Dangyach, Ashish and Dangayach, Trisha Trading As Colorjewels v. Beijing Kuangshi International Auction (HK) Ltd
Read the full judgment text of HCA 1182/2025 on BabelCite. This High Court CFI judgment was delivered on 29 June 2026.
1. On 10 June 2026 I heard the Plaintiffs’ summary judgment applications in two sets of related proceedings (HCA 1182/2025 and HCA 1183/2025).
Cites 4 cases
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HCA 1182/2025 and HCA 1183/2025 [2026] HKCFI 3770 HCA 1182/2025 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1182 OF 2025 ________________________
________________________ AND HCA 1183/2025 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1183 OF 2025 ________________________
________________________ (Heard Together)
______________________ REASONS FOR DECISION ______________________ Introduction 1.On 10 June 2026 I heard the Plaintiffs’ summary judgment applications in two sets of related proceedings (HCA 1182/2025 and HCA 1183/2025). 2.In both sets of proceedings, the Plaintiff in HCA 1182/2025 is Mr Ashish Dangyach and Ms Trisha Dangayach (trading as Colorjewels) and in HCA 1183/2025 is Mr Ashish Dangyach and Ms Trisha Dangayach (trading as Gems Trading Co.) (who I shall refer to as the Plaintiffs[1]) and the defendant is Beijing Kuangshi International Auction (HK) Ltd (the Defendant). 3.At the hearing Mr Sunny Chan appeared for the Plaintiffs and Ms Vanessa Wong appeared for the Defendant. 4.At the end of the hearing I informed the parties that I would dismiss the Plaintiffs’ summary judgment applications and grant the Defendant permission to defend on condition that it filed its amended defences in both actions within seven days of the date of the order to be made to give effect to this decision (to ensure that there was no further delay in its defences being updated to match and reflect its case as set out in its evidence). I said that I would provide a written note of my reasons, which I now do. I also decided and confirmed that there would be no order for costs on these applications The Plaintiffs’ claims The background 5.The Plaintiffs and the Defendant are both in the same gem stone trading business and have for many years had an ongoing business relationship. The Plaintiffs usually act as suppliers of gemstones and the Defendant acts as an intermediary or agent who procures sales of the Plaintiffs’ gems to third-party clients and buyers. HCA 1182/2025 – the pleadings 6.The first set of proceedings (HCA 1182/205) relate to the delivery by the Plaintiffs to the Defendant of an emerald ring (the Emerald Ring). The second set of proceedings (HCA 1183/2025) relate to the delivery by the Plaintiffs to the Defendant of an emerald stone (the Emerald). It appears that the Defendant dealt with the Emerald Ring and the Emerald together (and I shall refer to them together as the Jewellery) and shipped them both to intermediaries in the UAE and Saudi Arabia for on-sale. 7.In HCA 1182/2025 the Plaintiffs aver and claim as follows that (my underlining):
8.In its defence, the Defendant:
HCA 1183/2025 – the pleadings 9.In HCA 1183/2025 the Plaintiffs aver and claim as follows (my underlining and emphasis):
10.In its defence, the Defendant says that it denies that it entered into the Emerald Contract and instead avers that on or about 25 August 2025 the Plaintiffs and the Defendant entered into an auction consignment contract whereby the Plaintiffs agreed to engage the Defendant to procure the sale of the Emerald at a target price of US$500,000 subject to the terms and conditions therein. As a result, the Plaintiffs are put to proof on all other aspects of their claim. HCA 1182/2025 – the evidence adduced 11.In his First Affirmation in HCA 1182/2025 (Dangyach 1 1182) Mr Dangyach states as follows (my underlining and emphasis):
12.In her affirmation in HCA 1182 Ms. Siu (Siu 1) said as follows (my underlining and emphasis):
13.In his Second Affirmation in HCA 1182/2025 (Dangyach 2 1182), Mr Dangyach states as follows (my underlining):
HCA 1183/2025 – the evidence adduced 14.In his First Affirmation in HCA 1183/2025 (Dangyach 1 – 1183) Mr Dangyach says (my underlining):
15.In his Second Affirmation in HCA 1183/2025 (Dangyach 2 – 1183) Mr Dangyach states as follows (my underlining and emphasis):
The test for obtaining summary judgment 16.There was no dispute as to the law governing an application for summary judgement. RHC O.14, r.1 permits a plaintiff to apply for judgment on the ground that the defendant has no defence to the claim(s) in the writ. In deciding whether a plaintiff is entitled to summary judgment the relevant test is whether the defendant has raised credible triable issues. If there are triable issues, the matter should go to trial. If not, judgment should be entered against the defendant. 17.The principles to be applied were recently reviewed by Deputy High Court Judge Grace Chow in her judgment in Fubon Bank v Ng Kwok Wei and another [2026] HKCFI 3203 (a decision cited and relied on by the Plaintiffs). DHCJ Chow said as follows:
