The judgment in the case of Lau Tat Wai v Yip Lai Kuen, Joey
handed down on 24 April 2013 appears to be a watershed in the
development of a general law of harassment.
Prior to this judgment there had been no authoritative decision
in Hong Kong confirming the existence of a right to sue for a tort
(i.e. a civil wrong) of general 'harassment'. Previously
harassment claims have existed only in specific circumstances
arising under specific statutory restrictions, in particular,
sexual harassment (Sex Discrimination Ordinance (Cap 480)), racial
harassment (Race Discrimination Ordinance (Cap 602)) for example.
This new common law development creates a general and very wide
basis for legal action based on harassment generally and may lead
to a flood of new litigation and cases relying upon this authority.
They may arise in the areas of employment law but also in many
other legal areas dealing with commercial and personal interaction
such as neighbour disputes, landlord and tenant and
How did the 'new' law arise
It is an old adage that "hard cases can make bad
law". The facts of Lau Tat Wai v Yip Lai Kuen,
Joey were certainly extreme, leading to the court's decision in
The Plaintiff, Mr Lau ended a brief but intimate relationship
with Ms Yip. She then subjected him and his family to what can only
be described as an intense and extreme series of malicious acts
intended to harass, intimidate and generally damage his life,
well-being and career, over a period of 6 years. For their own
protection Mr Lau and his family moved house, gave up jobs and
maintained a distance from friends.
The scope of the new law
The judge considered authorities which had addressed the
potential existence of a general tort of harassment as well as some
existing alternative causes of action such as intimidation and
trespass to goods/person. The Judge found that there was and should
be a general tort and cause of action for harassment and set out to
describe the ingredients necessary to establish a case of
harassment as follows:-
"...I shall take the term harassment to mean a course
of conduct by a person whether by words or action, directly or
through third parties, sufficiently repetitive in nature as would
cause, and which he ought reasonably to know would cause worry,
emotional distress or annoyance to another person. This is not
intended to be an exhaustive definition of the term but rather one
that sufficiently encompasses the facts of the present case in
order to proceed with a consideration of the law".
However it need be remembered that the development of the common
law is slow and incremental based on the facts before the
There needs to be a mental requirement of the wrongdoer/harasser
as well as damage to the victim in order to constitute the tort of
harassment. The victim does not need to show an intention on the
part of the wrongdoer to cause injury to the victim but does need
to show recklessness as to whether the victim might suffer injury
from the wrongdoer's act. This lower threshold is justified
when physical or mental harm are likely to be involved.
There needs to be injury or damage. In the tort of harassment
this can involve physical injury and at the other end of the scale,
mere humiliation. Different people can react differently to the
same act of harassment. However a wrongdoer must take his victim as
he finds him. In that respect an act which causes anxiety on the
part of the victim and which has been caused by the harassment of
the wrongdoer would satisfy the threshold of injury or damage.
Clearly any direct financial loss such as the costs of moving house
would also satisfy the requirement of damage in establishing the
cause of action.
The establishment of a general tort of harassment and the wide
definition of what may constitute damage make this new development
one with broad application and potentially wide implications.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The claim followed the conclusion of two years of litigation (ORD 12/0035 & ORD 12/0034) between the parties in respect of the Bank's contractual claim for amounts owed by TSEL to the Bank pursuant to certain business loans.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).