Lau Tat Wai v. Yip Lai Kuen Joey

HCA1466/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1466 OF 2011

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BETWEEN

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JUDGMENT

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1.This is a sad case. At the same time, the wrongs committed by the defendant (“Yip”) against the plaintiff (“Lau”) over the course of nearly 6 years have made a misery of a young man’s life and, by any standard, are outrageous.

2.Yip failed to appear at the trial.  However, shortly before it began, a written submission was filed by Yip.  It is a 3 page document which appears to have been prepared by a person with some legal training.  It contains little of substance save it is stated that the injunction sought by Lau is not contested but the claims for damages are disputed. 

3.Four witnesses were called by Lau.  In addition to himself, his parents and one of his friends gave evidence.  I have no reason not to accept the evidence, especially when it is uncontested.  I of course bear in mind that some of the evidence is hearsay.  One point deserving of mention is that, despite what he has been through, Lau gave his evidence calmly and without exaggeration.  I am impressed with his credibility. 

4.I shall provide a summary of the facts which I find to have been proved and then proceed to deal with some interesting issues of law. 

The facts of this case

5.In March 2007, Lau became acquainted with Yip when they attended a Japanese language class.  Lau was almost 25 years old at the time.  They quickly developed an intimate relationship.  After 4 months, Lau decided to end the relationship.  Yip did not want to do so, and when she did not have her way the nightmare for Lau began. 

6.Since August 2007, Yip has been sending malicious emails to Lau, his friends and colleagues with the use of a number of email addresses to cover her tracks.  She managed to do so by hacking into Lau’s email account and downloading all his contacts.  The evidence shows that the volume of such emails is huge.

7.In addition to emails, Yip has been sending SMS messages and making phone calls to Lau to harass him.  She made use of a number of telephone numbers and alias for the purpose.  The volume of such activities is staggering.  On several occasions, Yip made 120 calls and sent 80 SMS messages in 1 hour to Lau’s mobile phone and his company line. 

8.Unwelcomed phone calls were also made by Yip to Lau’s friends and colleagues, including Lau’s superior.  The purpose of such calls was to force Lau to accede to her wishes.  The situation was such that in October 2008 Lau had to resign from his job (at “ASM”) due to the disturbance caused by Yip. 

9.In September 2008, Yip hired a private detective to conduct surveillance on Lau.  From then on, Yip was able to monitor Lau’s movement, causing him great distress.  In that month, she suddenly appeared in Sai Kung where Lau was hiking with his colleagues and warned Lau’s female colleagues not to have a romantic relationship with him.  In December 2008, Yip appeared uninvited on a plane where Lau was returning with his family from a trip to Shanghai.  Clearly, Yip had been stalking Lau.

10.In January 2009, Lau managed to find a new job with a chemical company (“Denka”).  From January to May 2009, Lau moved away from his family to try to avoid Yip’s harassment. 

11.In around May 2009, Yip created a false recruitment advertisement of Denka on the internet.  As a result, numerous calls from job applicants were received causing much nuisance to Lau’s employer and embarrassment to him. 

12.In October 2009, Yip purchased and moved into a flat (“Room 506”) which was in the same building where Lau was residing with his parents.  Once there, Yip was able to monitor the movement of Lau via the CCTV installed at the building.  She would appear uninvited and follow Lau to work in the morning. 

13.At about that time, Yip rented a parking space at the building in the name of Lau and provided his contact number to the management.  As a result, numerous calls were received by Lau from the management chasing him for outstanding rental payments.  Lau was forced to cancel his telephone number to avoid the nuisance. 

14.In February 2010, Yip demanded that Lau should visit Japan with her, promising that she would terminate their relationship and cease further harassment after the trip.  With reluctance, Lau acceded to Yip’s demand but she failed to live up to her promise.

15.In March 2010, Lau was forced to resign from Denka due to the continuous disturbance caused to his employer by Yip.

16.In May 2010, whilst Lau was in Japan looking for a job, Yip made use of the personal information obtained via unauthorized access to Lau’s electronic mail accounts to circulate missing person notices about him on various discussion forums on the internet. 

17.Further, Yip continued to bombard him with phone calls to his workplace (Lau had 3 casual jobs in Japan from July 2010 to January 2011) and with text messages to his mobile phone. 

18.In September 2010, Yip made use of Lau’s personal details to deactivate his ATM cards so that great inconvenience and embarrassment was caused to him. 

19.Another false missing person notice about Lau was circulated in the internet by Yip in October 2010.

