HKSAR v. ZHOU QIYU

DCCC 1160/2017

[2018] HKDC 479

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1160 OF 2017

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REASONS FOR DECISION

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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 the 16 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.

Purpose of the hearing

3.  Ms Annie Bu of counsel acting on behalf of Ms Zhou indicated her lay client’s intention to plead guilty to the charge upon the court’s satisfaction that the charge is appropriate ie that the charge fits the facts.

Summary of facts

4.  The parties agree that the Summary of Facts dated 2 January 2018 as amended by Ms Sheroy Tam of prosecution in Court on 17 April 2018 will form the basis of the legal argument.

5.  Those facts may be summarized as follows.

6.  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.

7.  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.

8.  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.

9.  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.

10.  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.

11.  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.

Order of submissions

12.  For the purpose of rationalizing the order of the speeches, I treated defence’s application as an application to dismiss the charge on the basis that the Summary of Facts will not fit the Charge.  This is despite the fact there is no equivalent to a section 16 application (Cap 221) in the District Court.  I was minded to make a declaration in the appropriate terms should the defence be successful.  I therefore invited the defence to make submissions first, to be followed by the prosecution with a right of final reply to be enjoyed by the defence.

The issues in the legal argument

13.  Having made it plain that Ms Zhou intends to plead guilty, the defence essentially argues that the facts of the case do not support the charge.  The prosecution argues otherwise.  The issue appears to be two-fold: (1) whether on the facts there was disorderly behavior by Ms Zhou; and (2) whether as a result, good order or discipline on board the aircraft was or was likely to be jeopardized.

Defence submissions

14.  Defence has filed a set of written submissions supplemented by oral arguments.

15.  Essentially, defence argued that the concept of breach of the peace is involved in both of the issues above identified.  As such, there is little chance of the prosecution succeeding because the chance of anyone responding to Ms Zhou’s acts by a breach of the peace is almost nil.

Prosecution submissions

16.  Prosecution relies on a set of rather comprehensive and lengthy written submissions supplemented by oral arguments.

17.  Essentially, the prosecution argued that there was sufficient material on the facts to show that the offence is made out.

Consideration of the issues

18.  S 12B(3) of Cap 494 states:-

“Any person on board an aircraft who behaves in a disorderly manner whereby the good order or discipline on board the aircraft is or is likely to be jeopardized commits an offence.”

19.  There is no definition in Cap 494 of what is meant by “disorderly manner”; nor is there any definition in the Ordinance of what is meant by “good order or discipline on board the aircraft”.

20.  However, some guidance may be had from the pre-legislative documents associated with the enactment of that section.

21.  In the Explanatory Memorandum of the Aviation (Amendment) Bill 2005 which introduced, inter alia, section 12B into the original Ordinance, it was said that the proposed amendments were intended to enhance the security of passengers and crew on international flights and follow the recommendations of the International Civil Aviation Organization (ICAO).

22.  Specifically, the new Section 12B was to create new offences relating to unruly behavior committed on board civil aircraft including offences relating to the obstruction of crew members, the failure to comply with instructions given by crew members, disorderly behavior, the tampering or interfering with aircraft apparatus, equipment or systems, intoxication by alcohols, drugs or other intoxicating substances, smoking and the operation of electronic devices.

23.  In the LegCo Brief for the 2005 Bill, at para 7, it is the said that the Administration proposed to incorporate as far as practicable and with necessary adjustments the provisions of the ICAO Model Legislation into the original Ordinance; that the policy intent, consistent with that expressed in the ICAO resolution of October 2001, was to enable the Hong Kong authorities to prosecute in appropriate cases criminal acts and offences constituting unruly or disruptive behavior on board Hong Kong-controlled and non-Hong Kong controlled aircraft.

24.  To the same LegCo Brief, the ICAO Model Legislation was attached as part of Annex B.

25.  In the Report of the Bills Committee on the 2005 Bill, at para 11, a point was made about the absence in the Model Legislation of the offence of disorderly behavior along the lines of the new Section 12B(3); and LegCo members had questioned about the meaning of “disorderly behavior”.

