A A
B B
DCCC 1160/2017
C [2018] HKDC 479 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1160 OF 2017
F F
G ------------------------- G
HKSAR
H H
v
I ZHOU QIYU I
--------------------------
J J
K Before: His Honour Judge Tam K
Date: 2 May 2018
L L
Present: Miss Tam Ka Wing, Sheroy, Senior Public Prosecutor, for
M HKSAR M
Ms Bu Yanan Annie, instructed by Yu Hung & Co, for the
N N
defendant
O Offence: Behaving in a disorderly manner on board an aircraft (在飛機 O
P
上作出擾亂秩序的行為) P
Q Q
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R REASONS FOR DECISION R
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S S
T T
U U
V V
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A A
B B
C C
1. Defendant Ms Zhou Qiyu has been charged with one charge
D D
of Behaving in a disorderly manner on board an aircraft, contrary to
E sections 12B(3), 12B(10) and 21 of the Aviation Security Ordinance, Cap E
494.
F F
G 2. The particulars of offence are that Zhou Qiyu, on the G
16 November 2017, behaved in a disorderly manner on board a non-Hong
H H
Kong-controlled aircraft, namely Philippine Airlines with the air flight No
I PR310 from Manila to Hong Kong, while in flight elsewhere than in or I
over Hong Kong, whereby the good order or discipline on board the aircraft
J J
was or was likely to be jeopardized.
K K
Purpose of the hearing
L L
M 3. Ms Annie Bu of counsel acting on behalf of Ms Zhou M
indicated her lay client’s intention to plead guilty to the charge upon the
N N
court’s satisfaction that the charge is appropriate ie that the charge fits the
O facts. O
P P
Summary of facts
Q Q
4. The parties agree that the Summary of Facts dated
R R
2 January 2018 as amended by Ms Sheroy Tam of prosecution in Court on
S 17 April 2018 will form the basis of the legal argument. S
T T
5. Those facts may be summarized as follows.
U U
V V
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A A
B B
C 6. On 16 November 2017, at around 7 pm, a flight PR310 took C
off from Manila for Hong Kong. PW1 an off duty Filipino pilot, Ms Zhou
D D
and PW2 an Indian bank manager were seated side by side together in that
E order at seats 47H, J and K. E
F F
7. Later, upon invitation, PW1 moved to another seat close to
G the emergency exit towards the rear of the aircraft. Unwittingly, he left G
behind his wallet containing a stack of cash (around 30,000-60,000 Pesos)
H H
at his original seat. Sometime had elapsed before he found out his
I inadvertence. He went back and found his wallet under the seat at 47H. I
The cash was however missing. He conducted a search from the aisle of
J J
the compartment and sought help from cabin crew to no avail.
K K
8. Later, while on his way to the toilet, PW2 approached PW1
L L
and told the latter that he had earlier seen Ms Zhou sit on the seat vacated
M by PW1 and she was counting some banknotes and was hiding something M
in her bra in a suspicious manner. PW1 alerted the flight attendants. At
N N
some point in time, the matter was reported to the Police.
O O
9. Upon return from the toilet, PW2 found Ms Zhou seated on
P P
his seat. As PW2 did not mind about this, he took Ms Zhou’s seat (47H)
Q instead. Q
R R
10. Once the plane landed, Police took over the matter. Ms Zhou
S was searched and she was found to have a piece of tissue containing S
15 pieces of 1,000 Pesos inside the left side of her bra. Ms Zhou also
T T
surrendered two pieces of 500 Pesos and four pieces of 20 Pesos from her
U U
V V
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A A
B B
handbag. Ms Zhou was arrested and under caution admitted she acted out
C of greed. C
D D
11. During a cautioned interview, Ms Zhou stated:-
E E
(a) Her seat was originally 47J;
F F
G (b) She took the flight PR310 from Manila to Hong Kong G
and planned to fly to Vietnam for work the next day;
H H
I (c) After the flight had taken off for around 30 minutes, she I
saw PW1 move to another seat; so she moved into his
J J
original seat and saw a brown wallet under this seat; she
K opened the wallet and found money inside; she put the K
money into her handbag and her bra;
L L
M (d) She wrapped (some of) the money up with a piece of M
tissue before putting it inside her bra while she put the
N N
rest (of the money) into her handbag;
O O
(e) She dropped the wallet on the floor afterwards; and
P P
Q (f) She wanted to take a rest and changed seats with PW2. Q
R R
Order of submissions
S S
12. For the purpose of rationalizing the order of the speeches, I
T T
treated defence’s application as an application to dismiss the charge on the
U U
V V
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A A
B B
basis that the Summary of Facts will not fit the Charge. This is despite the
C fact there is no equivalent to a section 16 application (Cap 221) in the C
District Court. I was minded to make a declaration in the appropriate terms
D D
should the defence be successful. I therefore invited the defence to make
E submissions first, to be followed by the prosecution with a right of final E
reply to be enjoyed by the defence.
F F
G The issues in the legal argument G
H H
13. Having made it plain that Ms Zhou intends to plead guilty, the
I defence essentially argues that the facts of the case do not support the I
charge. The prosecution argues otherwise. The issue appears to be two-
J J
fold: (1) whether on the facts there was disorderly behavior by Ms Zhou;
K and (2) whether as a result, good order or discipline on board the aircraft K
was or was likely to be jeopardized.
L L
M Defence submissions M
N N
14. Defence has filed a set of written submissions supplemented
O by oral arguments. O
P P
15. Essentially, defence argued that the concept of breach of the
Q peace is involved in both of the issues above identified. As such, there is Q
little chance of the prosecution succeeding because the chance of anyone
R R
responding to Ms Zhou’s acts by a breach of the peace is almost nil.
S S
T T
U U
V V
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A A
B B
Prosecution submissions
C C
16. Prosecution relies on a set of rather comprehensive and
D D
lengthy written submissions supplemented by oral arguments.