20.In January 2011, Lau met Yip in Shanghai to try to resolve the situation.  It did not bear any fruit.  During the return journey to Hong Kong, Yip asked Lau not to leave Hong Kong again or to have another relationship with a lady in return for not conducting surveillance on him.

21.In March 2011, Yip made a false report to the police accusing Lau of theft of her properties.  Consequently, Lau was arrested by the police at the airport when he returned to Hong Kong on 6 April 2011. 

22.Between March and April 2011, whilst he was away from Hong Kong, no less than 6 of Lau’s friends received many phone calls from a finance company falsely alleging that they had guaranteed certain loan granted to Lau and asking for Lau’s whereabouts.  Those calls duly ceased when Lau returned to Hong Kong.

23.In order to force Lau to return to Hong Kong, Yip resorted to tactics widely used by debt collectors.  On 3 occasions, namely, 21 March, 4 April and 30 May 2011 red paint was splashed on the iron grille of Lau’s home.  Subsequently, HK$5,000 was paid to him by Yip as compensation for the damage. 

24.On 2 April 2011, Yip caused someone to splatter red paint on the back of Lau’s mother, who was traumatised by the experience.

25.On 4 April 2011, black paint was splashed on the iron grille of Lau’s grandmother’s home. 

26.On the next day, Yip made various threats to Lau via the internet that if he did not return to Hong Kong his parents would be harmed.  Further threat against the safety of Lau’s parents was made on 9 April 2011. 

27.On 17 April 2011, posters containing highly offensive remarks about Lau were inserted into the letter boxes of his neighbours.  A statement of apology was later caused to be inserted into the same letter boxes by Yip at Lau’s request. 

28.On 26 April 2011, posters containing highly offensive remarks about Lau and his parents were put up in Sheung Shui. 

29.After having sold Room 506 in March 2011, on 16 May 2011 Yip purchased another unit at the same building (Room 105) and continued to live there. 

30.On 24 May 2011, red paint was splashed on the iron grille of a rented flat in Shenzhen where Lau and his mother were seeking refuge in order to avoid Yip.

31.On 25 May 2011, Yip obtained a default judgment for HK$4,000 against Lau from the Small Claims Tribunal based on a false claim.  With that judgment, she obtained a garnishee order against Lau in July 2011 resulting in the loss of HK$4,073 on his part.

32.In June and July 2011, Lau again stayed away from his family to avoid Yip. 

33.Lau managed to find a new job in Hong Kong in July 2011.  However, on 18 August 2011, Yip rang him at his office and demanded his resignation from the job.  She threatened that she would continue to seek revenge against him.

34.On the next day, Yip called again and demanded that Lau either returned to her or she would continue with her vengeance.  She said that some people from the Mainland would be looking for him. 

35.On 2 September 2011, in response to an application by Lau for an interlocutory injunction against her, Yip gave an undertaking to the court to desist from various acts of harassment against Lau.  Despite such undertaking, Lau continued to receive nuisance calls, albeit with less frequency, from Yip.  The last of which was received on 7 April 2013. 

36.On 16 March 2012, Yip was convicted in Kwun Tong Magistracy of the offence of criminal intimidation committed against Lau. 

37.When he was asked how this whole affair has affected him, Lau said that his career has been badly affected due to the inability to stay with his job.  Even when he was in Japan, he could not escape from Yip because she had obtained his phone number.  Whilst he was in the Mainland, Yip managed to obtain his phone number by monitoring his mother’s phone transactions.  He feels that he is being monitored all the time by Yip. His family has been affected.  He has to keep a distance from his friends to shield them from Yip’s harassment and as a result he feels isolated and depressed.  Lau has consulted a psychiatrist for his depression.  He found the treatment expensive and of limited help. 

38.Yip’s harassment has caused him to change his phone number and email address.  He has caused solicitors’ letters to be sent to Yip in respect of her behaviours but to no avail.  He has no choice but to resort to the law with the hope of stopping the harassment.  He does not know what Yip would do next and he is worried about his safety as well as that of his family.

39.Lau is suffering from insomnia.  When he hears the ringing of the phone, he would fear that the caller might be Yip.  He also fears that she might appear uninvited. 

40.I believe that Mr Luk, who appeared for Lau, has summarised these affairs correctly by submitting that Yip has for the past 6 years sabotaged the life of this young man. 

41.Last but not least, Mr Luk is clearly right in submitting that the wrongs committed by Yip were premeditated and with the help of third parties. 

42.I now deal with the causes of action advanced on behalf of Lau.

