After Commissioner of Police (CP) Mr Tsang took office, his tough measures against the demonstrators have raised social concerns about the anti-stalking legislation. Law Reform Commission (hereinafter referred to as "LRC") published "anti-stalking" consultation document on 19 December last year which is called "The press 23" by the society. According to the document, stalking "may be described as a series of acts directed at a specific person which, taken together over a period of time, causes him to feel harassed, alarmed or distressed”. These acts might not be objectionable but, when combined over a period of time, interfered with the privacy and family life of the victim, and causing him distress, alarm or ever serious impairment of his physical or psychological well being. These acts may cause annoying or panic but still lawful at the beginning act, evolve into a dangerous, violent or likely to cause others to death. If a person ought to have known a course of conduct which amounted to harassment of the other, he should be guilty of a criminal offense. A maximum penalty would be a fine of $ 100,000 and imprisonment for two years, and with civil liability. The victim would 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 causes him alarm or distress.
According to the consultation paper, a stalker may harass his victim by making unwelcome visits or unwanted communications, following 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 behavious may escalate from what may initially be annoying, alarming but lawful behavior to the level of dangerous, violent and potentially fatal acts.
LRC recommended the following to be a defence for a defendant who was charged with the offence of harassment:
a) the conduct was pursued for the purpose of preventing or detecting crime
b) the conduct was pursued under lawful authority
c) the pursuit of the course of conduct was reasonable in the particular circumstances (for example: the service of summons or statement of claim, security guards, employed by insurance company and responsible for the detection of fraud investigators)
The bill intent to protect victims from stalking from former partners or debt collectors. But it has too many unclear and gray areas that it might have been abused in future. Taking some current issues of Hong Kong as examples, Legislative councilors declare anti-government slogans or throwing protest objects during the meeting; demonstrators protest to the Liaison Office of the Central People’s Government in the HKSAR; protest “Estate hegemony” at housing estates or shopping malls; the “Occupation of Central” campaign; reporters track the scandal of district council election, internet users create and circulate satire or spoof of officials etc., will all these activities being charged as an offence under the bill? What does “making fear, anxiety and distress of victim” in the bill? Some may still remembered that when Chief Executive Donald Tsang was announcing Policy Address, councilor Wong Yuk-man questioned why he appointed the low-popularity- Mr Stephen Lam as the Chief Secretary for Administration. Donald Tsang repeatedly denounced Yuk-man’s speech as “insult” while Leung Kwok-hung “scared” him by “egg-attack”. On the other hand, columnists of leftist newspaper, such as Wen Wei Po and Ta Kung Pao, wrote plenty articles contained personal attack to cultural critics or scholar like NG Chi-sum, Robert Chung & Ming Sing. Will the bill help them?
LRC notices the concerns over possible interference with press freedom. It states that with reference to relevant legislation of the United Kingdom, Australia, New Zealand and Ireland, they include a general and broad exemption or defence to cover reasonable conduct without specifying new-gathering activities as a specific defence. However, in the “City Forum” on December 25, Director-General of Human Rights Monitor, Law Yuk Kai, pointed out that the relevant regulations of the United Kingdom had attracted a lot of criticism. “The Guardian” reported recently that it can be used to suppress demonstrators. For example, someone was prosecuted for his demonstrations in front of the U.S Intelligence Center in UK; a lady politely wrote two letters to the food company, recommending it to stop conducting experiments on animals, she was being arrested. He concerned if similar cases would happen in future Hong Kong. Gender and women's studies scholars Li Hui-yi critiqued the government did not refer to the U.S. example deliberately. It gives a very clear definition on stalking: “equal to other problems of domestic violence, it is the relationship between power and authority”, to protect victims from stalking but not undermine freedom of press. She denounced the government deliberately created the contradictions of women's rights and freedom of press. In fact, the Chairman of Concerned about the Domestic Violence Legal Rights of Victims Wu Huizhen has been reiterated recommendation of including anti-stalking in the Domestic Violence Ordinance for more than 10 years. However the Government refused it in the amendment of the Domestic Violence Ordinance in 2007. She also agree the current consultation should not affect freedom of the press.
Will the regulations become accomplices of “political prosecution” and weaken the rights of freedom of press, protest and assembling? Please express your views on this consultation. Document can be obtained from District Office Public Enquiry Service Centres or download from the Constitutional and Mainland Affairs Bureau website (www.cmab.gov.hk). Views can be send to Hong Kong on or before March 31, 2012 addressing Group 4, Constitutional and Mainland Affairs Bureau, 12/F East Wing, Government Headquarters,. 2 Tim Mei Avenue, Tamar, Hong Kong, or by fax (2523 0565), or e-mail to firstname.lastname@example.org.