E E
17. Essentially, the prosecution argued that there was sufficient
F F
material on the facts to show that the offence is made out.
G G
Consideration of the issues
H H
I 18. S 12B(3) of Cap 494 states:- I
J J
“Any person on board an aircraft who behaves in a disorderly
manner whereby the good order or discipline on board the
K aircraft is or is likely to be jeopardized commits an offence.” K
L L
19. There is no definition in Cap 494 of what is meant by
M
“disorderly manner”; nor is there any definition in the Ordinance of what M
is meant by “good order or discipline on board the aircraft”.
N N
O 20. However, some guidance may be had from the pre-legislative O
documents associated with the enactment of that section.
P P
Q 21. In the Explanatory Memorandum of the Aviation Q
(Amendment) Bill 2005 which introduced, inter alia, section 12B into the
R R
original Ordinance, it was said that the proposed amendments were
S intended to enhance the security of passengers and crew on international S
flights and follow the recommendations of the International Civil Aviation
T T
Organization (ICAO).
U U
V V
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A A
B B
C 22. Specifically, the new Section 12B was to create new offences C
relating to unruly behavior committed on board civil aircraft including
D D
offences relating to the obstruction of crew members, the failure to comply
E with instructions given by crew members, disorderly behavior, the E
tampering or interfering with aircraft apparatus, equipment or systems,
F F
intoxication by alcohols, drugs or other intoxicating substances, smoking
G and the operation of electronic devices. G
H H
23. In the LegCo Brief for the 2005 Bill, at para 7, it is the said
I that the Administration proposed to incorporate as far as practicable and I
with necessary adjustments the provisions of the ICAO Model Legislation
J J
into the original Ordinance; that the policy intent, consistent with that
K expressed in the ICAO resolution of October 2001, was to enable the Hong K
Kong authorities to prosecute in appropriate cases criminal acts and
L L
offences constituting unruly or disruptive behavior on board Hong Kong-
M controlled and non-Hong Kong controlled aircraft. M
N N
24. To the same LegCo Brief, the ICAO Model Legislation was
O attached as part of Annex B. O
P P
25. In the Report of the Bills Committee on the 2005 Bill, at
Q para 11, a point was made about the absence in the Model Legislation of Q
the offence of disorderly behavior along the lines of the new Section
R R
12B(3); and LegCo members had questioned about the meaning of
S “disorderly behavior”. S
T T
U U
V V
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A A
B B
26. The Administration’s answer contained in para 12 of the
C Report is produced in full below:- C
D D
“The Administration has explained that the offence of disorderly
behavior in the Bill is modelled in part on the offence in section
E 17B(2) of the Public Order Ordinance (Cap. 245) (POO). E
Halsbury’s Laws of Hong Kong states that “disorderly behavior”
refers to “any substantial breach of decorum which tends to
F disturb the peace or to interfere with the comfort of other people F
who may be in the vicinity.” In HKSAR v Cheng Siu Wing [2003]
G 4 HKC 471, the Court of First Instance held that the word G
“disorderly” in section 17B(2) of the POO should be given its
ordinary dictionary meaning and it referred to unruly or
H offensive behavior or behavior which violates public order or H
morality. The Court also held that disorderly conduct covered
behavior in the hearing or sight of a person which was likely to
I I
cause harassment, alarm or distress thereby. There needed not
be any element of violence, whether present or threatened, on
J the part of the accused. It covered conduct which was not J
necessarily threatening, abusive or insulting in itself.”
K K
27. Section 17B(2) of POO states:-
L L
“Any person who in any public place behaves in a noisy or
M M
disorderly manner, or uses, or distributes or displays any writing
containing, threatening, abusive or insulting words, with intent
N to provoke a breach of the peace, or whereby a breach of the N
peace is likely to be caused, shall be guilty of an offence and
shall be liable on conviction to a fine at level 2 and to
O imprisonment for 12 months.” O
P P
28. Stripped of the superfluous parts as far as this application is
Q concerned, an edited version of section 17B(2) of POO would read as Q
follows:-
R R
S “Any person who … behaves in a … disorderly manner … S
whereby a breach of the peace is likely to be caused, shall be
guilty of an offence …”
T T
U U
V V
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A A
B B
29. It was in the context of explaining what was meant by
C “disorderly behavior” that the Administration said that the offence of C
disorderly behavior ie the section 12B(3) offence was modelled in part on
D D
the offence in section 17B(2) of POO.
E E
30. If one turns to the relevant passage of Halsbury’s Laws of
F F
Hong Kong (updated at Vol 20 [130.251] since the time of the Report), it
G is there said that “disorderly behavior refers to any substantial breach of G
decorum which tends to disturb the peace or to interfere with the comfort
H H
of other people who may be in the vicinity. Nonetheless, the meaning of
I ‘disorderly behavior’ under s 17B(2) is best left to the trial judge to be I
applied in their ordinary meaning to the time, place and circumstances of
J J
the conduct in question.”
K K
31. The extra sentence of the passage in Halsbury’s above-quoted
L L
was no doubt added there as a result of the relatively recent CFA authority
M of HKSAR v Chow Nok Hang & Anor (2013) 16 CFAR 837. There at paras M
65-68, Ribeiro PJ had occasion to examine the meaning of “disorderly
N N
behavior” in section 17B(2) of POO, where he said,
O O
“65. The courts have not attempted a definition of “disorderly
P behavior”. P
Q
… Q
66. … As Lord Reid held in Brutus v Cozens:
R R
“The meaning of an ordinary word of the English
language is not a question of law. The proper
S S
construction of a statute is a question of law.” 1
T T
1
[1973] AC 854, 861
U U
V V
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A A
B 67. In my view, that is the approach which should be adopted B
in Hong Kong. As Gleeson CJ pointed out in Coleman v Power 2:
C C
“Concepts of what is disorderly, or indecent, or offensive,
vary with time and place, and may be affected by the
D circumstances in which the relevant conduct occurs.” D
E 68. Such concepts are best left to the trial judge to be applied E
in their ordinary meaning to the time, place and circumstances
of the conduct in question …”
F F
32. Similarly, in paras 193-195 of the CFA authority, Litton NPJ
G G
said:-
H H
“193. What behavior amounts to disorderly conduct, or when
I I
a situation constitutes a breach of the peace, or a threat thereof,
depends on the circumstances of the time and place. The social
J context in which the events occur forms an important part of the J
picture. As the author of Public Order: A guide to the 1986
Public Order Act [Format Publishing 1987] at p 93 notes: The
K conduct of a football crowd would be disorderly if it were K
repeated in a theatre during a performance.