Tort of intimidation

43.This tort “involves the defendant using unlawful threat successfully to compel another to act (or refrain from acting) in a particular manner that will cause harm” (see Street on Torts, 13^th edn, p 408).  There are 3 elements of this tort – unlawful threat, intention to cause harm to the claimant with the threat and damage to the claimant (p 408-412).

44.I have no difficulty accepting Mr Luk’s submissions that this cause of action has been established in respect of the trip to Japan in February 2010 (see para 14 above); the paint splashing incidents which took place on 21 March, 2 April and 4 April 2011 (paras 23 to 25[1]); and the threats to the safety of Lau’s parents (para 26). 

45.Further, I also accept that the threats made by Yip in respect of Lau’s safety, the safety of his parents and the creation of the derogatory posters all had the effect of forcing Lau to maintain contact with her.  Each such act constituted an intimidation.

46.Furthermore, the evidence is that Lau continued to answer the unwelcomed phone calls from Yip because if he failed to do so she would be ringing his colleagues.  Such behaviours on Yip’s part also constituted intimidations.

47.As regards the damage to Lau, although it has been opined by the learned authors of Street on Torts that the kind of damage which can ground this cause of action is not entirely clear, I see no difficulty in this case.  Lau was clearly forced to see and/or listen to Yip when it was the last thing he wanted to do.  These were no doubt disturbing, if not traumatic, experience for him.  There is evidence on how such experience has adversely affected Lau, including the need to consult a psychologist.  I hold that the mental distress caused to Lau is sufficient to ground this cause of action. 

Private nuisance

48.Private nuisance is defined in Winfield and Jolowicz on Tort, 18^th edn, p 712 as:

“…unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. It has been said that the tort takes three forms: encroachment on a neighbour’s land; direct physical injury to the land; or interference with the enjoyment of the land.”

49.I agree with Mr Luk that the incessant phone calls made to Lau’s offices and home and the splashing of paint at his home amounted to interference with the enjoyment of those premises by Lau.  However, I must reject this cause of action because it has not been demonstrated that Lau has any or any sufficient interest in those premises. 

50.In Khorasandjian v Bush [1993] QB 727, harassment by telephone calls was held to be an actionable interference with an 18 year old girl’s ordinary and reasonable use and enjoyment of her home where she was lawfully present as a licensee.  It was also held that “substantial occupation” was enough to found an action in private nuisance.  That decision was overruled by the House of Lords which held that a plaintiff was required to prove an interest in land or a right to exclusive possession of property and not just a mere license to occupy: Hunter & Ors v Canary Wharf Ltd [1997] AC 655.

51.In Ng Hoi Sze v Yuen Sha Sha & Anr, CACV 93/1999, it was held that to have a cause of action in nuisance, the plaintiff must have a right to land either as owner, tenant, reversioner or even a licensee if he has exclusive possession or occupation of it under such a license.

52.This court is of course bound by Ng Hoi Sze and this cause of action must fail.

Trespass to goods

53.The complaints here are in connection with the paint splashing incidents whereby the iron grille of Lau’s home was damaged. However, there is also a technical defect with this cause of action.

54.In trespass, it must be established that the claimant was in possession of the goods in question at the time of the interference: see Clerk & Lindsell on Torts, 20^th edn, §17-133.

55.The evidence is that the flat where Lau was residing with his parents was jointly owned by the latter.  At the highest, Lau was a licensee.  I do not see how he was in possession of the iron grille at the material times.  This cause of action must also fail.

Tort of harassment

56.I believe that the current state of the law in Hong Kong has been accurately summarised by the learned author of Tort Law in Hong Kong, 3^rd edn, at p 717-719:

“(2) In jurisdictions such as Hong Kong, where there is no general protection from harassment legislation as there is in the UK, and where a common law tort of harassment has yet to develop (see eg Chang Ming Fang Jacqueline v Zhang Zi Qiang (unrep., HCA 2714/2006, [2009] HKEC 1411)),

…

(4) The High Court of Singapore has now recognised a common law tort of harassment (see Malcomson v Mehta [2001] 4 SLR 454). In Hong Kong, that stage has not been reached. In Etacol (Hong Kong) Ltd v Sinomast Ltd [2006] 4 HKC 572 (11.3 above), a case concerning threats and intimidation in the course of debt collection, Deputy Judge Carlson (in Chambers) granted summary judgment to the plaintiffs for distress suffered on the basis of the tort of harassment. However, he did not explain the genesis of the tort action, cited no authorities, and made no reference to the position in England, where, according to Hale LJ in Wong v Parkside Health NHS Trust (above), there was no tort of harassment prior to the passing of the Protection From Harassment Act 1997.

