HKSAR v. XIE DIANLIANG

DCCC 987/2018

[2019] HKDC 1192

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 987 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 sections 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.  At around 11:45 pm (Hong Kong time) on 23 September 2018, PW1 and the defendant boarded flight number GA876, which was a non-Hong Kong controlled aircraft travelling from Jakarta, Indonesia, to Hong Kong International Airport, operated by Garuda Indonesia Airlines. 

3.  PW1 took seat number 41C and he put his shoulder bag containing his wallet into the overhead compartment (“Compartment 41C”) above his seat.  The wallet contained cash of HK$2,600, RMB¥600, SG$402, Indonesian Rupiah 2,500,000, two credit cards and an ATM card, all property belonging to PW1.  He stayed in his seat to rest and sleep.

4.  Defendant took seat no 43B and later changed his seat to row 36. 

5.  At around 4 am (Hong Kong time) on 24 September 2018, while PW1 was sleeping, he heard someone opening the Compartment 41C.  He opened his eyes and saw the defendant searching the luggage in Compartment 41C.  PW1 noted that the defendant was not a passenger of row 41 and should be sitting somewhere in front of him. 

6.  Feeling suspicious, he checked his belongings in Compartment 41C and found that cash of HK$2,600, RMB¥600, SG$402, Indonesian Rupiah 2,500,000, two credit cards and an ATM card, all of which were originally kept in his wallet, were missing.  However, 100 pieces of 2,000 Indonesian Rupiah notes, which did not belong to him, were found in the wallet. 

7.  PW1 reported the incident to the flight manager and the case was reported to Hong Kong Police upon landing at the Hong Kong International Airport.

8.  It was subsequently confirmed that the aircraft was within the international airspace when the incident occurred.

9.  When the police arrived shortly after the aircraft landed at Hong Kong International Airport at 5:45 am (Hong Kong time), PW1 pointed the defendant to the police and the defendant was arrested. 

10.  Upon the body search of the defendant, the following were found:-

(1) in the rucksack of the defendant, a paper bag containing HK$1,190, SG$322, Indonesian Rupiah 2,500,000 and a sock which contained 2 credit cards and an ATM card, all belonging to PW1;

(2) in the defendant’s trousers pocket, SG $600 and US$11, Indonesian Rupiah 87,000, RMB¥514, Vietnamese Dong 123,000 and Malaysian Ringgit 206.

11.  In a subsequent cautioned record of interview, the defendant admitted, inter alia, that:-

(1) his family is poor and he wished to help his family financially, so that he stole other people’s money;

(2) on 24 September 2018, he took the aircraft alone from Jakarta to Hong Kong. He was planning to take a flight from Shenzhen to Lhasa, Tibet thereafter;

(3) he was originally sitting at seat number 43B of the aircraft but he later changed to row 36; and

(4) he had no specific target to steal from. He just opened the overhead compartment and saw money therein, so he took the money and the three bank cards.

Criminal record

12.  Defendant has a clear record in Hong Kong.

Mitigation

13.  Defendant is aged 49. 

14.  He has received education up to Primary 3 level. 

15.  Prior to March 2018, he was a self-employed fruit wholesaler, earning RMB¥2,000 per month. 

16.  It was said that since March 2018 he changed his job to a construction casual worker, earning about RMB¥1,500 a month. 

17.  He is married and lives with his mother, wife and son.  He is the sole breadwinner of the family.

18.  Ms Chan, solicitor for the defendant, says that this is the first offence of the defendant. 

19.  On the day of the offence, it is said that the defendant flew from Jakarta to Hong Kong and planned to fly from Shenzhen to Lhasa, Tibet where he lives.  It is said that he has committed the offence out of greed because he is poor, in the hope of helping his family’s finance. 

20.  It is said also that the defendant understood he has committed a serious offence.  He has since pleaded guilty, frankly admitted the offence and fully co-operated with the police. 

21.  Ms Chan handed to this court a mitigation letter written by the defendant.  The letter says that the defendant truly regrets his crime and undertakes not to offend again. 