L L
194. The question is one of degree. It is purely a question of
fact, for the fact-finding tribunal to decide. The appellate courts
M would do the system, and the community, great harm if they M
interfered too readily in such fact-finding function, or added
degrees of sophistication to such function which are
N N
unwarranted.
O 195. As Lord Reid said in Cozens v Brutus [1973] AC 854 at O
861C, the meaning of an ordinary word of the English language
is not a question of law. It is a matter for the fact-finding tribunal
P to consider, not as a matter of law, but as fact, whether in the P
whole of the circumstances the words of the statute do or do not
Q apply to the facts which have been proved.” Q
R 33. Applying the various dicta extracted from the CFA authority, R
I am satisfied that all the various guidance provided in Halsbury’s and the
S S
case of Cheng Siu Wing are no more than helpful guides and should not be
T T
2
(2004) 220 CLR 1 at para 12
U U
V V
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A A
B B
read like a statute in the interpretation of the term “disorderly behavior” or
C the phrase “behaving in a disorderly manner”. C
D D
34. It is my task to determine whether the conduct of Ms Zhou,
E seen in the context of the time, place and circumstances amounted to E
behaving in a disorderly manner for the purpose of section 12B(3).
F F
G 35. What did Ms Zhou do? Bearing also in mind what she G
admitted under caution, this is what happened.
H H
I 36. After the flight took off, PW1 who originally sat on 47H (an I
aisle seat) moved to sit at a place nearer the rear of the aircraft. Unwittingly,
J J
he left his wallet behind at/under his original seat. Ms Zhou moved one
K seat to her left and sat on 47H. She saw the wallet under this seat, picked K
it up, opened it and found money inside. She took out the money, wrapped
L L
part of the money with a tissue before putting it inside her bra and placed
M the rest of the money in her handbag. She then dropped the wallet onto the M
floor. PW2 who was seated at 47K (a window seat two seats to the right
N N
of 47H) saw part of the scenario: he saw Ms Zhou counting some banknotes
O while seated on PW1’s original seat, and hiding something in her bra in a O
suspicious manner.
P P
Q 37. Later, PW1 discovered he had lost his wallet. He went back Q
looking for his wallet and found it under 47H. The cash was missing. PW1
R R
conducted a search from the aisle of the compartment and sought help from
S cabin crew but to no avail. S
T T
U U
V V
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A A
B B
38. Later still, PW2 went for the toilet, and on his way approached
C PW1 and told him what he had earlier seen. PW1 reported the matter to C
the flight attendants. At some point in time, the case was reported to the
D D
Police.
E E
39. When PW2 returned from the toilet, he found Ms Zhou seated
F F
on his seat ie the window seat. As PW2 did not mind, he took the seat left
G behind by Ms Zhou ie the aisle seat at 47H. G
H H
40. The facts revealed that Ms Zhou, in open view of the person(s)
I around her, moved across one seat to her left (an aisle seat) previously I
occupied by PW1, picked up a wallet from under the new seat, opened it,
J J
took out cash from it, counted the cash, wrapped part of the cash in a tissue
K before putting it inside her bra, and placing the remaining cash in her K
handbag. Then she dropped the wallet back onto the floor. Later PW1
L L
retrieved the wallet from under Ms Zhou’s (new) seat.
M M
41. It is startling that Ms Zhou did all these illicit acts while seated
N N
on her aisle seat the course of which could have been seen by passengers
O seated nearby. Indeed, part of it was seen by PW2 seated two places from O
her right.
P P
Q 42. I am of the view that what Ms Zhou did amounted to unruly Q
or offensive behavior or behavior which violated public morality. Further
R R
or alternatively, it was done within the sight of person(s) within the vicinity
S which was likely to cause alarm or distress thereby. I am satisfied that S
Ms Zhou behaved in a disorderly manner in the overall circumstances of
T T
the case.
U U
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A A
B B
C 43. But there is a second element to the offence. C
D D
44. The disorderly behavior cannot be any disorderly behavior but
E must be such that good order or discipline on board the aircraft is or is E
likely to be jeopardized by it.
F F
G 45. Ms Bu on behalf of Ms Zhou hasn’t really addressed me on G
the meaning of this second element (nor really has Ms Tam for the
H H
prosecution) because her main attention was directed towards the
I interpretation of “disorderly behavior” which in the light of the CFA I
authority might with respect be said to be misdirected.
J J
K 46. Again, it does appear that no court, at least no appellate court, K
has had occasion to define what it means by the clause “good order or
L L
discipline on board the aircraft is or is likely to be jeopardized”.
M M
47. Ms Bu in the course of submissions seemed to have suggested
N N
the concept is related to breach of the peace and attempted to equate “good
O order or discipline” with “breach of the peace” without explaining the basis O
of her submission.
