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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Reasons for Sentence

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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. After hearing the parties, I find it in the positive and convict him accordingly. 

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.

Mitigation

10.The Defendant is 44 years of age, a Mainland China resident.  He has a clear record in Hong Kong.  There is nothing in his antecedents which may have any bearing on his sentence. 

Sentencing this Defendant

11.The statutory maximum is 2 years.  The prosecution has drawn to my attention to the case of HKSAR v Zuo Guofa DCCC 841/2015 where Judge Kwok on similar facts adopts a starting point of 9 months.  That case involved RMB 10,000, which was not recovered. 

12.If the Defendant had made off with PW1’s EURO 2,500, I would have adopted a starting point of 12 months. I now take 9 months on the ground that the Defendant had aborted the attempt to steal, apparently because he perceived that PW2 had put him under observation. I reduce it by one-third for his admission of the summary of facts in full despite his plea of not guilty which was not of his own making but rather a technical stance necessarily to be taken when the legal position is not abundantly clear.  The sentence is 6 months.