Hostile behaviour is unfortunately increasingly common in Hong Kong and elsewhere, especially in view of the advance of the technology and the social media. Unwelcome conduct is performed as a tactic to achieve various objectives, such as ex-spouses attempting to save relationships, creditors trying to collect debts and competitors trying to drive each other out of business. Such hostile behaviour also takes various forms, such as spam calling the victims, spreading untrue statements about the victim and making unwelcome visits to the victims’ homes.
When such hostile behaviour crosses the line from being merely annoying to being actionable in law, victims may seek redress from the court. The current legal framework in Hong Kong addressing hostile behaviour is a patchwork of multiple causes of action stemming from common law and statutes.
This article aims at providing a brief introduction to some of the common causes of action related to hostile behaviour. Some of the causes of action closely relate to criminal offences. Criminal offences are virtually exclusively prosecuted by the Government and are hence out of the scope of this article.
1. The Tort of Harassment: Repeated unreasonable oppressive conduct
The tort of harassment has recently been recognized by the Court of Final Appeal in Sir Elly Kadoorie & Sons Limited v Samantha Jane Bradley [2026] HKCFA 2.
If someone is relentlessly targeting you with unwanted behavior, calls, or messages, they may be committing the civil tort of harassment. You must establish the following elements before you can succeed in a claim for the tort of harassment:
- A course of sufficiently repetitive, unreasonable and oppressive conduct which caused worry, alarm, emotional distress or annoyance to you, and which the harasser ought reasonably to know would cause such emotional damage.
- The conduct complained of must, objectively, amount to harassment (in the ordinary sense of that word).
- The harasser either intends to cause harm or injury to you by his harassing conduct, or is reckless as to whether you would suffer harm or injury as a result of the harassing conduct.
- You must have suffered mental distress as a result of the harassment.
If the tort of harassment is established, the remedies can include:
- Compensation for the loss or harm caused, including compensation for injury to feeling and financial loss as a result of the harassment; and
- Injunction restraining the harassing conduct, in appropriate cases.
A claim in the tort of harassment is not available to companies as mental distress to the claimant must be shown. However, harassment targeted at a company is often conducted through imposing unpleasant conduct on its employees, such as spam emailing its employees. In such a case, a company may nevertheless apply for an injunction to restrain harassment directed at its current employees. The rationale behind this power is that employers owe a duty to employees to provide a safe working environment.
2. Causing loss by unlawful means: Harming one’s economic interests by interfering with the actions of a third party by unlawful means
While it was ruled in Sir Elly Kadoorie & Sons Limited that claims in the tort of harassment are not available to companies, the Court of Final Appeal opined that the company in that case may potentially make a claim in the tort of causing loss by unlawful means.
The tort of causing loss by unlawful means covers situations where instead of taking actions against you directly, the defendant uses unlawful means to interfere with the actions of a third party which causes you economic loss.
The essential elements are:
- There must be an interference with the actions of a third party in which you have an economic interest through unlawful means.
- The defendant must intend, by the use of those unlawful means, to cause loss to you.
- The actions of the defendant must in fact cause loss or harm to you.
The meaning of “unlawful means” in the second element has been considered in the landmark case of OBG Ltd and Another v Allan and Others [2008] 1 AC 1. The majority held that the unlawful means used must be an action (such as fraud or a threat) which would be independently actionable by that third party if he had suffered any loss because of it. This interpretation is consistently adopted in Hong Kong courts. In Sir Elly Kadoorie & Sons Limited, for example, the defendant harassed the claimant’s employees by sending an excessive number of emails to them making false allegations against the claimant. The acts of harassment against the claimant’s employees gives rise to an independent right for the employees to claim against the defendant any loss suffered as a result.
The primary relief upon a successful claim in causing loss by unlawful means is the compensation for loss or damage suffered as a result of the defendant's unlawful interference. In suitable cases, the court may grant an injunction restraining the defendant from interfering with the third party in the future.
3. Private nuisance: Hostile behaviour targeted at homes
Sometimes, hostile behaviour is directed at the homes of victims. The most well-known example is perhaps splashing red paint at the door of the debtor’s home as a tactic for debt collection.
A claim in private nuisance is a cause of action based on your right to enjoy your property. To sue on this claim, you must have a legal interest in the land, such as being the owner or the tenant named on the lease. In the vast majority of cases, it involves unwelcome conduct targeted at victims’ homes.
In the context of hostile behaviour, you will have a claim in private nuisance when the defendant commits an act which interferes with or disturbs your exercise or enjoyment of your ownership or occupation of land. The interference must not be trivial – it must be a substantial interference with comfort or convenience, judged according to the standard of a reasonable person. While this will essentially be a fact-sensitive question, it is at least arguable that conducts such as persistent splashing of paint at your home, aggressive visits and banging on the door of your home may fall within actionable examples.
