Stalking - [2000] HKLRC 3 (October 2000) - Chapter 6

6.6 A private citizen points out that the proposal of the sub-committee would allow a woman to use the legislation against a male admirer whom she does not like after receiving gifts from him on two occasions without having told him that she did not like receiving flowers from him. Another private citizen also comments that the proposal would foment hatred among people, lead people to retaliate against each other, result in more antagonism between men and women, and infringe the freedom to court the opposite sex. The Hon James To was also reported as saying that it would be too harsh if human relationships were dealt with by legal measures.

6.7 In romantic and family disputes, a person may call another repeatedly and the ensuing conversations may become “unpleasant, heated or vulgar”. These are normal risks of human intercourse and should normally be below the cognizance of the law. It would, however, be otherwise if he knowingly or recklessly persists in harassing the other person. An admirer who repeatedly intercepts or follows a woman on the streets and visits her home or workplace every day can cause alarm or distress to her if she is unwilling to develop a relationship with him. Actions that are acceptable in a normal, loving relationship can become harassment if one of the parties wants the relationship to end but the other does not.

6.8 We are here not dealing with trivial or innocent behaviour but behaviour which potentially causes the life of victims to be unbearable. The private lives and well-being of many people are affected by the inconsiderate and harmful behaviour of stalkers. It has never been the intention of the sub-committee to restrict the freedom of a person to court the opposite sex, nor do we think that normal courting behaviour would be caught by the proposals. But if a suitor ignores the feelings of his or her target and embarks on a campaign of harassment in order to achieve his object, we see no reason why the law should not intervene to protect the victim.

6.9 People who trivialise the psychological abuse effected by stalking often adopt the stalkers’ analysis of events. They see specific incidents out of context as if each incident of psychological abuse is distinct and has no impact on the way in which stalking victims view subsequent incidents. An act which may appear to be minor or trivial when viewed in isolation may constitute an act of psychological abuse if seen as forming part of a pattern of behaviour. Specific acts should be contextualised and seen from the perspective of the victim. Insofar as stalking behaviour is an attempt by the perpetrator to exercise power and control over his victim against the latter’s will, there is clearly a need to protect the victim from such behaviour unless there is justification for it.

6.10 In its submission, JUSTICE refers to an article written by Celia Wells in 1997 on the criminal law response to the problem of stalking in England.^[345] Wells claims that “there is little here that is not already covered by public order offences or by the [Offences against the Person Act 1861] as now interpreted.”^[346] JUSTICE echoes her view that “the need for [law] reform is misunderstood and what is identified as a failure of law is not a failure of legal definition or scope but of construction particularly at a social and cultural level which translates to the police and enforcement level.”^[347] JUSTICE criticises the “erroneous tendency” of the sub-committee in seeking to justify the proposed offence by reasons like the quick response from the police, sending a clear message to the public, and no need for courts to stretch existing legal concepts to find a remedy.

6.11 It should be pointed out at the outset that the Public Order Ordinance (Cap 245) in Hong Kong has not created the public order offences referred to in Wells’ article.^[348] In our view, anti-stalking legislation is necessary because there is a failure of “legal definition or scope” which cannot be cured simply by social and cultural recognition of stalking at the enforcement level. In particular, even if Hong Kong courts followed the English courts and applied the assault offences to stalking behaviour that causes psychiatric harm, there would still be victims who cannot enlist the assistance of the criminal courts because the impact of harassment has not reached sufficiently a serious level. The problem is particularly acute where the behaviour of a stalker is neither criminal nor tortious. As explained in the concluding paragraphs of Chapter 4 above, the existing law has failed to provide effective protection to stalking victims.

6.12 JUSTICE submits that what is needed is (a) better police training to cultivate an understanding of the new developments of the law and the social phenomenon of stalking; (b) the bringing of prosecutions in line with the English case of R v Ireland to reflect the ability of the law to deal with stalking behaviour; and (c) the raising of judicial awareness of the phenomenon and the harm that can be done to victims of stalking. However, better police training cannot provide redress to stalking victims unless there is a specific offence of stalking in the statute books. Further, the decision of the House of Lords in R v Ireland is of limited use because it applies only to telephone harassment in very exceptional circumstances. Although the House of Lords agreed that “bodily harm” in the Offences against the Person Act 1861 includes “recognisable psychiatric illness”, criminal law should protect a victim from mental assault before such assault has caused him or her psychiatric illness.

6.13 It is impractical and, indeed, undesirable to await developments of the common law to provide comprehensive protection to victims of stalking. Article 15 of the International Covenant on Civil and Political Rights provides that no one shall be held guilty of any criminal offence on account of any act which did not constitute a criminal offence under existing law. Apart from this non-retroactivity principle, Article 15 also embodies the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy.^[349] The decision of the House of Lords that the word “harm” in sections 47, 20 and 18 of the Offences against the Person Act 1861 covers both psychiatric as well as physical injury has been criticised as not observing the principle that criminal statutes should be interpreted strictly in favour of defendants.^[350] The courts should not stretch the scope of specific offences beyond their proper limits in order to punish stalking behaviour which members of the public would consider ought to be punished.^[351] It is therefore undesirable to leave the problem of stalking to the courts to resolve.