The parties’ main submissions in outline The Plaintiffs’ submissions 18.The Plaintiffs noted that a defendant resisting a summary judgment application must condescend to particulars. A defence pitched at the level of bare assertion – without documents, names, dates and figures that would allow it to be tested – did not raise a triable issue (citing Menford Electronic Art & Computer Design Co Ltd v Wong Wang Tat Victor [2013] 2 HKC 259 at [61]). 19.The Plaintiffs argued that Ms Siu’s evidence in opposition to the summary judgment applications showed that the Defendant had no defence to the Plaintiffs’ claims to be paid the agreed price of the Jewellery or the value of the Jewellery (by way of a claim in damages for conversion) and that there were, by reference to the admitted and undisputed facts, no triable issues. 20.The Plaintiffs argued that this evidence showed that the Defendant had admitted that it had received, parted with, not paid for and could not return the Jewellery. These admitted facts were sufficient to establish the. Plaintiffs’ cause of action and entitlement to the relief claimed. 21.The Plaintiffs also claimed that the Defendant’s pleadings and evidence in opposition were insubstantial, unparticularised and incomplete. The Defendant had failed to identify the ultimate purchaser of the Jewellery or the intermediary to whom the Defendant said the Jewellery was entrusted in Saudi Arabia and had failed to refer to or exhibit copies of any contracts, invoices, receipts or correspondence evidencing any sub-sale or onward dealing beyond a single consignment note to an entity called Toronto Projects. The Defendant had given no explanation as to why the Jewellery had not been or could not be recovered and the steps which it had taken to recover them. 22.The Plaintiffs said that they had clearly denied having any knowledge of, or having consented to, the Jewellery being sent to the UAE or Saudi Arabia and having been kept informed throughout. This assertion made by Ms Siu was clearly contradicted by the contemporaneous record. Tested against the documents in evidence, the Defendant’s assertion of consent to remove the Jewellery from Hong Kong was incapable of being believed and failed to raise a triable issue. The documents showed that the Plaintiffs had only discovered in August 2024 that the Jewellery had left Hong Kong when Mr Dangyach had sought to collect the Jewellery. The WhatsApp exchange on 8 August 2024 showed that Mr. Dangyach was told “Things are in Saudi” only when he sought to collect the Jewellery and this was consistent with a person learning the fact for the first time and wholly inconsistent with the Defendant’s case that Mr Dangyach had authorised the export a year before. Further, the Defendant had exhibited no documents evidencing any consent or authority to send the Jewellery abroad. In any event, the Plaintiffs argued that consent to the export of the Jewellery was not a defence to the Plaintiffs’ claim for the price of the Jewellery. The Defendant’s submissions 23.The Defendant, whose skeleton argument was filed very late, submitted that the Plaintiffs’ claims were not, in light of the pleadings and evidence, suitable for determination by summary judgment. 24.The Defendant submitted that it was clear that its receipt of the Jewellery and its failure to date to pay the price or return the Jewellery did not establish the Plaintiffs’ claims. 25.The Defendant said that the Plaintiffs’ claim that evidence of the Defendant’s failure to make a payment established their case was based on their assertion that they had a straightforward claim in debt for the price of the Jewellery. But this was denied and clearly raised a triable issue. The Plaintiff had asserted that it had been agreed that the Defendant would act as the purchaser of the Jewellery and be unconditionally responsible for payment of an agreed purchase price. However, the Defendant said, the Plaintiffs’ own evidence showed that the Defendant had never merely bought items of jewellery from the Plaintiffs under an unconditional agreement for the sale of goods. The Defendant had always acted as an intermediary or agent for third-party buyers and procured sales of the Plaintiffs’ gems to those third parties. Mr Dangyach’s own evidence was that there had been a long course of dealing in which gems had been delivered to the Defendant on consignment with the Defendant being authorised to seek third-party purchasers and with payment being made to the Plaintiffs only after receipt from the third-party buyer. 26.The Defendant submitted that Ms. Siu’s evidence on this issue was consistent with this view and completely credible. The Defendant only carries on business as an intermediary and clients consign luxury goods to it for procurement of a sale by auction, private sale or through consignment to other intermediaries. 