HKSAR v. PATHOMWORRAKAN NICHAKAN (a.k.a MAISAM ORATHAI, PATHOMWORRAKAN ORATHAI and PATHOMWORRAKAN NICHAKAN MAISAM ORATHAI)

DCCC 1191/2023

[2024] HKDC 1021

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1191 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to four offences this morning, the 1^st charge being theft of two credit cards; the 2^nd, 3^rd and 4^th charges being obtaining property by deception, which are packets of cigarettes. The facts have been agreed and the facts that are relevant to sentencing today are as follows:

2.  The defendant is a Form 8 holder.  The owner of the two credit cards that were stolen is PW1.  The credit cards are an HSBC credit card and an AEON credit card.  The victim, PW1, was in Mong Kok on 21 January 2022 at around 9 o’clock in the morning.  She had the two cards with her at 9 am but sometime after that she must have lost the cards.  Around just after 11 am, the defendant was stopped and the two credit cards were found in the front pocket of her hoody and the defendant had said at that time she picked up the credit cards in Mong Kok market that day.  Eventually the victim was found and she confirmed the credit cards had gone missing.  One of the cards, that is the HSBC credit card, was used on three occasions between 10.14 and 10.58 am at three 7-Eleven shops in Mong Kok.  A total of four packets of cigarettes were obtained using that credit card at a total value of $240.  The credit card was used in what is colloquially called a “tap & go” form.  The defendant admitted using the credit card to buy cigarettes which she consumed herself and gave to her friends.

3.  The defendant herself is a Thai national aged 40.  She has four previous convictions dated from 2009 to 2017.  In 2016, she received a suspended sentence for possession of dangerous drugs and in 2017 was fined for shoplifting and the suspended sentence was not activated.  The other background that is relevant is she has two children both born in Hong Kong, a daughter aged 13 and a son aged 10.  They are looked after by her ex-boyfriend’s grandmother.  The defendant came to Hong Kong lawfully but she has sought asylum since which means she is on an ISS allowance and is not able to work in Hong Kong.

4.  She says in essence in mitigation, she gave into the temptation seeing the cards in the street, picked them up and then used them to buy some minor items and the reason this on the face of it rather petty case is in this court is because the defendant has used the credit card.  The court in the past has articulated guidelines for the use of credit cards to obtain items by deception.  The case I have been referred to is HKSAR v Stephen Lam at CACC 339/2012 in which it was said that in a case of a small, simple small-scale use of forged credit cards a sentence of 3 years’ imprisonment or less is appropriate.  Similarly, in HKSAR v Tu I Lang, that is at CACC 464/2006, referring again to a small-scale unsophisticated operation involving only one or a few cards a starting point of 3 years’ imprisonment or less would be appropriate and of course these principles apply to a stolen credit card as well as a forged credit card.  It is of course incumbent on the court not to impose a sentence that is disproportionate to the actual criminality.  I have been referred to other cases where the sentence is lower than the 3 years have been imposed.

5.  Clearly the use of the card in this case is different to the use of the card in the reported cases.  The card is being used in a similar way to a charge card or as we say “tap & go”, where the amount of money or the value of the goods that can be obtained in that way is limited and in this case a mere $240-worth worth of goods has been obtained.  It can properly be described as petty crime.  However, I do bear in mind when adopting a starting point in this case that it is a credit card that has been used, the use of which can lead to much higher sums of money or goods being obtained.

6.  The defendant is also a Form 8 holder which is an aggravating factor in this case.  When cases are brought in this court it can lead to an enhancement of sentence by up to 6 months’ imprisonment and beyond.

7.  This case involved the use of a credit card that is about a small and unsophisticated as can be envisaged.  A starting point considerably less than 3 years’ imprisonment is appropriate in a case like this.  I also bear in mind that the defendant had two credit cards but only one was used.  I consider that an initial starting point, not considering the aggravating factor of Form 8 status, an initial starting point of all four charges to be 12 months’ imprisonment.  Given the lower starting point I have adopted for this that would normally be adopted in this court, I will only enhance that sentence by 3 months to reflect her Form 8 status leading to a starting point for sentence on all four charges of 15 months’ imprisonment.

8.  The defendant has always indicated her guilt to these offences so she is entitled to a full discount of one-third from that leading to a final sentence on all four charges of 10 months' imprisonment which will be served concurrently to a total of 10 months’ imprisonment.