The Government today (December 19) published the Consultation Paper on Stalking to invite public views on the proposal to legislate against stalking and on the key elements of the proposed legislation.
A Government spokesman explained that stalking may be described as a series of acts directed at a specific person which, taken together over a period of time, cause him to feel harassed, alarmed or distressed.
"A stalker may harass his victim by making unwelcome visits or unwanted communications, following the victim on the streets, watching or besetting the victim's home or place of work, sending unwanted gifts or bizarre articles to the victim, disclosing intimate facts about the victim to third parties, making false accusations about the victim, damaging property belonging to the victim, and/or physical and verbal abuse.
"Stalking behaviour may escalate from what may initially be annoying and alarming but lawful behaviour to the level of dangerous, violent and potentially fatal acts," the spokesman said.
In its report on stalking, the Law Reform Commission (LRC) noted that stalking comprises a range of actions, each of which on its own might not be objectionable but, when combined over a period of time, interferes with the privacy and family life of the victim, thereby causing him distress, alarm or even serious impairment of his physical or psychological well-being.
Although existing civil law and criminal offences cover some aspects of stalking behaviour, they cannot address stalking as an independent phenomenon. They treat stalking behaviour in a piecemeal manner and deal with it as isolated incidents.
A stalker can be prosecuted only if his act falls within the scope of a criminal offence, but stalking can occur without breach of the peace or threats of violence. The LRC, therefore, proposed that anti-stalking legislation should be introduced, under which a person who pursues a course of conduct causing another person alarm or distress would be guilty of an offence and liable in tort to the victim.
"We share the LRC's view that stalking can have a serious impact on the health, freedom and quality of life of the victim and his family. We therefore propose to pursue legislation against stalking and would like to invite public views on whether such legislation should be pursued and the key elements of the proposed legislation," the spokesman said.
The LRC recommended that a person who has pursued a course of conduct which he knew or ought to have known amounted to harassment serious enough to cause a person alarm or distress, should be guilty of a criminal offence.
The consultation paper invites public views on whether stalking should be made an offence based on this LRC recommendation.
"It also invites public views on our proposal to set a maximum penalty of a fine of $100,000 and imprisonment for two years for the offence of harassment, and on whether collective harassment and harassment to deter lawful activities should also be made offences," the spokesman added.
The LRC recommended that it should be a defence for a defendant charged with the offence of harassment to show that the conduct was pursued for the purpose of preventing or detecting crime, the conduct was pursued under lawful authority, or the pursuit of the course of conduct was reasonable in the particular circumstances.
As regards the suggestion of some in the media sector to provide a specific defence for news-gathering activities, the LRC considered that this was already subsumed under the "reasonable pursuit" defence.
A defence based on the reasonableness of the pursuit would provide flexibility. Replacing the general defence of reasonable pursuit by a list of specific exemptions would run the risk of excluding something that ought to have been included. A more elaborate defence is also not practicable. Whether the harassing conduct of a journalist is legitimate or not would depend on many factors.
The LRC, therefore, considered it unnecessary to create a separate defence for news-gathering activities.
The LRC also considered another suggestion of providing a "public interest" defence and was of the view that this is unnecessary, since the public interest in a matter pursued by journalists would be taken into account by the court if the "reasonable pursuit" defence was adopted.
In the LRC's view, the defence of acting reasonably in the circumstances would provide greater protection to journalists and other persons who carry out legitimate activities, such as those who serve subpoenas or statements of claim, security guards, and insurance company investigators who are retained to detect malingering.
"We recognise that there are concerns over possible interference with press freedom. In addition to the LRC's considerations, we also need to consider the implications of a specific defence for news-gathering activities on the protection which the proposed legislation seeks to provide to victims of stalking.
"The question is whether the community is prepared to exempt from the proposed legislation all forms of news-gathering activities by the media irrespective of whether such activities would be considered reasonable in the particular circumstances.
"The relevant legislation of a number of common law jurisdictions, such as the UK, Australia, New Zealand and Ireland, include a general and broad exemption or defence to cover reasonable conduct but do not specify news-gathering activities as a specific defence," the spokesman added.
The consultation paper invites public views on the three defences proposed by the LRC. It also seeks public views on whether a defence for news-gathering activities should be subsumed under the "reasonable pursuit" defence as recommended by the LRC, or a separate, specific defence for news-gathering activities should be provided and, if the latter, how the defence should be framed.
The spokesman pointed out that the LRC had also recommended that the court should be empowered to make a restraining order to prohibit a person convicted of stalking from doing anything which would cause alarm or distress to the victim or any other person, and a breach of the order should constitute a criminal offence.
"We consider that a restraining order may protect the victim from being harmed by the convicted stalker in the future. The consultation paper seeks public views on this LRC recommendation and details about the order, including the duration of the order, who can apply to vary or discharge the order and the penalty for breaching the order," the spokesman said.
In addition to making stalking a criminal offence, the LRC recommended that a person who pursues a course of conduct which amounts to harassment serious enough to cause alarm or distress of another should be made liable in tort to the object of the pursuit. The victim should be able to claim damages for any distress, anxiety and financial loss resulting from the pursuit and apply for an injunction to prohibit the stalker from doing anything which would cause him alarm or distress.
"We note that none of the existing torts recognised by the courts in Hong Kong capture the full extent of a stalker's behaviour. We see merit in this LRC recommendation. The consultation paper seeks public views on the recommendation and details regarding enforcement of the recommended injunction, for example whether the court should have the power to attach a power of arrest to the injunction," the spokesman said.
The consultation paper can be obtained from the Public Enquiry Service Centres of District Offices or downloaded from the website of the Constitutional and Mainland Affairs Bureau at www.cmab.gov.hk.
Members of the public may submit views by post (Team 4, Constitutional and Mainland Affairs Bureau, 12/F, East Wing, Central Government Offices, 2 Tim Mei Avenue, Tamar, Hong Kong), facsimile (2523 0565) or e-mail (email@example.com) on or before March 31, 2012.
Ends/Monday, December 19, 2011
Consultation Paper on Stalking published (1)
The Under Secretary for Constitutional and Mainland Affairs, Miss Adeline Wong (centre), held a press conference today (December 19) to announce the Consultation Paper on Stalking to invite public views on the proposal to legislate against stalking and on the key elements of the proposed legislation. Photo shows Miss Wong presenting the consultation paper at the press conference with the the Deputy Secretary for Constitutional and Mainland Affairs, Mr Arthur Ho (left), and Principal Assistant Secretary for Constitutional and Mainland Affairs, Mrs Philomena Leung (right).
Consultation Paper on Stalking published (2)
The photo shows Miss Wong introducing the consultation paper at the press conference.