P P
Q 48. In one of the cases referred to by both parties, the District Q
Court case of HKSAR v Xu Huazong, DCCC 142/2016, delivered at
R R
12:09 pm of 4 May 2016, it was recorded at para 11 of the Ruling that
S defence counsel there had sought to compare what it takes to “jeopardize S
good order or discipline” with conduct provoking a breach of the peace in
T T
U U
V V
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A A
B B
section 17B(2) of POO, without actually equating “jeopardizing good order
C or discipline” with “provoking a breach of the peace”. C
D D
49. What is a “breach of the peace”? In the CFA authority already
E cited, Ribeiro PJ had this to say at paras 77-78 of the Judgment: E
F F
“77. … it is necessary to consider the meaning of “breach of
the peace”. The modern authority is R v Howell3, where Watkins
G LJ explained the concept as follows: G
“… there is a breach of the peace whenever harm is actually
H done or is likely to be done to a person or in his presence to his H
property or a person is in fear of being so harmed through an
I assault, an affray, a riot, unlawful assembly or other disturbance. I
It is for this breach of the peace when done in his presence or the
reasonable apprehension of it taking place that a constable, or
J anyone else, may arrest an offender without warrant.” J
K
78. Approving that decision, Lord Bingham of Cornhill K
noted in R (Laporte) v Chief Constable of Gloucestershire4, that
“the essence of the concept was to be found in violence or
L threatened violence” and it was on that basis that the European L
Court of Human Rights found that the concept possessed
sufficient certainty in law.”
M M
N 50. So it appears that violence or threatened violence is an N
essential ingredient of the concept of “breach of the peace”. However, in
O O
my view, when one is concerned with good order or discipline on an
P aircraft, something of a wider scope than violence or threatened violence P
must be prevented in order to maintain good order and discipline on board
Q Q
an aircraft; put in another way, it is easier to satisfy the element of good
R order and discipline than of the element of breach of the peace. R
S S
T T
3
[1982] QB 416
4
[2007] 2 AC 105 at paras 27-28
U U
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A A
B B
51. Take for example a female stripper who decides to strip tease
C on board an aircraft in flight. Her action might not thereby cause violence C
or threatened violence, but it certainly will jeopardize the good order and
D D
discipline on board because a lot of passengers (both male and female) and
E especially those seated nearby will immediately take out their mobile E
phones and try to take a photo/video of her action and if necessary after
F F
unbuckling their seat belt and standing up to take a better vantage point.
G One can imagine the commotion that would be stirred up which could G
jeopardize the good order and discipline (or at least make it likely) and
H H
might possibly jeopardize the safety of the aircraft.
I I
52. In other words, the disorderly behavior of one person may
J J
cause the disorderly behavior of another/others on board the aircraft
K without causing any violence or threatened violence or making it likely. K
But because of the confines of an aircraft (with the associated possibility
L L
of a domino effect) and the importance of safety of all lives on board, the
M concept of good order or discipline must be made wider than the concept M
of breach of the peace.
N N
O 53. Consequently, in my view, it is not correct to equate the two O
concepts with each other.
P P
Q 54. There is another reason why the two concepts must be taken Q
to mean different things. The reason is that if the Legislature had intended
R R
that they mean the same thing, it would have been so easy to introduce the
S term “breach of the peace” into the section in 2005. S
T T
U U
V V
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A A
B B
55. Being a phrase consisting of ordinary English words, it falls
C on me to determine whether the facts, when examined objectively, show C
that “good order or discipline” on board the aircraft was or was likely to be
D D
caused by the disorderly behavior of Ms Zhou.
E E
56. For the word “jeopardize”, the Shorter Oxford Dictionary
F F
gives its meaning as “endanger, put at risk”.
G G
57. During submissions by Ms Bu, much reliance has been placed
H H
on the fact that there had been no confrontation by any of PW1 (an off-
I duty pilot), PW2 (a bank manager), and the flight attendants, against I
Ms Zhou. It has been strongly emphasized that PW1 and the flight
J J
attendants being trained air crew would not in any event have confronted
K Ms Zhou. It had even been suggested that because Ms Zhou was a lady K
travelling alone, gentlemen such as PW1 and PW2 would not have taken
L L
that step.
M M
58. In the case of Xu Huazong earlier referred to, the facts were,
N N
inter alia, that a male cabin crew member S of Turkish Airlines, after
O observing the male defendant’s suspicious acts in relation to overhead O
lockers for a while, discussed the matter with his colleagues before alerting
P P
the victim of a suspected theft of the latter’s property. After having
Q confirmed that the victim had lost some property, S and a colleague led the Q
victim to confront the defendant while the aircraft was still in flight.
R R
S 59. So, while it may be right to say that trained air crew might not S
initiate in acts involving violence or threatened violence, there was nothing
T T
to prevent the air crew, having ascertained what happened, to confront the
U U
V V
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A A
B B
wrongdoer, be he/she a suspected thief or other types of unruly passenger.
C Sometimes they would have to do so, in order to prevent the disorderly C
behavior from continuing or to prevent further disorderly behaviour, even
D D
if that meant a risk of altercation, commotion or fracas.
E E
60. In the present case, Ms Zhou was simply lucky that there was
F F
no confrontation. By acting so suspiciously in the open view of other
G passenger(s), she was opening herself up to the real or imminent risk of G
intervention by PW2, or of later confrontation by PW1 and other air crew
H H
(including female air crew). Once an intervention/confrontation took place,
I there would have been a real or imminent risk of altercation, commotion I
or fracas. In this respect, it is to be noted that on landing, Ms Zhou had to
J J
be searched by the police before the bulk of the stolen cash on her was
K recovered. K
L L
61. As regards the minor point about the minimum number of
M persons that have to be present in whose view or hearing the disorderly M
behavior is performed, there does not appear to be any requirement beyond
N N
just one person.
O O
62. The last point on Ms Bu’s written submissions is that Ms Zhou
P P
may face any charge against her if the Philippines law provides and the
Q Philippines authority considers appropriate. With respect, it has no merit Q
because the commander of the aircraft in question has made an undertaking
R R
under section 12C of Cap 494 that neither he nor Philippine Airline has
S made or will make a request to the authorities of any place outside Hong S
Kong that proceedings be commenced against Ms Zhou.
