HKSAR v. Xu Huazong

DCCC 142/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 142 OF 2016

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Ruling on the appropriateness of the charge

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Charge

1.The Defendant is charged with behaving in a disorderly manner on board an aircraft, contrary to sections 12B(3), 12B(10) and 21 of the Aviation Security Ordinance (“ASO”), Cap. 494. 

2.He expresses an intention to plead guilty and admit the summary of facts put forward by the prosecution but there is an outstanding issue as to whether the facts support the charge. 

Facts put forward by the prosecution

3.The Defendant was on board an aircraft operated by Turkish Airlines departing Turkey for Hong Kong.  The categories of offences committed on an aircraft are limited and subject to considerations of jurisdiction.  It suffices to say herein that the present case might have come under theft but for its having taken place on an aircraft not relating to Hong Kong save its destination.  There is no theft charge available.  The closest offence in respect of what the Defendant had done has to be “behaving in a disorderly manner on board an aircraft”.

4.Soon after PW1 NI boarded the aircraft at 7 a.m. on 26 December 2015, he took a seat at 16E.  He placed his suitcase containing his wallet with substantial cash in the overhead locker above 16G. It was the only luggage there.  The Defendant took a seat at 25G.  There were 290 passengers on board. 

5.At 11:30 a.m., PW1 saw the Defendant open the overhead locker above 16G and close it.  At around 12 p.m., a cabin crew member PW2 SENKAYA saw the Defendant get up from row 25 and open three different overhead lockers.  The Defendant took a suitcase out from an overhead locker and went to the toilet.  About 10 minutes later, the Defendant came out and noticed PW2 observing him.  He looked nervous and went to open the overhead locker above 25G.  He sat down at 25G and placed the suitcase between his legs.  PW2 saw him putting something into, as well as taking something out from, the suitcase.  PW2 observed the aforesaid at his jump-seat about 2.1 metres away with nothing impeding his view of the Defendant. 

6.PW2 discussed the incident with other colleagues.  The Defendant walked past PW2 with the suitcase and pushed PW2 aside, then put the suitcase back into the overhead locker above 16G.  He returned to sit at 25G.  PW2 and a colleague retrieved the suitcase and alerted PW1.  PW1 checked the suitcase and found five banknotes of EURO 500 each missing from the wallet.  PW2 and a colleague led PW1 to confront the Defendant at 25G.  PW1 asked him where the money was.  He drew PW1’s attention to five banknotes of EURO 500 each from the second compartment of PW1’s suitcase.  He told PW1 that all the money was there without loss. 

7.As the aircraft landed in Hong Kong at 4:50 p.m., the Defendant stood up from seat 34H, and took out his black bag from the overhead locker above 35G.  The police were alerted and took up the matter for investigation. 

8.When arrested and cautioned for theft, he said he took PW1’s carry-on bag by mistake and he did not steal anything.  He had carried his black bag on to the aircraft and placed it in the overhead locker above row 34 as he was originally seated in 34H. 

9.Section 12B(3) of ASO provides that:

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

The Defendant’s stance

10.As to what is “disorderly behaviour”, it is common ground between the prosecution and the defence that it is a question of fact for the court to decide.  Mr. Ross prays in aid Halsbury’s Laws of Hong Kong, 2002 Reissue, Vol 9, para 130.251 to the effect that it refers to “any substantial breach of decorum which tends to disturb the peace or to interfere with the conduct of other people who may be in the vicinity”.  As to whether the conduct of the accused can be characterized as “disorderly”, it is an objective test (HKSAR v Cheng Siu Wing [2003] 4 HKC 471). 

11.As to what it takes to “jeopardize good order or discipline’, Mr. Ross seeks (in para 8(ii) of his Submissions) to compare it with conduct provoking a breach of the peace, an offence contrary to section 17B(2) of the Public Order Ordinance (“POO”), Cap. 245.  He discerns from that section the following basic principles:

(1)   There must be an “act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done”.

(2)   The behavior must be such that an act or threat of violence occurs or is likely to occur in response to the conduct of the accused. 

(3)   The court must consider the tendency of persons present at the scene to be provoked to violent behavior in considering whether there is a real likelihood of a breach of the peace being caused.

(4)   A disturbance alone, without anything more, cannot constitute a breach of the peace. 

12.Miss Yip for the prosecution argues (in para 38 of her Submissions) that the wording of section 12B(3) of the Ordinance is different from that of section 17B(2) of the POO.  The former does not require the prosecution to prove the full extent of a breach of the peace being caused. 

My ruling

13.I find the reference in Halsbury’s Laws of Hong Kong for “disorderly behavior” as “any substantial breach of decorum which tends to disturb the peace or to interfere with the conduct of other people who may be in the vicinity” most apposite.  

14.In the confines of an aircraft, people are packed often randomly together for a number of hours during the flight. A large portion of their personal property is inevitably to be stowed in the overhead lockers. The system of storage of luggage is based on mutual decency.  The idea is not to tamper with others’ luggage.  I am satisfied that applying an objective test, the tampering with others’ luggage amounted to “a substantial breach of decorum”. 

15.As to how or whether that breach of decorum “tends to disturb the peace”, I agree with Mr. Ross that this phrase means the same as “breach of the peace” both under section 12B (3) of ASO and section 17B (2) of POO.  This is actually in line with Judge Kwok’s observations in HKSAR v Zuo Guofa DCCC 841/2015 (in para 21), which applied Beeson J’s judgment in HKSAR v Cheng Siu Wing [2003] 4 HKC 471.  

16.The Defendant had been opening and closing overhead lockers and gone to the toilet in the following manner:

(1)  The locker above PW1 at 11:30 a.m.;

(2)  3 other lockers at around 12 p.m.;

(3)  Going into the toilet with a suitcase, whose ownership was unknown, for 10 minutes;

(4)  The locker above 25G;

(5)  The locker above PW1. 

17.Except for the first instance at 11:30 a.m., PW2 had seen all the subsequent acts.  As a crew member responsible for overseeing the security of passengers and the aircraft, the property of a passenger was as much as concern to him as his own.  Surely he would worry that the Defendant was taking things out from, or putting things into, other passengers’ luggage.  Mr. Ross argues that as a trained professional, he would not lose his cool when he handled the matter.  I accept that but the matter did not rest there.  He had the duty to, and did, alert PW1 for disposal of the matter.  Upon being briefed by PW2, PW1 went to confront the Defendant and engaged in a conversation with the Defendant for some time.  He did not resort to any rough language or violence but given that there was generally speaking no law enforcement agency available in the aircraft, there was a real likelihood that PW1, who found EURO 2,500 removed from his wallet, would take the matter into his own hands by rough language and violence.  The offence did not require actually breach of the peace as a real likelihood of violence sufficed. 

18.I am satisfied that the present summary of facts as admitted in full by the Defendant capable of supporting the charge of behaving in a disorderly manner on board an aircraft.  I convict the Defendant accordingly. 

19.I have to mention before ending that it is up to the Turkish authority to consider whether or how to proceed against the Defendant on any appropriate charge as the Turkish law provides.