A A
B DCCC 142/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 142 OF 2016
E E
-----------------------------------
F HKSAR F
v.
G G
XU Huazong
H ----------------------------------- H
Before: HH Judge E. Yip
I I
Date: 4th May 2016 at 12:09 pm
J Present: Miss Lily YIP, Public Prosecutor, of the Department J
of Justice, for HKSAR
K K
Mr ROSS Phillip Geoffrey, instructed by M/s Ip, Kwan & Co
L assigned by DLA for Defendant L
Offence: [1] Behaving in a disorderly manner on board an aircraft (在
M M
飛機上作出擾亂秩序的行為)
N N
----------------------------
O Ruling on the appropriateness of the charge O
----------------------------
P P
Charge
Q Q
1. The Defendant is charged with behaving in a disorderly
R R
manner on board an aircraft, contrary to sections 12B(3), 12B(10) and 21
S of the Aviation Security Ordinance (“ASO”), Cap. 494. S
T T
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A A
B 2. He expresses an intention to plead guilty and admit the B
summary of facts put forward by the prosecution but there is an
C C
outstanding issue as to whether the facts support the charge.
D D
Facts put forward by the prosecution
E E
F 3. The Defendant was on board an aircraft operated by Turkish F
Airlines departing Turkey for Hong Kong. The categories of offences
G G
committed on an aircraft are limited and subject to considerations of
H jurisdiction. It suffices to say herein that the present case might have come H
under theft but for its having taken place on an aircraft not relating to Hong
I I
Kong save its destination. There is no theft charge available. The closest
J offence in respect of what the Defendant had done has to be “behaving in a J
disorderly manner on board an aircraft”.
K K
L L
4. Soon after PW1 NI boarded the aircraft at 7 a.m. on 26
M
December 2015, he took a seat at 16E. He placed his suitcase containing M
his wallet with substantial cash in the overhead locker above 16G. It was
N N
the only luggage there. The Defendant took a seat at 25G. There were 290
O passengers on board. O
P P
5. At 11:30 a.m., PW1 saw the Defendant open the overhead
Q locker above 16G and close it. At around 12 p.m., a cabin crew member Q
PW2 SENKAYA saw the Defendant get up from row 25 and open three
R R
different overhead lockers. The Defendant took a suitcase out from an
S overhead locker and went to the toilet. About 10 minutes later, the S
Defendant came out and noticed PW2 observing him. He looked nervous
T T
and went to open the overhead locker above 25G. He sat down at 25G and
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A A
B placed the suitcase between his legs. PW2 saw him putting something into, B
as well as taking something out from, the suitcase. PW2 observed the
C C
aforesaid at his jump-seat about 2.1 metres away with nothing impeding
D his view of the Defendant. D
E E
6. PW2 discussed the incident with other colleagues. The
F Defendant walked past PW2 with the suitcase and pushed PW2 aside, then F
put the suitcase back into the overhead locker above 16G. He returned to
G G
sit at 25G. PW2 and a colleague retrieved the suitcase and alerted PW1.
H PW1 checked the suitcase and found five banknotes of EURO 500 each H
missing from the wallet. PW2 and a colleague led PW1 to confront the
I I
Defendant at 25G. PW1 asked him where the money was. He drew PW1’s
J attention to five banknotes of EURO 500 each from the second J
compartment of PW1’s suitcase. He told PW1 that all the money was there
K K
without loss.
L L
M
7. As the aircraft landed in Hong Kong at 4:50 p.m., the M
Defendant stood up from seat 34H, and took out his black bag from the
N N
overhead locker above 35G. The police were alerted and took up the
O matter for investigation. O
P P
8. When arrested and cautioned for theft, he said he took PW1’s
Q carry-on bag by mistake and he did not steal anything. He had carried his Q
black bag on to the aircraft and placed it in the overhead locker above row
R R
34 as he was originally seated in 34H.
S S
9. Section 12B(3) of ASO provides that:
T T
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A A
B Any person on board an aircraft who behaves in a disorderly B
manner whereby the good order or discipline on board the
aircraft was or was likely to be jeopardized commits an offence.