T T
U U
V V
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A A
B B
Conclusion
C C
63. For the above reasons, I find that by Ms Zhou’s disorderly
D D
behavior, the good order or discipline on board the aircraft was or was
E likely to be jeopardized. E
F F
G G
H H
I ( Isaac Tam ) I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1160/2017
C [2018] HKDC 479 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1160 OF 2017
F F
G ------------------------- G
HKSAR
H H
v
I ZHOU QIYU I
--------------------------
J J
K Before: His Honour Judge Tam K
Date: 2 May 2018
L L
Present: Miss Tam Ka Wing, Sheroy, Senior Public Prosecutor, for
M HKSAR M
Ms Bu Yanan Annie, instructed by Yu Hung & Co, for the
N N
defendant
O Offence: Behaving in a disorderly manner on board an aircraft (在飛機 O
P
上作出擾亂秩序的行為) P
Q Q
-----------------------------------------
R REASONS FOR DECISION R
-----------------------------------------
S S
T T
U U
V V
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A A
B B
C C
1. Defendant Ms Zhou Qiyu has been charged with one charge
D D
of Behaving in a disorderly manner on board an aircraft, contrary to
E sections 12B(3), 12B(10) and 21 of the Aviation Security Ordinance, Cap E
494.
F F
G 2. The particulars of offence are that Zhou Qiyu, on the G
16 November 2017, behaved in a disorderly manner on board a non-Hong
H H
Kong-controlled aircraft, namely Philippine Airlines with the air flight No
I PR310 from Manila to Hong Kong, while in flight elsewhere than in or I
over Hong Kong, whereby the good order or discipline on board the aircraft
J J
was or was likely to be jeopardized.
K K
Purpose of the hearing
L L
M 3. Ms Annie Bu of counsel acting on behalf of Ms Zhou M
indicated her lay client’s intention to plead guilty to the charge upon the
N N
court’s satisfaction that the charge is appropriate ie that the charge fits the
O facts. O
P P
Summary of facts
Q Q
4. The parties agree that the Summary of Facts dated
R R
2 January 2018 as amended by Ms Sheroy Tam of prosecution in Court on
S 17 April 2018 will form the basis of the legal argument. S
T T
5. Those facts may be summarized as follows.
U U
V V
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A A
B B
C 6. On 16 November 2017, at around 7 pm, a flight PR310 took C
off from Manila for Hong Kong. PW1 an off duty Filipino pilot, Ms Zhou
D D
and PW2 an Indian bank manager were seated side by side together in that
E order at seats 47H, J and K. E
F F
7. Later, upon invitation, PW1 moved to another seat close to
G the emergency exit towards the rear of the aircraft. Unwittingly, he left G
behind his wallet containing a stack of cash (around 30,000-60,000 Pesos)
H H
at his original seat. Sometime had elapsed before he found out his
I inadvertence. He went back and found his wallet under the seat at 47H. I
The cash was however missing. He conducted a search from the aisle of
J J
the compartment and sought help from cabin crew to no avail.
K K
8. Later, while on his way to the toilet, PW2 approached PW1
L L
and told the latter that he had earlier seen Ms Zhou sit on the seat vacated
M by PW1 and she was counting some banknotes and was hiding something M
in her bra in a suspicious manner. PW1 alerted the flight attendants. At
N N
some point in time, the matter was reported to the Police.
O O
9. Upon return from the toilet, PW2 found Ms Zhou seated on
P P
his seat. As PW2 did not mind about this, he took Ms Zhou’s seat (47H)
Q instead. Q
R R
10. Once the plane landed, Police took over the matter. Ms Zhou
S was searched and she was found to have a piece of tissue containing S
15 pieces of 1,000 Pesos inside the left side of her bra. Ms Zhou also
T T
surrendered two pieces of 500 Pesos and four pieces of 20 Pesos from her
U U
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A A
B B
handbag. Ms Zhou was arrested and under caution admitted she acted out
C of greed. C
D D
11. During a cautioned interview, Ms Zhou stated:-
E E
(a) Her seat was originally 47J;
F F
G (b) She took the flight PR310 from Manila to Hong Kong G
and planned to fly to Vietnam for work the next day;
H H
I (c) After the flight had taken off for around 30 minutes, she I
saw PW1 move to another seat; so she moved into his
J J
original seat and saw a brown wallet under this seat; she
K opened the wallet and found money inside; she put the K
money into her handbag and her bra;
L L
M (d) She wrapped (some of) the money up with a piece of M
tissue before putting it inside her bra while she put the
N N
rest (of the money) into her handbag;
O O
(e) She dropped the wallet on the floor afterwards; and
P P
Q (f) She wanted to take a rest and changed seats with PW2. Q
R R
Order of submissions
S S
12. For the purpose of rationalizing the order of the speeches, I
T T
treated defence’s application as an application to dismiss the charge on the
U U
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A A
B B
basis that the Summary of Facts will not fit the Charge. This is despite the
C fact there is no equivalent to a section 16 application (Cap 221) in the C
District Court. I was minded to make a declaration in the appropriate terms
D D
should the defence be successful. I therefore invited the defence to make
E submissions first, to be followed by the prosecution with a right of final E
reply to be enjoyed by the defence.
F F
G The issues in the legal argument G
H H
13. Having made it plain that Ms Zhou intends to plead guilty, the
I defence essentially argues that the facts of the case do not support the I
charge. The prosecution argues otherwise. The issue appears to be two-
J J
fold: (1) whether on the facts there was disorderly behavior by Ms Zhou;
K and (2) whether as a result, good order or discipline on board the aircraft K
was or was likely to be jeopardized.
L L
M Defence submissions M
N N
14. Defence has filed a set of written submissions supplemented
O by oral arguments. O
P P
15. Essentially, defence argued that the concept of breach of the
Q peace is involved in both of the issues above identified. As such, there is Q
little chance of the prosecution succeeding because the chance of anyone
R R
responding to Ms Zhou’s acts by a breach of the peace is almost nil.
S S
T T
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A A
B B
Prosecution submissions
C C
16. Prosecution relies on a set of rather comprehensive and
D D
lengthy written submissions supplemented by oral arguments.