6.14 It is worth repeating that stalking is a course of conduct which comprises a range of actions each of which on its own may not be objectionable but, when combined over a period of time, interferes with the privacy and family lives of the victim thereby causing him or her harassment, distress, alarm or even serious impairment of his or her physical or psychological well-being. Existing offences that may be used to deal with stalking have not been designed with harmful persistent behaviour in mind. They address only certain aspects of stalking in isolation. It is unlikely that the actions of the stalker would constitute an attempt to commit a substantive offence. Even if a particular aspect of a stalker’s activities is caught by an existing offence, he is unlikely to receive a sentence that reflects the gravity of the abusive conduct viewed in aggregate. Stalkers who repeatedly commit the same offence also do not face the prospect of more severe sentences. The existing criminal law affords protection where a stalker uses violence. However, many stalkers have no intention of using violence; nor will their behaviour necessarily amount to a threat. But the behaviour can still have a serious impact on the health, freedom and quality of life of the victim and his or her family.

6.15 Criminalising stalking behaviour would provide a means of early intervention to prevent the risk of violence and psychological harm to the victim. It would also provide a graduated response to reflect the gravity of the behaviour. Once stalking becomes a crime in its own right, complaints about harassment will be responded to quickly. The police, social workers and mental health professionals will then be able to intervene before another more serious crime is committed. Not only will prosecutors be able to invoke a dedicated offence to deal with such conduct but the courts will also no longer have to stretch existing legal concepts to find a remedy. As most victims are women, stalking law may also be seen as a step towards greater protection of women in society. In the light of the foregoing paragraphs, we conclude that a new offence should be created to tackle the problem of stalking.

6.16 What is needed is a law which can protect victims before the stalkers take violent action. The procedures for obtaining such remedies must be simple, quick, inexpensive and effective. Early intervention by the police should be available in cases where the stalker continues to make unwanted contact with his victim which causes alarm or distress. Since there are many ways by which stalkers can harass their victims, the law must be flexible enough to deal with all kinds of stalking situations.

6.17 We consider that anti-stalking legislation should serve the following purposes:

(a) to stop threatening and harassing behaviour which disrupts normal life for the victim;
(b) to prevent such behaviour from escalating into violence by apprehending the stalker before his conduct reaches a serious level;
(c) to deter stalkers from committing the crime;
(d) to restrain convicted stalkers from repeating the crime; and
(e) to provide mental treatment to stalkers in appropriate cases.

Elements of the new offence

Course of conduct

6.18 The essence of stalking is that the behaviour occurs repeatedly. The definition of “harassment” in the Oxford English Dictionary also refers to “repeated attacks” and “constant molestation or persecution”. Our study reveals that stalking does not apply to a single action but rather a multitude of actions. The mischief of anti-stalking legislation is repetitive behaviour which is lawful in itself but assumes a threatening character when viewed in aggregate. By imposing a requirement that a stalker engaged in a course of conduct, lawful isolated acts would not be caught.

6.19 Almost all States in the US require that the perpetrator engages in a “course of conduct”. The National Institute of Justice in the US defines a “course of conduct” as “a series of acts over a period of time, however short, evidencing a continuity of purpose”. Twenty five States use the Model Code’s requirement of two or more occasions to specify how many occasions are required to show repeated behaviour as part of a course of conduct; twenty four States do not use this definition, although several of these States use the undefined term “repeated” in their laws.^[352] Only one State defines repeated behaviour as at least three acts.^[353] There is no requirement that the subsequent acts be the same as the original.

6.20 California uses the phrase “however short” to describe the period of time over which the acts must occur to constitute a “course of conduct”. Some States omit this phrase while others give a more definite time frame. In New Zealand, the Harassment Act 1997 provides that a person harasses another person if he engages in a pattern of behaviour that is directed against that other person, being “a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.”

6.21 We consider that the concept of persistence should be introduced into the formulation of the new offence by utilising the phrase “course of conduct”. A single act, no matter how bizarre, should not attract criminal liability. However, the risk of a conviction increases with the number of contacts. The incidents constituting the course of conduct need not be the same each time.

6.22 The Consultation Paper considered that conduct on two occasions should suffice to constitute a “course of conduct”; and in order to achieve certainty, the law should provide that “course of conduct” involves conduct on at least two occasions. A respondent suggests that a higher threshold, such as conduct on at least three occasions, should be required. This suggestion is made on the basis that Hong Kong people live and work in close proximity to one another. An alternative suggestion was that the legislation should require conduct on two occasions within a specified period of time, say six months. Other respondents comment that it would be too harsh if a person is arrested for telephoning or waiting outside another person’s home on two occasions only.