(5) However, Deputy Judge Carlson’s award of damages for harassment may signal the beginning of the development of the tort action in Hong Kong. Although Rogers V-P in Wong Wai Hing v Hui Wei Lee [2001] 1 HKLRD 736 (11.3 above) thought that “harassment is not illegal”, support can be found in the judgment of Cheung J in Wong Tai Wai v Hong Kong SAR Government (above) where he said:

(1) little guidance on the common law can be obtained from the English courts now because of the statutory provisions there, which have no Hong Kong equivalent;

(2) disregarding the statute, it is arguable that a tort of harassment per se, or as part of a tort of intentional (or reckless) infliction of injury (physical or mental), exists at common law;

(3) it is arguable whether a tort of intentional (or reckless) infliction of injury, if it exists, sounds in damages;

(4) it is arguable that even if the two torts (or one of them) do not exist as such at present at common law in England (where at least in relation to harassment there has been legislative intervention, thus removing the need for common law development), the common law in Hong Kong may include the tort(s); and

(5) it is arguable whether the tort(s) require(s) as one of its/their essential elements the suffering of actual physical injury or known psychiatric illness, or whether mere distress or humiliation would suffice.

…

(7)  The Law Reform Commission of Hong Kong Report on Stalking recommended the introduction of a criminal offence of harassment (Chapter 6), and more to immediate purposes, a tort remedy for a person who pursues a course of conduct which would have constituted the offence of harassment (Chapter 9). A victim of harassment would be able to claim damages for any distress, anxiety and financial loss caused, and to apply for an injunction to prohibit the defendant from doing anything which causes the plaintiff alarm or distress. No action has been taken on the recommendations since the publication of the report in 2000, although another consultation paper was initiated by the government in 2011. …”

57.This case serves to highlight the fact that some of the existing causes of action (see discussions on private nuisance and trespass to goods above) are inappropriate in dealing with a case of harassment.  I quote with agreement some of the observations made by Lord Goff in Hunter v Canary Wharf Ltd, p 691H to 692B:

“… If a plaintiff, such as the daughter of the householder in Khorasandjian v. Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law,…In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy.”

58.Regrettably, the pace of legal reform in Hong Kong is such that this court is troubled with the question whether the common law applied in Hong Kong should be developed to protect against harassment. 

59.I am unable to see any reason why there should not be a tort of harassment to protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds.  It means that, eg, intrusion on privacy is difficult to prevent and it is hard for the victim to escape the harassment. 

60.In Singapore, where the social conditions are not very different to those of Hong Kong, the tort of harassment has been recognised since 2001 (see Malcomson Bertram & Anr v Naresh Mehta [2001] 4 SLR 454 at 470H to 474A). 

61.This case serves to demonstrate that the time must have come for Hong Kong to recognise this tort. 

The parameters

62.What are the parameters of this tort?  First, I respectfully adopt the observation made by Lee JC in Malcomson in connection with the definition of harassment at 464F:

“For the purposes of this application, I shall take the term ‘harassment’ to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person. This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.”

63.Second, it should be remembered that the development of common law is incremental, responding to the facts of the cases brought before the court.  Hopefully, a codified body of law to provide for a remedy against harassment will soon come into place, and that will avoid a piecemeal development of the law which is inherent in the common law system. 

64.Third, like most of the established tortious causes of action, there should be a mental requirement of the wrongdoer as well as damage to the victim in order to constitute the tort of harassment. 

65.In respect of the former, I do not believe that it is necessary to show intention on the part of the wrongdoer to cause injury to the victim.  The lower threshold of recklessness as to whether the victim would suffer injury from his act would suffice.  The lower threshold is justified when physical or mental harm can be involved.

66.As regards the kind of injury or damage which may ground an action in tort of harassment, one can envisage that the harassment can result, at one end of the scale, physical injury and, at the other end, mere humiliation.  The correct balance has to be struck.  Further, different person can react differently to the same type of harassment.  A mature and confident person may feel humiliated about a course of conduct, whereas a younger and more sensitive person may be affected with serious anxiety.  However, a wrongdoer must take his victim as he finds him.   it is not easy to differentiate between, eg, distress and mere humiliation.  I believe

67.Under the UK Protection from Harassment Act 1997, s.3, damages can be awarded as a civil remedy for anxiety caused by harassment.  However, anxiety has not been defined in the Act.

68.I believe that the right balance has been struck in the above Act and I take the view that anxiety on the part of the victim, which has been caused by harassment, would satisfy the threshold for this cause of action. 