26.  The Administration’s answer contained in para 12 of the Report is produced in full below:-

“The Administration has explained that the offence of disorderly behavior in the Bill is modelled in part on the offence in section 17B(2) of the Public Order Ordinance (Cap. 245) (POO). Halsbury’s Laws of Hong Kong states that “disorderly behavior” refers to “any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in the vicinity.” In HKSAR v Cheng Siu Wing [2003] 4 HKC 471, the Court of First Instance held that the word “disorderly” in section 17B(2) of the POO should be given its ordinary dictionary meaning and it referred to unruly or offensive behavior or behavior which violates public order or morality. The Court also held that disorderly conduct covered behavior in the hearing or sight of a person which was likely to cause harassment, alarm or distress thereby. There needed 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.”

27.  Section 17B(2) of POO states:-

“Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 12 months.”

28.  Stripped of the superfluous parts as far as this application is concerned, an edited version of section 17B(2) of POO would read as follows:-

“Any person who … behaves in a … disorderly manner … whereby a breach of the peace is likely to be caused, shall be guilty of an offence …”

29.  It was in the context of explaining what was meant by “disorderly behavior” that the Administration said that the offence of disorderly behavior ie the section 12B(3) offence was modelled in part on the offence in section 17B(2) of POO.

30.  If one turns to the relevant passage of Halsbury’s Laws of Hong Kong (updated at Vol 20 [130.251] since the time of the Report), it is there said that “disorderly behavior refers to any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in the vicinity.  Nonetheless, the meaning of ‘disorderly behavior’ under s 17B(2) is best left to the trial judge to be applied in their ordinary meaning to the time, place and circumstances of the conduct in question.”

31.  The extra sentence of the passage in Halsbury’s above-quoted was no doubt added there as a result of the relatively recent CFA authority of HKSAR v Chow Nok Hang & Anor (2013) 16 CFAR 837.  There at paras 65-68, Ribeiro PJ had occasion to examine the meaning of “disorderly behavior” in section 17B(2) of POO, where he said,

“65.  The courts have not attempted a definition of “disorderly behavior”.

…

66.  … As Lord Reid held in Brutus v Cozens:

“The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law.”^[1]

67.  In my view, that is the approach which should be adopted in Hong Kong.  As Gleeson CJ pointed out in Coleman v Power[2]:

“Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.”

68.  Such concepts are best left to the trial judge to be applied in their ordinary meaning to the time, place and circumstances of the conduct in question …”

32.  Similarly, in paras 193-195 of the CFA authority, Litton NPJ said:-

“193. What behavior amounts to disorderly conduct, or when a situation constitutes a breach of the peace, or a threat thereof, depends on the circumstances of the time and place. The social context in which the events occur forms an important part of the picture. As the author of Public Order: A guide to the 1986 Public Order Act [Format Publishing 1987] at p 93 notes: The conduct of a football crowd would be disorderly if it were repeated in a theatre during a performance.

194. The question is one of degree. It is purely a question of fact, for the fact-finding tribunal to decide. The appellate courts would do the system, and the community, great harm if they interfered too readily in such fact-finding function, or added degrees of sophistication to such function which are unwarranted.

195. As Lord Reid said in Cozens v Brutus [1973] AC 854 at 861C, the meaning of an ordinary word of the English language is not a question of law.  It is a matter for the fact-finding tribunal to consider, not as a matter of law, but as fact, whether in the whole of the circumstances the words of the statute do or do not apply to the facts which have been proved.”

33.  Applying the various dicta extracted from the CFA authority, I am satisfied that all the various guidance provided in Halsbury’s and the case of Cheng Siu Wing are no more than helpful guides and should not be read like a statute in the interpretation of the term “disorderly behavior” or the phrase “behaving in a disorderly manner”.

34.  It is my task to determine whether the conduct of Ms Zhou, seen in the context of the time, place and circumstances amounted to behaving in a disorderly manner for the purpose of section 12B(3).

