Nuisance in Hong Kong
And its Protection under existing Civil Law
Author: Mr. Jacky Suen

1. Introduction

 
With the high population density in Hong Kong, citizens are easily affected by their neighbours’ actions, and sometimes causing disputes. Nuisance can be defined as any on-going or recurrent activity or state of affairs that causes a substantial and unreasonable interference with people’s property, or with their use or enjoyment of that property.
 
Ranging from noise and light interference from other users to water leakage from neighbours, nuisance constitute one of the main inconveniences faced by people living in a busy city. Apart from physical nuisance, nuisance caused by other peoples’ acts may result in major distress to people as well.
 
In this article, nuisance caused by stalking, repetitive anonymous phone calls and false police reports will be discussed; The civil law protection against such acts will also be explored.


2. Common types of Nuisance
 
2.1 Stalking
 
According to the Stalking Report, Executive Summary issued in 2000 by The Law Reform Commission of Hong Kong, stalking may be described as a series of act directed at a specific person that causes him to feel harassed, alarmed or distressed. This behavior may escalate to level of dangerous and violent acts if not curbed.
 
Examples of stalking include making unwelcomed visits, unwanted communications or silent telephone calls repeatedly, or sending unwanted gifts to the victims’ household. Acts to defame victims such as disclosing intimate facts about the victim to other parties or making false allegations about him are also considered to be an act of stalking.
 
There are news reports and cases that the victims were stalked by the ex-boyfriends or girlfriends. The victims finally had to commence a civil action to put a stop to the stalking.

2.2 Telephone nuisance  
As mentioned above, frequent unwanted telephone calls are a type of nuisance that may cause unwanted annoyance and distress. In some cases, anonymous messages or phone calls are distributed by prepaid sim card, and this amounts to immense difficulty when trying to locate the anonymous sender to undertake any action against the perpetrator
 
For telephone nuisance sent from commercial organizations, these spam messages are under the restrictions of the Unsolicited Electronic Messages Ordinance. Unsolicited electronic messages can be reported to the Office of the Communications Authority through its online form, fax, enquiry hotline or letter request. Information of the spam phone calls or messages received should be enclosed in the report application.
 
The Communications Authority may issue an enforcement notice to the sender after the report application is processed. For any contravention of the enforcement notice, the sender may be liable to a fine up to $100,000 upon first conviction.
 

2.3 False police reports
Harassment may also be made through filing false complaints to the Hong Kong Police Force, resulting in shock and distress to the victim.
 
For example, false allegation of possessing drugs may be made by the perpetrator, which may cause humiliation and embarrassment to the victim upon body and property search conducted by the police force. This is also a common type of nuisance causing disturbances and irritation to persons.

3. Civil Law Protection  
To protect victims against the above threats and aggravation, several causes of actions may be sought against the perpetrator. Victims may take action against the perpetrator under private nuisance, trespass to the person and the tort of harassment. Statutory protection may also be sought by the victims under particular circumstances.

3.1 Private nuisance  
To prove private nuisance, the victim must prove that it is more likely than not that the nuisance maker has interfered with the ordinary and reasonable use or enjoyment of the victim’s property (So Kwok Yan Bernard v Lau Wing Chung [2015] HKCU 599).
 
Hence, if the stalking activity does not interfere with the occupation of the victim’s property, or if the victim does not have interest in the property in question, the action will fail (Ng Hoi Sze v Yuen Sha Sha [1999] 3 HKLRD 890).
 
Similarly, this ground of action may be less useful to victims disturbed by anonymous telephone calls as an interest in the property cannot be proved (Hunter v Canary Wharf [1998] 1 WLR 434).

3.2 Trespass to the person  
This tort will be applicable to victims if they can prove that the stalker attempts or threatens to commit a battery which puts the victim in reasonable fear or apprehension of immediate infliction of an unlawful physical contact, as in Collins v Wilcock ([1984] 3 All ER 374)).
 
Chang Ming Fang v Zhang Zi Qiang [2011] HKEC 237 illustrates the tort action of trespass to a person being stalked.  Menacing threats were given over the phone, with the perpetrator appearing in the victim’s workplace in an intimidating demeanour. The victim needed psychiatric treatment after immense fear of future mistreatments. $200,000 damages and an injunction relief were granted by the Court as compensation.
 
For repeated phone calls, this ground may be less applicable unless reasonable fear and apprehension can be proved to constitute an assault on the victim.

3.3 Tort of Harassment  
Although it was once disputed whether the tort of harassment exists in common law, it was settled in the case of Lau Tai Wai v Yip Lai Kuen Joey ([2013] 3 HKC 361) that this cause of action is necessary in order to grant relief to victims.
 
The elements required to prove a tort of harassment are namely conduct, mental and consequence. Victims have to provide evidence of conduct sufficiently repetitive in nature that would cause worry or emotional distress or annoyance to another person. The mental element required is that the person is reckless as to whether the victim would suffer injury from the defendant’s conduct. Finally, the victim must have suffered damage as a result of the harassment; Anxiety would be suffice for the threshold, and financial loss may also be recovered as compensation.
 