69.Financial loss, eg, the cost of moving, can of course ground, and is recoverable under, this cause of action.

70.There can be no question that Lau has suffered far worse than anxiety from the 6 years of harassment by Yip.  I hold that this cause of action has been established. 

Damages and interest

71.I deal firstly with the special damage.  I find the claims set out in Annexure 5 to the Opening Submissions proved.  A copy of that document is attached to this Judgment.  In total, I award a sum of HK$146,673. 

72.In respect of general damages, Mr Luk has asked for both aggravated and exemplary damages to be awarded to Lau.  I have been referred to Wong Kwai Fun v Li Fung [1994] 1 HKC 549 where Woo J (as he then was) said at 581E:

“Aggravated damages are to compensate the victim for his suffering in his feelings, dignity and pride, for his mental discomfort and distress, and they must be justifiable on the basis of compensation. Exemplary damages, on the other hand, are punitive in nature and are awarded to teach the culprit that ‘tort does not pay’ and to deter him and others from similar conduct. See Clerk & Lindsell, ibid, paras 5/36 and 5/37.”

73.For aggravated damages, a sum of HK$600,000 is sought.  I should make it clear that the sum represents the totality of the compensatory damages claimed (see para 18 of Opening Submissions).

74.It is not surprising that the cases which Mr Luk has managed to find in aid of assessment of damages concern rather different facts.  In particular, none of the cases involved suffering over a period of 6 years.  As an example, in Sheck Gee Qun v Wong Wai Kuen & Anr, HCA 4455/02 (15 July 2007),  the wrongful acts, which lasted 3 days, consisted of phone calls, following by car and visits to the victim’s home and workplace.  A sum of HK$300,000 was awarded as compensation for mental disturbance, humiliation, damage to dignity and fear.  The claims for aggravated and exemplary damages were not pursued. 

75.In my view, the claim of HK$600,000 is very reasonable and I so award.

76.A sum of HK$200,000 is being sought as exemplary damages.  As indicated above, this is punitive.  Whilst I have a good deal of sympathy for Yip because her actions demonstrate that she is in need of help, I cannot ignore the misery which she has caused to Lau.  His career has suffered a setback at a critical time.  Innocent people were put to suffer.  Yip flouted an undertaking given to the court. 

77.I feel compelled to award exemplary damages in this case.  The sum claimed is again very reasonable and I so award. 

78.Interest has not been specifically pleaded (there is a plea in the prayer for further or other relief) but I see no reason why it should not be awarded.  I award interest on all damages at judgment rates from the date of the writ until payment.

Injunction

79.An injunction to restrain Yip from any further harassment of Lau is justified.  I should make it clear that I consider it appropriate that the injunction should protect also Lau’s family members because harassment of them must constitute harassment of him.  Based on the order sought in the Re-Amended Statement of Claim, I grant the following injunction against Yip:

The Defendant is restrained whether by herself, her servants or agents or otherwise howsoever from carrying out the following acts or any of them, namely:-

(a) causing or permitting harassment, nuisance or intimidation to the Plaintiff or his family members, namely, Madam Chung Sui Ying, Mr Lau Mut Nung, Madam Kwong Sau Fung (“said family members”);

(b) causing or permitting trespass to the properties belonging to the Plaintiff;

(c) entering or remaining at or coming within a distance of 30 metres from

(i) the Plaintiff’s place of residence at Room 1304, Yan Ming Court, Yan Chung House, Tseung Kwan O, Hong Kong;

(ii) the Plaintiff’s grandmother’s place of residence at Room 1911, Kai Sin House, Upper Wong Tai Sin Estate, Wong Tai Sin, Hong Kong;

(iii) the Plaintiff’s work place at 20/F, Tower 1, Admiralty Centre, 18 Harcourt Road, Hong Kong;

(d) approaching or contacting the Plaintiff or the said family members, whether directly or indirectly, whether by telephone or email or otherwise;

(e) causing or permitting the printing, producing, circulating, distributing, sending, emailing, transmitting or otherwise publishing of any materials containing derogatory remark of the Plaintiff or the said family members;

(f) causing or permitting any surveillance on the Plaintiff or investigation into any personal data of the Plaintiff or the said family members.

Costs

80.The costs of this action be to Lau.  His own costs are to be taxed in accordance with Legal Aid Regulations.

81.Last but not least, I am grateful to Mr Luk for his assistance in these matters. 

Mr Victor Luk, instructed by W S Szeto & Lee, for the plaintiff

The defendant was not represented and did not appear