27.The Plaintiffs’ case that, inconsistently with and contrary to, the previous course of dealings, the Defendant had on this occasion agreed to buy the Jewellery and be responsible for payment of the price, irrespective of whether it found a third-party purchaser and to make payment to the Plaintiffs before it had itself received payment from the third-party, depended on the Plaintiffs’ own case based on their disputed allegations regarding the interpretation of WhatsApp messages (in relation to HCA 1182/2025) and the terms of a contract which they accepted was partly oral (in relation to HCA 1183/2025). The Plaintiffs had accepted that the Memorandum alone did not form the basis of the agreement relating to the Emerald Ring. 28.The Defendant said that the Plaintiffs’ claim that evidence of the Defendant’s failure to return the Jewellery also established it case was based on the Plaintiffs’ assertion that the Defendant was not authorised to remove the Jewellery from Hong Kong so that the Defendant was unable to justify a failure to return the Jewellery on the basis that the Jewellery was now held in Saudi Arabia. The agreement was that the Defendant would be able to return the Jewellery rapidly when return was demanded because the Jewellery would be kept in Hong Kong. 29.However, the Defendant argued, that assertion was disputed. The Plaintiffs’ case was based on a disputed interpretation of what was originally agreed, of the WhatsApp messages and of what was said in various oral conversations (the messages had referred to several meetings at which such conversations had taken place). 30.This allegation was central to the Plaintiffs’ claim in conversion because if, as the Defendant asserted, it was permitted to remove the Jewellery from Hong Kong for the purpose of arranging a sale and allowing intermediaries or potential purchasers to inspect the Jewellery, it could not be said that the Defendant had done any unathorised act that was inconsistent with the Plaintiffs’ proprietary rights. 31.The Defendant also argued that the Plaintiffs’ allegation that there had been an agreement to increase the amounts payable to the Plaintiffs as a result of the delay in completing a sale, did not justify the inference that the Defendant was at present unconditionally liable to pay the price to the Plaintiffs. Such an agreement to make an uplift to the purchase price was consistent with the Defendant’s case that it was only required to make payments to the Plaintiffs when it had been paid by the ultimate purchaser. The uplift would be applied and sums would be payable to the Plaintiffs at that time. Nor was it relevant that the Defendant not identified the parties with whom it had been negotiating the sale or the ultimate purchaser of the Jewellery. The Defendant had acknowledged that it was liable to make payment to the Plaintiffs when it itself had been paid and the amount payable was not dependent on what the Defendant received from the ultimate purchaser. 32.The Defendant submitted that its pleadings in both sets of proceedings had set out its essential case, namely that the underlying agreement with the Plaintiffs had provided for consignment contracts and not sales to the Defendant (with the unstated but clear implication that the Defendant had no obligation to pay for the Jewellery until paid by the ultimate purchaser and was permitted to show and deliver the Jeweller to third parties without any geographical restrictions on where the Jewellery could be delivered). 33.The Defendant submitted that it was clear from the evidence that the intermediary named Lily would be a material witness and that the evidence that trial would include evidence of what was said and agreed in the meetings as well as in telephone conversations and the WhatsApp messages. In these circumstances, credibility and context are central and a determination of the disputed issues of fact required a trial at which witnesses could be cross-examined and credibility properly assessed. Discussion and reasons for decision Conclusions 34.I concluded, and conclude, taking into account all the relevant factors as summarised by DHCJ Chow in Fubon Bank, that the Defendant has raised credible triable issues in defence of and in response to the Plaintiffs’ claims in both sets of proceedings. I am satisfied that the Defendant has established that it has a real and bona fide defence to the Plaintiffs’ claims and that the claims and defences cannot fairly and properly be determined without a trial (no doubt a joint trial of both claims). 35.The Defendant has, on balance, shown that her evidence is coherent and credible (and therefore capable of being believed) and that there are clearly bona fide and real factual disputes relating to at least two core elements of the Plaintiffs’ claims that require a trial, namely:
36.The Plaintiffs’ claims are based on oral contracts (albeit that certain terms are said to be evidenced in writing) and, in the case of the Emerald, based on terms that are said, in the alternative, to be implied terms. The content and number of the oral communications in question are disputed by the Defendant. While the Defendant’s evidence is in some important respects light on detail and particulars it does, on balance, establish a credible case that challenges the Plaintiffs’ claims and puts in issue what was said by whom and when, such that the disputes on these questions can only fairly be resolved by cross examination of the key witnesses at trial. The Plaintiffs’ two core claims – that the Defendant was liable to pay or procure payment of the price by a certain date or to return the Jewellery on demand 37.The Plaintiffs two main claims in both actions are for payment of what they claim to be the agreed price (without the uplift) for the Jewellery (which they allege to be due and payable) and, in the alternative, damages for conversion based on the Defendant’s alleged failure to return the Jewellery following demands to do so by the Plaintiffs. The Emerald Ring - HCA 1182/2025 - the primary claim for the agreed price 38.As regards the Emerald Ring and the Plaintiffs’ primary claim for the price, the Plaintiffs plead that it was a term of the agreement with the Defendant that “payment of the price was to be made within three months from September 2023.” 39.But the Defendant’s defences and evidence in opposition show that the key facts on which this claim for payment of the price are based are disputed on a credible basis. The WhatsApp messages on which the Plaintiffs rely do not establish beyond argument that the Defendant agreed to pay the price before being paid by the third-party intermediary (or buyer). 40.The Plaintiffs’ claim is that they “negotiated the sale and purchase of the Emerald Ring” “in discussions” with the Ms Siu as the Defendant’s agent ([4] of the Amended Statement of Claim). The Plaintiffs aver that Ms Siu made an oral representation that “a sale …had been secured for a sum of US$1,200,000.” This sale is defined as the Contract in the Amended Statement of Claim. The Plaintiffs do not spell out who the purchaser was but the reference to the representation that a sale had been secured must be taken to mean that Ms Siu had represented that she had found a third-party buyer and that the buyer was not the Defendant. The Contract as defined appears to be a reference to the agreement with that third party buyer. This is confirmed in Dangyach 2 – 1182 at [7] where Mr Dangyach refers to the WhatsApp messages from Ms Siu on 13 September 2023 in which Ms Siu talks about her and Lily “pushing [the Defendant’s] clients” and that the client “will not ask any discount but she need a longer payment, said like three months, is that ok for you?” It is also clear from Dangyach 1 1182 at [6] that Mr Dangyach’s own evidence is that he understood that the Defendant’s role was always to find a third-party purchaser for the Plaintiffs’ gems and that the agreement between them was a sale on consignment (he says that it was a common practice but does not say that the Defendant ever agreed, or give any example of a case in which the Defendant agreed, to any other arrangement and to be the purchaser of the gems). 41.The Plaintiffs claim that the existence and terms of the Contract were “evidenced” by “WhatsApp conversations” between Mr Dangyach and Ms Siu and that it was a term of the Contract that the sum of US$1,200,000 would be paid within three months of September 2023 ([5] of the Amended Statement of Claim). 42.Mr Dangyach’s evidence in Dangyach 1 1182 at [8] is that is that the agreement made in September 2023 was oral and that the Defendant agreed to procure a buyer for the Emerald Ring (“around September 2023, we reached an oral agreement for [the Defendant] to procure customer to purchase the [Emerald Ring] for [the Price]”). He says that the agreement was “referenced” (evidenced by) in WhatsApp messages on 13 September 2023. This clearly confirms that the Plaintiffs’ case is that the agreement with the Defendant was only to procure and locate a buyer for the Emerald Ring. The oral representation referred to in the Amended Statement of Claim can then be understood as being that the Defendant had found such a buyer who had agreed to pay the price of US$1,200,000. 43.The Plaintiffs appear to rely on the WhatsApp messages on 13 September 2023 as evidence that it was orally agreed that payment would be due by September 2023. The relevant WhatsApp messages on 13 September 2023 (after Ms Siu’s messages referred to above in which she says that she and Lily are “pushing [the Defendant’s] clients” and that the client “will not ask any discount but she need a longer payment, said like three months, is that ok for you?”) were as follows (my underlining):
44.The messages suggest that Ms Siu was not confirming an agreement on any of these matters but rather asking what Mr Dangyach wanted and promising to talk to the ultimate client to try to negotiate and agree the terms that Mr Dangyach sought. 45.This is confirmed by the subsequent WhatsApp messages later in the same month. On 28 September 2023 Mr Dangyach messaged Ms Siu and asked “16 cts no oil any reply? Or I take it back.” The following exchange took place thereafter:
46.This is a rather confusing exchange. It appears from the messages on 28 September that Ms Siu was conveying her client’s wish to have three months to pay. She says after confirming that, that “I’ll let you know when payment made next week.” This presumably means that she will let Mr Dangyach know when payment will be made after having further discussions with the client. She then says that “we will wait till end of November” which may be her understanding of the end of the three-month period, even though three months from the end of September would be the end of December. 47.Ms Siu does not deal in her evidence with the meaning to be given to this exchange. Her evidence is that the Plaintiffs authorised the Defendant to locate and sell the Jewellery to a buyer by reference to the price for the Emerald Ring of US$1,200,000 and it did so. She delivered the Emerald Ring (and the Emerald) “to the intermediary in Saudi Arabia for the sale of the [Jewellery].” She exhibits a copy of a consignment document from Beijing Kuangshi Int’l Auction (HK) Ltd which purports to evidence the consignment of the Emerald Ring to Toronto Products at a price of US$1,800,000. Ms Siu referred to this in her Affirmation as an agreement. She did not explain who Beijing Kuangshi Int’l Auction (HK) Ltd are and the terms on which the Defendant had delivered the Emerald Ring to them. It appears that Beijing Kuangshi Int’l Auction (HK) Ltd is the intermediary to whom she refers in [11] of her Affirmation. 48.Accordingly, the WhatsApp messages are unclear and the evidence of Mr Dangyach and Ms Siu do not resolve the uncertainties as to whether the messages on 28 September 2023 were intended or can (objectively) be understood and interpreted in context as evidencing and confirming an agreement by the Defendant that the third-party intermediary must and would be required to make payment within three months from 1 September (i.e. by the end of November). 49.The subsequent WhatsApp messages however strongly suggest that no such agreement was made. As I have noted above, the following exchanges took place in December 2024 and January 2025 (see Dangyach 2 1182 at [21]):
50.There is no message in evidence in which Mr Dangyach says that payment was due by the end of November 2023 or in which he claims that the Defendant is in breach of any obligation to make payment by that date. Instead, these messages show him chasing for payment but accepting that payment would be made only in early 2025. The earlier messages (on 8 August 2024) show that Mr Dangyach had been told by Ms Siu that the Emerald Ring was in Saudi Arabia and that Ms Siu (and Lily) were having difficulty in obtaining and making efforts to obtain payment. 51.Ms Siu’s evidence (in [7] and [8] of her Affirmation) is that at the original meeting that she and Lily had with Mr Dangyach on 25 August 2023 it was understood and agreed that the agreement for the consignment of the gems would be on terms that “payment would be settled to the defendant [sic presumably this should be a reference to the Plaintiffs] after the Defendant’s receipt of payments from the purchasers or the intermediaries.” While the Defendant will need to demonstrate at trial that this is indeed what was said and agreed, it seems to me a credible assertion that is not rebutted by or clearly inconsistent with the WhatsApp messages and other evidence adduced to date. The Emerald - HCA 1183/2025 - the primary claim for the agreed price 52.The Amended Statement of Claim in HCA 1183/2025 does not clearly state when the Sale Price is alleged to have become payable – the implication of [4] and [5] of the Amended Statement of Claim being that the Sale Price became due in October 2023. 53.The Amended Statement of Claim accepts that the agreement (partly oral and partly in writing) in relation to the Emerald was a sale on consignment and avers that the Defendant agreed to procure a sale of the Emerald for the Sale Price and that it was an express or implied term that Defendant would be liable to return the Emerald to the Plaintiffs upon demand or in the event of there being no sale within a reasonable time. The Plaintiffs also aver that in or around October 2023 the Defendant assured the Plaintiffs that the sale (to a third party) had been secured and the payment for the Emerald in the amount of the Sale Price would be forthcoming and, apparently based on that assurance, that the Defendant was liable to make payment by the end of October 2023 (the Amended Statement of Claim states that “the Defendant has failed to pay the balance of the Sale Price since October 2023”). 