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HKSAR v. KO KAM FAI - [2001] HKCA 204; CACC000083/2001, 20 June 2001
Hong Kong Legal Information Institute (HKLII)

Telephone message in grossly offensive or of an indecent, obscene or menacing character

A stalker may harass the victim by making persistent telephone calls. Such conduct amounts to harassment regardless of the content of the calls. If the content is obscene, threatening or objectionable, the harassment is all the greater. Harassment by oral or written communications may be caught by the following statutory offences:

a) sending any telephone message which is “grossly offensive or of an indecent, obscene or menacing character”(section 20 of the Summary Offences Ordinance (Cap 228);

b) sending any telephone message, which he knows to be false, for the purpose of “causing annoyance, inconvenience or needless anxiety to any other person”(section 20 of the Summary Offences Ordinance (Cap 228);

c) persistently making telephone calls without reasonable cause and for the purpose of “causing annoyance, inconvenience or needless anxiety to any other person”(section 20 of the Summary Offences Ordinance (Cap 228);

d) transmitting a “false distress, urgency, safety or identification signal” knowing it to be false or with intent to deceive(Telecommunication Ordinance (Cap 106), section 28);

Comments by the Law Reform Commission

These provisions are of assistance to a stalking victim because the stalker may not threaten him or her but may merely be obscene or vulgar, or merely cause him or her annoyance or inconvenience. Prosecuting under such provisions may deter non-violent stalkers from future harassing behaviour or defuse a stalking situation because the stalker now knows that his behaviour is illegal and the police are aware of his existence.

However, the penalty under the telephone statutes is inadequate to reflect the culpability of a persistent offender where his conduct has impaired the victim's health. All three offences in (a) to (c) above are summary offences carrying a maximum custodial sentence of only 2 months’ imprisonment.

The offences in (b) and (c) require the prosecution to prove that the accused made the calls “for the purpose of causing annoyance, inconvenience or needless anxiety” to any other person. Obsessional stalkers who harass their victims by making telephone calls may lack the requisite purpose; they may simply seek to negotiate with the victim or to force the victim to recommence a prior relationship. In any event, the offences fail to catch stalkers who harass their victims by sending a large volume of unwanted faxes and e-mail. Likewise, a stalker, who harasses his victim by sending messages to one or more Internet newsgroups revealing the victim's telephone numbers and residential address and at the same time soliciting sexual service in the name of the victim, would not be caught by these offences.