HKSAR v. SALVI ARPIT MANOJ

CACC 318 /2025, [2026] HKCA 974

On Appeal From [2025] HKDC 1230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 318 OF 2025

(ON APPEAL FROM DCCC NO 988 OF 2024)

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J U D G M E N T

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1.  The applicant pleaded guilty in the District Court to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. On 17 July 2025, he was sentenced by Deputy Judge Winnie Lau (“the judge”) to 30 months’ imprisonment.

2.  By his Form XI Notice filed on 12 August 2025, the applicant has sought leave to appeal against his sentence.

The facts of the case

3.  The victim company Aspeco (HK) Limited (“VTC”) was engaged in diamond trading.  The applicant was its sales representative and commenced work on 1 February 2023.  As a sales representative, the applicant would receive from VTC’s stock keepers diamonds and their accompanying certificates^[1] to be delivered to potential buyers for consideration.  Should the potential buyers decide not to purchase, they would give the diamonds (together with their respective certificates) back to the applicant, who would then return them to the stock keepers.  If potential buyers needed longer than a day to consider the matter, they would sign a delivery note acknowledging VTC’s ownership of the diamonds until payment.  VTC maintained records of diamonds handed over to its sales representatives and those retained by the potential buyers. 

4.  On 3 October 2023, the applicant was conveyed to Queen Elizabeth Hospital after being found unconscious inside the lavatory of a shopping mall in Hung Hom, Kowloon.  On being informed of the situation by police, PW1, the person in charge of VTC, instructed PW4, the company’s sales manager, to attend the hospital.  At the hospital and in the presence of PW4 and the applicant’s cousin, a police officer, PW5 checked the applicant’s bag and found 50 pawnshop tickets, revealing that the applicant had pawned 54 diamonds with 7 pawnshops for a total of HK$1,426,000 between 15 June 2023 and 28 September 2023.  The applicant was duly arrested for theft.

5.  During an interview on 4 October 2023, the applicant stated under caution that he had pawned the 54 diamonds to try and solve his personal problems and the financial pressures he was under.  He had no intention of stealing the diamonds and would make repayments when he had the money.  Subsequently, on 25 October 2023, the applicant attended a video recorded interview, during which he admitted that he pawned the 54 diamonds without VTC’s authority.  Although the 54 diamonds were never passed to any buyers, the applicant said he had prepared false delivery notes and consignment sheets to create the impression that they had been so passed.  He would pretend that the pawned diamonds were still with clients if asked about them.  Apart from the 54 pawned diamonds, the applicant had also sold 5 of VTC’s diamonds to customers to repay part of his debt.  The 5 diamonds were sold for a US$17,988 and HK$55,090 (a total equivalent of HK$195,892) between 13 and 23 September 2023.  There were no records of sales of these 5 diamonds by VTC.

6.  The 54 pawned diamonds were recovered by the police with their certificates intact.  The total value of the 59 stolen diamonds was approximately HK$3,001,942.  The applicant eventually admitted stealing all 59 diamonds and their certificates.

Mitigation and sentence

7.  At the time of sentencing, the applicant was a 34-year-old single man and a university graduate with a clear record.  Defence counsel on his behalf at trial submitted that the benefit to the applicant was about HK$1.6 million.  Although the asking price for the stolen diamonds was HK$3,001,942 in total, it was contended that there would be a 5%-10% markdown in the real market.  However, during mitigation, the defence and prosecution agreed between them that the extent of discount given to a potential buyer would be about 2%, rather than 5%-10%, bringing the value of the stolen diamonds below HK$3 million.

8.  Counsel submitted that the applicant was ignorant of the law since he did not know that the act of pawning would amount to theft.  He cited the High Court of Australia decision in Ostrowski v Palmer^[2] as support for the proposition that this could be a mitigating factor.

9.  The judge rejected defence counsel’s argument that the theft had been committed through ignorance of the law.  The applicant was a well-educated person holding a Bachelor’s degree.  There was no question that, in secretly pawning the diamonds and preparing false documentation, the applicant must have treated the stolen diamonds as his own, knowing that he was acting dishonestly.  However, she noted defence submissions as to the applicant’s personal circumstances, including: (i) he was facing financial difficulties; (ii) he did not try and escape punishment and duly returned to Hong Kong from India whilst on bail^[3]; (iii) the applicant’s family were very concerned and had tried to raise money, albeit unsuccessfully, in order to compensate for VTC’s losses; and (iv) the consequences of conviction in terms of extra-judicial punishment such as deportation and the difficulty in finding future employment.  Nevertheless, the judge found none of these matters constituted effective mitigation^[4].

10.  Since the applicant’s guilty plea was the only real mitigating factor, the judge applied a full one-third discount to a starting point of 45 months’ imprisonment and sentenced the applicant to 30 months’ imprisonment^[5].

Grounds of appeal

11.  Acting in person, the applicant has attached a written submission to his Form XI.  Apart from repeating the mitigation arguments^[6] advanced by his counsel below, the applicant submitted that:

(i)     Since “all the goods has [sic] been recovered and in police or court custody”, the total loss to VTC was around HK$1.65 million, being the aggregate amount of money he obtained from pawning the 54 diamonds (“HK$1.45M”) and he received from selling the 5 diamonds (“HK$200,000”); and

(ii)     Although VTC agreed to withdraw the case on the condition that it was compensated for HK$1.65 million by the applicant and his family, the prosecution ignored such agreement and pressed on with the charge against the applicant without giving any reason.

