Stalking in Hong Kong

1. Stalking in Hong Kong Prof John Bacon-Shone Director, SSRC, HKU Former Chairman, LRC Subcommittee on Privacy

2. What is stalking? • Behaviour which subjects another to a course of persistent conduct, whether active or passive, which taken together over a period of time, amounts to harassment

3. What evidence of stalking as a significant problem in HK? • Unfortunately, no good research • Plenty of reports in media • Plenty of cases in the courts • Plenty of people complaining during the consultation

4. Research elsewhere USA: 1% women & 0.4% of men within last 12 months, half reported to police Sweden: 4% women & 1.6% of men within last 12 months, third reported to police of whom half thought it helped UK:4% of women & 6% of men within last 12 months, third reported to police

5. Existing legal protections in HK -how effective are they? • None of the civil or criminal remedies are sufficient • Difficulty in getting police action

6. What have others done to address problem of stalking? • Many jurisdictions have stalking laws: • Canada, US, Australia, England & Wales, New Zealand, Scotland • US has model code - course of conduct - reasonable fear of injury, while California style requires “credible threat”

7. What have others done to address problem of stalking? • England & Wales 1997 • Course of conduct he ought to know alarms or causes distress • C of c he ought to know causes fear of violence • Restraining orders • Civil remedy • 300 convictions in first year • Fear of journalists not well founded

8. What are the proposals made by LRC to address stalking? • Course of conduct which he ought to know amounts to harassment is guilty of criminal offence • Harassment serious enough to cause alarm or distress • Ought to know if a reasonable person in possession of some information would think so • No higher level offence for fear of violence as we believe existing law would be sufficient

9. What are the proposals made by LRC to address stalking? • Defences: • Prevention or detection of crime • Lawful authority • Reasonable under the particular circumstances, taking into account Art 17 (privacy, family, home, correspondence), Art 19 (freedom of expression) and Art 21 (peaceful assembly) (Government does not think we need to make references to Articles)

10. What are the proposals made by LRC to address stalking? • Penalty: • Fine and imprisonment of up to 2 years (if knew) or 1 year (if ought to know) • Possibility of restraining order • Can require counselling, evaluation or treatment • Civil liability - damages for distress, anxiety or loss - possible injunction with arrest powers

11. What concerns raised & how can they be addressed? Three concerns with proposals in original consultation: • Hurdle too low • HK branch of JUSTICE not persuaded of need - rely on common law • HKJA wanted reporters excluded

12. What concerns raised & how can they be addressed? • Hurdle was raised in final report • There is a need for research, but clear need, common law development largely stopped because of laws elsewhere • Concern of media - concern that targets of attention could claim stalking by reporters. Reality - media target of judge probably was stalking, so ridiculous to exclude reporters, given the potential for abuse (anyone can be a reporter in HK). Defenses should be adequate to cover reasonablebehaviour for anyone

13. What has happened since the proposals - what impact? • Experience elsewhere • Now plenty of cases decided in UK, so little common law development, but instead courts have developed expertise in deciding where to draw the line for ought to know causes alarm or distress • Extension of Domestic Violence Ordinance, bit only addresses cohabitation situations

14. What is new in the government proposals? • No new analysis of experience elsewhere • Consider collective harassment, like UK (controversial there) • Consider harassment to deter lawful activities (e.g. employees of company), like UK (controversial there) • Penalty – propose to not distinguish based on “knowingly” • Exempt news-gathering? • Drop references to Bill of Rights for reasonableness • Consider if duration of order must be specified • Drop certificate to exempt law enforcement • Remove mental health assessment powers, given Mental Health Ordinance

15. Q&A?

16. Existing legal protections in HK -how effective are they? • Assault & battery • Assault causing bodily harm • Wounding • False imprisonment • Loitering • Public nuisance • Intimidation

17. Existing legal protections in HK -how effective are they? • Trespass to land or person • Private nuisance • Watching and besetting • Intimidation • Defamation • False imprisonment • Sexual harassment • Invasion of privacy • Domestic Violence Ordinance (recommend reform, but beyond remit)

18. What has happened since the proposals - what impact? • Experience in HK • Continuing problem - recent case • HAB - little interest in introducing legislation - claims that restoring the economy is their priority and claim community concern with impact of proposals on press freedom! • Reality is that only HKJA raised this concern and their points are explicitly addressed

19. Is Stalking about privacy? • What is privacy? • Information privacy • Territorial privacy • Personal privacy • Communications/surveillance privacy Stalking certainly is an attack on territorial and personal privacy and may relate to the other components as well

20. Why did LRC privacy subcommittee take up this issue? • Believe it is clearly part of the right to private life, if not privacy • Believe that existing protections are not sufficient