HKSAR v. ZHOU QIYU

DCCC 1160/2017

[2018] HKDC 599

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1160 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Ms Zhou Qiyu has been charged with one 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.

2.  The particulars of offence are that Zhou Qiyu, on 16^th day of November, 2017, behaved in a disorderly manner on board a non-Hong Kong-controlled aircraft, namely Philippine Airlines with the air flight No PR310 from Manila to Hong Kong, while in flight elsewhere than in or over Hong Kong, whereby the good order or discipline on board the aircraft was or was likely to be jeopardized.

Admitted facts

3.  The facts admitted by Ms Zhou may be summarized as follows.

4.  On 16 November 2017, at around 7 pm, a flight PR310 took off from Manila for Hong Kong.  PW1 an off duty Filipino pilot, Ms Zhou and PW2 an Indian bank manager were seated side by side together in that order at seats 47H, J and K.

5.  Later, upon invitation, PW1 moved to another seat close to the emergency exit towards the rear of the aircraft.  Unwittingly, he left behind his wallet containing a stack of cash (around 30,000-60,000 Pesos) at his original seat. Sometime had elapsed before he found out his inadvertence.  He went back and found his wallet under the seat at 47H.  The cash was however missing.  He conducted a search from the aisle of the compartment and sought help from cabin crew to no avail.

6.  Later, while on his way to the toilet, PW2 approached PW1 and told the latter that he had earlier seen Ms Zhou sit on the seat vacated by PW1 and she was counting some banknotes and was hiding something in her bra in a suspicious manner.  PW1 alerted the flight attendants.  At some point in time, the matter was reported to the Police.

7.  Upon return from the toilet, PW2 found Ms Zhou seated on his seat.  As PW2 did not mind about this, he took Ms Zhou’s seat (47H) instead.

8.  Once the plane landed, Police took over the matter.  Ms Zhou was searched and she was found to have a piece of tissue containing 15 pieces of 1,000 Pesos inside the left side of her bra.  Ms Zhou also surrendered two pieces of 500 Pesos and four pieces of 20 Pesos from her handbag.  Ms Zhou was arrested and under caution admitted she acted out of greed.

9.  During a cautioned interview, Ms Zhou stated:-

(a) Her seat was originally 47J;

(b) She took the flight PR310 from Manila to Hong Kong and planned to fly to Vietnam for work the next day;

(c) After the flight had taken off for around 30 minutes, she saw PW1 move to another seat; so she moved into his original seat and saw a brown wallet under this seat; she opened the wallet and found money inside; she put the money into her handbag and her bra;

(d) She wrapped (some of) the money up with a piece of tissue before putting it inside her bra while she put the rest (of the money) into her handbag;

(e) She dropped the wallet on the floor afterwards; and

(f) She wanted to take a rest and changed seats with PW2.

Ruling on appropriateness of Charge

10.  I simply record here that by an earlier ruling, I had found that the Summary of Facts fit the charge and so I duly convicted Ms Zhou of the charge.

Criminal record

11.  Ms Zhou enjoys a clear record in Hong Kong.

Antecedents

12.  The agreed antecedents statement shows that Ms Zhou is aged 44 (43 at the time of the offence), studied up to high school in the Mainland; that she had worked as an electronic technician, hotel staff member, salesperson, factory worker and tour guide in the Mainland.  Ms Zhou claimed not to be addicted to drug and not to have any ailments.  She claimed to be a divorced person, and to be living with her two daughters in the Mainland before she was prevented from leaving Hong Kong as a condition of bail.

Mitigation

13.  Ms Annie Bu of counsel mitigated on behalf of Ms Zhou.

14.  The following is a summary of the mitigation submissions.

15.  Ms Zhou became divorced since July 2017, ie a few months before the incident.  Her two daughters (12 and 5) are both attending school in Shenzhen. Ms Zhou made more than RMB10,000 per month as a tour guide and is the sole bread winner of the family.

16.  Ms Zhou made frank admission to and was fully cooperative with the police and indicated a plea of guilty thus saved the hassle of requiring PW1 and PW2 to come to give evidence.