6.23 The mere fact that there have been two incidents involving the same perpetrator and the same victim does not of itself necessarily establish that the former has pursued a course of conduct against the latter. Apart from the number of incidents, the distance in time between the incidents is also relevant. The longer the duration, the less likely that the incidents will constitute a course of conduct. Recently, the Queen’s Bench Divisional Court in the UK held that the fewer the incidents and the wider apart they were spread, the less likely that a finding of harassment could reasonably be made.^[354] However, incidents which are separated by a year can still constitute a course of conduct. To cite the example given by Timothy Lawson-Cruttenden and Neil Addison, an anti-Semite who shouts obscenities outside a synagogue every Passover can be said to be pursuing a course of conduct even though there is a period of a year between each incident.^[355] Another example given by the English court is threats made on the complainant’s birthday every year.^[356]

6.24 Compared with jurisdictions that have stalking legislation, Hong Kong is a densely populated area whose residents live in close proximity to one another. However, this fact only indicates that there is even more reason supporting the introduction of such legislation: the more concentrated the activities of a city, the easier it is to stalk someone and the more difficult it is for the victim to avoid being stalked.

6.25 The word “course” has the following meanings in The New Shorter Oxford English Dictionary when used in relation to time, events or action:

“... 11 The continuous process (of time), succession (of events); progress through successive stages. ... 12 Habitual or regular manner of procedure; custom, practice. ... 16 A line of conduct, a person’s method of proceeding.”

6.26 We consider that the ordinary meaning of the phrase “a course of conduct” is sufficiently clear to render further elaboration unnecessary. It is unnecessary for the legislation to provide that a “course of conduct” must involve conduct on at least two occasions. Such a requirement as proposed in the Consultation Paper does not add anything. What is essential is that there be a “course of conduct”. Whether conduct on two or more occasions amounts to harassment depends on the circumstances of the case. To achieve flexibility, the legislation should neither specify the number of incidents involved nor specify the period of time within which the incidents should occur.

Level of harm

Option E
Instead of relying on the concept of “harassment”, the law should list all the proscribed behaviour instead, with or without an all-encompassing provision.

6.34 Insofar as an individual ought to have a right to be protected from harassment under the law, a person whose pursuit amounts to harassment of another can properly be said to be culpable.^[358] It is not sufficient to confine the scope of the legislation to cases where the stalker has caused a victim to fear for his or her safety. Harassing behaviour which has not caused the victim to fear physical or mental harm might nevertheless be frightening and objectionable. For instance, a man who has never said a word to the victim may have been persistently watching and following him or her. But the mere presence of that man at every turn might cause the victim alarm or distress. Silent telephone calls at night may also seem menacing. There are many cases where the victim is subject to constant harassment but knows that the stalker is unlikely to put his or her safety at risk. If the legislation were focused on a particular kind of belief, many stalkers could get round the offence and their victims would be deprived of the protection they deserve. As Michael Allen puts it:^[359]

“The purpose of an anti-stalking law must be to provide protection to victims from behaviour which seriously impairs their quality of life. The essence of this behaviour is not that it threatens violence or will lead to violence (although it generally creates a fear of violence on the part of the victim) but rather that it constitutes an enforced form of contact between the victim and the stalker which the victim does not want and which the stalker pursues either for the purpose of compelling the victim to do or abstain from doing that which the victim has a right to abstain from doing or to do, or simply for the purpose of causing harassment, alarm or distress to the victim. That many victims are put in fear, or suffer harm, are aggravating factors but these should not be seen as prerequisites to establishing an offence.”

6.35 Whether a pursuit amounts to harassment depends on the particular circumstances of the case. Persistently asking a woman for a date does not normally constitute harassment. But if it were coupled with other behaviour such as unwanted communications, uninvited visits, loitering and following, and continued for weeks or months despite being expressly told not to do so, then the court may have grounds to conclude that the stalker has exceeded the bounds of reasonableness.

6.36 In the light of the aforementioned, we decide that a person who, without lawful authority or reasonable excuse, pursues a course of conduct which amounts to harassment of another, should be guilty of an offence.

6.37 Degree of harassment experienced by the victim - The sub-committee considered that it is unnecessary to define harassment in the legislation, “harassment” being an ordinary word that can easily be understood by the courts and the ordinary public. Harassment is similar to concepts like molestation and pestering. These concepts are familiar to the family courts. “Molestation” is not defined in the Domestic Violence Ordinance but it is clear that molestation includes, but is wider than, violence. It has been held that “violence is a form of molestation but molestation may take place without the threat or use of violence and still be serious and inimical to mental or physical health.”^[360] Hence, molestation encompasses any form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as to call for the intervention of the court. We are not aware of any problems having arisen from the fact that molestation is not defined in the Ordinance.

