Stalking legislation is designed to protect, not stifle
Much-needed reform of Hong Kong's laws may be halted due to ignorance and unfair criticism
Fourteen years ago, the Law Reform Commission recommended legislative proposals to deal with the problem of stalking. Those proposals remain unimplemented to this day.
Last year, the Centre for Comparative and Public Law at the University of Hong Kong was engaged by the government to study the operation of anti-stalking laws in Britain, the United States, Canada, Australia, New Zealand and South Africa, and to formulate proposals on the way forward.
The study found that when stalking laws were formulated clearly and narrowly with appropriate defences, they were used for their intended purpose of protecting victims and not to stifle expression and protest.
Britain was the exception. The study attributed this to the country's broadly defined harassment law and lack of adequate defences for the media. Thus, the centre did not repeat the commission's recommendation to follow the British approach, whose full impact was then unknown.
It advised that a new stalking offence should be based on repeated stalking conduct, causing a person reasonably to fear for his or her safety. Moral blameworthiness, such as intention or recklessness, had to accompany the conduct.
Activities by a media organisation in gathering information for communication to the public, and by individuals for the sole purpose of discussing or communicating matters of public affairs, should be exempted.
As principal investigator of the centre's study, I recently attended a Legislative Council panel meeting to answer questions. I was surprised, and disappointed, to hear negative comments from legislators.
Some said the city, lacking universal suffrage, was somehow different in its legal system, thereby making the experience of other common law jurisdictions irrelevant. This showed ignorance of the rule of law in practice and the continuing importance of comparative law to making and shaping our law. There was also little acknowledgement of the need for anti-stalking laws, especially from legislators who I expected to be more vocal on women's issues.
The need is there because much stalking behaviour is untouched by existing offences, including assault, intimidation and loitering. The fear that public officials could use the proposed offence to arrest and prosecute protesters is unwarranted.
An arrest can occur only if there are reasonable grounds to suspect the protester caused the official to "reasonably fear" for his safety and that the protester has not acted for the sole purpose of communicating matters of public affairs.
Operational guidelines to this effect could reassure the public. It would be most unfortunate if, because of unjustified criticism, reform were abandoned.
Professor Simon Young Ngai-man teaches criminal law and evidence in the Faculty of Law at the University of Hong Kong