When companies can't sue but can still injunct: Hong Kong's tort of harassment ruling in comparative context
Kevin Warburton
Holman Fenwick Willan, Hong Kong
kevin.warburton@hfw.com
Curtis Pak
Holman Fenwick Willan, Hong Kong
curtis.pak@hfw.com
Jennifer Cheung
Holman Fenwick Willan, Hong Kong
jennifer.cheung@hfw.com
On 9 January 2026, in Sir Elly Kadoorie & Sons Ltd v Samantha Jane Bradley,1 the Hong Kong Court of Final Appeal ("CFA") formally confirmed, for the first time at Hong Kong's highest Court, that the common law of Hong Kong recognises a tort of harassment, determines what its constituent elements are, whether a company may sue in harassment, and whether a corporate employer may nonetheless seek injunctive relief to restrain harassment directed at its employees. The decision is of considerable comparative interest because Hong Kong reached this conclusion through incremental judicial development rather than legislation, at a time when many common law jurisdictions have instead opted for statutory regimes, and left the position uncertain.
The case arose from the defendant sending over 500 emails between 1 December 2020 and early May 2022 to the corporate plaintiff, its officers, employees and agents (including its solicitors), which were repetitive and hostile and contained serious allegations including dishonesty, fraud, corporate manslaughter, modern slavery and other misconduct.
Why Hong Kong chose the judicial route
England and Wales legislated in 1997 (the Protection from Harassment Act 1997), following judicial reluctance in Hunter v Canary Wharf Ltd2 to extend the tort of nuisance to cover harassment. Australia effectively invented a statutory tort of harassment in the form of serious invasions of privacy through introducing a new Schedule 2 to the Privacy Act 1988 (Cth) in 2024, following a 2014 Law Reform Commission recommendation, although a Federal Court judge had rejected the existence of a common law tort of harassment in Habib v Commonwealth (No 2 )3 (2009). Singapore recognised the tort at common law in 2001 before abolishing it by statute through the Harassment Act 2014. New Zealand and Ireland have opted for narrower, safety-linked statutory offences with limited civil remedies. Malaysia's Federal Court recognised the tort at common law in 2016 and it remains good law there. Canadian provinces are split, and not uniformly so within each province: the courts of Alberta have recognised the tort (Alberta Health Services v Johnston4); while Saskatchewan's courts have declined to do so; Ontario is itself divided, with a 2024 first-instance decision5 doubting the tort is "generally" recognised while other first-instance decisions have recognised a tort of internet harassment6 or treated a general tort as arguable7; and British Columbia's position "remains unsettled" as of a 2025 decision.8
Hong Kong took a middle path. The Law Reform Commission recommended a statutory tort and criminal offence in 2000, but the proposal was shelved amid unresolved concerns about press freedom. In the resulting legislative vacuum, over 30 first instance decisions since 2013 assumed or held that the tort existed. The CFA treated this weight of authority, combined with legislative inaction, as itself justifying formal recognition, reasoning that to hold otherwise would effectively abolish a tort the lower courts had applied for over a decade.
The elements of the tort
The CFA adopted, with one refinement, the four-part test formulated by the Court of Appeal below. To make out the tort, a claimant must show:
- Course of conduct: The defendant, directly or through third parties, has by a course of sufficiently repetitive, unreasonable and oppressive conduct caused — and which they ought reasonably to know would cause — worry, alarm, emotional distress or annoyance to the victim.
- Objective harassment: The conduct complained of must, objectively, amount to harassment in the ordinary sense of the word.
- Intention or recklessness: The defendant either intends to cause harm or injury, or is reckless as to whether the victim would suffer harm as a result, negligence is insufficient.
- Damage: The victim must have suffered actual damage caused by the harassment, which may take the form of distress alone without proof of psychiatric injury, but which cannot consist of purely economic loss.
The CFA left the precise contours of defences to be developed case by case, but signalled that Hong Kong courts should consider the defences under section 4(3) of the UK's Protection from Harassment Act 1997 (conduct pursued to prevent or detect crime; conduct pursued under an enactment or rule of law; or conduct reasonably pursued for the protection of a person or property) and the similarly-framed defences under the Personal Data (Privacy) Ordinance (Cap. 486), while cautioning that a defendant's personal obsession affords no defence.
The corporate standing problem — and a novel solution
The CFA held that a company, having no feelings to injure, cannot sue in harassment. This mirrors the pre-2005 position in England, before Parliament confirmed by amendment that only individuals, not corporate victims, are protected by the 1997 Act.
The comparatively novel contribution of this judgment lies in what the CFA did next. Drawing on the UK Supreme Court's decision in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust9 and the Broadmoor jurisdiction (Broadmoor Special Hospital Authority v Robinson10), the CFA extended the injunction jurisdiction — traditionally reserved for public bodies protecting statutory functions — to private corporate employers who owe non-delegable duty to employees under common law to take reasonable care for their safety at work, including the duty to provide a safe working environment or s safe place of work. A corporate employer with no cause of action of its own may now obtain an injunction restraining harassment of its current employees within the workplace (including home and digital working environments), and separately, restraining harassment of its retained lawyers where this threatens the company's right to obtain legal advice and representation.
This development answers a gap that persists in many other jurisdictions: where a company itself is targeted by harassment routed through its staff, company may be left to fund employee litigation or rely on overlapping economic torts. Hong Kong's solution — standing grounded in the employer's own protective duty rather than a borrowed cause of action — offers a template other courts may find persuasive, particularly given the accompanying safeguards: the injunction is confined to the workplace, excludes former employees and non-employees, and does not permit an economic tort claim "by the back door".
The extension of the Broadmoor jurisdiction (injunctions without a cause of action) to private employers, grounded in a common law (not statutory) duty, is a distinctly Hong Kong innovation with no direct precedent in the jurisdictions surveyed. For practitioners advising in jurisdictions still grappling with whether and how to recognise harassment as a civil wrong, or with the standing of corporate victims, this judgment offers a carefully reasoned, comparatively grounded model worth close study.
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Notes
1 [2026] HKCFA 2.
2 [1997] AC 655.
3 (2009) 175 FCR 350
4 [2023] ABKB 209.
5 The Estate of Sulochana Shanthakumar by her estate trustee, Santha Kumar Mylabathula v Royal Bank of Canada, 2024 ONSC 7253/
6 Caplan v Atas, 2021 ONSC 670/
7 Howlett v Northern Trust Company, 2023 ONSC 4531.
8 Besler v What the Fungus, 2025 BCSC 1813.
9 [2025] 2 WLR 815
10 [2000] QB 775