6.38 The offence of harassment in section 264 of the Canadian Criminal Code does not contain a definition of the word “harass”. Canadian courts therefore resort to the ordinary or dictionary definition of the word.^[361] The Alberta Court held that various words in that section, including the word “harass”, are capable of definition by using either case law or an appropriate dictionary definition. After reviewing the definitions of the word “harass” in the Oxford English Dictionary and Webster’s Dictionary, the court concluded that the most appropriate synonyms are those which imply “being tormented, troubled, worried continually and chronically, being plagued, bedeviled and badgered.”^[362] We consider that providing a definition of harassment in the legislation might become over restrictive and could lead to borderline disputes.

6.39 Causing alarm or distress - Nonetheless, we agree that harassment that does not involve any real degree of harm should be below the cognizance of the law. In order to address the concern that the requirement of harassment is too low because the harm suffered by a victim of harassment could be nothing other than a triviality, we further decide that the degree of harassment experienced by the victim must have reached such a level that he or she is alarmed or distressed. Hence, the activities engaged in by the stalker should have caused the victim alarm or distress before the former could be charged with the offence of harassment.

6.40 We have considered whether the expression “alarm, distress or harm” should be used instead. We hold the view that the word “harm” (which might be defined to cover both physical and mental harm) need not be included because any harm to the victim, which is more serious than causing him or her alarm or distress, is likely to be caught by the existing criminal law, which protects individuals from intimidation as well as “recognisable psychiatric illness” and physical assault wrongfully inflicted by another.

6.41 Target of the pursuit - The person against whom the course of conduct is directed need not be the same person as the one who is subjected to harassment. The stalker may engage in a course of conduct that is directed against a person or persons known to the victim in order to harass the latter. A person could be alarmed or distressed without himself being the direct target of the course of conduct.

6.42 Alternative of listing all prohibited acts in the legislation - The alternative to making harassment an offence is to define in the legislation all imaginable stalking activities. Examples can be found in the Canadian and Australian statutes referred to in Chapter 5 above. The UK Government thought that this would inevitably omit some activities that are distressing to victims, since stalkers are adept at finding new ways to harass their victims. The US Task Force on Stalking concluded that legislation should not list specifically prohibited acts “because ingenuity on the part of an alleged stalker should not permit him to skirt the law.”

6.43 We consider that it is impossible to enumerate all the behaviour that could constitute harassing conduct. The law should be wide enough to provide maximum protection to victims. It should be flexible enough to enable the courts to make common-sense judgments based on a determination of when harassing and intrusive conduct exceeds the bounds of what society will tolerate and poses a risk to an individual’s physical or mental health.^[363] By criminalising conduct which constitutes harassment without specifying a list of prohibited activities, all kinds of activities that cause harassment can be caught, irrespective of whether they might be termed stalking or otherwise.

6.44 Concluding remarks - It is noteworthy that the level of “violence” in assault need not be great and will be satisfied by any unlawful touching of another, including an unwanted kiss. Despite the wide scope of the offence of assault, there has never been any suggestion that it is open to abuse in practice. Blackstone explained that:

“the law [of assault] cannot draw the line between different degrees of violence, and therefore prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any slightest manner.”^[364]

6.45 Under the law as it stands, a person who has committed assault or battery against another on one occasion may be arrested and imprisoned even though he has caused the victim neither physical harm nor emotional distress. Harassment is in the nature of psychological assault. Given that stalking behaviour that causes alarm or distress is more harmful than unlawful touching, a stalker should be no less culpable than a person who is guilty of common assault.

The threat requirement

6.46 In the US, most stalking laws require the existence of a “credible threat” which was “made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety”. Others include in their requirements threats against the victim’s immediate family. But some States require only that the perpetrator’s course of conduct constitute an implied threat.

6.47 The credible threat element requires a victim to wait until the stalker has made a threat, intends to carry out the threat and has the apparent ability to do so. Hence before a victim is protected, the stalker must be ready, willing and able to commit an act of violence. By the time this happens, the stalker may be only moments away from harming his victim.^[365] This is unsatisfactory because the victim will remain unprotected until the stalker becomes violent. Stalking behaviour should be taken seriously even in the absence of a “credible threat”. Stalking perpetrated by a former intimate is often a warning sign of future violence. In order to protect stalking victims before it is too late, legal protection of stalking victims should begin from the commencement of stalking behaviour.^[366]

6.48 Many of the more serious consequences of stalking are not preceded by any threat. If a stalker does not threaten his victim, but instead repeatedly makes telephone calls, follows his victim down the street, waits near the approach to the victim’s home, and sends unwanted articles to him or her, the stalker cannot be prosecuted until the stalker becomes violent. But sending a dozen roses to the office of the victim every day or lying in wait outside the victim’s place of residence every evening could be threatening even though the stalker has not made any oral or written threat.^[367] Stalkers who are familiar with the elements of the crime would refrain from communicating any threat, and so avoiding apprehension by the police.^[368]

6.49 The loophole created by the threat requirement may be closed by providing that the making of a threat is a separate act punishable under the statute. Another option is to omit any reference to the making of a threat. The US Model Code follows this approach. It defines the actus reus of the crime as “purposely engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury” to himself or a member of his immediate family.