22.  He accepts that his acts constituted a potential risk to endanger or likely to endanger the good discipline and order of the plane. 

23.  It is said by Ms Chan that fortunately that 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.

24.  It is also said that only one victim is involved in the present case.

25.  Ms Chan further submitted that the properties belonging to the victim were all recovered, ie two credit cards, one ATM card and SG$402.  For monetary loss, the defendant is willing to compensate the victim by returning him the money out of his seized properties by way of exhibit disposal.

26.  It is also said that defendant has a clear record and that he is a filial son and a good family man.

27.  It is also said that the maximum sentence for the offence in question on conviction by indictment is fine at level 5 (ie $50,000) and imprisonment for 2 years and that the defendant understands that a deterrent sentence is warranted and an immediate custodial sentence is inevitable.

28.  Ms Chan referred this court to 15 District Court cases from the years 2015 to year 2018. 

29.  Ms Chan also said that as the present case did not result in serious disorder on the plane and that only one victim was involved and there was no confrontation or violence involved, the victim has no loss in the end.  She said that this is a less serious case of its kind.

30.  Further, it is submitted that the defendant frankly admitted his guilt, demonstrating his remorse and that he used to a man of good character.

31.  Ms Chan asked this court to adopt a lower starting point and be lenient on the defendant.

Discussion

32.  This court has considered all mitigation advanced on behalf of the defendant, including the mitigation letter written by the defendant as well as the 15 authorities submitted[1].

33.  The defendant used to be a man of clear record.

34.  In court, it was mitigated on defendant’s behalf that he went to Indonesia stayed there for a week to look for business opportunities.  The same was unsuccessful and so he intended to return to Hong Kong for Shenzhen to Lhasa, Tibet. 

35.  His passport shows, however, that there were frequent trips to and from Jakarta, Indonesia shortly before the commission of the present offence.

36.  Defendant arrived Jakarta on 4 September 2018 and he left Jakarta on 5 September 2018.  He returned again to Jakarta on 8 September and left again on 10 September.  He returned again on 21 September 2018 and left again on 23 September 2018.  Further, he had at least 15 more trips in and out of Entebbe, Uganda, and Cambodia in the period from March 2018 to September 2018.

37.  This travel pattern did not accord with the mitigation relating to the occupation of the defendant at or prior to the time of the offence, as alleged, ie a fruit seller or a casual construction worker.

38.  It is clear that the defendant could not have been able to afford the travel expenses incidental to these trips, had he been working as he alleged. 

39.  It is not accepted by this court that he committed the offence by chance.  He must have intended to commit this offence and although he said he had no knowledge of the 100 pieces of the 2,000 Indonesian Rupiah notes in the wallet of PW1, which PW1 says were not his, there is no doubt in the mind of this court that these notes were placed there by the defendant in substitution of the monies stolen from the wallet.  This act was clearly designed to delay discovery of the offence by the victim.

40.  It is noted, as said, that only one victim was involved in this case and that the money involved was not substantial, and that the victim suffered no loss as there would be return of the property as well as the money to the victim through the exhibit disposal mechanism.  No chaos was caused on the plane in the case, except that, of course, the aircraft staff was alerted. 

41.  The act of the defendant replacing the stolen money with the Indonesian rupees to prevent the offence being discovered makes the case more serious. 

42.  As said, the maximum sentence for this case is a fine of 50,000 and 2 years’ imprisonment.

43.  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 the passengers could safely take the journey in this enclosed environment.

44.  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 occurrence of these incidents, passengers can no longer go to washroom or go to sleep on the flight without concern for their properties. They would have to hold on their valuables/belongings all the time, even when they go for a short while to the washroom or even when they slept on the plane. 

45.  As a result, 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 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.

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

47.  Having regard to the circumstances in this case, considering all the mitigation done and the authorities referred to by Ms Chan in this case, the appropriate sentencing starting point is one of 15 months’ imprisonment.

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

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