HKSAR v. ZHOU WEI

DCCC 50/2019

[2019] HKDC 998

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 50 OF 2019

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REASONS FOR SENTENCE

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1.  Defendant was convicted of a charge of behaving in a disorderly manner on board an aircraft, contrary to section 12B(3) and 12B(10) and 21 of the Aviation Security Ordinance, Cap 494, on his own guilty plea and agreement to amended summary of facts.

Facts

2.  On 6 December 2018, the chief purser (PW1) on flight number VN594 flying from Ho Chi Minh City en route to Hong Kong noticed the defendant opening an overhead compartment above his seat and took some banknotes from a wallet inside a blue rucksack.  He then placed the banknotes inside a sickness bag and put the sickness bag inside the seat pocket in front of his seat.

3.  Finding defendant’s behaviour suspicious, PW1 asked defendant for his boarding pass.  Defendant then got up, opened the overhead compartment and retrieved from a black handbag instead.  In reply to his query as to whether he had other baggage with him, the defendant said the black handbag was his only luggage. 

4.  PW1 then took out the blue rucksack and asked the passengers loudly to whom the rucksack belonged.  PW2, who was seated in front of the defendant, replied that it was his and he later found that some American dollars and Renminbi banknotes had gone missing.  PW1 then showed the sickness bag to PW2, who found the banknotes inside the sickness bag, namely RMB1,990 and US$724, matched his loss.  PW2 then became frightened and worried.

5.  On seeing what happened, the other passengers on the flight were frightened and asked if a theft had occurred.  PW1 then replied by asking the other passengers to check their belongings and even made an on-board announcement to alert the passengers. 

6.  Defendant then begged PW1 to let him go and the matter was reported to police.

7.  When the aircraft landed in Hong Kong, PW1 pointed out the defendant to the police and handed over the sickness bag containing the cash to the police.

8.  After being cautioned, defendant stated that he knew he was wrong and he stole the money because he had a poor family and he asked for forgiveness.  He also admitted to stealing the cash inside the bag of a male passenger and he placed it inside the sickness bag which he later placed in the seat pocket in front of his seat.

9.  Defendant behaved in a disorderly manner on board a non-Hong-Kong-controlled aircraft, namely Vietnamese Airlines flight from Ho Chi Minh to Hong Kong, while in flight elsewhere than in Hong Kong or over Hong Kong, whereby the good order or discipline on board the aircraft was or was likely to be jeopardised.

Criminal record

10.  Defendant has a clear record in Hong Kong.

Mitigation

11.  Defendant is aged 46.  He is divorced with two sons, aged 19 and 11. They live with defendant’s mother, aged 89, who was said to be suffering from a long-term illness. 

12.  Defendant said that he worked for the last three years prior to his arrest in a factory in Ho Chi Minh City, earning RMB¥5,000 per month.  He received education up to Primary 3 level in Mainland. 

13.  He admitted having committed the crime because of greed and it was said on his behalf that he has pleaded guilty at the earliest opportunity and had full co-operated with police upon arrest.

Discussion

14.  There are no sentencing tariffs for this offence. The defence counsel assisted this Court with cases as to the prevailing sentence on these charges.

15.  It is said that the strongest mitigation factor for the defendant is that of his guilty plea and that he should be entitled to a full one-third sentencing discount.

16.  This court has considered all mitigation done on his behalf by defence counsel, including the authorities submitted.  It was said that defendant used to be a man of clear record but, as he is not a Hong Kong resident, the same does not carry as much weight as if he was a Hong Kong resident.

17.  In court, it was mitigated on his behalf that he was on his holidays back to Mainland for Chinese New Year holidays and that he was earning RMB¥5,000 per month working in a factory for the last three years prior to the date of the offence.

18.  Nevertheless, as the court has indicated, the passport records show that, in the last six months prior to his arrest, the defendant took 36 trips to different places, the same included seven trips to Japan, nine trips to Indonesia, 17 trips to Cambodia, one trip to South Africa and two trips to Myanmar.  He mostly stayed for one day on these trips.  Defendant explained that he took these trips because he worked as a salesman assisting his Japanese boss in taking samples to his clients at these places.

19.  This court has indicated that the court does not accept this saying, for the reason that:-

(a)  he said he has only received education up to Primary 3 level and it is doubted whether he has the expertise to assist his boss in those regard; and

(b)  he said his monthly earning is only RMB¥5,000; and

(c)  obviously is the very frequent trips taken by the defendant within the last six months prior to his arrest.

20.  The court indicated that a Newton hearing be conducted to clarify the issue but defendant elected not to go through the hearing.

21.  In this case, one victim was involved and the money involved was not substantial.  The victim suffered no loss, not as a result of the defendant’s voluntary return of the property, but only as a result of him being discovered. Of course he was then willing to repay to the victim.

22.  The event caused a lot of concern and fear to the victim and the other passengers on board.  It also alerted the air crew.

23.  The maximum sentence for this case is a fine of $50,000 and 2 years’ imprisonment. 

24.  This court is of the view that since there are a lot of passengers on each flight, passengers need to behave themselves on board the aircraft to maintain order to ensure the safety of all passengers and their properties, so that the passengers could safely take the journey in this enclosed environment. 

25.  The conduct of the defendant as in this case disrupts such an order on the aircraft, causing concern to the victim, the aircraft’s staff, and the other passengers.  As a result of the occurrence of these incidents, passengers can no longer go to the washroom or go to sleep on the flight without concern for their properties.  They would have to hold onto their valuables or belongings all the time, even when they go for a short while to the washroom or even when they slept on the plane.

26.  As a result of conduct like that of the defendant in our case here, on discovery by the aircrew alerting the victim and other passengers or when other passengers witness these incidents, uproar, chaos, confrontation might result. The same would disrupt the order and safety on the plane.  This conduct could not be tolerated and sentence passed for this offence should carry deterrent effect so as to send a clear message to all.

27.  Although the defendant has a clear record, the same does not carry the same weight as if he was a Hong Kong resident.

28.  Having regard to the circumstances in this case, particularly the background of the defendant and considering all the mitigation done and the authorities referred to this court by Ms So, the appropriate sentencing starting point is one of 18 months’ imprisonment. 

29.  Defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount, which is the most and the only valid mitigating factor in this case.

30.  He is therefore sentenced to 12 months’ imprisonment for this charge.