental element, a “knew” test is appropriate to tort and crime alike.  On anything short of “knew”, “ought reasonably to have known” lies intuitively in the province of tort while “reckless” lies intuitively in the province of crime.  Criminal law has to do with punishing offenders (reckless ones being those who proceed despite awareness of the risks involved).  Tort law involves coming to the relief of tort victims (typically ones who suffered because others did not behave as a reasonable person would have behaved).  That it comes to their relief by way of awarding them compensation is significant.  It is even more significant when it comes to their relief by way of injunction to prevent continuation of the conduct causing harm.  I have more to say on this significance of injunctive relief, but there are some other things to say first.

203.  Having used the term “Hong Kong common law”, I should say what I mean by that term.  The Supreme Court Ordinance of 1844 placed everyone here under the protection of English common law as modified by our courts to fit local conditions.  That was the genesis of Hong Kong common law, which is maintained post-handover by article 8 of our constitution the Basic Law.  Like other common law jurisdictions, we have developed our own common law.  Nowhere, as far as I am aware, has the common law been severed from its roots.  In United States v Wonson,^[180] Mr Justice Story referred to English common law as “the grand reservoir of all our jurisprudence”.^[181] I would not deny for Hong Kong what he acknowledged for America.

204.  Reasonable people would, I think, be dismayed to hear it said that, unless and until the legislature does something about it, people in Hong Kong are left to harass and counter-harass each other while the courts stand idly by.  People reasonably expect better than that; and the common law everywhere develops to meet reasonable expectations.

205.  Sir Edward Coke said that “for injury [to your goods land or person, you] may take [your] remedy by the course of law”.^[182]  When it comes to the law’s protection of people from harm, “person” is not confined to the body.  It includes the mind.  Human suffering is not only of the body.  It is also of the mind.

206.  Dean Roscoe Pound characterized the common law as “essentially a mode of judicial and juristic thinking, a mode of treating legal problems rather than a fixed body of definite rules”.^[183] I think that there is truth in that.  Harassment is a legal problem.  It is a legal problem in that it involves harm that people can inflict on each other and that the courts are well placed to remedy by way of injunction, damages or both.

207.  The means by which to harass are greater now than they were in the past.  Sad to say, the increase in the means to harass seems to have increased the appetite of some people to do so.  One of the things driving the development of the common law is, as Lord Reid put it The Atlantic Star,^[184] “the movement of public opinion”.^[185]  I think that the vast majority of our people are of the opinion that the law should provide an effective remedy against harassment.  Moreover, it is only natural for them to have become increasingly of that opinion as the means by which to harass, and the appetite of some people to do so, have increased.

208.  This calls to mind the celebrated case of Ashby v White,^[186] an action on the case involving misfeasance in public office.  Sir John Holt’s dissenting judgment in the Court of King’s Bench was vindicated on appeal to the House of Lords.  He spoke for the ages when saying in that judgment that “[i]f men will multiply injuries, actions must be multiplied too”.^[187]

209.  That must be so.  After all, developing the common law to keep it “abreast of current social conditions and expectations” is, as Lord Nicholls of Birkenhead said in In re Spectrum Plus Ltd,^[188] “an integral part of the constitutional function of the judiciary”.^[189]

210.  I turn now to two timeless statements by Lord Mansfield.  The first is that “[t]he reason and spirit of cases make law; not the letter of particular precedents.” That was said in Fisher v Prince.^[190]  The second is that “[t]he law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.”  That was said in R v Bembridge.^[191]

211.  In any event, it is not as if the concept of a Hong Kong common law tort of harassment is unsupported by decided cases.  True it is that the point is now before this Court for the first time.  However, looking at the decisions of the lower courts given in the last two decades, one finds as many as 24 saying that there is a Hong Kong common law tort of harassment, and only two saying the contrary.  It is said in the tort volume of Halsbury’s Laws of Hong Kong that “the preponderance of recent authorities has ... recognised the tort.”^[192]  That is putting it mildly. Moreover, the preponderance is, in my view, qualitative as well as quantitative.

