A A
B B
DCCC 841/2015
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 841 OF 2015 E
F F
----------------------------
G HKSAR G
v
H H
ZUO GUOFA
I ---------------------------- I
J J
Before: HH Judge A Kwok
K Date: 2 December 2015 at 12.01 pm K
Present: Miss Sheroy Tam, SPP of the Department of Justice, for
L L
HKSAR
M Mr Chan Siu Ming, instructed by Godwin Chan & Co, M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: Behaving in a disorderly manner on board an aircraft (在飛機
O O
上作出擾亂秩序的行為)
P P
--------------------------------------
Q Q
REASONS FOR SENTENCE
R -------------------------------------- R
S S
T T
U U
V V
-2-
A A
B B
Introduction
C C
1. On 17 June 2015, the defendant, a male mainlander, was
D D
arrested by the police on board a non-Hong Kong controlled aircraft
E operated by Garuda Indonesia Airlines after the flight arrived at Hong E
Kong from Jakarta, following a report of theft which allegedly occurred
F F
when the aircraft was in flight elsewhere than in or over Hong Kong.
G G
2. The defendant was subsequently charged with “Behaving in a
H H
disorderly manner on board an aircraft,” contrary to section 12B(3) and
I 12B(10) and 21 of the Aviation Security Ordinance Cap 494 (“The I
Ordinance”).
J J
K 3. When the case was transferred to the District Court on 23 K
October 2015, I queried with the prosecution as to their decision to
L L
prosecute the defendant’s alleged thievery conduct under section 12B(3) of
M the Ordinance. I therefore invited both parties to make submissions on the M
appropriateness of the present charge and the case was adjourned to 18
N N
November 2015 for legal arguments.
O O
4. This morning, after carefully taking into account the legal
P P
submissions on both sides, the numerous authorities submitted during
Q arguments and legislative documents referred by the prosecution, I came to Q
R
the decision that section 12B(3) is a general provision enacted of the R
purpose of maintaining good order and discipline on an aircraft and there is
S S
sufficient legal basis to charge the defendant for his alleged thievery which
T
was likely to disturb the peace of the aircraft and interfere with the comfort T
of other passengers on board the aircraft.
U U
V V
-3-
A A
B B
C 5. The defendant pleaded guilty to the charge after I ruled that C
the present charge is appropriate.
D D
E The facts E
F F
6. At about 1010 hours on 17 June 2015, a male passenger,
G PW1, boarded the subject aircraft and placed his rucksack in the overhead G
compartment directly above his seat. PW1’s rucksack was the only item
H H
placed inside the compartment and nobody was seated next to him.
I Defendant was seated in a different column and at several rows behind I
PW1.
J J
K 7. During the flight, a flight attendant, PW2, saw the defendant K
open the compartment and searched PW1’s rucksack, which was the only
L L
item in the compartment at that time. The defendant was then seen going
M to the toilet. M
N N
8. Later, PW1 saw defendant putting a rucksack back to the
O compartment. Then PW1 checked it and found that the cash of O
RMB10,000 was missing from his rucksack, which I was told originally
P P
contained RMB30,000. PW1 related such matter to the flight attendant.
Q The case was reported after the flight arrived at Hong Kong. The police Q
attended the scene and arrested the defendant. The defendant denied the
R R
offence under caution and he had only a waist bag and a handbag with him
S at that time. S
T T
U U
V V
-4-
A A
B B
Criminal record and background of the defendant
C C
9. The defendant is 47 years old. He has a clear record in Hong
D D
Kong. He was educated up to Form 3 level in the mainland.
E E
10. After leaving school, he worked as a farmer. At the time of
F F
the offence, he worked in a farm house in Shenzhen as a caretaker, earning
G RMB3,000 each month. G
H H
11. He is married with two children, who is 14 and 15
I respectively and both are secondary school students. I
J J
Mitigation
K K
12. It was mitigated that the defendant was the breadwinner of the
L L
family and the defendant committed the present offence out of momentary
M greed. Only part of the money belonging to PW1 in a rucksack was M
missing.
N N
O 13. The defence submitted that the defendant’s act did not cause O
any actual chaos or commotion in the plane although it was accepted that
P P
his acts were likely to bring about disturbance. The defendant’s act of
Q searching the rucksack above PW1’s overhead compartment did not alert Q
PW2.