E E
17. Essentially, the prosecution argued that there was sufficient
F F
material on the facts to show that the offence is made out.
G G
Consideration of the issues
H H
I 18. S 12B(3) of Cap 494 states:- I
J J
“Any person on board an aircraft who behaves in a disorderly
manner whereby the good order or discipline on board the
K aircraft is or is likely to be jeopardized commits an offence.” K
L L
19. There is no definition in Cap 494 of what is meant by
M
“disorderly manner”; nor is there any definition in the Ordinance of what M
is meant by “good order or discipline on board the aircraft”.
N N
O 20. However, some guidance may be had from the pre-legislative O
documents associated with the enactment of that section.
P P
Q 21. In the Explanatory Memorandum of the Aviation Q
(Amendment) Bill 2005 which introduced, inter alia, section 12B into the
R R
original Ordinance, it was said that the proposed amendments were
S intended to enhance the security of passengers and crew on international S
flights and follow the recommendations of the International Civil Aviation
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Organization (ICAO).
U U
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A A
B B
C 22. Specifically, the new Section 12B was to create new offences C
relating to unruly behavior committed on board civil aircraft including
D D
offences relating to the obstruction of crew members, the failure to comply
E with instructions given by crew members, disorderly behavior, the E
tampering or interfering with aircraft apparatus, equipment or systems,
F F
intoxication by alcohols, drugs or other intoxicating substances, smoking
G and the operation of electronic devices. G
H H
23. In the LegCo Brief for the 2005 Bill, at para 7, it is the said
I that the Administration proposed to incorporate as far as practicable and I
with necessary adjustments the provisions of the ICAO Model Legislation
J J
into the original Ordinance; that the policy intent, consistent with that
K expressed in the ICAO resolution of October 2001, was to enable the Hong K
Kong authorities to prosecute in appropriate cases criminal acts and
L L
offences constituting unruly or disruptive behavior on board Hong Kong-
M controlled and non-Hong Kong controlled aircraft. M
N N
24. To the same LegCo Brief, the ICAO Model Legislation was
O attached as part of Annex B. O
P P
25. In the Report of the Bills Committee on the 2005 Bill, at
Q para 11, a point was made about the absence in the Model Legislation of Q
the offence of disorderly behavior along the lines of the new Section
R R
12B(3); and LegCo members had questioned about the meaning of
S “disorderly behavior”. S
T T
U U
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A A
B B
26. The Administration’s answer contained in para 12 of the
C Report is produced in full below:- C
D D
“The Administration has explained that the offence of disorderly
behavior in the Bill is modelled in part on the offence in section
E 17B(2) of the Public Order Ordinance (Cap. 245) (POO). E
Halsbury’s Laws of Hong Kong states that “disorderly behavior”
refers to “any substantial breach of decorum which tends to
F disturb the peace or to interfere with the comfort of other people F
who may be in the vicinity.” In HKSAR v Cheng Siu Wing [2003]
G 4 HKC 471, the Court of First Instance held that the word G
“disorderly” in section 17B(2) of the POO should be given its
ordinary dictionary meaning and it referred to unruly or
H offensive behavior or behavior which violates public order or H
morality. The Court also held that disorderly conduct covered
behavior in the hearing or sight of a person which was likely to
I I
cause harassment, alarm or distress thereby. There needed not
be any element of violence, whether present or threatened, on
J the part of the accused. It covered conduct which was not J
necessarily threatening, abusive or insulting in itself.”
K K
27. Section 17B(2) of POO states:-
L L
“Any person who in any public place behaves in a noisy or
M M
disorderly manner, or uses, or distributes or displays any writing
containing, threatening, abusive or insulting words, with intent
N to provoke a breach of the peace, or whereby a breach of the N
peace is likely to be caused, shall be guilty of an offence and
shall be liable on conviction to a fine at level 2 and to
O imprisonment for 12 months.” O
P P
28. Stripped of the superfluous parts as far as this application is
Q concerned, an edited version of section 17B(2) of POO would read as Q
follows:-
R R
S “Any person who … behaves in a … disorderly manner … S
whereby a breach of the peace is likely to be caused, shall be
guilty of an offence …”
T T
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A A
B B
29. It was in the context of explaining what was meant by
C “disorderly behavior” that the Administration said that the offence of C
disorderly behavior ie the section 12B(3) offence was modelled in part on
D D
the offence in section 17B(2) of POO.
E E
30. If one turns to the relevant passage of Halsbury’s Laws of
F F
Hong Kong (updated at Vol 20 [130.251] since the time of the Report), it
G is there said that “disorderly behavior refers to any substantial breach of G
decorum which tends to disturb the peace or to interfere with the comfort
H H
of other people who may be in the vicinity. Nonetheless, the meaning of
I ‘disorderly behavior’ under s 17B(2) is best left to the trial judge to be I
applied in their ordinary meaning to the time, place and circumstances of
J J
the conduct in question.”
K K
31. The extra sentence of the passage in Halsbury’s above-quoted
L L
was no doubt added there as a result of the relatively recent CFA authority
M of HKSAR v Chow Nok Hang & Anor (2013) 16 CFAR 837. There at paras M
65-68, Ribeiro PJ had occasion to examine the meaning of “disorderly
N N
behavior” in section 17B(2) of POO, where he said,
O O
“65. The courts have not attempted a definition of “disorderly
P behavior”. P
Q
… Q
66. … As Lord Reid held in Brutus v Cozens:
R R
“The meaning of an ordinary word of the English
language is not a question of law. The proper
S S
construction of a statute is a question of law.” 1
T T
1
[1973] AC 854, 861
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A A
B 67. In my view, that is the approach which should be adopted B
in Hong Kong. As Gleeson CJ pointed out in Coleman v Power 2:
C C
“Concepts of what is disorderly, or indecent, or offensive,
vary with time and place, and may be affected by the
D circumstances in which the relevant conduct occurs.” D
E 68. Such concepts are best left to the trial judge to be applied E
in their ordinary meaning to the time, place and circumstances
of the conduct in question …”
F F
32. Similarly, in paras 193-195 of the CFA authority, Litton NPJ
G G
said:-
H H
“193. What behavior amounts to disorderly conduct, or when
I I
a situation constitutes a breach of the peace, or a threat thereof,
depends on the circumstances of the time and place. The social
J context in which the events occur forms an important part of the J
picture. As the author of Public Order: A guide to the 1986
Public Order Act [Format Publishing 1987] at p 93 notes: The
K conduct of a football crowd would be disorderly if it were K
repeated in a theatre during a performance.