6.50 The Consultation Paper argued that harassing behaviour is harmful whether or not the stalker has threatened his victim. Imposing a threat requirement will fail to catch stalkers who have not made any threat or have little or no communication with their victims. It is also unnecessary to make threatening conduct an alternative component of the crime. Where the stalker has committed an act which threatens his victim with injury to his person or property, he may be prosecuted for an assault or an intimidation offence.

6.51 The Association for the Advancement of Feminism agrees with the sub-committee that verbal threats or threatening conduct should not be an element of a stalking offence. The Hong Kong News Executives’ Association also agrees that imposing a threat requirement will fail to catch stalkers who have not made any threat or have no communication with their victims. However, they point out that the absence of a threat requirement would render genuine investigators liable to be prosecuted. They believe that whether or not there was a threat should be taken into consideration when deciding whether the behaviour was reasonable and in determining the sentence to be imposed on the offender. We agree with their views but do not think that this needs to be spelt out in the legislation. Whether the defendant has threatened the victim is surely one of the factors to be taken into account by the courts. We conclude that the making of a threat should not be included as an element of the offence.

Mental element of the proposed offence

Intention

6.52 Most Australian stalking statutes require proof of intent to cause harm to another person or a third person. Some of the stalking statutes in the US also require that the accused has the intent to cause the victim to fear death or injury or to place him in fear of his safety. However, proof of either knowledge or recklessness would suffice under the relevant provisions of the Canadian Criminal Code and the Irish Act. The UK Protection from Harassment Act requires actual or constructive knowledge. As for New Zealand, the prosecution may prove either intention or knowledge.

6.53 It is common cause that if the stalking offence requires specific intent on the part of the stalker, the anti-stalking provisions will not help victims who suffer at the hands of stalkers who are delusional and not capable of forming the necessary intent. A delusional stalker may be acting out of “love” for the victim, or out of a belief that he or she is, or is meant to be, bonded to the victim.^[369] He may also truly believe that his object is in need of his protection:

“[A] stalker in the Erotomania category, who believes his victim shares his romantic feelings and would respond but for some barrier, may not initially intend to put the victim in fear. He may simply be trying to accomplish his goal of removing the barrier which he believes hinders the establishment of a relationship with his victim. Furthermore, the methods employed by those stalkers who do specifically intend to place their victims in fear may be too subtle or dependent on context to qualify as credible proof of intent to place in fear.”^[370]

6.54 Dillon LJ echoed this view when he said that it was both undesirable and unnecessary that the order of the court restraining the defendant from “using violence to, harassing, pestering or communicating with” the plaintiff be qualified by words such as “by doing acts calculated to cause the plaintiff harm”:^[371]

“I regard such a qualification as undesirable, because it would complicate enforcement of the injunction pending trial of the action; the defendant would assert that any act of pestering or harassment of which complaint was made was not by itself calculated to cause the plaintiff harm. I also regard the qualification as unnecessary because (i) the campaign of harassment has to be regarded as a whole without consideration of each ingredient in isolation, and viewed as a whole it is plainly calculated to cause the plaintiff harm, and can be restrained quia timet because of the danger to her health from a continuation of the stress to which she has been subjected; (ii) threats of violence can be restrained per se, whether or not the threat, without the subsequent violence, is calculated to cause the plaintiff harm; and (iii) telephone harassment is, in my judgment, as indicated above, an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present, and thus, on the past history, can be restrained quia timet without further proof of damage.”

6.55 Existing offences, which require proof of specific intent, are not effective in convicting stalkers because many stalkers could claim that they have no intention of causing harm to their victims. In an English case,^[372] a stalker was charged with “causing grievous bodily harm with intent” under section 18 of the Offences against the Person Act 1861. The accused stalked the victim by various means. He telephoned her up to ten times a day. He had sat outside her house with a machete; registered his car in her name; and ensured that she received a string of parking tickets. On one occasion, he threatened her with a knife. However, the magistrate held that there was insufficient evidence to prove intention to cause grievous bodily harm.

6.56 A stalker who is infatuated with his object may never have intended to cause harm or distress to him or her. He may claim that his actions are motivated by love or a desire to protect the victim, or by a belief that his activities are welcomed by his victim. We therefore conclude that intention to harass should not be included as an element of the proposed offence.

