As was recognised by the 2000 Law Reform Commission Report and by the 2011 Consultation Paper, neither the current criminal law nor the current civil law are adequate to protect the victims of stalking. Current criminal offences address conduct which has already occurred. Even where the stalker’s conduct comes within one of the criminal offences already discussed, whether or not to prosecute is a matter for the police. The victim has little, if any, say about that.
Civil actions in tort are time consuming and complicated, and generally beyond the capability of ordinary persons. Retaining a solicitor to conduct civil proceedings is expensive. Unless Legal Aid is obtained, civil proceedings will be unaffordable to most. Whether or not Legal Aid is obtained for civil proceedings depends both upon financial eligibility and the merits of the particular case. Even where the applicant for a Legal Aid certificate is financially eligible for Legal Aid, there is no certainty the merit test will be met.
The 2011 Consultation Paper substantially adopts the recommendations in the 2000 Law Reform Commission Report for the criminalisation of stalking. In summary, it is proposed that a criminal offence of stalking will be committed:
- where one person pursues a course of conduct which amounts to harassment of another person and which the former knows or ought to know amounts to harassment of the latter;
- the harassment is serious enough to cause the person who is harassed alarm or distress; or
- a person ought to know that his/her conduct amounts to harassment of another person if a reasonable person in possession of the same information the alleged harasser has would think that the course of conduct engaged in amounted to harassment of the person towards whom the conduct is directed.
Whilst the recognition by the Government of the need to criminalise stalking is a positive step forward, concerns arise about the possible use of a stalking law to suppress such human rights as the right to protest, the right of assembly and even freedom of the press. These are matters that will need to be considered when it comes to drafting the necessary legislation. It is, however, likely to be some time yet before Hong Kong has an effective anti-stalking law.