Hong Kong Lawyer critique on Anti-Stalking Law (1)

Stalking law may threaten Hong Kong freedom of press and assembly.

[Editor: The Hong Kong government is consulting the public on stalking. Journalists and activists are worried that their right of reporting and demonstration will be threatened. Chong Yiu-kwong, a Hong Kong lawyer, wrote articles to express view on this issue.]

Chinese original text Apple daily (27.2.2012)

The government is consulting the public on stalking. There have been a number of abuses in Britain after stalking was legislated. In 2007, Npower, a British energy company accused demonstrators for harassing their staff and applied for a restraining order according to anti-stalking acts in order to get rid of demonstrators and stop journalists from reporting. An exemption was granted after 3 months of legal process. Articles in The Guardian pointed out that the British anti-stalking acts had been used to suppress demonstrations. In 2001, a group of demonstrators who protested at a US military intelligence agency were prosecuted under the anti-staling acts as American staff felt harassed by the slogan “George W Bush? Oh dear!” written on the signboard held up by demonstrators. In 2004, a woman sent an email to the administration staff of a medicine company twice, urging them to stop using animals for experiments. Despite her politeness she was arrested. Laws in Hong Kong are greatly influenced by cases in Britain, abuses as such would easily happen frequently if stalking is legislated.

There are rooms that allowed the bypass of current legal standard and rooms for abuses once staling is legislated. For instance, a client can used anti-stalking acts against commenters if s/he feels harassed by continuous comments in newspapers or on the Internet, without justification of defamation. Referring to an injunction attached with Power of Arrest, the government suggests in paragraph 3.85 that “similar arrangements should b adopted in the proposed anti-stalking legislation”, which implies that the police can without warrant apply reasonable force to enter a premises and arrest any person whom he reasonably suspects of being in breach of an injunction attached with an authorization of arrest. The definition of anti-stalking is very broad, it could be manipulated as a tool to crack down on journalism and demonstrations. It could be even easier for the police to catch without warrant journalists and demonstrators if power of arrest attached to an injunction is applicable to anti-stalking acts.

The purpose of anti-stalking acts is to protect women and victims of domestic violence from being stalked or harassed by unwelcome phone calls. According to a report by Association for Concern for Legal Rights of Victims of Domestic Violence, after the amendment to the Domestic Violence Ordinance from 2010 November to 2011 March, among 76 reported cases of spouse battering, in 54% of them the police did not immediately arrest the batterers; in 13% no statements were made; 59% no body check. 37% of victims claimed that “the police did not prosecute arrests of batterers; 39% of them were asked by policemen to decide themselves whether or not to arrest of the batterers and 22% of them claimed the police made them give up arresting the batterers. Some women who were victims stated that policemen persuaded them to stay silence and they were warned that if their battering husbands were arrested, it was possible they would be accused with criminal damage.

All these reveal that frontline government departments that are responsible to deal with domestic violence lack the sense of “zero tolerance to domestic violence.” Their inactivity leads to insufficient protection to women under the current legal system. The government should review its execution and pinpoint the problem to make correction. Would legislating stalking really protect women effectively if front line government department do not change their attitude? Recently years have seen tightening of the means of expression. In retrospect, would this broadly affecting legislation of Stalking, in the name of protecting women, selectively monitor reporting and demonstrations, acting against the women’s groups’ hope of protecting women? Will you believe the government would allot resources to protect citizens once the legislation is made? Or would resources be gathered to protect the rich and the powerful? I believe that this will inevitably happen, as this is the true purpose of the legislation.

The government suggests providing defenses to conduct “pursued for the purpose of preventing or detecting crime”, “under lawful authority” and “is reasonable”. And they point out “reasonable pursuit” has already included news reporting but there is no express stipulation. It means law enforcement official shall bear no responsibility no matter how unreasonable and harassing their actions are. Why is the government so partial?

Even defense is provided to reporting and demonstrations by express stipulation, if the police receive report that journalists or demonstrators are harassing, they can arrive at the scene and practically interrupt news reporting or demonstrations. If being prosecuted, journalists and demonstrators have to contest matters in court, which would create “white terror.” Defense is of no use.

This broadly inclusive legislation of Stalking would infringe human right. Should legislation be carried out, the remit should be reduced to specific relationships related to debt management, property handovers, love and home affairs.

Reports on how Anti-stalking law is abused by UK government:
Channel 4 News：Injunction stops power protest (20.3.2007)
BBC：Is it a crime to take pictures? (16.2.2009)
Video：Whatever Happened to People Power (3.7.2009)