Knowledge that the victim is harassed because of the pursuit

6.57 Although stalkers may not intend to cause harm to any person, they usually know that they are harassing another person. The US Model Code, the UK Protection from Harassment Act 1997, the Canadian Criminal Code and the New Zealand Harassment Act 1997 therefore make knowledge an element of the offence. The US Model Code requires that (i) the accused purposefully engaged in a course of conduct that would cause a reasonable person fear, and (ii) he knew or ought to have known that the victim would be placed in reasonable fear. Likewise, the UK Protection from Harassment Act 1997 requires that the accused knew or ought to have known that his pursuit amounted to harassment. In Canada, the prosecution has to prove that the accused knew that another person was harassed or was reckless as to whether the other was harassed. As for New Zealand, the Harassment Act 1997 accepts proof of either intention or knowledge on the part of the accused. The Irish Non-Fatal Offences against the Person Act 1997 adopts intention and recklessness as the mental element of the offence of harassment.

6.58 In order to avoid the difficulty arising from the need to prove intent, it should suffice that the stalker knows that his conduct amounts to harassment of his victim. The proposed offence should not be based on a course of conduct which amounts to harassment of a reasonable person as opposed to a particular individual. As long as the victim is alarmed or put in a state of distress by the stalker, it is not necessary to show that a reasonable person would be so harassed. If the stalker were to be found guilty only if the pursuit constitutes harassment of a reasonable person, he would be able to escape liability if his victim is hypersensitive or otherwise suffering from mental illness even though he is aware of this fact. Applying a subjective test would not be unfair to the accused because the prosecution would still have the burden of proving that he knew that his pursuit amounted to harassment of his victim. A stalker who knows that his victim is sensitive to his campaign of harassment but nevertheless subjects him to harassment should be held liable for his conduct.

6.59 The submission of Safetalk lends support to the above observations by pointing out that certain forms of stalking behaviour may not seem particularly noteworthy to a reasonable person but the victim may have a different perspective because he is acutely sensitive to the abuser’s mindset and actions built up from knowledge of the stalker in the past. Safetalk thinks that a person who has himself been stalked would be a better benchmark to use, rather than an ordinary person with no such experience.

6.60 There are also stalkers who do not turn their minds to the feelings of their victim. Some of these stalkers are aware that their conduct might amount to harassment but nevertheless persist in harassing the victim. Where the stalker is an erotomanic individual who truly believes himself or herself to be loved by the victim, he or she is incapable of realising that the target is harassed as a result of his or her pursuit. It will be recalled that an erotomanic stalker often fantasizes the existence of an idyllic romantic love with the target. They may misperceive the target to be his or her spouse or suitor, or project the target into the role of lover or would-be lover. They then view themselves as the one being pursued or loved rather than as the pursuer or harasser. These stalkers believe that their targets would respond to their romantic feelings but for some barrier. Some of them therefore justify their role as suitor or would-be lover on the basis of their mistaken but honest belief that the targets sufficiently reciprocate affection despite the absence of any actual relationship or emotional reciprocity. These stalkers try various means to contact their targets. Their object is not to annoy or harass their targets, but to seek to evoke love feelings from the latter and to establish a relationship with them.^[373] In order to catch stalkers who are reckless as to whether their victims are alarmed or put in a state of distress, the proposed offence should ensure that a person who pursues a course of conduct, which a reasonable person would realise amounts to harassment of the victim, could not escape liability even though the stalker himself does not know that the pursuit is harassing. Where the victim has indicated that the stalker’s conduct is unwelcome but the stalker nevertheless continues to act in a harassing way, the stalker should be deemed to have the necessary knowledge which would render him liable in respect of the subsequent conduct.

6.61 A few submissions expressed concern that the proposals would catch innocent conduct. For example, JUSTICE argues that the new offence is undesirable from the angle of the administration of criminal justice. The reason being the defendant would be at the mercy of the alleged victim “who may be in a position to transform startling coincidences into deliberate acts to cause alarm.” We consider that if the prosecution is able to prove that the stalker has deliberately engaged in a course of conduct which he knows or ought to know amounts to harassment of another person, it is unlikely that the stalker’s behaviour is innocent unless one of the defences is available to him.

6.62 In the light of the above considerations, we conclude that a person who pursues a course of conduct which amounts to harassment of another should be guilty of the proposed offence if he knows or ought to know that his pursuit amounts to harassment of the other.^[374]

Standard of a reasonable person in possession of the same information

6.63 An objective test would be applied in determining whether a person ought to know that his course of conduct amounts to harassment of another. This would ensure that the mere act of watching, following or approaching the victim, if standing alone, would not be sufficient to constitute the offence of harassment. Conduct which is aimless, unintentional or accidental should not be made criminal under the legislation.

6.64 However, although the standard of a reasonable person would normally be used as a yardstick when applying the objective test, adopting such a standard cannot protect persons who are harassed by stalkers who know that they are sensitive or would react strongly to certain objects, behaviour or suggestions.