212.  It is beside the point that the legislature has not acted.  The legislature might very well have thought that civil liability for harassment is something best left to the common law.  Legislative time is tight.  The legislature has its priorities.  It can pursue those priorities with an easier mind knowing that there is always what the judiciary can and will do to develop the common law to meet societal needs and expectations.

213.  The law is not doing too much in fixing on people an obligation not to subject each other to harassment.  Whether or not there has been a failure to meet that obligation in any given case depends on the particular circumstances of the case.  The common law on any given point becomes clearer as case after case are decided on the point.  In BTI 2014 LLC v Sequana SA,^[193]  the United Kingdom Supreme Court held that in certain circumstances when a company is financially distressed, the duty of directors to act in the company’s best interests is modified to include a duty to act in the best interests of the company’s body of creditors as a whole.  Lady Arden said this: “Obviously judge-made law does not have to and cannot make an obligation clear in every respect from the outset.  Working out that obligation is part of the way the common law works.”^[194] Indeed.

214.  Judges made – and continue to make – the common law.  It is not by way of legislation.  Rather is it by way of adjudication – an important and, indeed, unavoidable aspect of adjudication.  On any point of importance, judicial decisions would make law – sometimes landmark law – whether they went one way or the other.  Lord Bingham of Cornhill illustrated that extra-judicially^[195] by pointing to Donoghue v Stevenson.^[196]  For us to say that there is a Hong Kong common law tort of harassment would be to make law.  Saying the opposite would also be to make law.  As I see it, adopting the former course would be to make good law while adopting the latter course would be to make bad law.  It is, if I may say so, very much to the credit of the lower courts that our making good law involves approving 24, while overruling only two, of their decisions.

215.  Some harm, such as the physical injuries suffered in traffic or industrial accidents, are “once and for all”.  Not so the harm that harassment causes.  Moreover, such harm is apt to get worse and worse if not stopped. Injunctive relief is a remedy by which to stop it.  And as Lord Wilberforce said in Davy v Spelthorne Borough Council,^[197] the law fastens on remedies even more than it rests on principles.^[198]

216.  Does policy come into all this?  I daresay it does.  There is nothing wrong with that.  The then future Mr Justice Holmes had something to say on the matter in one of his famous lectures on the common law.  It is now appears in his book based on those lectures.^[199] “Every important principle which is developed by litigation is”, he said, “in fact and at bottom the result of more or less definitely understood views of public policy”.  In the sentence immediately preceding that one, he spoke of “considerations of what is expedient for the community concerned”.  I regard an effective legal remedy against harassment as obviously expedient for the community that our judiciary serves.

217.  The “ought reasonably to have known” test is the one under United Kingdom protection from harassment legislation.^[200] Tort being essentially to protect, I consider it a more appropriate test than a “recklessness” test.  I think that people here deserve at our hands the protection that people in the United Kingdom received at Parliament’s hands.  If, however, that view of mine does not prevail at present, then until it does, I simply put my faith in our courts not readily to swallow harassers’ assertions that they were unconscious of the obvious and serious harm that they were causing by way of a prolonged course of deliberate conduct directed at their victims: women, men and children.

Mr Justice Chan NPJ:

218.  I agree with the joint judgment of the Chief Justice and Mr Justice Lam PJ and the joint judgment of Mr Justice Lam PJ and Lord Neuberger of Abbotsbury NPJ.  I would just like to say a few words on the tort of harassment and the issue of injunctive relief without a cause of action.

The tort of harassment

219.  Harassment is an ordinary English word with a well-understood meaning.[201]  According to its ordinary meaning, harassment is generally understood to refer to engaging in a course of conduct directed repeatedly at another person to make him, or having the effect of making him, feel annoyed, distressed, worried or fearful for what might happen to him or his friends and relatives.  It may be done with a malicious and mischievous intent without any meaningful purpose, or it may be done deliberately for some personal or illicit purposes many of which are not legitimate, or for the purpose of expressing or pursuing what the perpetrator believes to be his grievance, which may or may not be genuine.