R R
S 14. The defence reiterated that the defendant was throughout very S
remorseful and he originally intended to plead guilty when the case was
T T
first transferred to the District Court.
U U
V V
-5-
A A
B B
C Sentencing considerations C
D D
15. The main purpose of the Ordinance enacted in 1996 is to
E prohibit acts which pose threats to civil aviation security and to give effect E
to several international conventions concerning aviation security.
F F
G 16. In June 2005, the Ordinance was amended so as to provide G
criminal sanctions against unruly or disruptive behaviour committed by
H H
passengers on board civil aircraft and to extend Hong Kong jurisdiction
I over such acts committed outside Hong Kong on board a non-Hong Kong I
controlled aircraft which next lands in Hong Kong.
J J
K 17. The amendments were essentially incorporation of provisions K
of the International Civil Aviation Organisation (“ICAO”) model
L L
legislation, as far as practicable, and with necessary adjustments. Section
M 12B provides new offences relating to behaving in a disorderly manner. M
N N
18. As I have said already in my earlier ruling, according to my
O reading of the Report of the Bills Committee, some legislators have O
actually queried why section 12B(3) was included in the bill, as the model
P P
legislation did not provide for the offence of disorderly behaviour on board
Q an aircraft. This new section was finally enacted as proposed. The Q
administration’s explanations to the legislators as stated in paragraph 12
R R
and 13 of the report clearly, in my view, reflected the legislative intent and
S purpose of this particular section. S
T T
U U
V V
-6-
A A
B B
19. The administration has explained that the offence of
C disorderly behaviour in the bill is modelled in part on the offence of section C
17B(2) of the Public Order Ordinance, Cap 245.
D D
E 20. During deliberations of the Bills Committee, in an attempt to E
explain to the legislators what was the meaning of “disorderly behaviour”,
F F
the administration referred to the case of HKSAR v Cheng Siu Wing [2003]
G 4 HKC 471, where the Court of First Instance held that disorderly conduct G
covered behaviour in the hearing or sight of a person which was likely to
H H
cause harassment, alarm or distress nearby. There need not be any element
I of violence whether present or threatened on the part of the accused. It I
covered conduct which was not necessarily threatening, abusive or
J J
insulting in itself. It was also held (at paragraph 26) that:-
K K
“There is a breach of the peace whenever harm is actually done;
L or is likely to be done to a person; or in his presence to his L
property; or a person was put in fear of being so harmed through
an assault, affray, riot, unlawful assembly or other disturbance.”
M M
N 21. Applying the above definition, the defendant’s act of N
searching PW1’s rucksack was obviously a harm or disturbance done to his
O O
personal property and also an intrusion to PW1’s own privacy, which
P would be capable of bringing about a breach of the peace, thereby P
jeopardising the order and discipline of the aircraft. Such behaviour, if
Q Q
seen and witnessed by any other passenger or flight attendant of the
R aircraft, would have a tendency, and thereby likely to cause alarm, which R
very often results in altercation, commotion or even confrontation.
S S
T 22. It is true that the intention of section 12B(3) is not to govern T
any dishonest behaviour. In the context of the spirit and intention of the
U U
V V
-7-
A A
B B
Ordinance, what the section is aiming is rather to tackle the actual or
C potential breach of the peace that was likely to occur in the aircraft, as a C
result of the conduct which would jeopardise the good order and discipline
D D
on board the aircraft.
E E
23. I accept that in this particular case before me, therefore, the
F F
focus is not on the dishonest act of the defendant. Also, there was no actual
G chao or confusion caused by the defendant’s unruly behaviour in this G
incident. However, in sentencing this defendant, I still cannot overlook,
H H
and I am required to consider and take into account the potential
I disturbance and breach of peace it would be brought about by the I
defendant’s act.
J J
K 24. According to section 12B(10), in District Court, following a K
conviction on indictment, the maximum sentence for this offence is 2
L L
years’ imprisonment. After considering the peculiar factual background of
M this case, I consider that the proper starting point is 9 months’ M
imprisonment. The defendant pleaded guilty, for which he is entitled to a
N N
one-third discount. The sentence is therefore 6 months’ imprisonment.
