HKSAR v. SALVI ARPIT MANOJ

DCCC 988/2024

[2025] HKDC1230

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 988OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant (“D”) pleaded guilty to one charge of theft.

Facts of the case

2.  At all material times, Aspeco (HK) Limited (“VTC “) was a company that engaged in the business of diamond trading.  Mr Shan (“PW1”) was the person in charge of VTC and he was responsible for overseeing VTC’s day-to-day management.

3.  On 1 February 2023, D started working as VTC’s Sales Representative. There were five employees working at VTC including two stock keepers Ms Singh (“PW2”) and Ms Dabrani (“PW3”), one sales manager Mr Shah (“PW4”) and two sales representatives including D.

4.  The standardised sales process can be summarised as follows:

(a) Stock keepers would hand over diamonds and their GIA certificates to the sale representatives. Each diamond had one GIA certificate;

(b) Sale representatives would then deliver the diamonds and their GIA certificates to potential buyers for considerations. Stock keepers would keep a written record of the diamonds handed to the sales representatives;

(c) Normally speaking, if the potential buyers decided not to purchase the diamonds, they must return the diamonds (together with their GIA certificates) to the sales representatives within the same day and the sales representatives must return them to the stock keepers within the same day;

(d) Alternatively, the potential buyers may opt to keep the diamonds (together with their GIA certificates) for a short period of time for considering whether or not to purchase the diamonds. The sales representatives would ask the potential buyers to sign on a delivery note acknowledging that the diamonds remained the property of VTC until paid for in cash. VTC would prepare a consignment sheet recording the diamonds retained by the potential buyers. If, in the end, the potential buyers decided not to purchase the diamonds they had to return the diamonds (together with their GIA certificates) to the sales representatives and the sales representatives had to return them to the stock keepers.

5.  On 3 October 2023, D was found unconscious inside the toilet of Soda Mall, Hung Hom.  He was sent to Queen Elizabeth Hospital for medical treatment by the ambulance.  PC60759 (“PW5”) guarded D’s personal belongings including his mobile phone and his bag.  While D was at the hospital, PW1 and D’s cousin called D respectively, and PW5 informed them that D was at the hospital.

6.  Subsequently, in the presence of D’s cousin and PW4 (who attended the hospital on PW1’s instructions), PW5 checked D’s bag and found 50 pawn shop tickets inside.  These 50 pawn tickets showed that D pawned a total of 54 diamonds for a total of HK$1,426,000 to seven pawn shops between 15 June 2023 and 28 September 2023.  On the same day, PW5 arrested D for theft.

7.  On 4 October 2023, a record of interview was conducted with D in the presence of an interpreter.  Under caution, D stated that (a) he had no intention to steal the diamonds or cause any trouble; (b) he was encountering many problems including family and financial problem; (c) he pawned the diamonds to solve his problems; (d) when he had money, he would make repayment and compensate all losses.

8.  The police recovered all 54 diamonds and their GIA certificates (54 GIA certificates in total) from the seven pawn shops.  PW1 confirmed that these 54 diamonds belong to VTC. 

9.  A video-recorded interview was conducted with D on 25 October 2023 in the presence of an interpreter. Under caution, D stated that:

(a) He started working as VTC Sales Representative on 1 February 2023;

(b) He pawned 54 diamonds as shown on the 50 pawn shop tickets seized from him. The diamonds belonged to VTC and he pawned them without VTC’s authority;

(c) He had never passed the 54 diamonds to any buyers;

(d) He prepared false delivery notes and consignment sheets to create the impression that the diamonds were in the possession of the clients;

(e) Normally speaking, the clients may keep the diamonds for up to one month. When he was being asked about the pawned diamonds he would pretend that the diamonds were still with the clients; and

(f) Apart from the 54 diamonds, he sold five diamonds to customers. He took the money to repay part of his debts, which was around HK$1.8 million in total.

10.  Upon further investigation, it was confirmed that:

(a) D sold two diamonds to Eros Jewelry Limited for US$9,243.181 on 13 September 2023. D handed over the two diamonds (together with their GIA certificates) to the representative of Eros Jewelry Limited, Mr Wai (“PW6”), on 13 September 2023;

(b) D sold and handed over two diamonds (together with their GIA certificates) to Kwok (“PW7”) for HK$55,090 on 13 September 2023;

(c) D sold one diamond to Bluefine Diamond Jewellery Company Ltd for US$8,745 on 23 September 2023. Defendant handed over the diamond (together with its GIA certificate) to the representative of Bluefine Diamond, Mr Gong (“PW8”), on 23 September 2023.

