HKSAR v. ZUO GUOFA

DCCC 841/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 841 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 17 June 2015, the defendant, a male mainlander, was arrested by the police on board a non-Hong Kong controlled aircraft operated by Garuda Indonesia Airlines after the flight arrived at Hong Kong from Jakarta, following a report of theft which allegedly occurred when the aircraft was in flight elsewhere than in or over Hong Kong. 

2.  The defendant was subsequently charged with “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 (“The Ordinance”).  

3.  When the case was transferred to the District Court on 23 October 2015, I queried with the prosecution as to their decision to prosecute the defendant’s alleged thievery conduct under section 12B(3) of the Ordinance.  I therefore invited both parties to make submissions on the appropriateness of the present charge and the case was adjourned to 18 November 2015 for legal arguments. 

4.  This morning, after carefully taking into account the legal submissions on both sides, the numerous authorities submitted during arguments and legislative documents referred by the prosecution, I came to the decision that section 12B(3) is a general provision enacted of the purpose of maintaining good order and discipline on an aircraft and there is sufficient legal basis to charge the defendant for his alleged thievery which was likely to disturb the peace of the aircraft and interfere with the comfort of other passengers on board the aircraft.

5.  The defendant pleaded guilty to the charge after I ruled that the present charge is appropriate. 

The facts

6.  At about 1010 hours on 17 June 2015, a male passenger, PW1, boarded the subject aircraft and placed his rucksack in the overhead compartment directly above his seat.  PW1’s rucksack was the only item placed inside the compartment and nobody was seated next to him.  Defendant was seated in a different column and at several rows behind PW1. 

7.  During the flight, a flight attendant, PW2, saw the defendant open the compartment and searched PW1’s rucksack, which was the only item in the compartment at that time.  The defendant was then seen going to the toilet. 

8.  Later, PW1 saw defendant putting a rucksack back to the compartment.  Then PW1 checked it and found that the cash of RMB10,000 was missing from his rucksack, which I was told originally contained RMB30,000. PW1 related such matter to the flight attendant.  The case was reported after the flight arrived at Hong Kong.  The police attended the scene and arrested the defendant.  The defendant denied the offence under caution and he had only a waist bag and a handbag with him at that time. 

Criminal record and background of the defendant

9.  The defendant is 47 years old.  He has a clear record in Hong Kong.  He was educated up to Form 3 level in the mainland. 

10.  After leaving school, he worked as a farmer.  At the time of the offence, he worked in a farm house in Shenzhen as a caretaker, earning RMB3,000 each month. 

11.  He is married with two children, who is 14 and 15 respectively and both are secondary school students. 

Mitigation

12.  It was mitigated that the defendant was the breadwinner of the family and the defendant committed the present offence out of momentary greed.  Only part of the money belonging to PW1 in a rucksack was missing. 

13.  The defence submitted that the defendant’s act did not cause any actual chaos or commotion in the plane although it was accepted that his acts were likely to bring about disturbance.  The defendant’s act of searching the rucksack above PW1’s overhead compartment did not alert PW2. 

14.  The defence reiterated that the defendant was throughout very remorseful and he originally intended to plead guilty when the case was first transferred to the District Court. 

Sentencing considerations

15.  The main purpose of the Ordinance enacted in 1996 is to prohibit acts which pose threats to civil aviation security and to give effect to several international conventions concerning aviation security.

16.  In June 2005, the Ordinance was amended so as to provide criminal sanctions against unruly or disruptive behaviour committed by passengers on board civil aircraft and to extend Hong Kong jurisdiction over such acts committed outside Hong Kong on board a non-Hong Kong controlled aircraft which next lands in Hong Kong. 

17.  The amendments were essentially incorporation of provisions of the International Civil Aviation Organisation (“ICAO”) model legislation, as far as practicable, and with necessary adjustments.  Section 12B provides new offences relating to behaving in a disorderly manner. 

18.  As I have said already in my earlier ruling, according to my reading of the Report of the Bills Committee, some legislators have actually queried why section 12B(3) was included in the bill, as the model legislation did not provide for the offence of disorderly behaviour on board an aircraft.  This new section was finally enacted as proposed.  The administration’s explanations to the legislators as stated in paragraph 12 and 13 of the report clearly, in my view, reflected the legislative intent and purpose of this particular section. 

19.  The administration has explained that the offence of disorderly behaviour in the bill is modelled in part on the offence of section 17B(2) of the Public Order Ordinance, Cap 245. 

20.  During deliberations of the Bills Committee, in an attempt to explain to the legislators what was the meaning of “disorderly behaviour”, the administration referred to the case of HKSAR v Cheng Siu Wing [2003] 4 HKC 471, where the Court of First Instance held that disorderly conduct covered behaviour in the hearing or sight of a person which was likely to cause harassment, alarm or distress nearby.  There need not be any element of violence whether present or threatened on the part of the accused.  It covered conduct which was not necessarily threatening, abusive or insulting in itself.  It was also held (at paragraph 26) that:-

“There is a breach of the peace whenever harm is actually done; or is likely to be done to a person; or in his presence to his property; or a person was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance.”

21.  Applying the above definition, the defendant’s act of searching PW1’s rucksack was obviously a harm or disturbance done to his personal property and also an intrusion to PW1’s own privacy, which would be capable of bringing about a breach of the peace, thereby jeopardising the order and discipline of the aircraft.  Such behaviour, if seen and witnessed by any other passenger or flight attendant of the aircraft, would have a tendency, and thereby likely to cause alarm, which very often results in altercation, commotion or even confrontation. 

22.  It is true that the intention of section 12B(3) is not to govern any dishonest behaviour.  In the context of the spirit and intention of the Ordinance, what the section is aiming is rather to tackle the actual or potential breach of the peace that was likely to occur in the aircraft, as a result of the conduct which would jeopardise the good order and discipline on board the aircraft.

23.  I accept that in this particular case before me, therefore, the focus is not on the dishonest act of the defendant.  Also, there was no actual chao or confusion caused by the defendant’s unruly behaviour in this incident.  However, in sentencing this defendant, I still cannot overlook, and I am required to consider and take into account the potential disturbance and breach of peace it would be brought about by the defendant’s act.

24.  According to section 12B(10), in District Court, following a conviction on indictment, the maximum sentence for this offence is 2 years’ imprisonment.  After considering the peculiar factual background of this case, I consider that the proper starting point is 9 months’ imprisonment.  The defendant pleaded guilty, for which he is entitled to a one-third discount.  The sentence is therefore 6 months’ imprisonment.