6.65 To illustrate how the reasonable person test can operate to the disadvantage of a victim of stalking, we cite the example of a man who repeatedly tells his former spouse that he would send lizards to her home at night if she does not accede to his request. One may postulate that his conduct would not be considered by the courts as amounting to harassment if the reasonable person test is applied; the reason being a reasonable person would not be afraid of lizards which do not cause any harm to human beings. However, if the woman is afraid of lizards and this piece of information is known to that man, the latter should be held liable for harassment if the woman was alarmed or put in a state of distress as a result of his words or conduct, even though a reasonable person would not feel the same way as the woman did.

6.66 The Consultation Paper recommended that a person should be taken to have the requisite knowledge if a reasonable person in possession of the same information would think that the pursuit amounted to harassment of the victim.

6.67 JUSTICE thinks that if the prosecution chooses to prove actual knowledge instead of imputed knowledge, the court would not be asked to assess whether a reasonable person in the position of the victim would react with alarm or distress to the course of conduct. They argue that this creates the danger of “taking the victim as one finds him or her”.

6.68 Under the proposals of the sub-committee, the prosecution would have the burden of proving that the victim is in fact harassed by the accused’s pursuit and the accused knew or ought to have known that the victim was subjected to harassment as a result of the pursuit. It is not a case of the accused taking the victim as he finds him. The accused will be someone who chooses to harass the particular victim even though he knows or ought to know that the victim will be harassed as a result of his deliberate acts. A person who possesses the requisite knowledge but nonetheless conducts a campaign of harassment ought to be liable for his conduct irrespective of whether or not a reasonable person in the position of the victim would have reacted in the same way as the victim did.

6.69 JUSTICE also comments that where the court is asked to consider whether the defendant ought to have known that the pursuit amounted to harassment, the standard of a reasonable person in possession of the same information as the victim would require the court “to hypothesize and to perform ‘mental gymnastics’”. In our opinion, if the courts have encountered no great difficulties in formulating the reasonable person test and defining notions such as “negligence”, “intention” and “recklessness”, there is no reason to speculate that they would encounter difficulties in defining the standard of “a reasonable person in possession of the same information”.

6.70 The Legal Aid Department submits that to allow proof of imputed knowledge and to define this mental state by reference to a reasonable person in possession of the same information would have the potential of introducing an element of uncertainty “by introducing a new objective test of the reasonable man whose effect may be to complicate rather than provide for clarity”. They opine that the introduction of this “new and untried concept” would place an additional and difficult burden on the prosecution to establish what information was in fact available to the offender in order to enable the court to determine whether or not a reasonable person would consider, on the basis of such information, that the pursuit does in fact amount to harassment. They prefer a requirement based on the concept of recklessness. They argue that this has the advantage of basing the mental element on established common law principles relating to recklessness.

Reckless as to whether the victim is harassed

6.71 There are two kinds of recklessness in criminal law, which have been called “Cunningham recklessness” and “Caldwell recklessness” after the leading cases. Cunningham recklessness requires proof that the defendant was aware of the existence of an unjustifiable risk of causing the particular kind of harm and yet has gone on to take the risk of it. He must actually know of the existence of the risk and deliberately take it. This test applies to assault and battery. A person charged with assault or battery must actually foresee the risk of causing apprehension of violence, or the application of it, as the case may be, and take that risk. Where Cunningham recklessness is required, the defendant can escape liability if he was unaware of the risk – even though he ought to have been aware of it; the inadvertent taking of an unjustifiable risk does not entail liability.

6.72 Caldwell recklessness requires proof that the defendant did an act which created an obvious risk of causing the particular kind of harm.^[375] The risk must be obvious to the ordinary prudent person. Furthermore, the prosecution has to prove that when the accused did the act he either:

A dissenting view

^[341] See Conclusion in Chapter 4 above.
^[342] It has been pointed out that stalkers slip through the cracks of law enforcement and mental health agencies.
^[343] R A Lingg, above, at 360-1.
^[344] A family lawyer was quoted as saying that: “You can’t get hold of a judge and a solicitor in the middle of the night. But you can always get hold of the police.” SCMP, 15.1.98.
^[345] C Wells, “Stalking: The Criminal Law Response” [1997] Crim LR 463.
^[346] Above, at 470.
^[347] Above, at 465.
^[348] Ie sections 4, 4A & 5 of Public Order Act 1986 (UK) referred to in Chapter 5 above.
^[349] Kokkinakis v Greece (1993) A 260-A, para 52.
^[350] N Lacey & C Wells, Reconstructing Criminal Law (Butterworths, 2^nd edn, 1998), p 165.
^[351] The attempt by the English Court of Appeal to exploit the law of private nuisance in order to create by the backdoor a tort of harassment which was only partially effective has met with disapproval by the House of Lords in the UK: Hunter v Canary Wharf Ltd [1997] 2 All ER 426 at 438, per Lord Goff.
^[352] American courts have held that two or three incidents can be a pattern or series. It appears that two or three activities are sufficient to establish the core of the crime of stalking: K G McAnaney and others, above, at 907.
^[353] The Third Annual Report to Congress under the Violence Against Women Act, above, p 28.
^[354] Lau v Director of Public Prosecutions, [2000] The Times Law Reports, 29 March.
^[355] T Lawson-Cruttenden & N Addison, Blackstone’s Guide to the Protection from Harassment Act 1997 (Blackstone Press, 1997), at 13.
^[356] Lau v Director of Public Prosecutions, [2000] The Times Law Reports, 29 March.
^[357] The Third Annual Report to Congress under the Violence Against Women Act, above, p 28.
^[358] It may be recalled that (a) mere touching without consent and without causing actual bodily harm is suffice to bring a charge of common assault the maximum penalty of which is one year’s imprisonment and (b) a person is liable to two years’ imprisonment if he loiters in a public place and his presence there has caused another person to be reasonably concerned for his “well-being”.
^[359] M J Allen, “Look Who’s Stalking: Seeking a Solution to the Problem of Stalking” [1996] 4 Web JCLI at <http://webjcli.ncl.ac.uk/1996/issue4/allen4.html> (21.10.99) pp 28 – 29.
^[360] Davis v Johnson [1979] AC 264 at 334A, per Viscount Dilhorne.
^[361] The Manitoba Law Reform Commission Report on Stalking observes at p 58: “The word ‘harass’ has been held to mean ‘engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.’ It includes troubling someone by frequent attacks, and subjecting them to constant molesting or persecution. In another context, courts have defined ‘harassment’ as meaning to ‘vex, trouble or annoy, continually or chronically ... .’ The criminal cases have also concluded that ‘harassment’ requires conduct which occurs on more than one occasion because the word ‘harass’ imports a sense of ongoing or repeated conduct. A single act, even if it puts another in fear for her safety, does not constitute harassment.” (Footnotes omitted)
^[362] R v Sillipp (1995) 99 CCC (3d) 394, 418.
^[363] M Brazier, “Personal Injury by Molestation - An Emergent or Established Tort” [1992] Fam Law 346 at 348.
^[364] Blackstone, Commentaries, iii, 120, cited in Collins v Wilcock [1984] 3 All ER 374 at 378.
^[365] C A Marks, above, at 482 & 498.
^[366] C A Marks, above, at 476.
^[367] N Diacovo, above, at 408.
^[368] R A Lingg, above, at 371 n 149; N Diacovo, above, at 410-411.
^[369] K G McAnaney and others, above, at 907.
^[370] See C A Marks, above, 483.
^[371] Khorasandjian v Bush [1993] 3 WLR 476 at 486.
^[372] R v Chambers, Inner Crown Court, September 1996, cited in T Lawson-Cruttenden & N Addison, Blackstone’s Guide to the Protection from Harassment Act 1997 (Blackstone Press, 1997), at 7.
^[373] P E Dietz and others, “Threatening and Other Inappropriate Letters to Hollywood Celebrities”, 36 J Forensic Sci 185 (1995), cited in K G McAnaney and others, above, 832.
^[374] The Washington and Indiana statutes have withstood constitutional attack despite the lack of a specific intent element: State v Lee, 917 P 2d 159 (Wash Ct App 1996) (upholding stalking statute which did not require a specific intent to cause harm but did require that a stalker know or should have known that his or her behavior was frightening); Johnson v. State, 648 N.E. 2d 666, 670 (Ind Ct App 1995) (upholding stalking statute because it required a stalker to engage in a knowing or intentional course of conduct). See C A Marks, above, 495.
^[375] It seems that the Caldwell test is limited to criminal damage and a number of statutory, probably mainly regulatory, offences. In England, Caldwell recklessness does not apply to offences against the person at common law, rape and manslaughter.
^[376] R v Reid [1992] 3 All ER 673.
^[377] Chief Constable of Avon and Somerset v Shimmen, 84 Cr App R 7.

l	the number of occasions;
l	the gravity of the behaviour;
l	an objective test, ie whether ordinary people would regard it as stalking and would cause the victim alarm or distress;
l	a subjective test, ie whether the conduct has affected the well-being of the victim and the victim regards the pursuit as amounting to stalking.

Hong Kong Law Reform Commission

Chapter 6 - The new offence

Need for criminal sanctions

Elements of the new offence

Course of conduct

Level of harm

The threat requirement

Mental element of the proposed offence

A dissenting view

l	stalking is a form of anti-social behaviour;
l	it causes mental or psychological harm to the victims; and
l	it cannot be adequately dealt with under existing law.^[341]