HKSAR v. LUO XIANZHONG

DCCC 1174/2018

[2019] HKDC 765

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1174 OF 2018

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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), 12B(10) and 21 of the Aviation Security Ordinance, Cap 494, on his own guilty plea and agreement to summary of facts.

Facts

2.  On 18 October 2018, a passenger (PW1) boarded a non-Hong Kong controlled flight from Kuala Lumpur travelling to Hong Kong.  Before taking off, PW1 put his shoulder bag into the overhead compartment.  The bag contained his personal properties including a wristwatch, which is worth HK$18,000.  Defendant was another passenger sitting several rows behind him. 

3.  About 1 hour 20 minutes before landing in Hong Kong, the plane then was outside Hong Kong air.  PW1, then taking a nap, was awakened by the defendant, who was then standing next to him tampering with the overhead compartment and was holding onto his shoulder bag.  PW1 confronted him, at which point defendant put back the shoulder bag in the overhead compartment. 

4.  PW1 then checked the shoulder bag and found his pouch with a wristwatch inside missing.  PW1 demanded the defendant for its return. 

5.  Defendant denied taking it and so PW1 reported the case to the flight crew.  At this point, defendant took out the pouch from his jeans pocket and returned it to PW1.  The pouch contained PW1’s watch. 

6.  Defendant was arrested after the flight landed in Hong Kong and police found a bundle of 72 US$1 banknotes on him.

Criminal record

7.  Defendant has a clear record in Hong Kong.

Mitigation

8.  Defendant is aged 48.  He received education up to junior secondary in the Mainland.  He used to be a farmer earning RMB¥3,000 per month but at the time of the offence he was unemployed. 

9.  It is said that defendant used to have a clear record both in Hong Kong and the Mainland. 

10.  On the day of the offence, it is said that the defendant flew from Kuala Lumpur to Hong Kong after a failed job opportunity in Kuala Lumpur. 

11.  Defendant has pleaded guilty and frankly admitted to the offence at the earliest opportunity.

12.  Defendant is married with two children, one still in school.  His father, over 80 years old, also lived with the defendant and it is said that the father suffered from geriatric diseases or problems. 

13.  It is also submitted that there is no sentencing tariff for this offence and Mr Hung for the defendant referred this court to several authorities with similar convictions, where the sentencing starting point ranges from 9 months to 15 months’ imprisonment.  These cases are HKSAR v Xu Huazong, DCCC 142/2016; 香港特別行政區訴張杰, DCCC 880/2016; HKSAR v Zhou Qingdong, DCCC 925/2017.

14.  In the circumstances of this case, he urges this court to adopt a sentencing starting point of 12 months.

15.  He said in this case defendant did not use US$1 banknotes to replace US$100 banknotes stolen, as in the other cases cited, although he did have in his possession 72 US$1 banknotes.

Discussion

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

17.  This court has considered all mitigation advanced on behalf of the defendant, including the authorities submitted. 

18.  Defendant used to be a man of clear record.

19.  In court, it was mitigated on the defendant’s behalf that he went to Kuala Lumpur for a business venture.  The same was unsuccessful and so he returned to Hong Kong.  He did not further elaborate on the sort of business venture that he was interested in in Kuala Lumpur, given that he used to be a farmer before. 

20.  It is noted that only one victim was involved in this case and the watch stolen, worth HK$18,000, was recovered.

21.  In this case, there was, as submitted by Mr Hung, no act of the defendant replacing the stolen money with the money in the same country with lower denominations.  However, the possession by the defendant of the large quantity of the US $1 banknotes are highly suspicious.

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

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

24.  Further, as a result of conduct like that of the defendant in our case here, on discovery by the victim or when other passengers witness these incidents, uproar, chaos, confrontation might result.  The same disrupts the order and safety on the plane.

25.  This conduct could not be tolerated and sentence passed for this offence should carry a deterrent effect so as to send a clear message to all.

26.  Fortunately, in this case, the defendant’s behaviour has not caused serious disorder on the plane and that the more serious and commonly seen circumstances caused by repeated stealing from passengers or passengers witnessing the incident did not occur in this case.

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, considering all the mitigation done and the authorities referred to by Mr Hung in this case, the appropriate sentencing starting point is one of 15 months’ imprisonment.

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

30.  Accordingly, defendant is sentenced to 10 months’ imprisonment for this charge.