35.  What did Ms Zhou do?  Bearing also in mind what she admitted under caution, this is what happened.

36.  After the flight took off, PW1 who originally sat on 47H (an aisle seat) moved to sit at a place nearer the rear of the aircraft.  Unwittingly, he left his wallet behind at/under his original seat. Ms Zhou moved one seat to her left and sat on 47H.  She saw the wallet under this seat, picked it up, opened it and found money inside.  She took out the money, wrapped part of the money with a tissue before putting it inside her bra and placed the rest of the money in her handbag.  She then dropped the wallet onto the floor.  PW2 who was seated at 47K (a window seat two seats to the right of 47H) saw part of the scenario: he saw Ms Zhou counting some banknotes while seated on PW1’s original seat, and hiding something in her bra in a suspicious manner.

37.  Later, PW1 discovered he had lost his wallet. He went back looking for his wallet and found it under 47H.  The cash was missing.  PW1 conducted a search from the aisle of the compartment and sought help from cabin crew but to no avail.

38.  Later still, PW2 went for the toilet, and on his way approached PW1 and told him what he had earlier seen.  PW1 reported the matter to the flight attendants.  At some point in time, the case was reported to the Police.

39.  When PW2 returned from the toilet, he found Ms Zhou seated on his seat ie the window seat.  As PW2 did not mind, he took the seat left behind by Ms Zhou ie the aisle seat at 47H.

40.  The facts revealed that Ms Zhou, in open view of the person(s) around her, moved across one seat to her left (an aisle seat) previously occupied by PW1, picked up a wallet from under the new seat, opened it, took out cash from it, counted the cash, wrapped part of the cash in a tissue before putting it inside her bra, and placing the remaining cash in her handbag.  Then she dropped the wallet back onto the floor.  Later PW1 retrieved the wallet from under Ms Zhou’s (new) seat.

41.  It is startling that Ms Zhou did all these illicit acts while seated on her aisle seat the course of which could have been seen by passengers seated nearby.  Indeed, part of it was seen by PW2 seated two places from her right.

42.  I am of the view that what Ms Zhou did amounted to unruly or offensive behavior or behavior which violated public morality. Further or alternatively, it was done within the sight of person(s) within the vicinity which was likely to cause alarm or distress thereby.  I am satisfied that Ms Zhou behaved in a disorderly manner in the overall circumstances of the case.

43.  But there is a second element to the offence.

44.  The disorderly behavior cannot be any disorderly behavior but must be such that good order or discipline on board the aircraft is or is likely to be jeopardized by it.

45.  Ms Bu on behalf of Ms Zhou hasn’t really addressed me on the meaning of this second element (nor really has Ms Tam for the prosecution) because her main attention was directed towards the interpretation of “disorderly behavior” which in the light of the CFA authority might with respect be said to be misdirected.

46.  Again, it does appear that no court, at least no appellate court, has had occasion to define what it means by the clause “good order or discipline on board the aircraft is or is likely to be jeopardized”.

47.  Ms Bu in the course of submissions seemed to have suggested the concept is related to breach of the peace and attempted to equate “good order or discipline” with “breach of the peace” without explaining the basis of her submission.

48.  In one of the cases referred to by both parties, the District Court case of HKSAR v Xu Huazong, DCCC 142/2016, delivered at 12:09 pm of 4 May 2016, it was recorded at para 11 of the Ruling that defence counsel there had sought to compare what it takes to “jeopardize good order or discipline” with conduct provoking a breach of the peace in section 17B(2) of POO, without actually equating “jeopardizing good order or discipline” with “provoking a breach of the peace”.

49.  What is a “breach of the peace”?  In the CFA authority already cited, Ribeiro PJ had this to say at paras 77-78 of the Judgment:

“77. … it is necessary to consider the meaning of “breach of the peace”. The modern authority is R v Howell[3], where Watkins LJ explained the concept as follows:

“… 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 is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.”

78. Approving that decision, Lord Bingham of Cornhill noted in R (Laporte) v Chief Constable of Gloucestershire[4], that “the essence of the concept was to be found in violence or threatened violence” and it was on that basis that the European Court of Human Rights found that the concept possessed sufficient certainty in law.”