54.The WhatsApp messages quoted and relied on by Mr Dangyach do not establish the Plaintiffs’ claim that there was an agreement by the Defendant that it or the third party would (and it would procure them to) pay by the end of October 2023. The messages quoted at [12] of Dangyach 1 1183 instead show Mr Dangyach chasing for payment but accepting that payment would not be made before 10 April 2024 (on 21 March 2024 he says “Okay two more weeks for you since we have come long way already. Waiting… if I don’t get full payment by 10 April Pls return the stone back.” He does not state that there was an unconditional agreement by the Defendant to make payment by the end of October 2023 which the Defendant has breached and which he is holding the Defendant to. It appears that he then waited until May 2025 before chasing for payment again. Once can have great sympathy with Mr Dangyach’s position but the WhatsApp messages are consistent with Ms Siu’s evidence that the Defendant’s obligation was to procure payment from the third-party intermediary (or buyer) and that the Plaintiffs would be paid when they paid, subject to the Plaintiffs being able to require the return of the Emerald before a sale such a third party. The WhatsApp messages appear to evidence Mr Dangyach’s immense frustration at the delays in payment being made (from the UAE) but ultimately accepting further delays at least until May 2025 at which point Mr Dangyach does decide that the Plaintiffs will need to assert their strict rights. But by that time, the Emerald appears to have been delivered to Saudi Arabia and sold to Beijing Kuangshi who had failed to make payment or return the Emerald. 55.It is also clear from the WhatsApp messages that Mr Dangyach was in March 2025 discussing receiving additional compensation as a result of the delays. On 14 March 2025 he messaged Ms Siu “please send me check for [Jewellery] … with compensation…”. The Emerald Ring and the Emerald - the alternative claim in conversion for failure to return the Jewellery 56.The Plaintiffs claim that the Defendant was not authorised to remove the Jewellery from Hong Kong before receiving payment and that the Defendant remained at all times under an obligation to return the Jewellery on demand. Ms Siu asserts that Mr Dangyach was told and knew about the Defendant’s intention to remove the Jewellery from Hong Kong and assented and agreed to the Defendant doing so for the purpose of allowing the third-party intermediaries (and potential buyers) to inspect the Jewellery and to conclude a sale. 57.Ms Siu says that sometime after September 2023 she and Lily had told Mr Dangyach that there were potential purchasers in the UAE and that the Jewellery would be delivered there to facilitate (to procure) a sale. She also says that after travelling to the UAE (presumably with the Jewellery) she flew to Saudi Arabia and handed over the Jewellery on 2 March 2024 to Toronto Products (as shown by the “agreement” of that date on Beijing Kuangshi’s headed paper). Ms Siu states that she and Lily had “updated Mr Dangyach on the “process of the sale in UAE.” Ms Siu does not give particulars of her or Lily’s alleged conversations with Mr Dangyach. She does not give dates or ranges of dates on which or the method by which the conversations took place and does not refer to any WhatsApp messages which refer to such discussions. When Ms Sui says that she updated Mr Dangyach about the sale process in the UAE it is not clear that she means to include Saudi Arabia. 58.However, the WhatsApp messages that Mr Dangyach refers to are not conclusive to show that he never authorised or assented to the Jewellery being sent to the UAE or Saudi Arabia. Mr Dangyach said that he only found out that the Jewellery was in the UAE or Saudi Arabia on 8 August 2024 and relies on the exchange of messages on 8 August 2024. But the meaning to be given and the interpretation of these messages is unclear. As I have noted above, Mr Dangyach messaged Ms Siu to say “let me know if any payment coming today otherwise I’ll pick up the goods tomorrow morning… Jacky will come tomorrow morning to collect goods” and Ms Siu replied on the same day and said “the things are in Middle East if they don’t make payment today I’ll let them get things back tomorrow.” Mr Dangyach responded by saying “I can pick up tomorrow morning.” Ms. Siu asked whether he was in Saudi and he responded by saying “India. Tomorrow morning in HK.” Ms Siu immediately reiterated “things are in Saudi” and Mr Dangayach had responded “I have informed you already.” Ms Siu makes a very clear statement that the Jewellery (the “things”) are in the Middle East. Mr Dangyach does not immediately respond by saying that this is a (a major) surprise and inconsistent with his instructions and the authority given to the Defendant with respect to where the Jewellery is to be kept pending payment. Ms Siu also said that she would be able to obtain the Jewellery back very quickly (“tomorrow”) but it appears that she was saying that she could obtain possession of the Jewellery in Saudi Arabia since when Mr Dangyach says that he can pick up the Jewellery (tomorrow) Ms Siu is puzzled and asks whether Mr Dangyach was in Saudi (and therefore it appears able to collect the Jewellery in Saudi). Mr Dangyach’s final response (“I have informed you immediately”) is difficult to understand. He may have misunderstood that Ms Siu appeared to mean that she would secure the return of the Jewellery only in Saudi Arabia so that it could not be collected in Hong Kong. In any event, he did not express surprise or complain when Ms Siu said twice and clearly that the Jewellery was in Saudi Arabia. 