220.  It is not every harassing conduct which calls for the intervention of the law, only those which are unacceptable and oppressive by ordinary people and which have caused harm or loss to others.  A line has to be drawn beyond which the law offers protection against such type of behaviour by putting an end to it and/or providing remedies for the harm done or even imposing punishment through criminal sanctions.  The law seeks to strike a fair balance between the exercise of freedom of expression on the one hand and the right to personal safety and privacy (including physical and mental well-being) on the other.  It is important to note that in the UK Protection from Harassment Act 1997 which created a criminal offence and provided civil remedies for harassment, there is no exhaustive definition of harassment and what constitutes harassment for the purpose of the Act is left to the wisdom of the courts according to the circumstances of each case.

221.  The need for protection against this type of unacceptable and oppressive behaviour has now become much greater with the advancement of technology and the much easier and more effective means of communication.  In some common law jurisdictions, the courts offer protection by recognising or developing a tort of harassment,[202] and in other jurisdictions, this is done by way of anti-harassment legislation,[203] or by way of both common law and statute law.[204]

222.  For many years, the recognition or development of a tort of harassment at common law has encountered some problems, mainly in identifying the appropriate juridical basis for the tort as well as formulating the elements of the tort. A further difficulty is that without a fairly clear juridical basis, there is the possible risk of conflating the tort of harassment with other torts.  It is not uncommon that a particular factual situation can give rise to several causes of action in tort.  In respect of a set of harassing conduct, it may also amount to defamation, assault, intimidation, trespass on property, private nuisance, or economic tort by unlawful means, for each of which the victim can lodge a claim in court for injunctive relief or damages, depending on what the conduct is and what harm is done.  In most of the decided cases before the court, more than one cause of action were relied on.  It would be undesirable or even impermissible under common law principles, in the process of recognising or developing the law regarding harassment, to unjustifiably and inappropriately extend and modify the principles of other well-established torts.

223.  For harassing conduct which do not constitute any of these other torts, but result in alarm, fear and distress or even loss and harm to the victim, there may be difficulty in identifying the basis and the elements of the claim, without blurring the boundaries of these other torts.  This was the experience of the courts in the UK which ended up taking the statutory route.  A notable example was the attempt to extend the tort of nuisance to cover harassment by the Court of Appeal in Khorasandjian v Bush[205] which was criticized and overruled by the majority of the House of Lords in Hunter v Canary Wharf Ltd.[206]  See also the general discussions in that case[207] and Hale LJ in Wong v Parkside Health NHS Trust.[208]

224.  The above considerations are not only relevant to the recognition of harassment as an actionable tort, but also to the issue whether this tort, if it exists, is available to a corporate entity, as is highlighted by the present case.

225.  In Hong Kong, after several episodes of paparazzi in the late 1990s (with notably one targeting a judge of the Court of Appeal), there was an unsuccessful attempt to introduce legislation following the recommendations of the Law Reform Commission Report in 2000[209] which proposed the creation of a criminal offence together with certain civil remedies for harassment.  The proposals were withdrawn as they did not have unanimous consensus in the community since there were apparently serious concerns for press freedom and freedom of expression in case the proposals were to be implemented.  Since then, there has been no further proposal on harassment as an independent topic for legislation.

226.  As far as the common law in Hong Kong is concerned, there were a few earlier Court of Appeal decisions in which it was stated that there was no tort of harassment at the common law.[210]  It must, however, be noted that these cases were disposed of on other issues and harassment was not the main contention which the court needed to deal with.  Apart from a single remark, there was apparently no discussion and no analysis on this issue in these cases.  However, in an interlocutory appeal in 2004, the Court of Appeal (Yuen JA and A Cheung J, as the Chief Justice then was) in Wong Tai Wai David v The Hong Kong SAR Government considered that this point was arguable.[211]  It was in 2013 in the Court of First Instance case, Lau Tat Wai v Yip Lai Kuen Joey,[212] that Anthony Chan J took the important step forward by following the Singapore examples[213] and recognised harassment as an actionable tort under the common law of Hong Kong.  The tort was further explained by Coleman J in X & Y v Z.[214]   These cases were followed and adopted by quite a number of first instance cases in the High Court and District Court since then (with a different view expressed in obiter in another first instance case Pong Seong Teresa v Chan Norman).[215]  As regards the right of a corporate entity to sue for harassment, this was considered and rejected by Lok J in Lin Man Yuan v Kin Ming Holdings International Ltd.[216]  It can be seen from the developments in the past decade or so that our courts have realized the increasing need to provide protection against unacceptable and oppressive harassing conduct and have responded positively to such need.