50.  So it appears that violence or threatened violence is an essential ingredient of the concept of “breach of the peace”. However, in my view, when one is concerned with good order or discipline on an aircraft, something of a wider scope than violence or threatened violence must be prevented in order to maintain good order and discipline on board an aircraft; put in another way, it is easier to satisfy the element of good order and discipline than of the element of breach of the peace.

51.  Take for example a female stripper who decides to strip tease on board an aircraft in flight.  Her action might not thereby cause violence or threatened violence, but it certainly will jeopardize the good order and discipline on board because a lot of passengers (both male and female) and especially those seated nearby will immediately take out their mobile phones and try to take a photo/video of her action and if necessary after unbuckling their seat belt and standing up to take a better vantage point.  One can imagine the commotion that would be stirred up which could jeopardize the good order and discipline (or at least make it likely) and might possibly jeopardize the safety of the aircraft.

52.  In other words, the disorderly behavior of one person may cause the disorderly behavior of another/others on board the aircraft without causing any violence or threatened violence or making it likely.  But because of the confines of an aircraft (with the associated possibility of a domino effect) and the importance of safety of all lives on board, the concept of good order or discipline must be made wider than the concept of breach of the peace.

53.  Consequently, in my view, it is not correct to equate the two concepts with each other.

54.  There is another reason why the two concepts must be taken to mean different things.  The reason is that if the Legislature had intended that they mean the same thing, it would have been so easy to introduce the term “breach of the peace” into the section in 2005.

55.  Being a phrase consisting of ordinary English words, it falls on me to determine whether the facts, when examined objectively, show that “good order or discipline” on board the aircraft was or was likely to be caused by the disorderly behavior of Ms Zhou.

56.  For the word “jeopardize”, the Shorter Oxford Dictionary gives its meaning as “endanger, put at risk”.

57.  During submissions by Ms Bu, much reliance has been placed on the fact that there had been no confrontation by any of PW1 (an off-duty pilot), PW2 (a bank manager), and the flight attendants, against Ms Zhou. It has been strongly emphasized that PW1 and the flight attendants being trained air crew would not in any event have confronted Ms Zhou.  It had even been suggested that because Ms Zhou was a lady travelling alone, gentlemen such as PW1 and PW2 would not have taken that step.

58.  In the case of Xu Huazong earlier referred to, the facts were, inter alia, that a male cabin crew member S of Turkish Airlines, after observing the male defendant’s suspicious acts in relation to overhead lockers for a while, discussed the matter with his colleagues before alerting the victim of a suspected theft of the latter’s property.  After having confirmed that the victim had lost some property, S and a colleague led the victim to confront the defendant while the aircraft was still in flight.

59.  So, while it may be right to say that trained air crew might not initiate in acts involving violence or threatened violence, there was nothing to prevent the air crew, having ascertained what happened, to confront the wrongdoer, be he/she a suspected thief or other types of unruly passenger.  Sometimes they would have to do so, in order to prevent the disorderly behavior from continuing or to prevent further disorderly behaviour, even if that meant a risk of altercation, commotion or fracas.

60.  In the present case, Ms Zhou was simply lucky that there was no confrontation.  By acting so suspiciously in the open view of other passenger(s), she was opening herself up to the real or imminent risk of intervention by PW2, or of later confrontation by PW1 and other air crew (including female air crew).  Once an intervention/confrontation took place, there would have been a real or imminent risk of altercation, commotion or fracas. In this respect, it is to be noted that on landing, Ms Zhou had to be searched by the police before the bulk of the stolen cash on her was recovered.

61.  As regards the minor point about the minimum number of persons that have to be present in whose view or hearing the disorderly behavior is performed, there does not appear to be any requirement beyond just one person.

62.  The last point on Ms Bu’s written submissions is that Ms Zhou may face any charge against her if the Philippines law provides and the Philippines authority considers appropriate.  With respect, it has no merit because the commander of the aircraft in question has made an undertaking under section 12C of Cap 494 that neither he nor Philippine Airline has made or will make a request to the authorities of any place outside Hong Kong that proceedings be commenced against Ms Zhou.

Conclusion

63.  For the above reasons, I find that by Ms Zhou’s disorderly behavior, the good order or discipline on board the aircraft was or was likely to be jeopardized.