L L
194. The question is one of degree. It is purely a question of
fact, for the fact-finding tribunal to decide. The appellate courts
M would do the system, and the community, great harm if they M
interfered too readily in such fact-finding function, or added
degrees of sophistication to such function which are
N N
unwarranted.
O 195. As Lord Reid said in Cozens v Brutus [1973] AC 854 at O
861C, the meaning of an ordinary word of the English language
is not a question of law. It is a matter for the fact-finding tribunal
P to consider, not as a matter of law, but as fact, whether in the P
whole of the circumstances the words of the statute do or do not
Q apply to the facts which have been proved.” Q
R 33. Applying the various dicta extracted from the CFA authority, R
I am satisfied that all the various guidance provided in Halsbury’s and the
S S
case of Cheng Siu Wing are no more than helpful guides and should not be
T T
2
(2004) 220 CLR 1 at para 12
U U
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A A
B B
read like a statute in the interpretation of the term “disorderly behavior” or
C the phrase “behaving in a disorderly manner”. C
D D
34. It is my task to determine whether the conduct of Ms Zhou,
E seen in the context of the time, place and circumstances amounted to E
behaving in a disorderly manner for the purpose of section 12B(3).
F F
G 35. What did Ms Zhou do? Bearing also in mind what she G
admitted under caution, this is what happened.
H H
I 36. After the flight took off, PW1 who originally sat on 47H (an I
aisle seat) moved to sit at a place nearer the rear of the aircraft. Unwittingly,
J J
he left his wallet behind at/under his original seat. Ms Zhou moved one
K seat to her left and sat on 47H. She saw the wallet under this seat, picked K
it up, opened it and found money inside. She took out the money, wrapped
L L
part of the money with a tissue before putting it inside her bra and placed
M the rest of the money in her handbag. She then dropped the wallet onto the M
floor. PW2 who was seated at 47K (a window seat two seats to the right
N N
of 47H) saw part of the scenario: he saw Ms Zhou counting some banknotes
O while seated on PW1’s original seat, and hiding something in her bra in a O
suspicious manner.
P P
Q 37. Later, PW1 discovered he had lost his wallet. He went back Q
looking for his wallet and found it under 47H. The cash was missing. PW1
R R
conducted a search from the aisle of the compartment and sought help from
S cabin crew but to no avail. S
T T
U U
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A A
B B
38. Later still, PW2 went for the toilet, and on his way approached
C PW1 and told him what he had earlier seen. PW1 reported the matter to C
the flight attendants. At some point in time, the case was reported to the
D D
Police.
E E
39. When PW2 returned from the toilet, he found Ms Zhou seated
F F
on his seat ie the window seat. As PW2 did not mind, he took the seat left
G behind by Ms Zhou ie the aisle seat at 47H. G
H H
40. The facts revealed that Ms Zhou, in open view of the person(s)
I around her, moved across one seat to her left (an aisle seat) previously I
occupied by PW1, picked up a wallet from under the new seat, opened it,
J J
took out cash from it, counted the cash, wrapped part of the cash in a tissue
K before putting it inside her bra, and placing the remaining cash in her K
handbag. Then she dropped the wallet back onto the floor. Later PW1
L L
retrieved the wallet from under Ms Zhou’s (new) seat.
M M
41. It is startling that Ms Zhou did all these illicit acts while seated
N N
on her aisle seat the course of which could have been seen by passengers
O seated nearby. Indeed, part of it was seen by PW2 seated two places from O
her right.
P P
Q 42. I am of the view that what Ms Zhou did amounted to unruly Q
or offensive behavior or behavior which violated public morality. Further
R R
or alternatively, it was done within the sight of person(s) within the vicinity
S which was likely to cause alarm or distress thereby. I am satisfied that S
Ms Zhou behaved in a disorderly manner in the overall circumstances of
T T
the case.
U U
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A A
B B
C 43. But there is a second element to the offence. C
D D
44. The disorderly behavior cannot be any disorderly behavior but
E must be such that good order or discipline on board the aircraft is or is E
likely to be jeopardized by it.
F F
G 45. Ms Bu on behalf of Ms Zhou hasn’t really addressed me on G
the meaning of this second element (nor really has Ms Tam for the
H H
prosecution) because her main attention was directed towards the
I interpretation of “disorderly behavior” which in the light of the CFA I
authority might with respect be said to be misdirected.
J J
K 46. Again, it does appear that no court, at least no appellate court, K
has had occasion to define what it means by the clause “good order or
L L
discipline on board the aircraft is or is likely to be jeopardized”.
M M
47. Ms Bu in the course of submissions seemed to have suggested
N N
the concept is related to breach of the peace and attempted to equate “good
O order or discipline” with “breach of the peace” without explaining the basis O
of her submission.
