Professional Documents
Culture Documents
HCA1466/2011 B
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IN THE HIGH COURT OF THE
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C HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE D
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ACTION NO. 1466 OF 2011
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F BETWEEN
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LAU TAT WAI (劉達偉) Plaintiff G
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H and
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I YIP LAI KUEN JOEY (葉麗娟) Defendant
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Before : Hon Anthony Chan J in Court K
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JUDGMENT
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1. This is a sad case. At the same time, the wrongs committed by the O
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defendant (“Yip”) against the plaintiff (“Lau”) over the course of nearly 6
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P years have made a misery of a young man’s life and, by any standard, are
outrageous. Q
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R
R 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 S
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appears to have been prepared by a person with some legal training. It
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numbers and alias for the purpose. The volume of such activities is B
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staggering. On several occasions, Yip made 120 calls and sent 80 SMS
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C messages in 1 hour to Lau’s mobile phone and his company line.
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8. Unwelcomed phone calls were also made by Yip to Lau’s friends and
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E 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 F
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2008 Lau had to resign from his job (at “ASM”) due to the disturbance
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G caused by Yip.
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9. In September 2008, Yip hired a private detective to conduct
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I surveillance on Lau. From then on, Yip was able to monitor Lau’s
movement, causing him great distress. In that month, she suddenly J
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appeared in Sai Kung where Lau was hiking with his colleagues and
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K warned Lau’s female colleagues not to have a romantic relationship with
him. In December 2008, Yip appeared uninvited on a plane where Lau L
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was returning with his family from a trip to Shanghai. Clearly, Yip had
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been stalking Lau.
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10.In January 2009, Lau managed to find a new job with a chemical
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O company (“Denka”). From January to May 2009, Lau moved away from
his family to try to avoid Yip’s harassment. P
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Q 11.In around May 2009, Yip created a false recruitment advertisement of
Denka on the internet. As a result, numerous calls from job applicants R
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were received causing much nuisance to Lau’s employer and
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S embarrassment to him.
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12.In October 2009, Yip purchased and moved into a flat (“Room 506”) B
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which was in the same building where Lau was residing with his parents.
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C 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 D
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work in the morning.
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13.At about that time, Yip rented a parking space at the building in the F
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name of Lau and provided his contact number to the management. As a
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G result, numerous calls were received by Lau from the management chasing
him for outstanding rental payments. Lau was forced to cancel his H
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telephone number to avoid the nuisance.
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14.In February 2010, Yip demanded that Lau should visit Japan with her, J
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promising that she would terminate their relationship and cease further
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K harassment after the trip. With reluctance, Lau acceded to Yip’s demand
but she failed to live up to her promise. L
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M
M 15.In March 2010, Lau was forced to resign from Denka due to the
continuous disturbance caused to his employer by Yip. N
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O
O 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 P
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electronic mail accounts to circulate missing person notices about him on
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Q various discussion forums on the internet.
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17.Further, Yip continued to bombard him with phone calls to his
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S workplace (Lau had 3 casual jobs in Japan from July 2010 to January
2011) and with text messages to his mobile phone. T
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21.In March 2011, Yip made a false report to the police accusing Lau of J
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theft of her properties. Consequently, Lau was arrested by the police at the
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K airport when he returned to Hong Kong on 6 April 2011.
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22.Between March and April 2011, whilst he was away from Hong Kong,
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M 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 N
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Lau and asking for Lau’s whereabouts. Those calls duly ceased when Lau
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O returned to Hong Kong.
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23.In order to force Lau to return to Hong Kong, Yip resorted to tactics
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Q 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 R
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home. Subsequently, HK$5,000 was paid to him by Yip as compensation
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S for the damage.
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24.On 2 April 2011, Yip caused someone to splatter red paint on the back B
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of Lau’s mother, who was traumatised by the experience.
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25.On 4 April 2011, black paint was splashed on the iron grille of Lau’s D
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grandmother’s home.
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26.On the next day, Yip made various threats to Lau via the internet that if F
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he did not return to Hong Kong his parents would be harmed. Further
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G threat against the safety of Lau’s parents was made on 9 April 2011.
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27.On 17 April 2011, posters containing highly offensive remarks about
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I 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 J
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Lau’s request.