17.  The money in this case has been (partly) recovered – there is a possibility that the victim (PW1) might have been mistaken as to the amount lost.  The money recovered from Ms Zhou (16,080 pesos = approx HKD2,500) was all the cash there was and there is no evidence she had passed any money to any other person on the aircraft.

18.  From the date of arrest, Ms Zhou has been staying in Hong Kong for more than 5 months – she cannot work and although a friend has now provided her with accommodation, she still needs to pay for food.

19.  During her time in Hong Kong, three of her relatives had passed away – her aunt in January 2018, her mother in February 2018 and her mother-in-law in April 2018.

20.  As regards circumstances of commission of the offence, Ms Zhou was emotionally unstable at the time having divorced only a few months prior.  She was acting out of character and committed the offence out of momentary greed. It was not premeditated.

21.  Most of the sentencing cases dealt with the searching of other passengers’ luggage for money to steal – the usual sentence is 6 months’ imprisonment.  These cases came to the District Court only because of the peculiarity of the charge.

22.  In the present case, it was theft by finding and she would not have stolen if she had not felt the wallet under her foot – hence it was entirely opportunistic.

23.  It was submitted by Ms Bu that if anyone had asked Ms Zhou before the police arrived, she would have returned the cash.

24.  Ms Bu referred to the sentencing case of HKSAR v Lee Man Kai, DCCC 430/2016, in which the sentencing judge adopted a starting point of 3 months’ imprisonment for a theft by finding.

25.  Ms Bu submitted that Ms Zhou here has learnt a lesson for her conduct in the plane which was out of character – she had a tough time of her life in the past few months and she has lost significant income through inability to work in Hong Kong.  Ms Bu submitted that the possibility of re-offence is slim.

26.  Finally, Ms Bu asked for a suspended sentence for Ms Zhou because of the exceptional circumstance of her recent loss of many close relatives.

Further mitigation after adjournment

27.  Today, Ms Bu submitted a number of documents to the court in order to support the claim that Ms Zhou’s three close relatives had passed away in recent months.  At the same time, Ms Bu has also submitted some divorce documents to prove Ms Zhou’s divorce in July 2017.

28.  Ms Bu further submitted that she had checked the relevant legislation and could confirm that the subject offence is not an excepted offence and therefore she actively seeks a suspended sentence for Ms Zhou.

Sentence

29.  Following the initial plea in mitigation, I adjourned the proceedings to enable the Defence to garner documentary proof of death of Ms Zhou’s three close relatives.  They have now been obtained and copied to the prosecution before the sentencing hearing for possible verification.  The original documents have been submitted today to the court for examination with copies submitted for the court’s retention.

30.  However, the prosecution informed the court that in the one week allowed for verification, they have not been able to receive any reply from the Mainland authorities.  When enquired by the court, the prosecution indicate that they have no views regarding the veracity of these documents.  In any event, they will not seek any further adjournment of the proceedings.

31.  I have considered all of the mitigation submissions made by Ms Bu including the submission that some if not all of the stolen property had been recovered.

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

33.  There is no sentencing tariff although immediate term of imprisonment is the sentencing norm for this offence.

34.  I accept that this case is in reality an opportunistic theft by finding that occurred on board an aircraft and that but for the relevant section in Cap 494 would not have been justiciable in Hong Kong.  I shall adopt a starting point of 3 months’ imprisonment in the case of Ms Zhou.

35.  The early indication of plea will entitle Ms Zhou to a 1/3 discount; I will further give her a small discount for her previous clear record.

36.  I am satisfied that there is sufficient proof on the balance of probabilities that Ms Zhou has indeed lost three close relatives in the recent months.  I am prepared to treat this as an exceptional circumstance and will suspend the imprisonment sentence that I am about to impose on her.

(Ms Zhou, please stand)

37.  For the above reasons, I will sentence Ms Zhou to 7 weeks’ imprisonment suspended for a period of 12 months.  What this means in practical terms is that Ms Zhou does not need to go to prison now.  However, if she were to commit any further offence punishable by imprisonment within the next 12 months, apart from having to serve the sentence for the new offence, she is also liable to serve with it the 7 weeks’ imprisonment imposed for this case either in whole or in part.