O O
P P
Q ( A Kwok ) Q
District Judge
R R
S S
T T
U U
V V
A A
B B
DCCC 841/2015
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 841 OF 2015 E
F F
----------------------------
G HKSAR G
v
H H
ZUO GUOFA
I ---------------------------- I
J J
Before: HH Judge A Kwok
K Date: 2 December 2015 at 12.01 pm K
Present: Miss Sheroy Tam, SPP of the Department of Justice, for
L L
HKSAR
M Mr Chan Siu Ming, instructed by Godwin Chan & Co, M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: Behaving in a disorderly manner on board an aircraft (在飛機
O O
上作出擾亂秩序的行為)
P P
--------------------------------------
Q Q
REASONS FOR SENTENCE
R -------------------------------------- R
S S
T T
U U
V V
-2-
A A
B B
Introduction
C C
1. On 17 June 2015, the defendant, a male mainlander, was
D D
arrested by the police on board a non-Hong Kong controlled aircraft
E operated by Garuda Indonesia Airlines after the flight arrived at Hong E
Kong from Jakarta, following a report of theft which allegedly occurred
F F
when the aircraft was in flight elsewhere than in or over Hong Kong.
G G
2. The defendant was subsequently charged with “Behaving in a
H H
disorderly manner on board an aircraft,” contrary to section 12B(3) and
I 12B(10) and 21 of the Aviation Security Ordinance Cap 494 (“The I
Ordinance”).
J J
K 3. When the case was transferred to the District Court on 23 K
October 2015, I queried with the prosecution as to their decision to
L L
prosecute the defendant’s alleged thievery conduct under section 12B(3) of
M the Ordinance. I therefore invited both parties to make submissions on the M
appropriateness of the present charge and the case was adjourned to 18
N N
November 2015 for legal arguments.
O O
4. This morning, after carefully taking into account the legal
P P
submissions on both sides, the numerous authorities submitted during
Q arguments and legislative documents referred by the prosecution, I came to Q
R
the decision that section 12B(3) is a general provision enacted of the R
purpose of maintaining good order and discipline on an aircraft and there is
S S
sufficient legal basis to charge the defendant for his alleged thievery which
T
was likely to disturb the peace of the aircraft and interfere with the comfort T
of other passengers on board the aircraft.
U U
V V
-3-
A A
B B
C 5. The defendant pleaded guilty to the charge after I ruled that C
the present charge is appropriate.
D D
E The facts E
F F
6. At about 1010 hours on 17 June 2015, a male passenger,
G PW1, boarded the subject aircraft and placed his rucksack in the overhead G
compartment directly above his seat. PW1’s rucksack was the only item
H H
placed inside the compartment and nobody was seated next to him.
I Defendant was seated in a different column and at several rows behind I
PW1.
J J
K 7. During the flight, a flight attendant, PW2, saw the defendant K
open the compartment and searched PW1’s rucksack, which was the only
L L
item in the compartment at that time. The defendant was then seen going
M to the toilet. M
N N
8. Later, PW1 saw defendant putting a rucksack back to the
O compartment. Then PW1 checked it and found that the cash of O
RMB10,000 was missing from his rucksack, which I was told originally
P P
contained RMB30,000. PW1 related such matter to the flight attendant.
Q The case was reported after the flight arrived at Hong Kong. The police Q
attended the scene and arrested the defendant. The defendant denied the
R R
offence under caution and he had only a waist bag and a handbag with him
S at that time. S
T T
U U
V V
-4-
A A
B B
Criminal record and background of the defendant
C C
9. The defendant is 47 years old. He has a clear record in Hong
D D
Kong. He was educated up to Form 3 level in the mainland.
E E
10. After leaving school, he worked as a farmer. At the time of
F F
the offence, he worked in a farm house in Shenzhen as a caretaker, earning
G RMB3,000 each month. G
H H
11. He is married with two children, who is 14 and 15
I respectively and both are secondary school students. I
J J
Mitigation
K K
12. It was mitigated that the defendant was the breadwinner of the
L L
family and the defendant committed the present offence out of momentary
M greed. Only part of the money belonging to PW1 in a rucksack was M
missing.
N N
O 13. The defence submitted that the defendant’s act did not cause O
any actual chaos or commotion in the plane although it was accepted that
P P
his acts were likely to bring about disturbance. The defendant’s act of
Q searching the rucksack above PW1’s overhead compartment did not alert Q
PW2.