11.  PW1 confirmed that the five diamonds in the above paragraph belonged to VTC and there was no sales record of these five diamonds by VTC.  The total value of the 59 stolen diamonds was approximately US$384,749 (approximately HK$3,001,942).

12.  CCTV of Shing On Pawn Shop showed that D went to the shop on 11 September 2023 at around 11.57 am to pawn diamonds.  No other relevant CCTV footage was retrieved.

Criminal record

13.  D has a clear criminal record.

Background and mitigation

14.  D is now aged 34, single and resides in Hong Kong alone.  His parents are living in India.  He graduated with a Bachelor Degree in India.  He made charitable donations [See supporting documents of academic certificates and charitable donation receipts]. 

15.  D was ignorant of the law, not knowing that pawning the diamonds per se suffices to constitute theft.  As recognised by the High Court of Australia, this could be a mitigating factor: Ostrowski v Palmer[1].

16.  D was under huge financial pressure and committed the current offence in wish to repay debts.  The value of 59 stolen diamonds from D’s employer, i.e., VTC, was approximately HK$3,001,942.  This value is based on the asking price.  The actual price would be 5% to 10% less.  The benefit to D was about 1.6 million.

17.  D showed remorse for his acts by confessing and pleading guilty to the charge.  His family is very concerned about him.  He and his family also made efforts to raise money to compensate for the loss to VTC but unsuccessful.  It is confirmed by Mr Laskey that there is no instruction from D to request for more time to raise money and/or make arrangement for payments of compensation to VTC.

18.  Whilst on bail, D returned to his home country, India.  After his visit (from 6 to 9 July 2024) he came back to Hong Kong well aware of the serious criminal charge against him.  D chose to face up to the consequences of the offence.

19.  The effect of the conviction/imprisonment, will lead to D being deported back to his home country.  He would also be unable to get any employment in Hong Kong or, most likely, elsewhere.

20.  It is respectfully submitted that the current offence was not as serious as many of this type and that a more lenient sentence of imprisonment is therefore appropriate.

Sentence

21.  I have carefully considered all the written and oral submissions on mitigation put forward by Mr Laskey on behalf of D.

22.  Given the total value of the stolen diamonds being approximately HK$3,001,942, the starting point falls within a band of involving $ 3 million to $15 million: 5 to 10 years’ imprisonment under HKSAR v Ng Kwok Wing[2].

23.  After taking instruction, the prosecution is only prepared to accept that a 2% discount might be given to a potential buyer and the total value of the stolen diamonds after a 2 % discount would be HK$2,941,903.16 for sentencing purpose.

24.  The defence does not insist on its own 5% to 10% discount range, and accepts the 2% discount and the figure of 2,941,903.16 being the total value of the stolen diamonds as put forward by the prosecution for sentencing purpose. 

25.  As the total value of the stolen diamonds is now $2,941,903.16, the starting point falls within the band involving 1 million to 3 million: 3 to 5 years.

26.  D committed the present offence over a period of three months, pawned the stolen diamonds of a substantial value to seven pawn shops and prepared false delivery receipts and consignment sheets to create the impression that the diamonds were in possession of the clients in order to deceive VTC and also sold some of the stolen diamonds to other buyers. In my view, D’s theft involved a serious breach of trust and a degree of planning.  However, I note that the offence period was relatively short and D was acting alone. 

27.  On the facts of the present case, I find that the appropriate starting point is 45 months.  Giving one-third discount for his guilty plea, I reduce the sentence to 30 months.

28.  The facts including the offence involved in the case of Ostrowski v Palmer are different from the present case.  Being a degree holder, D is obviously a well-educated man.  In my view, at all material times, he must have known that he was acting dishonestly, in particular his acts of pawning the stolen diamonds without VTC’s permission amounting to treating the stolen diamonds as his own property and his preparation of false documents to VTC to cover up his thievish acts.  I have no hesitation in rejecting the submission that he committed the present offence out of ignorance of the law.

29.  D’s financial difficulties and personal circumstances were neither excuses for offending nor relevant as mitigation, R v Kwok Yau Fat[3], SJ v Nones Carmelita Galay[4]. Apart from his guilty plea, I do not see any other mitigating factors which justify any further reductions.

30.  I therefore sentence D to 30 months’ imprisonment.