227.  In my view, harassment is essentially conduct which is aimed at affecting or injuring a person’s feelings and emotions and has caused physical or mental harm to this person.  I see no reason why the perpetrator should not be held liable for such conduct, especially when this was done deliberately and wilfully.  Such conduct is tantamount to an abuse of the freedom of expression whatever the purpose or grievance behind it and cannot be justified or tolerated in a civilized society.  The law must provide protection against such unacceptable and oppressive behaviour which should be recognised as amounting to an actionable wrong.  However, if injury to a person’s feeling and emotions is the underlying mischief of the tort, I can also see, as a matter of principle, the difficulty in allowing a corporate entity the right to sue on this tort.

228.  I would thus respectfully agree with the analysis made by Mr Justice Lam and Lord Neuberger in their joint judgment that the tort of harassment exists for the individual consisting of the elements as discussed in Section B in their joint judgment.  Further, for the reasons given by them, I would also accept that this cause of action, as presently advised, is not available to a corporate entity.

229.  I can however envisage that there may be circumstances in which a business corporation would feel a burning sense of grievance if it is the direct target of malicious and mischievous harassing conduct and yet has no remedy under the law.  I note that the UK legislature saw the need to amend the Protection from Harassment Act 1997 to provide remedy for a corporate victim of harassment.[217]  It may be that in some appropriate circumstances, our legislature (or for that matter, the courts) would re-visit this issue.

The power to grant injunctive relief where claimant has no cause of action

230.  With regard to the court’s power to grant injunctive relief in exercising its equitable jurisdiction, the law has witnessed some important developments since The Siskina[218] was decided.  The applicable principles have been clarified and summarized in the UK cases of Broad Idea International Ltd v Convoy Collateral Ltd[219] and Wolverhampton City Council v London Gypsies and Travellers,[220] namely, (i) the power to grant injunctive relief is, subject to any statutory restrictions, unlimited; (ii) it is not dependent upon the existence of an underlying cause of action between the parties; (iii) however, the exercise of that power must be guided by equitable principles and the practices of the courts which may be developed from time to time to meet changing social needs, keeping in mind but not restricted by the established categories of injunction as developed by the courts; and (iv) the courts would exercise this power if it could be shown that the claimant has sufficient legitimate interest which merits protection.  The overriding consideration must be section 21L of the statute, High Court Ordinance, Cap 4, i.e. where the court thinks it just and convenient to grant the relief.

231.  The crucial question in this case is whether a corporate employer facing harassment directed at itself and its employees (as in this case), notwithstanding its lack of a cause of action for harassment, can invoke the court’s jurisdiction by showing sufficient legitimate interest in seeking injunctive relief to restrain acts which are “not in itself tortious or otherwise wrongful if such an order is reasonably necessary for the protection of (the claimant’s) legitimate interest” (per Sir Thomas Bingham MR in Burris v Azadani[221] at 1377).  More specifically, whether there are sufficiently strong reasons for the corporate employer to bring itself within the Broadmoor[222] jurisdiction.