Traditionally for a claim in private nuisance to be established, the defendant must be a neighbour of the plaintiff in the sense that the defendant should be an owner/occupier of neighbouring land. The landmark case of Hunter & ors v Canary Wharf Ltd [1997] AC 655 stated that “[private] nuisance is a tort protecting property rights. It is concerned with the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land.” There are cases in Hong Kong following this approach. For example, in MA (HK) Ltd & Anor v Yeung Yuk Sing (楊育城) & Ors [2017] HKCU 2762, a claim in private nuisance was rejected as the defendant was not owners/occupiers of neighbouring land. However, there is also case example such as Shen Xing (沈星) v Li Jun (李軍) [2014] HKCU 930 where a claim in private nuisance succeeded without such a neighbour relationship. It would appear that different outcome may partly due to the different degree, extent, and reasonableness of the interference in different cases but it highlights the potential limited application of this cause of action for interference made by strangers, thereby other causes of action (such as tort of harassment) may also need to be relied on.
The usual remedy for private nuisance is compensation for losses resulting from the nuisance (such as the reduction in the value of the property). In suitable cases, the court will also grant an injunction restraining the behaviour in question.
4. The Tort of Intimidation: Coercion Through Threats
Hostile behaviour can take the form of forcing victims into doing something they would not have done by unlawful threats. The core issue of the tort of intimidation is to coerce you into doing something against your will, causing you mental damage or financial loss.
If you intend to rely on the tort of intimidation, you must establish the following:-
- The defendant made a threat to use unlawful means (which the defendant has no legal right to do so), and the threat is serious and effective enough to put pressure on you to act (or refrain from acting) in a particular way.
- The defendant must intend that the threat causes harm to you.
- The unlawful threat must have resulted in damage, which can take the form of mental distress, emotional harm or financial loss. However, it is not necessary that you have acceded to the threats of the defendant. Mental distress from the threat itself would suffice.
As recognized by the House of Lords in the landmark case of Rookes v Barnard [1964] AC 1129, a threat to breach a contract is recognized as an “unlawful means” for the purpose of the first element. Other examples of threats to use “unlawful means” include threats to commit a tort, a crime or a breach of trust.
Upon a successful claim of the tort of intimidation, compensation for mental distress and financial loss will typically be awarded. An injunction restraining the defendant from continuing with the complained threatening acts may also be granted. If you have been coerced into entering into a contract, you will have the option to set aside the contract and be returned to the financial position before the contract was made.
5. Relief against hostile behaviour under specific statutory provisions
Other than torts, statutes may also provide causes of action to victims of hostile behaviour in specific cases.
The Personal Data (Privacy) Ordinance (“PDPO”) (Cap.486) may be helpful in certain cases where misuse of personal data is involved. Under section 66 of the PDPO, an individual who suffers an injury to feelings or financial loss by reason of a contravention of a requirement under the PDPO by a “data user” which relates, at least partly, to his/her personal data may seek compensation from the “data user” in respect of the financial or psychological damage. The term “data user” is defined as “a person who, either alone or jointly or in common with other persons, controls the collection, holding, processing or use of the data” in section 2 of the PDPO. With the requirement that compensation can only be sought from a “data user” in respect of the wrongdoings of that “data user”, its applicability to harassment cases is limited.
In addition, sections 3, 3A and 3B of the Domestic and Cohabitation Relationships Violence Ordinance (Cap.189) provides for the grant of an injunction in favour of victims of molestation in specific familial or cohabitation relationships.
6. Concluding remarks
If you are unfortunate enough to fall victim to hostile behaviour, documentation is your most important weapon. Whatever cause of action you rely on, and regardless of whether you are seeking compensation, injunctive relief or both, you must show that the unwelcome conduct you complain of did occur. It is advisable to keep a written record of the unwelcome conduct. If spam calling is involved, obtain the relevant phone call records from your telecom service provider. If physical disturbance with your home is involved, consider installing a CCTV at your door and making a report to the management office for them to log the incidents.
The above causes of action are not exhaustive. In appropriate cases of hostile behaviour, other causes of action can be relied on. Nevertheless, the causes of action often overlap with each other and it is common to make claims based on multiple causes of action. When making a claim in respect of hostile behaviour, given the wide range of causes of action that may be available, it may be advisable to seek legal advice.
This article is co-authored by our Partner Sidney Ho and our Trainee Solicitor Samuel Chow.
Disclaimer : This material is provided for general information only. It does not constitute legal or other professional advice nor constitute any lawyer-client relationship between Sit, Fung, Kwong & Shum and any user or browser. No liabilities are assumed arising from any reliance of information in this material.