The second matter has been elaborated upon before me this morning in oral submissions from the applicant.  He has also stressed that he did not have the ultimate intention of defrauding VTC and was very remorseful.

The respondent’s submission

12.  Mr Steven Liu, for the respondent, submitted that the applicant’s contentions were misconceived and not reasonably arguable.  The applicant’s alleged figure of HK$ 1.65 million represented his personal benefit rather than the loss sustained by VTC.  However, it had been established that the sentencing bands were determined by the value of misappropriated property, rather than the benefit obtained by the offender^[7]. In this case, the total value of the 59 stolen diamonds for sentencing purposes was HK$2,941,903.  The judge could have adopted a starting point of 5 years’ imprisonment at the upper end of the sentencing band of HK$1 million to 3 million and in adopting a starting point of only 45 months’ imprisonment, the judge had already been lenient.

13.  As for the willingness of VTC to withdraw the case as alleged by the applicant, the respondent pointed out that VTC had never withdrawn the case nor had it forgiven the applicant in any way.  If VTC did indicate that it would withdraw the case if the police returned all the pawn tickets, then the police would have rightly declined the request, since ownership of the 54 pawned diamonds was unresolved and contested between the pawnshops and VTC.  The respondent submitted that this purported agreement to withdraw did not have any bearing on criminal sentencing.

Consideration

14.  I may deal first with the authority of Ostrowski v Palmer, which was an appeal in relation to conviction rather than sentence.  The point relied upon was made in very different circumstances and was, in any event, made obiter dicta.  The issue in the case was whether the defendant had a good defence or was merely ignorant of the law, the latter being no defence at all.  Palmer was a diligent fisherman (as acknowledged by Callinan and Heydon JJ at [84]), who had made enquiries about the extent of prohibition on fishing for rock lobsters in Western Australia.  He was provided by the Fremantle Office of Fisheries in Western Australia with copies of the relevant regulations, which unfortunately omitted the existing regulation that prohibited fishing for rock lobsters in waters surrounding Quobba Point. Having then fished for rock lobsters in that very location and been charged with violating the regulation, Palmer advanced the defence that he was mistakenly led to believe that his conduct was legal and no such prohibition was in place.  It should be noted that the offence established by the regulation was one of strict liability, not, as in the case before me, one of full mens rea. 

15.  It was not contested that: (i) Palmer was the holder of a commercial fishing licence; (ii) he was indeed fishing for rock lobsters; and (iii) he was aware that the area he was fishing included the waters surrounding Quobba Point.  The High Court of Australia found that these facts satisfied the elements of the offence and upheld the conviction.  Palmer’s defence was merely that he was ignorant of the law.  At [2] of the judgement, Gleeson CJ and Kirby J held:

“Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute.”

Callinan and Heydon JJ held, at [85]:

“A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion, unlike here, in relation to it may be exercised.”

Interesting though this authority may be on the facts, I do not consider that it has any similarity or relevance to the application before me.

16.  The judge noted that the total value of the stolen diamonds was HK$2,941,903, taking into account the 2% discount.  Under Ng Kwok Wing, the starting point fell, therefore, within the band of HK$1 million to HK$ 3 million for which the starting point was prescribed as 3 years’ to 5 years’ imprisonment.  She correctly found that the present offence was a serious breach of trust by an employee involving a significant value of stolen property. The conduct of the applicant, which spanned some 3 months, involved a degree of planning and the use of false documents in order to advance his deceptions. Having considered that the offence was committed in a relatively short period of time - although it was not particularly short and the conduct was repeated - and that the applicant was acting alone, the judge adopted the starting point of 45 months.  An appellate court may conclude that such a starting point was, in the circumstances, very lenient.

17.  Whether or not the applicant and his family agreed to return the value of the stolen property to VTC does not change the fact that this was a theft by an employee acting in breach of trust, which is a very serious matter.  The police would have been failing in their public duty if they had not prosecuted this case in the District Court.  Not surprisingly, VTC insisted to go ahead with the prosecution, although the matter was really out of their hands.  Nevertheless, this matter may explain why the judge adopted a lower starting point than she might have done.

18.  I can see no reasonably arguable grounds of appeal and the application must be refused.  The applicant is reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he should also be warned that the Court has the power to order the loss of any time which the appellant has spent in custody pending the determination of his appeal, if it should come to the view that there was no justification for the renewal of the application.

[1] Known as “GIA certificates”.

[2] Ostrowski v Palmer (2004) 78 ALJR 957. 

[3] There had been no bail condition to remain in Hong Kong.

[4] Reasons for Sentence, [16]-[19], [28] & [29]: AB, pp 16-19.

[5] Reasons for Sentence, [27], [29] & [30]: AB, pp 19.

[6] Such as that the applicant was ignorant of the law; that he intended to return the diamonds after having money to redeem them from the pawnshops; that he was in a tight spot financially; that he had been a decent citizen of Hong Kong for 8 years; and that he chose to return to Hong Kong from India instead of running away.

[7] See HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 and HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776, where the sentence was determined by the total value of stolen goods, also pawned jewellery, some of which had been recovered by the police.