232.  One can readily see the obvious injustice to a corporate employer being the victim of offensive harassment if, under the law, it not only has no cause of action against the perpetrator, but also lacks standing to apply to the court for injunctive relief to put an end to such predicament.  In this connection, a number of observations can be made to illustrate the frustration and unfairness to the employer if it is to be left with no remedy in such a situation:

(1)     Many business enterprises, especially small or medium size enterprises, are conducted through the vehicle of a corporate entity, but the real owners or proprietors are individuals who are the persons fully responsible for operating the business.  Harassing conduct directed at a company is in fact meant for its owner or operator.  In such a case, it would be a rather sad state of affairs if neither the company nor its owner can do anything to stop or alleviate such offensive conduct;

(2)     In many situations, a corporate business faced with harassing conduct, even though it has not yet suffered any economic or financial loss, may, as a matter of prudence and good business management, have to take preventive measures in the interests of the business and its staff to put an end to this in order to avoid the situation from worsening.  The types of measures contemplated would involve those which were similarly taken by the plaintiff in the Malaysian case Aspirenxt Sdn Bhd v Nirmlina a/p Amal Das,[223] such as: action to pacify its staff, especially those whose duty is to handle the harassing matter and allay their concerns, lest some of them may choose to leave their employment; contacting its clients and business partners and explaining to them the true position; or taking steps to clarify the situation to the public.  If it has to do all these to prevent harm being done to its business, it does not make too much sense that it cannot do anything even to stop the harassing conduct from continuing;

(3)     A corporate employer may be held vicariously liable for the harassing conduct perpetrated in the course of employment by one of its employees against another employee or an outsider (see for example the comments by Lord Nicholls of Birkenhead at paragraphs 28 to 30 in Majrowski v Guy’s and St Thomas’s NHS Trust[224]).  The principles underlying vicarious liability are of course not the same as those for harassment. However, in the case of an employee directing his harassing conduct at both the company as well as another employee, it does seem harsh on the company if it has no right to sue for harassment directed against itself but may be held vicariously liable to the affected employee, and even worse, if it finds itself not able to do anything to stop it; and

(4)     An actionable harassment involves conduct which is calculated to cause harm to the target and is often done deliberately and wilfully.  The moral culpability and hence liability of the perpetrator would not be any different whether the conduct is directed at a corporate entity or an individual.

233.  The above points, while they are not relevant considerations to the issue whether a corporate entity has the right to claim for harassment, are highly relevant to the issue whether there is sufficient legitimate interest in a corporate employer without a cause of action for harassment to apply for injunctive relief.

234.  The fact that the company as an employer owes a common law duty to provide a safe and peaceful working environment for them (and this would include a working place free from harassing conduct) is a very important consideration.  In my view, for the purpose of protecting a victim of harassment from interference in discharging its duty imposed by law, I see no good reason why the purpose and rationale behind the Broadmoor jurisdiction should not be equally applicable to a private corporate employer as with a public body.

235.  For the comprehensive and elaborate reasons given by the Chief Justice and Mr Justice Lam PJ in their joint judgment, I agree that the court does have that power to grant injunctive relief to a corporate employer under the Broadmoor jurisdiction in the appropriate circumstances.

236.  I have come to the firm conclusion that the matters discussed above and in their joint judgment, if proved, would show sufficient legitimate interest for a corporate employer to be given the standing to invoke the equitable jurisdiction of the court and apply for injunctive relief to put an end to the harassing conduct, notwithstanding its lack of a cause of action.

Chief Justice Cheung:

237.  Accordingly, the Court unanimously makes the orders and directions as indicated in [120] and [121] above.  If any party wishes to vary the costs order nisi, written submissions should be filed within 14 days of the date of this judgment, with any reply submissions to be filed within 7 days thereafter, after which the Court will deal with the issue on costs on the papers.

238.  We thank counsel for their helpful assistance.

Mr Lavesh Kirpalani, instructed by GPS Legal LLP, and Mr Sonny Payne, Solicitor Advocate of GPS Legal LLP, for the defendant (appellant)

Ms Queenie Lau SC and Mr Keith Chan, instructed by Simmons & Simmons, for the plaintiff (respondent)

Mr Bernard Man SC and Mr Jonathan Fung, amici curiae

Appendix

Cases on the tort of harassment in Hong Kong since 2013

High Court cases upholding and/or applying the tort (11):

1.     Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 at [56] – [70]