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29.After having sold Room 506 in March 2011, on 16 May 2011 Yip N
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purchased another unit at the same building (Room 105) and continued to
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30.On 24 May 2011, red paint was splashed on the iron grille of a rented
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Q flat in Shenzhen where Lau and his mother were seeking refuge in order to
avoid Yip. R
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S 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 T
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that judgment, she obtained a garnishee order against Lau in July 2011 B
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resulting in the loss of HK$4,073 on his part.
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32.In June and July 2011, Lau again stayed away from his family to avoid D
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Yip.
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33.Lau managed to find a new job in Hong Kong in July 2011. However, F
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on 18 August 2011, Yip rang him at his office and demanded his
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G resignation from the job. She threatened that she would continue to seek
revenge against him. H
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I 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 J
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some people from the Mainland would be looking for him.
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37.When he was asked how this whole affair has affected him, Lau said R
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that his career has been badly affected due to the inability to stay with his
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S 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 T
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family. J
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K 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 L
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might appear uninvited.
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40.I believe that Mr Luk, who appeared for Lau, has summarised these N
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affairs correctly by submitting that Yip has for the past 6 years sabotaged
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O the life of this young man.
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41.Last but not least, Mr Luk is clearly right in submitting that the wrongs
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Q committed by Yip were premeditated and with the help of third parties.
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42.I now deal with the causes of action advanced on behalf of Lau.
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Tort of intimidation B
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45.Further, I also accept that the threats made by Yip in respect of Lau’s K
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safety, the safety of his parents and the creation of the derogatory posters
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L all had the effect of forcing Lau to maintain contact with her. Each such
act constituted an intimidation. M
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N 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 O
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be ringing his colleagues. Such behaviours on Yip’s part also constituted
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P intimidations.
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47.As regards the damage to Lau, although it has been opined by the
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R 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 S
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The incident of 30 May 2011 is excluded because it is not clear from the evidence whether T
T it played a part in forcing Lau to return to Hong Kong from Japan.
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case. Lau was clearly forced to see and/or listen to Yip when it was the B
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last thing he wanted to do. These were no doubt disturbing, if not
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C traumatic, experience for him. There is evidence on how such experience
has adversely affected Lau, including the need to consult a psychologist. I D
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hold that the mental distress caused to Lau is sufficient to ground this
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cause of action.
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Private nuisance
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48.Private nuisance is defined in Winfield and Jolowicz on Tort, 18th edn, p
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H 712 as:
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“…unlawful interference with a person’s use or enjoyment of
land, or some right over, or in connection with it. It has been J
J 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.” K
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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 M
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interference with the enjoyment of those premises by Lau. However, I N
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must reject this cause of action because it has not been demonstrated that
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O Lau has any or any sufficient interest in those premises.
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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 Q
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ordinary and reasonable use and enjoyment of her home where she was R
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lawfully present as a licensee. It was also held that “substantial
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S occupation” was enough to found an action in private nuisance. That
decision was overruled by the House of Lords which held that a plaintiff T
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52.This court is of course bound by Ng Hoi Sze and this cause of action H
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must fail.
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Trespass to goods J
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P 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 Q
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not see how he was in possession of the iron grille at the material times.
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R This cause of action must also fail.
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Tort of harassment B
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56.I believe that the current state of the law in Hong Kong has been C
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accurately summarised by the learned author of Tort Law in Hong Kong,
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D 3rd edn, at p 717-719:
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“(2) In jurisdictions such as Hong Kong, where there is no
general protection from harassment legislation as there is in F
F 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 G
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1411)),
… H
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(4) The High Court of Singapore has now recognised a
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I 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] J
J 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 K
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plaintiffs for distress suffered on the basis of the tort of
harassment. However, he did not explain the genesis of the L
L 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 M
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tort of harassment prior to the passing of the Protection
From Harassment Act 1997.
