Read the full judgment text of HCA 1466/2011 on BabelCite. This Court of First Instance judgment was delivered on 24 April 2013 before Anthony Chan J.
Tort law – stalking and harassment – intimate relationship breakdown – six-year campaign of harassment – whether tort of intimidation, private nuisance, trespass to goods, and a common law tort of harassment are made out – parameters of the tort of harassment in Hong Kong – damages including aggravated and exemplary damages – injunction. The Plaintiff and Defendant met at a Japanese language class in March 2007 and developed an intimate relationship, which the Plaintiff ended after four months. Over nearly six years, the Defendant engaged in a sustained campaign of harassment against the Plaintiff, including malicious emails (sent using multiple addresses to cover her tracks and obtained by hacking into the Plaintiff's account and downloading his contacts), SMS messages, hundreds of phone calls, surveillance by a hired private detective, stalking in person, creating a false recruitment advertisement for the Plaintiff's employer, purchasing a flat in the same building to monitor him via CCTV, forcing him to resign from at least two jobs, making a false theft report leading to his arrest at the airport, splashing paint on his home, his grandmother's home, a refuge flat in Shenzhen and on his mother, circulating derogatory posters, obtaining a false default judgment from the Small Claims Tribunal, and making threats against the safety of his parents. The Plaintiff suffered insomnia, depression, social isolation, and career damage, and consulted a psychiatrist. On whether the tort of intimidation is made out, the Court held that the three elements (unlawful threat, intention to cause harm, and damage) were satisfied in respect of the February 2010 Japan trip, the paint-splashing incidents of 21 March, 2 April and 4 April 2011, the threats to the safety of the Plaintiff's parents, the creation of derogatory posters, and unwanted phone calls. On whether private nuisance is made out, the Court followed Hunter v Canary Wharf Ltd (overruling Khorasandjian v Bush) and Ng Hoi Sze v Yuen Sha Sha, holding that the Plaintiff, as at most a licensee in his parents' jointly-owned flat, lacked the requisite interest in land. On whether trespass to goods is made out in respect of damage to the iron grille, the Court held that the Plaintiff, as a mere licensee, was not in possession of the grille. On whether Hong Kong should recognise a common law tort of harassment, the Court answered yes, accepting that the existing causes of action are inadequate and following the approach of the Singapore Court of Appeal in Malcomson v Mehta. On the parameters of the tort, the Court adopted the Malcomson working definition (a sufficiently repetitive course of conduct by words or action, directly or through third parties, that would cause and ought reasonably to have been known to cause worry, emotional distress or annoyance), set the mental element at recklessness rather than intention, and set the damage threshold at anxiety (drawing on the UK Protection from Harassment Act 1997, s.3), with financial loss also recoverable. The Court awarded special damages of HK$146,673, aggravated damages of HK$600,000 (taking into account the six-year duration and the totality of mental suffering, humiliation, damage to dignity and fear), exemplary damages of HK$200,000 (given the premeditated nature, harm to innocent third parties and the breach of the court undertaking), and pre-judgment interest at judgment rates from the date of the writ. A wide-ranging injunction was granted restraining the Defendant from harassing the Plaintiff and his family members, with associated orders. Costs to the Plaintiff.
Legal issues: Whether the tort of intimidation is established against the Defendant · Whether the tort of private nuisance is made out · Whether the tort of trespass to goods is made out in respect of damage to the iron grille · Whether Hong Kong should recognise a common law tort of harassment · Parameters and elements of the tort of harassment in Hong Kong · Assessment of damages (special, aggravated, exemplary and interest)
Outcome: The Plaintiff succeeds on the torts of intimidation and harassment. The causes of action in private nuisance and trespass to goods fail. Injunction granted restraining the Defendant from further harassment. Costs of the action to the Plaintiff.
Cited by 3 cases · Cites 2 cases