2.     Shen Xing v Li Jun (HCA 1680/2013, 9 April 2014) at [33] – [38]

3.     Lin Man Yuan v Kin Ming Holdings International Ltd(HCA 216/2008, 3 June 2015) at [215] – [223]

4.     Lam Yuk Wing v Yu Lai Wa (HCA 4/2005, 30 December 2015) at [18]

5.     Law Ka Yan Thompson v Ho Kang Wing (HCA 1926/2015, 5 February 2016) at [51]

6.     Lucy Michaels v Citybase Property Management Ltd (HCPI 899/2016, 27 January 2017) at [53] – [58]

7.     M.A (HK) Ltd v Yeung Yuk Sing (HCA 1641/2010, 31 October 2017) at [64]

8.     Law Ka Yan Thompson v Ho Kang Wing [2020] HKCFI 513at [39] – [40]

9.     Yuen Mui Fong v Lo Kut Chie Alan [2020] HKCFI 652 at [23]

10.     X, Y v Z [2020] HKCFI 826 at [13] – [23]

11.     Wong Chong Kwai Yin v Tsang Hau Ling [2020] HKCFI 1153 at [88] – [90]

High Court cases holding the tort was arguable (4):

1.     Cheung Ping Sum v Wong Chi Hang [2018] HKCFI 70 at [30]

2.     Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2019] HKCFI 1007 at [45]

3.     Secretary for Justice v Persons Unlawfully and Wilfully Conducting Themselves in any of the Acts Prohibited under Paragraph 1(A), (B) or (C) of the Indorsement of Claim [2019] 5 HKLRD 500 at [23]

4.     鄧穎詩 對 司徒振強[2023] HKCFI 2252 at [24] – [25]

District Court cases upholding the tort (13):

1.     Wong Yat Keung Billy v Kai Shun International Accounting Co Ltd (DCCJ 3042/2013, 30 October 2013) at [29]

2.     Law Lai Kwan v Intrend Finance Ltd [2017] 4 HKLRD 1 at [27] – [28]

3.     伍洋樺 對 吳鈞雪 [2018] HKDC 1613 at [32]

4.     Kwong Yiu Keung Stanley v Chiu Shin Shum [2021] HKDC 158 at [280]

5.     Ho Frederick Kwok Lung v Lam Ping [2021] HKDC 1431 at [15]

6.     Chan Woon Wah trading as Ngai Hing Decoration Company v Wong Chi Ping [2024] HKDC 422 at [67]

7.     Chan Yuk Ping v Liew Shuk Fui [2024] HKDC 999 at [20]

8.     Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 at [110]

9.     Henzulea Marian-Nicole v Yao Liqiong [2024] HKDC 2144 at [32]

10.     Chui Lap Pan v Chung Cheuk Wai [2025] HKDC 94 at [30]

11.     Hong Kong Mask Co Ltd v Diamond Digital Marketing (HK) Ltd [2025] HKDC 545 at [56]

12.     H, RS v X, Y [2025] HKFC 113 at [14]

13.     Ip Patrick v Chan Meanne Ching Man [2025] HKDC 1578 at [59]

District Court cases holding the tort was arguable (4):

1.     Ip Wing Ning Johnny v Wallrath Natalia-Sarah (DCCJ 4172/2017, 6 October 2017) at [30]

2.     Wu Siu Ling v Mo Sau Ki [2018] HKDC 19 at [12]

3.     Chan Chee Tseng Christopher v Chan Hon Tai Jason [2020] HKDC 66 at [10]

4.     MTM Lab Japan Ltd v ABACUS Ltd [2022] HKDC 917 at [14]

Cases holding no tort of harassment (1 High Court case and 1 District Court case):

1.     Pong Seong Teresa v Chan Norman[2014] 5 HKLRD 60 at [59]–[61]

2.     勤學樂園 對 黎嘉年 [2024] HKDC 585 at [34]

Cases where the tort was discussed but no ruling was made (2 High Court cases and 1 District Court case):

1.     Lucy Michaels v The Apex Horizon (HCPI 900/2016, 29 September 2017) at [10]

2.     X v Melvyn Kai Fan Lai [2019] 1 HKLRD 163 at [17]

3.     Li Siu Lun v Chan Yuk Lam [2021] HKCFI 3254 at [36] – [42]