P P
Q 48. In one of the cases referred to by both parties, the District Q
Court case of HKSAR v Xu Huazong, DCCC 142/2016, delivered at
R R
12:09 pm of 4 May 2016, it was recorded at para 11 of the Ruling that
S defence counsel there had sought to compare what it takes to “jeopardize S
good order or discipline” with conduct provoking a breach of the peace in
T T
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A A
B B
section 17B(2) of POO, without actually equating “jeopardizing good order
C or discipline” with “provoking a breach of the peace”. C
D D
49. What is a “breach of the peace”? In the CFA authority already
E cited, Ribeiro PJ had this to say at paras 77-78 of the Judgment: E
F F
“77. … it is necessary to consider the meaning of “breach of
the peace”. The modern authority is R v Howell3, where Watkins
G LJ explained the concept as follows: G
“… there is a breach of the peace whenever harm is actually
H done or is likely to be done to a person or in his presence to his H
property or a person is in fear of being so harmed through an
I assault, an affray, a riot, unlawful assembly or other disturbance. I
It is for this breach of the peace when done in his presence or the
reasonable apprehension of it taking place that a constable, or
J anyone else, may arrest an offender without warrant.” J
K
78. Approving that decision, Lord Bingham of Cornhill K
noted in R (Laporte) v Chief Constable of Gloucestershire4, that
“the essence of the concept was to be found in violence or
L threatened violence” and it was on that basis that the European L
Court of Human Rights found that the concept possessed
sufficient certainty in law.”
M M
N 50. So it appears that violence or threatened violence is an N
essential ingredient of the concept of “breach of the peace”. However, in
O O
my view, when one is concerned with good order or discipline on an
P aircraft, something of a wider scope than violence or threatened violence P
must be prevented in order to maintain good order and discipline on board
Q Q
an aircraft; put in another way, it is easier to satisfy the element of good
R order and discipline than of the element of breach of the peace. R
S S
T T
3
[1982] QB 416
4
[2007] 2 AC 105 at paras 27-28
U U
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A A
B B
51. Take for example a female stripper who decides to strip tease
C on board an aircraft in flight. Her action might not thereby cause violence C
or threatened violence, but it certainly will jeopardize the good order and
D D
discipline on board because a lot of passengers (both male and female) and
E especially those seated nearby will immediately take out their mobile E
phones and try to take a photo/video of her action and if necessary after
F F
unbuckling their seat belt and standing up to take a better vantage point.
G One can imagine the commotion that would be stirred up which could G
jeopardize the good order and discipline (or at least make it likely) and
H H
might possibly jeopardize the safety of the aircraft.
I I
52. In other words, the disorderly behavior of one person may
J J
cause the disorderly behavior of another/others on board the aircraft
K without causing any violence or threatened violence or making it likely. K
But because of the confines of an aircraft (with the associated possibility
L L
of a domino effect) and the importance of safety of all lives on board, the
M concept of good order or discipline must be made wider than the concept M
of breach of the peace.
N N
O 53. Consequently, in my view, it is not correct to equate the two O
concepts with each other.
P P
Q 54. There is another reason why the two concepts must be taken Q
to mean different things. The reason is that if the Legislature had intended
R R
that they mean the same thing, it would have been so easy to introduce the
S term “breach of the peace” into the section in 2005. S
T T
U U
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A A
B B
55. Being a phrase consisting of ordinary English words, it falls
C on me to determine whether the facts, when examined objectively, show C
that “good order or discipline” on board the aircraft was or was likely to be
D D
caused by the disorderly behavior of Ms Zhou.
E E
56. For the word “jeopardize”, the Shorter Oxford Dictionary
F F
gives its meaning as “endanger, put at risk”.
G G
57. During submissions by Ms Bu, much reliance has been placed
H H
on the fact that there had been no confrontation by any of PW1 (an off-
I duty pilot), PW2 (a bank manager), and the flight attendants, against I
Ms Zhou. It has been strongly emphasized that PW1 and the flight
J J
attendants being trained air crew would not in any event have confronted
K Ms Zhou. It had even been suggested that because Ms Zhou was a lady K
travelling alone, gentlemen such as PW1 and PW2 would not have taken
L L
that step.
M M
58. In the case of Xu Huazong earlier referred to, the facts were,
N N
inter alia, that a male cabin crew member S of Turkish Airlines, after
O observing the male defendant’s suspicious acts in relation to overhead O
lockers for a while, discussed the matter with his colleagues before alerting
P P
the victim of a suspected theft of the latter’s property. After having
Q confirmed that the victim had lost some property, S and a colleague led the Q
victim to confront the defendant while the aircraft was still in flight.
R R
S 59. So, while it may be right to say that trained air crew might not S
initiate in acts involving violence or threatened violence, there was nothing
T T
to prevent the air crew, having ascertained what happened, to confront the
U U
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A A
B B
wrongdoer, be he/she a suspected thief or other types of unruly passenger.
C Sometimes they would have to do so, in order to prevent the disorderly C
behavior from continuing or to prevent further disorderly behaviour, even
D D
if that meant a risk of altercation, commotion or fracas.
E E
60. In the present case, Ms Zhou was simply lucky that there was
F F
no confrontation. By acting so suspiciously in the open view of other
G passenger(s), she was opening herself up to the real or imminent risk of G
intervention by PW2, or of later confrontation by PW1 and other air crew
H H
(including female air crew). Once an intervention/confrontation took place,
I there would have been a real or imminent risk of altercation, commotion I
or fracas. In this respect, it is to be noted that on landing, Ms Zhou had to
J J
be searched by the police before the bulk of the stolen cash on her was
K recovered. K
L L
61. As regards the minor point about the minimum number of
M persons that have to be present in whose view or hearing the disorderly M
behavior is performed, there does not appear to be any requirement beyond
N N
just one person.
O O
62. The last point on Ms Bu’s written submissions is that Ms Zhou
P P
may face any charge against her if the Philippines law provides and the
Q Philippines authority considers appropriate. With respect, it has no merit Q
because the commander of the aircraft in question has made an undertaking
R R
under section 12C of Cap 494 that neither he nor Philippine Airline has
S made or will make a request to the authorities of any place outside Hong S
Kong that proceedings be commenced against Ms Zhou.
T T
U U
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A A
B B
Conclusion
C C
63. For the above reasons, I find that by Ms Zhou’s disorderly
D D
behavior, the good order or discipline on board the aircraft was or was
E likely to be jeopardized. E
F F
G G
H H
I ( Isaac Tam ) I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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V V