C C
D
The Defendant’s stance D
E E
10. As to what is “disorderly behaviour”, it is common ground
F between the prosecution and the defence that it is a question of fact for the F
court to decide. Mr. Ross prays in aid Halsbury’s Laws of Hong Kong,
G G
2002 Reissue, Vol 9, para 130.251 to the effect that it refers to “any
H substantial breach of decorum which tends to disturb the peace or to H
interfere with the conduct of other people who may be in the vicinity”. As
I I
to whether the conduct of the accused can be characterized as “disorderly”,
J it is an objective test (HKSAR v Cheng Siu Wing [2003] 4 HKC 471). J
K K
11. As to what it takes to “jeopardize good order or discipline’,
L Mr. Ross seeks (in para 8(ii) of his Submissions) to compare it with L
conduct provoking a breach of the peace, an offence contrary to section
M M
17B(2) of the Public Order Ordinance (“POO”), Cap. 245. He discerns
N from that section the following basic principles: N
O O
(1) There must be an “act done or threatened to be done which
P either actually harms a person, or in his presence his property, P
or is likely to cause such harm, or which puts someone in fear
Q Q
of such harm being done”.
R (2) The behavior must be such that an act or threat of violence R
occurs or is likely to occur in response to the conduct of the
S S
accused.
T T
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A A
B (3) The court must consider the tendency of persons present at the B
scene to be provoked to violent behavior in considering
C C
whether there is a real likelihood of a breach of the peace
D being caused. D
(4) A disturbance alone, without anything more, cannot
E E
constitute a breach of the peace.
F F
12. Miss Yip for the prosecution argues (in para 38 of her
G G
Submissions) that the wording of section 12B(3) of the Ordinance is
H different from that of section 17B(2) of the POO. The former does not H
require the prosecution to prove the full extent of a breach of the peace
I I
being caused.
J J
My ruling
K K
L L
13. I find the reference in Halsbury’s Laws of Hong Kong for
M
“disorderly behavior” as “any substantial breach of decorum which tends M
to disturb the peace or to interfere with the conduct of other people who
N N
may be in the vicinity” most apposite.
O O
14. In the confines of an aircraft, people are packed often
P P
randomly together for a number of hours during the flight. A large portion
Q of their personal property is inevitably to be stowed in the overhead lockers. Q
The system of storage of luggage is based on mutual decency. The idea is
R R
not to tamper with others’ luggage. I am satisfied that applying an
S objective test, the tampering with others’ luggage amounted to “a S
substantial breach of decorum”.
T T
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A A
B 15. As to how or whether that breach of decorum “tends to disturb B
the peace”, I agree with Mr. Ross that this phrase means the same as
C C
“breach of the peace” both under section 12B (3) of ASO and section 17B
D (2) of POO. This is actually in line with Judge Kwok’s observations in D
HKSAR v Zuo Guofa DCCC 841/2015 (in para 21), which applied Beeson
E E
J’s judgment in HKSAR v Cheng Siu Wing [2003] 4 HKC 471.
F F
16. The Defendant had been opening and closing overhead
G G
lockers and gone to the toilet in the following manner:
H H
(1) The locker above PW1 at 11:30 a.m.;
I I
(2) 3 other lockers at around 12 p.m.;
J (3) Going into the toilet with a suitcase, whose ownership J
was unknown, for 10 minutes;
K K
(4) The locker above 25G;
L L
(5) The locker above PW1.
M M
17. Except for the first instance at 11:30 a.m., PW2 had seen all
N N
the subsequent acts. As a crew member responsible for overseeing the
O security of passengers and the aircraft, the property of a passenger was as O
much as concern to him as his own. Surely he would worry that the
P P
Defendant was taking things out from, or putting things into, other
Q passengers’ luggage. Mr. Ross argues that as a trained professional, he Q
would not lose his cool when he handled the matter. I accept that but the
R R
matter did not rest there. He had the duty to, and did, alert PW1 for
S disposal of the matter. Upon being briefed by PW2, PW1 went to confront S
the Defendant and engaged in a conversation with the Defendant for some
T T
time. He did not resort to any rough language or violence but given that
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A A
B there was generally speaking no law enforcement agency available in the B
aircraft, there was a real likelihood that PW1, who found EURO 2,500
C C
removed from his wallet, would take the matter into his own hands by
D rough language and violence. The offence did not require actually breach D
of the peace as a real likelihood of violence sufficed.
E E
F 18. I am satisfied that the present summary of facts as admitted in F
full by the Defendant capable of supporting the charge of behaving in a
G G
disorderly manner on board an aircraft. I convict the Defendant
H accordingly. H
I I
19. I have to mention before ending that it is up to the Turkish
J authority to consider whether or how to proceed against the Defendant on J
any appropriate charge as the Turkish law provides.
K K
L L
M
(E. Yip) M
District Judge
N N
O O
P P
Q Q
R R
S S
T T
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A A
B DCCC 142/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 142 OF 2016
E E
-----------------------------------
F HKSAR F
v.
