AFTER MALCOLMSON V MEHTA: CHARTING NEW WATERS IN THE LAW OF HARASSMENT IN SINGAPORE — CIVIL AND CRIMINAL PERSPECTIVES
| Author | MARK LIM, GENE KWEK and ERIC TAN |
| Date | 01 December 2002 |
| Published date | 01 December 2002 |
1“An abundance of leisure time means that there are people who can afford the time and money to indulge in fantasies about other people, whether in respect of any grievance they have, or of so-called celebrities … And the means by which such people can act out their fantasies have become not only easier but more powerful. No longer need one be within sight or hearing of the victim … [L]ife can be unbearable for the person who finds himself the object of attention of one who is determined to make use of these modern devices1 to harass. That person’s mobile phone can be ringing away at all times and in all places. He may get a flood of SMS2 messages, which can now be conveniently sent out by computer via e-mail. His inbox can be flooded with unwanted e-mail. These communications can be warm words of adulation or they can be chilling threats to property or personal safety. The result can range from displeasure to distress to debilitation.”3
In the landmark case of Malcomson Nicholas Hugh Bertram & Anor v Naresh Kumar Mehta4 the High Court of Singapore held that the time has come for the recognition of a tort of harassment.
2 Interestingly, barely a month later, the English Court of Appeal in Wong v Parkside Health NHS Trust & Anor5 decided that prior to the enactment of the Protection from Harassment Act of 1997 in the United Kingdom, the common law had never recognised that harassment per se was actionable in tort.
3 The Singapore High Court and the English Court of Appeal considered largely similar case precedents before arriving at their respective conclusions.
4 This article, however, does not purport to determine which decision was correct. Instead, its aim is two-fold. First, it seeks to discuss whether the courts in Singapore should recognise a common law tort of harassment. Second, the authors propose to examine existing common law torts and
current provisions in the Singapore legislation to ascertain whether these adequately address the concerns raised by proponents of a tort of harassment, and if not, how the perceived lacuna in the law should be addressed.6
5 To these ends, this paper will first examine the cases dealing with acts of harassment. Next, it will consider the extent to which existing torts cover acts of harassment, and evaluate the adequacy of such torts. Third, the relevant legislative provisions in Singapore will be analysed to see whether harassment can be adequately prevented under the existing local statutes. Following that, the authors examine some possible solutions to counter the problem of harassment. Finally, a proposed solution to the perceived lacuna in the law of harassment is suggested.
6 It is helpful to start with a review of some of the decided cases, particularly the two recent Singapore and English cases mentioned above.
7 This case involved a persistent ex-employee who relentlessly harassed the managerial staff of the plaintiff company. At the material time, the defendant, a man by the name of Mehta had resigned from his employment with the plaintiff company Zerity Pte Ltd (“Zerity”), of which the first plaintiff, one Malcomson, was the Chief Executive Officer.
8 For about a year after Mehta’s resignation, he sent numerous annoying e-mails and SMS messages to Malcomson and various other directors and employees of Zerity. He also made frequent phone calls to them, including calls to Malcomson’s private mobile phone number which he obtained by intimidating Malcomson’s maid. Further to all these acts, Mehta entered Zerity’s premises and Malcomson’s residence without permission. The string of harassing acts also included a calculated attempt to cause distress when Mehta sent a congratulatory card to Malcomson near the death anniversary of the latter’s son. These acts were done despite warnings given to Mehta not to disturb the employees of Zerity.
9 The plaintiffs sought injunctions to restrain Mehta from committing further similar acts on the basis that those acts were actionable in the torts of trespass, nuisance, and harassment.
10 On the causes of action based on the torts of trespass and nuisance, Lee Seiu Kin JC found for the plaintiffs. On the facts, it was hardly disputable that Mehta had committed trespass by entering into Zerity’s premises and Malcomson’s residence without permission. Where nuisance is concerned, the court found that the persistent telephone calls to both Zerity’s office premises and Malcomson’s home interfered with the plaintiffs’ use and enjoyment of the land. It was held that this gave rise to an action in the tort of nuisance.8
11 The more imperative issue before the court, however, was whether the third cause of action on the basis of the tort of harassment could succeed. In answering this question, Lee JC began by acknowledging that harassment was not an established tort in Singapore. However, he then squarely addressed the issue of whether such a tort ought to be recognised. After referring to dictionary meanings of the term “harassment”, Lee JC defined it 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”.9 He added, however, that this was not intended to be an exhaustive definition, but rather, one that “sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law”.10
12 Lee JC, noting that there was no reported decision in Singapore dealing with the tort of harassment, then proceeded to examine the English authorities. Lee JC took the view that the cases of Wilkinson v Downton11
and Janvier v Sweeney12 (which established that false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered, are actionable torts) did not in any way restrict the development of the law on a tort of harassment.
13 In the later case of Patel v Patel13 it was said in the English Court of Appeal that there was no tort of harassment. Lee JC, however, noted that this position was subsequently doubted in Khorasandjian v Bush14 and Burris v Azadani.15
14 The House of Lords in Hunter v Canary Wharf Ltd16 made it clear that in the United Kingdom, the matter is now covered by the Protection from Harassment Act 1997. In this case, Lord Goff characterised the plaintiff’s primary complaint in Khorasandjian v Bush (namely, abusive telephone calls) as harassment. Commenting on Khorasandjian v Bush, His Lordship said, “In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in [the victim’s] home”.17
15 Lee JC also highlighted the approach of Lord Hoffman in Hunter v Canary Wharf Ltd. Lord Hoffman had noted that there was an absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. In his view, there was “no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence”.18 Drawing from these comments, Lee JC reasoned that there was no English authority standing in the way of the development of a tort of harassment in Singapore.
16 Lee JC then considered the Singapore decision of And Chandran v Gartshore.19 In that case, G P Selvam J approved the “general principle embedded in common law that mental suffering caused by grief, fear, anguish and the like is not assessable”.20 This would suggest that mental
distress suffered as a result of harassment would not give rise to a cause of action. However, Lee JC circumvented this problem by reasoning that, in Selvam J’s view, he had not intended to rule out all actions founded on mental distress. In any case, even if one took the position that Selvam J did so intend, Lee JC was prepared to distinguish Arul Chandran v Gartshore on the basis that Selvam J’s statement was only obiter in respect of recovery for mental distress in tort, because the question before the court in that case involved damages for mental distress in a breach of contract situation. Lee JC further noted that legal counsel in that case did not appear to have cited the authorities mentioned in Selvam J’s judgment, in particular the quoted statement above by Lord Hoffman in Hunter v Canary Wharf Ltd. Once again, Lee JC therefore concluded that there was no local authority in the way of the development of a tort of harassment in Singapore.
17 The next question then was: should there be a tort of harassment? Lee JC noted that improvements in technology have brought about three great changes in lifestyle, namely, urbanisation, widespread availability of leisure time, and ease of communication. According to him, these changes have combined to create the problem in the present case. He said, “[L]ife can be unbearable for the person who finds himself the object of attention of one who is determined to make use of these modern devices [ie mobile phones, pagers and computers] to harass. … The result can range from displeasure to distress to debilitation”.21
18 Lee JC took the view that abusive, insulting or threatening words expressed over the mobile phone which caused harassment, alarm or distress to the victim was not caught as an offence under ss 13A and 13B of the Miscellaneous Offences (Public Order and Nuisance) Act.22 While Lee JC acknowledged that the victim could switch off his mobile phone if he did not want to receive such calls, this would restrict the victim’s freedom to use...
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