R R
S 14. The defence reiterated that the defendant was throughout very S
remorseful and he originally intended to plead guilty when the case was
T T
first transferred to the District Court.
U U
V V
-5-
A A
B B
C Sentencing considerations C
D D
15. The main purpose of the Ordinance enacted in 1996 is to
E prohibit acts which pose threats to civil aviation security and to give effect E
to several international conventions concerning aviation security.
F F
G 16. In June 2005, the Ordinance was amended so as to provide G
criminal sanctions against unruly or disruptive behaviour committed by
H H
passengers on board civil aircraft and to extend Hong Kong jurisdiction
I over such acts committed outside Hong Kong on board a non-Hong Kong I
controlled aircraft which next lands in Hong Kong.
J J
K 17. The amendments were essentially incorporation of provisions K
of the International Civil Aviation Organisation (“ICAO”) model
L L
legislation, as far as practicable, and with necessary adjustments. Section
M 12B provides new offences relating to behaving in a disorderly manner. M
N N
18. As I have said already in my earlier ruling, according to my
O reading of the Report of the Bills Committee, some legislators have O
actually queried why section 12B(3) was included in the bill, as the model
P P
legislation did not provide for the offence of disorderly behaviour on board
Q an aircraft. This new section was finally enacted as proposed. The Q
administration’s explanations to the legislators as stated in paragraph 12
R R
and 13 of the report clearly, in my view, reflected the legislative intent and
S purpose of this particular section. S
T T
U U
V V
-6-
A A
B B
19. The administration has explained that the offence of
C disorderly behaviour in the bill is modelled in part on the offence of section C
17B(2) of the Public Order Ordinance, Cap 245.
D D
E 20. During deliberations of the Bills Committee, in an attempt to E
explain to the legislators what was the meaning of “disorderly behaviour”,
F F
the administration referred to the case of HKSAR v Cheng Siu Wing [2003]
G 4 HKC 471, where the Court of First Instance held that disorderly conduct G
covered behaviour in the hearing or sight of a person which was likely to
H H
cause harassment, alarm or distress nearby. There need not be any element
I of violence whether present or threatened on the part of the accused. It I
covered conduct which was not necessarily threatening, abusive or
J J
insulting in itself. It was also held (at paragraph 26) that:-
K K
“There is a breach of the peace whenever harm is actually done;
L or is likely to be done to a person; or in his presence to his L
property; or a person was put in fear of being so harmed through
an assault, affray, riot, unlawful assembly or other disturbance.”
M M
N 21. Applying the above definition, the defendant’s act of N
searching PW1’s rucksack was obviously a harm or disturbance done to his
O O
personal property and also an intrusion to PW1’s own privacy, which
P would be capable of bringing about a breach of the peace, thereby P
jeopardising the order and discipline of the aircraft. Such behaviour, if
Q Q
seen and witnessed by any other passenger or flight attendant of the
R aircraft, would have a tendency, and thereby likely to cause alarm, which R
very often results in altercation, commotion or even confrontation.
S S
T 22. It is true that the intention of section 12B(3) is not to govern T
any dishonest behaviour. In the context of the spirit and intention of the
U U
V V
-7-
A A
B B
Ordinance, what the section is aiming is rather to tackle the actual or
C potential breach of the peace that was likely to occur in the aircraft, as a C
result of the conduct which would jeopardise the good order and discipline
D D
on board the aircraft.
E E
23. I accept that in this particular case before me, therefore, the
F F
focus is not on the dishonest act of the defendant. Also, there was no actual
G chao or confusion caused by the defendant’s unruly behaviour in this G
incident. However, in sentencing this defendant, I still cannot overlook,
H H
and I am required to consider and take into account the potential
I disturbance and breach of peace it would be brought about by the I
defendant’s act.
J J
K 24. According to section 12B(10), in District Court, following a K
conviction on indictment, the maximum sentence for this offence is 2
L L
years’ imprisonment. After considering the peculiar factual background of
M this case, I consider that the proper starting point is 9 months’ M
imprisonment. The defendant pleaded guilty, for which he is entitled to a
N N
one-third discount. The sentence is therefore 6 months’ imprisonment.
O O
P P
Q ( A Kwok ) Q
District Judge
R R
S S
T T
U U
V V