3.4 Statutory protection for spouse and co-habitants  
Apart from common law protection, victims may also find statutory laws helpful to mitigate their harassment faced. As in Domestic and Cohabitation Relationships Violence Ordinance Cap. 189, the District Court may grant a non-molestation or exclusion order not only between spouses, but also between a man and woman who are cohabiting with each other.
 
Nonetheless, this protection only applies to victims cohabiting with the perpetrator; Victims of stalking who have never cohabited or have ceased to cohabit with the perpetrator cannot invoke the statutory protection.

4. Remedies  
For private nuisance, remedies granted to the victim may come in the form of amenity damage to compensate for the disturbance and inconvenience caused by stalking, phone calls or false police reports. The Courts will base assessment of damages on a global basis, taking into account the extent and duration of interference.
 
For harassment, aggravated damages may be awarded to indemnify the victim’s suffering in feelings, dignity and pride and other mental discomfort. Exemplary damages may also be awarded to deter the defendant and others from similar conduct.
 
Apart from damages, the Courts may also grant an interim and final injunction to stop acts of harassment and disruption.

5. Interim injunction   

5.1 What is an interim injunction  
As a case proceedings usually span across a long period of time, interim injunctions could be granted by the court before the trial as an interim measures Such injunction is usually a temporary version of the type of injunction that the victim will seek at the trial. The rights of the victim can be protected and irreparable harm before the full hearing can be avoided, preventing potential injustice to the victim.

5.2 Test to obtain an interim injunction  
The general test as to whether an interim injunction should be granted is laid out in American Cyanamid v Ethicon [1975] AC 396. To successfully obtain an interim injunction, the balance of convenience should lie in favour of granting an injunction. In other words, the court shall balance the damage suffered by defendant once such interim order is made, with the legitimate hardship and suffering on the victim. Relevant circumstances of the case, such as the importance of the preservation of the existing situation, relative strength of parties’ respective case will also be considered in the court’s decision.
 
Next, it should be proven that there is a “good arguable case” (The Nidersachsen [1984] 1 All ER 398) for the victim. It is unnecessary for the victim to show that he is likely to win the case, for an interim injunction to be granted. A good arguable case will suffice.
 
Lastly, if the court is convinced that damages would be inadequate to compensate the victim, an interim injunction may be granted.


5.3Procedure to apply for an interim injunction   
If the case is urgent, such application may be made ex parte, (i.e. without giving notice to the defendant) supported by an affirmation or affidavit.
 
For the usual procedure to apply for an interim injunction, you should consult professional legal opinion forthwith.

5.4 Criminal offence if injunction order breached  
A willful failure to comply with the terms of an injunction order may lead to an offence of contempt of court. Depending on the severity of the conduct, the types of punishment may include imprisonment, suspended committal order or fines.

6. Limitations of the existing civil law protection  
As mentioned previously, victims often lack the information on the identity of their stalker or anonymous caller. In these cases, they may have to retain a private investigator in order to find out where the stalker lived so that a write could be served on him.
 
Even if the identity of stalker of anonymous caller is known to the victim, he may be discouraged from seeking civil remedies as civil procedures are usually thought to be complicated and a high legal cost may be incurred in the process. The victim may consider apply for legal aid if he suffers financial burden.
 
7. Looking forward  
Even after an interim injunction has been granted was granted, the victim shall continue with the case proceedings until trial. If the victim fails to appear in the Court or fails to proceed with the case, the Court will lift the interim-injunction. . It is advised that victims should seek legal representation to fully protect their rights during the proceedings and ensure the best possible outcome.
 
For more enquiries, legal advice can be provided by our firm’s partner, Mrs Cecilia Wong and our trainee solicitor, Ms. Queenie Tong. 

​Mrs. Cecilia Wong
Mrs. Cecilia Wong holds a Bachelor of Laws degree of Peking University, Postgraduate Certificate in Laws of the University of Hong Kong, Graduate Diploma in Law of Manchester Metropolitan University, Graduate Diploma in Management of McGill University, Bachelor of Arts (English Literature) of Concordia University, and etc. She is a China-Appointed Attesting Officer. Mrs Wong has over 20 years experience as a solicitor in private practice and is competent in matrimonial law, criminal and civil litigation, probate,  commercial and corporate law. She actively participates in promoting the use of mediation in Hong Kong and has enormous experience in mediation and arbitration for various matters. She was appointed as a member of the Chief Justice’s Working Party on Mediation, Vice Chairman of Regulatory Framework Sub-committee of Secretary for Justice’s Steering Committee on Mediation and was recently appointed as a mediator in the Shenzhen Qianhai Cooperation Zone People's Court. She took part in drafting of the Mediation Ordinance. Mrs Wong is currently the member of the Duty Lawyer Service Council, and the committee of the Hong Kong Mediation Accreditation Association Limited (HKMAAL). She is also the chairlady of the Appeal Tribunal Panel, Planning and Lands Branch of Development Bureau. She is a past Council member of the Law Society of Hong Kong