HKSAR v. Hu Yunzhi

DCCC 111/2019

[2019] HKDC 790

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2019

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REASONS FOR SENTENCE

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INTRODUCTION

1.This case concerns an act of “overhead compartment theft” committed by the defendant against a fellow passenger on board an aircraft when it was not in Hong Kong airspace.  The incident was witnessed by a flight attendant, the case was reported to the police when the aircraft landed in Hong Kong and the defendant was arrested.

THE CHARGE AND PLEA

2.The defendant was charged with an offence 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.  The defendant pleaded guilty to the charge and admitted the facts.

THE FACTS

3.From 0530 hrs to 1420 hrs (Hong Kong Time) on 4 December 2018, WAN Chun-hung and D were both passengers on an Ethiopian-registered aircraft ET644, flying from Addis Ababa to Hong Kong (“ET644”). Mr WAN was seated at 23D while D was seated at 19C. At the time of boarding, Mr WAN placed a black backpack of his at his overhead compartment. There was a camera and USD $2,500 cash in the backpack and the backpack was locked with a combination lock.

4.At 0930 hrs, flight attendant BERHE Seble Hailemariam spotted D walking from seat 19C to 23D, took away a black backpack from the overhead compartment and then returned to seat 19C. Feeling suspicious, Ms BERHE closely observed D and spotted him tampering the backpack using a key-like object.

5.Ms BERHE therefore made enquires with D. Ms BERHE asked D whether he was the owner of the backpack, and D said yes. Ms BERHE then asked D to open the lock of the backpack but D failed to do so. Ms BERHE tried to ascertain the owner of the backpack with no avail as most passengers were asleep. As such, Ms BERHE seized the backpack and went back to her seat. At this point, there was a 3cm opening on the backpack.

6.At 1240 hrs, Ms BERHE tried to ascertain the owner of the backpack again, at which D told her that the backpack actually belonged to the passenger at 23D. Mr WAN then confirmed that the backpack belonged to him and that nothing was lost from the backpack. Mr WAN then brought the backpack to 19C and asked D why he had taken his bag and D did not respond. Shortly afterwards, Mr WAN told Ms BERHE that D intended to steal his property and requested to report the incident.

7.At 1455 hrs, ET644 landed Hong Kong. At 1524 hrs, PC20122 arrived. Upon the arrival of police officers, Ms BERHE identified D to the police as the suspect. At 1740 hrs, PC20122 arrested D for ‘Behaving in a disorderly manner on board an aircraft’.

8.NEGASH Michael Taye, the Captain of ET644 at the material time confirmed that the incident occurred when it was not in Hong Kong airspace. Captain NEGASH has signed an undertaking pursuant to s.12C of the Aviation Security Ordinance (Cap. 494).

9.At all material times, D behaved in a disorderly manner on ET644, 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 jeopardised.

The background of the defendant

10.I have before me a very detailed written mitigation prepared by Mr Cheung, counsel for the defendant.

11.I shall not repeat all the matters referred to in the written mitigation, suffice to say that I have considered all the matters contained therein.

12.The defendant is 51 years old, he was born in Henan.  He holds a PRC passport and works for a furniture company in Dubai. 

13.All the family members of the defendant reside in Mainland China and they rely on the defendant for financial support.

14.The defendant has no previous criminal conviction in Hong Kong or elsewhere.

15.Mr Cheung told me that the defendant committed the offence due to momentary greed as he had heavy financial burden: he had to pay for the medical expenses for his mother and the university tuition fees for his two children.

16.Mr Cheung drew my attention to a number of similar cases of disorderly behaviour on board an aircraft, based on acts of theft or attempt theft.  He submitted that sentences for overhead compartment theft usually attract starting points ranging from 9 to 18 months (para 18).  The cases which applied a starting point of 12 months and above appear to either involve multiple acts of theft (ie multiple victims) or where there had been some level of planning (para 19).  Mr Cheung submitted that in the present case, the defendant’s case is more akin to those cases on the lower end of the scale, ie HKSAR v Zuo Guofa (DCCC841/2015) and HKSAR v Xu Huazong (DCCC142/2016), both cases applying a starting point of 9 months (para 20).

17.Mr Cheung submitted in the present case, there was no planning on the defendant’s part.  He did not know what was inside the backpack, and in any event, the victim suffered no actual loss.  There was no actual commotion or chaos caused inside the aircraft cabin (para 21).  Mr Cheung asked me to apply a starting point at the lower end of the scale, ie 9 months, so that the defendant can be released as soon as possible (para 22).

CONSIDERATION

18.In sentencing the defendant, I have considered the facts of the case, the background of the defendant and all the matters urged on the defendant’s behalf by Mr Cheung.

19.The offence committed by the defendant is a serious one.  It is important that good order and discipline on an aircraft be maintained at all times so that all passengers be able to feel safe on board the aircraft.  Acts of overhead compartment theft like the one committed by the defendant normally call for an immediate term of imprisonment.

20.In the present case, on the facts before me, I take 9 months imprisonment as the starting point.  The facts show that the defendant had cut a 3 cm opening on the backpack with a key-like object.  In my judgment, the use of a hard object to cut open the backpack aggravates the seriousness the case and it calls for a higher starting point of 12 months’ imprisonment.

21.The defendant is given one third reduction for his guilty plea and clear record.

22.For the reasons given, I sentence the defendant to 8 months’ imprisonment.