On 3 June 2015, the development of the tort of harassment in Hong Kong took another turn when the High Court in Lin Man Yuan v Kin Ming Holdings International Ltd and Anor recognized that there is such an action for harassment in Hong Kong.
Background
The development of this area of the law has been eventful. On 24 April 2013, the court in Lau Tat Wai v Yip Lai Kuen Joey held that there was a tort of harassment in Hong Kong, and laid out a test for conduct that may amount to harassment.
However, about 16 months later, on 13 August 2014, the court in Pong Seong Teresa and Others v Chan Norman and Another said that it was “bound to hold that there is no tort of harassment at common law ……”, although in that case the court went on to say that it could issue an injunction preventing harassment.
As noted above, on 3 June 2015, the court confirmed that the tort of harassment was part of Hong Kong law.
What you must show
To succeed in a case for harassment, a party must generally show that :-
(i) There is 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;
(ii) The person must be at least reckless as to whether the victim would suffer injury from the defendant’s conduct; and
(iii) The plaintiff must have suffered damage as a result of the harassment; anxiety would suffice, though the defendant must take the victim as he finds him; financial loss is also recoverable.
The tort of harassment can be applied in a personal and business context. In the business context, it may mean parties that use harassing means to (for example) collect money may be open to liability for harassment – even if the money is properly owed. A person proving harassment may be able to claim significant damages depending on the circumstances.
As the law in this area is new, the courts will refine how this is applied as new cases emerge.
How far is too far – Trade Descriptions Ordinance
In 2013, amendments to the Trade Descriptions Ordinance extended the application of the Ordinance to include the sale of services (as well as goods).
Newspaper reports note that during July and August 2015, staff and management of the fitness group Physical Fitness & Beauty were arrested for offences against the Ordinance regarding their ‘extreme’ sales tactics.
How does the Ordinance apply to harassing sales tactics ? The Ordinance covers trade practices such as misleading omissions, aggressive commercial practices, bait advertising, bait-and-switch tactics and wrongly accepting payment for the sales of goods and services.
A sales person who engages in commercial practice (eg. sales tactics) that are aggressive commits an offence. Under s 13F(2) of the Ordinance, the practice will be aggressive if it significantly impairs or is likely significantly to impair freedom of choice or conduct regarding the product concerned by the use of harassment, coercion, or undue influence, and therefore causes or is likely to cause the consumer to make a decision to buy that it would not have made otherwise.
There are a range of factors to consider when looking at whether there has been harassment, coercion or undue influence.
Of key relevance is that it is not just the staff on the floor that may be liable. Management may also be liable for offences committed by the staff of the company if the offences were committed with their consent or connivance or are attributed to their neglect.
Things to note
Both the Legislative Council and the Courts are taking increased interest in harassing commercial practices, and business that rely on or benefit from them may need to review their operations. To help avoid personal liability for aggressive tactics of staff, work policies and employment agreements should be reviewed.
The tort of harassment is being refined and of course applies outside of the business setting.
If you have any queries regarding the above eNews or any other questions relating to drafting employment contracts, formulating employment handbooks and so on, experienced lawyers in our Employment department would be happy to assist you. Our litigation department would be able to assist in reviewing concerns that you may have if you are being harassed in a business or personal setting.