G G
XU Huazong
H ----------------------------------- H
Before: HH Judge E. Yip
I I
Date: 4th May 2016 at 12:09 pm
J Present: Miss Lily YIP, Public Prosecutor, of the Department J
of Justice, for HKSAR
K K
Mr ROSS Phillip Geoffrey, instructed by M/s Ip, Kwan & Co
L assigned by DLA for Defendant L
Offence: [1] Behaving in a disorderly manner on board an aircraft (在
M M
飛機上作出擾亂秩序的行為)
N N
----------------------------
O Ruling on the appropriateness of the charge O
----------------------------
P P
Charge
Q Q
1. The Defendant is charged with behaving in a disorderly
R R
manner on board an aircraft, contrary to sections 12B(3), 12B(10) and 21
S of the Aviation Security Ordinance (“ASO”), Cap. 494. S
T T
U U
CRT29/4.5.2016 DCCC 142/2016/Ruling
V V
- 2 -
A A
B 2. He expresses an intention to plead guilty and admit the B
summary of facts put forward by the prosecution but there is an
C C
outstanding issue as to whether the facts support the charge.
D D
Facts put forward by the prosecution
E E
F 3. The Defendant was on board an aircraft operated by Turkish F
Airlines departing Turkey for Hong Kong. The categories of offences
G G
committed on an aircraft are limited and subject to considerations of
H jurisdiction. It suffices to say herein that the present case might have come H
under theft but for its having taken place on an aircraft not relating to Hong
I I
Kong save its destination. There is no theft charge available. The closest
J offence in respect of what the Defendant had done has to be “behaving in a J
disorderly manner on board an aircraft”.
K K
L L
4. Soon after PW1 NI boarded the aircraft at 7 a.m. on 26
M
December 2015, he took a seat at 16E. He placed his suitcase containing M
his wallet with substantial cash in the overhead locker above 16G. It was
N N
the only luggage there. The Defendant took a seat at 25G. There were 290
O passengers on board. O
P P
5. At 11:30 a.m., PW1 saw the Defendant open the overhead
Q locker above 16G and close it. At around 12 p.m., a cabin crew member Q
PW2 SENKAYA saw the Defendant get up from row 25 and open three
R R
different overhead lockers. The Defendant took a suitcase out from an
S overhead locker and went to the toilet. About 10 minutes later, the S
Defendant came out and noticed PW2 observing him. He looked nervous
T T
and went to open the overhead locker above 25G. He sat down at 25G and
U U
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- 3 -
A A
B placed the suitcase between his legs. PW2 saw him putting something into, B
as well as taking something out from, the suitcase. PW2 observed the
C C
aforesaid at his jump-seat about 2.1 metres away with nothing impeding
D his view of the Defendant. D
E E
6. PW2 discussed the incident with other colleagues. The
F Defendant walked past PW2 with the suitcase and pushed PW2 aside, then F
put the suitcase back into the overhead locker above 16G. He returned to
G G
sit at 25G. PW2 and a colleague retrieved the suitcase and alerted PW1.
H PW1 checked the suitcase and found five banknotes of EURO 500 each H
missing from the wallet. PW2 and a colleague led PW1 to confront the
I I
Defendant at 25G. PW1 asked him where the money was. He drew PW1’s
J attention to five banknotes of EURO 500 each from the second J
compartment of PW1’s suitcase. He told PW1 that all the money was there
K K
without loss.
L L
M
7. As the aircraft landed in Hong Kong at 4:50 p.m., the M
Defendant stood up from seat 34H, and took out his black bag from the
N N
overhead locker above 35G. The police were alerted and took up the
O matter for investigation. O
P P
8. When arrested and cautioned for theft, he said he took PW1’s
Q carry-on bag by mistake and he did not steal anything. He had carried his Q
black bag on to the aircraft and placed it in the overhead locker above row
R R
34 as he was originally seated in 34H.
S S
9. Section 12B(3) of ASO provides that:
T T
U U
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A A
B Any person on board an aircraft who behaves in a disorderly B
manner whereby the good order or discipline on board the
aircraft was or was likely to be jeopardized commits an offence.