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(5) However, Deputy Judge Carlson’s award of damages for
harassment may signal the beginning of the development of O
O 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 P
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be found in the judgment of Cheung J in Wong Tai Wai v
Hong Kong SAR Government (above) where he said: Q
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(1) little guidance on the common law can be obtained
from the English courts now because of the statutory R
R provisions there, which have no Hong Kong
equivalent;
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(2) disregarding the statute, it is arguable that a tort of
harassment per se, or as part of a tort of intentional (or T
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57.This case serves to highlight the fact that some of the existing causes of P
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action (see discussions on private nuisance and trespass to goods above)
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Q are inappropriate in dealing with a case of harassment. I quote with
agreement some of the observations made by Lord Goff in Hunter v R
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Canary Wharf Ltd, p 691H to 692B:
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“… If a plaintiff, such as the daughter of the householder in
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T Khorasandjian v. Bush, is harassed by abusive telephone calls,
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59.I am unable to see any reason why there should not be a tort of
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harassment to protect the people of Hong Kong who live in a small place L
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60.In Singapore, where the social conditions are not very different to those
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of Hong Kong, the tort of harassment has been recognised since 2001 (see P
Malcomson Bertram & Anr v Naresh Mehta [2001] 4 SLR 454 at 470H to
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474A).
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61.This case serves to demonstrate that the time must have come for Hong
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Kong to recognise this tort.
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The parameters B
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62.What are the parameters of this tort? First, I respectfully adopt the C
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observation made by Lee JC in Malcomson in connection with the
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D definition of harassment at 464F:
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“For the purposes of this application, I shall take the term
‘harassment’ to mean a course of conduct by a person, whether F
F 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 G
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annoyance to another person. This is not intended to be an
exhaustive definition of the term but rather one that sufficiently H
H encompasses the facts of the present case in order to proceed
with a consideration of the law.”
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66.As regards the kind of injury or damage which may ground an action in B
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tort of harassment, one can envisage that the harassment can result, at one
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C 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 D
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differently to the same type of harassment. A mature and confident person
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may feel humiliated about a course of conduct, whereas a younger and
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more sensitive person may be affected with serious anxiety. However, a F
67.Under the UK Protection from Harassment Act 1997, s.3, damages can H
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be awarded as a civil remedy for anxiety caused by harassment. However,
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anxiety has not been defined in the Act.
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68.I believe that the right balance has been struck in the above Act and I
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K 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. L
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M 69.Financial loss, eg, the cost of moving, can of course ground, and is
recoverable under, this cause of action. N
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O 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 P
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been established.
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71.I deal firstly with the special damage. I find the claims set out in S
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Annexure 5 to the Opening Submissions proved. A copy of that document
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T is attached to this Judgment. In total, I award a sum of HK$146,673.
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72.In respect of general damages, Mr Luk has asked for both aggravated B
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and exemplary damages to be awarded to Lau. I have been referred to
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C Wong Kwai Fun v Li Fung [1994] 1 HKC 549 where Woo J (as he then
was) said at 581E: D
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E “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 F
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of compensation. Exemplary damages, on the other hand, are
punitive in nature and are awarded to teach the culprit that ‘tort G
G does not pay’ and to deter him and others from similar conduct.
See Clerk & Lindsell, ibid, paras 5/36 and 5/37.”
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R 75.In my view, the claim of HK$600,000 is very reasonable and I so
award. S
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Injunction L
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B (a) causing or permitting harassment, nuisance or intimidation to
the Plaintiff or his family members, namely, Madam Chung
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C Sui Ying, Mr Lau Mut Nung, Madam Kwong Sau Fung (“said
family members”); D
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(b) causing or permitting trespass to the properties belonging to
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the Plaintiff;
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F (c) entering or remaining at or coming within a distance of
30 metres from
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(i) the Plaintiff’s place of residence at Room 1304, Yan
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H Ming Court, Yan Chung House, Tseung Kwan O, Hong
Kong; I
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(ii) the Plaintiff’s grandmother’s place of residence at
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J Room 1911, Kai Sin House, Upper Wong Tai Sin
Estate, Wong Tai Sin, Hong Kong; K
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(iii) the Plaintiff’s work place at 20/F, Tower 1, Admiralty
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L Centre, 18 Harcourt Road, Hong Kong;
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Costs B
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80.The costs of this action be to Lau. His own costs are to be taxed in C
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accordance with Legal Aid Regulations.
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81.Last but not least, I am grateful to Mr Luk for his assistance in these E
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matters.
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I (Anthony Chan)
Judge of the Court of First Instance
High Court J
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