C C
D
The Defendant’s stance D
E E
10. As to what is “disorderly behaviour”, it is common ground
F between the prosecution and the defence that it is a question of fact for the F
court to decide. Mr. Ross prays in aid Halsbury’s Laws of Hong Kong,
G G
2002 Reissue, Vol 9, para 130.251 to the effect that it refers to “any
H substantial breach of decorum which tends to disturb the peace or to H
interfere with the conduct of other people who may be in the vicinity”. As
I I
to whether the conduct of the accused can be characterized as “disorderly”,
J it is an objective test (HKSAR v Cheng Siu Wing [2003] 4 HKC 471). J
K K
11. As to what it takes to “jeopardize good order or discipline’,
L Mr. Ross seeks (in para 8(ii) of his Submissions) to compare it with L
conduct provoking a breach of the peace, an offence contrary to section
M M
17B(2) of the Public Order Ordinance (“POO”), Cap. 245. He discerns
N from that section the following basic principles: N
O O
(1) There must be an “act done or threatened to be done which
P either actually harms a person, or in his presence his property, P
or is likely to cause such harm, or which puts someone in fear
Q Q
of such harm being done”.
R (2) The behavior must be such that an act or threat of violence R
occurs or is likely to occur in response to the conduct of the
S S
accused.
T T
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V V
- 5 -
A A
B (3) The court must consider the tendency of persons present at the B
scene to be provoked to violent behavior in considering
C C
whether there is a real likelihood of a breach of the peace
D being caused. D
(4) A disturbance alone, without anything more, cannot
E E
constitute a breach of the peace.
F F
12. Miss Yip for the prosecution argues (in para 38 of her
G G
Submissions) that the wording of section 12B(3) of the Ordinance is
H different from that of section 17B(2) of the POO. The former does not H
require the prosecution to prove the full extent of a breach of the peace
I I
being caused.
J J
My ruling
K K
L L
13. I find the reference in Halsbury’s Laws of Hong Kong for
M
“disorderly behavior” as “any substantial breach of decorum which tends M
to disturb the peace or to interfere with the conduct of other people who
N N
may be in the vicinity” most apposite.
O O
14. In the confines of an aircraft, people are packed often
P P
randomly together for a number of hours during the flight. A large portion
Q of their personal property is inevitably to be stowed in the overhead lockers. Q
The system of storage of luggage is based on mutual decency. The idea is
R R
not to tamper with others’ luggage. I am satisfied that applying an
S objective test, the tampering with others’ luggage amounted to “a S
substantial breach of decorum”.
T T
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V V
- 6 -
A A
B 15. As to how or whether that breach of decorum “tends to disturb B
the peace”, I agree with Mr. Ross that this phrase means the same as
C C
“breach of the peace” both under section 12B (3) of ASO and section 17B
D (2) of POO. This is actually in line with Judge Kwok’s observations in D
HKSAR v Zuo Guofa DCCC 841/2015 (in para 21), which applied Beeson
E E
J’s judgment in HKSAR v Cheng Siu Wing [2003] 4 HKC 471.
F F
16. The Defendant had been opening and closing overhead
G G
lockers and gone to the toilet in the following manner:
H H
(1) The locker above PW1 at 11:30 a.m.;
I I
(2) 3 other lockers at around 12 p.m.;
J (3) Going into the toilet with a suitcase, whose ownership J
was unknown, for 10 minutes;
K K
(4) The locker above 25G;
L L
(5) The locker above PW1.
M M
17. Except for the first instance at 11:30 a.m., PW2 had seen all
N N
the subsequent acts. As a crew member responsible for overseeing the
O security of passengers and the aircraft, the property of a passenger was as O
much as concern to him as his own. Surely he would worry that the
P P
Defendant was taking things out from, or putting things into, other
Q passengers’ luggage. Mr. Ross argues that as a trained professional, he Q
would not lose his cool when he handled the matter. I accept that but the
R R
matter did not rest there. He had the duty to, and did, alert PW1 for
S disposal of the matter. Upon being briefed by PW2, PW1 went to confront S
the Defendant and engaged in a conversation with the Defendant for some
T T
time. He did not resort to any rough language or violence but given that
U U
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V V
- 7 -
A A
B there was generally speaking no law enforcement agency available in the B
aircraft, there was a real likelihood that PW1, who found EURO 2,500
C C
removed from his wallet, would take the matter into his own hands by
D rough language and violence. The offence did not require actually breach D
of the peace as a real likelihood of violence sufficed.
E E
F 18. I am satisfied that the present summary of facts as admitted in F
full by the Defendant capable of supporting the charge of behaving in a
G G
disorderly manner on board an aircraft. I convict the Defendant
H accordingly. H
I I
19. I have to mention before ending that it is up to the Turkish
J authority to consider whether or how to proceed against the Defendant on J
any appropriate charge as the Turkish law provides.
K K
L L
M
(E. Yip) M
District Judge
N N
O O
P P
Q Q
R R
S S
T T
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V V