59.Further, I note that there were earlier references to the UAE in the WhatsApp messages. Some five months earlier, on 21 March 2024, Ms Sui had said to Mr Dangyach that (my underlining) “I didn’t reply you is because I didn’t have exact time that when we can receive money in our account. My part has been done in UAE but still a little processing time to go on because of the very tough banking system right now all over the world. Hope you can be patient for a little more while. Within these two weeks. Not long now. I know that we keep you long, we also terribly sorry about that. I assure you that you’ll have compensation for all these delays…” 60.I accept that there are a number of WhatsApp messages from Mr Dangyach in which he instructed Ms Siu to keep the Emerald Ring in the Defendant’s custody. In Dangyach 2 1182 he relied in particular on his message dated 13 September 2023 when he said “the ring will be in your custody till the full payment comes right. similar to all auction people.” Ms Siu had replied “yes of course.” In addition, on 28 September 2023 Mr Dangyach had messaged Ms Siu again and said “please keep the ring safe with you.” Once again, Ms Siu had replied and said “yes sure.” But the evidence does not show any subsequent and later messages to similar effect and there is clearly a live dispute as to whether Mr Dangyach was subsequently told and accepted or agreed that the Jewellery would need to be taken to the UAE or Saudi Arabia in order to allow a sale to proceed. The Defendant’s evidence 61.I said above that I had concluded that the Defendant had, on balance, adduced sufficient evidence that was coherent and credible (and therefore capable of being believed) to show that there were triable factual disputes relating at least to the two core elements of the Plaintiffs’ claims that I have identified. I recognise, as was noted by DHCJ Chow in Fubon Bank, that the burden is on the Defendant to show a real or bona fide defence or some other reason for a trial, that on the basis of its evidence there is a fair or reasonable probability that it has such a defence and that the mere assertion in an affidavit of a given situation does not of itself justify a defendant being granted leave to defend. I have noted that Ms Siu has failed to provide particulars of when and how she or Lily had important conversations or discussions with Mr Dangyach or to adduce any documentary evidence of those conversations. I have considered whether this failure to particularise some of the facts on which the Defendant relies undermines the Defendant’s opposition to the Plaintiffs’ summary judgment applications and should disentitle the Defendant from being granted unconditional leave to defend. It seems to me that Ms Siu has, on balance, done enough in her Affirmation to provide a credible and sufficiently detailed account to show that there is a need for a trial to resolve what are essentially disputes as to who said what when, although there is clearly a need for further particulars to be given either before and at trial. The Plaintiffs’ cause of action in unjust enrichment 62.I note that the Plaintiffs also rely in HCA 1182/2025 on a cause of action in unjust enrichment based on the assertion that the Defendant had without being permitted to do so, retained possession of the Emerald Ring for a period after the Plaintiffs’ demand for redelivery and had been enriched as a result. This claim is therefore also based and dependent on the Plaintiffs’ assertion that the Defendant was not authorised to remove the Jewellery from Hong Kong and to give it to the third-party intermediary so as to prevent it being able to comply with the Plaintiffs’ demand for redelivery. To the extent that there are triable disputes of fact that affect the Plaintiffs’ claim in conversion they also apply to the claim in unjust enrichment. I did not understand the Plaintiffs to have argued that even if the Defendant succeeded in showing that there were triable issues in respect of the conversion claims that nonetheless there was a basis on which they would be entitled to summary judgment on the unjust enrichment claim. The overall merits – a comment 63.It seems to me to be important to conclude by pointing out the obvious, namely that the Plaintiffs’ failure to obtain summary judgment does not mean that they will fail at trial or that the Defendant does not have serious issues to answer, particularly in relation to the manner in which the Defendant dealt with the Jewellery by handing it over to third-party intermediaries in Saudi Arabia apparently without taking steps to prevent delivery before payment or to protect the Plaintiffs from the risk of non-payment. It will need to be established at trial precisely what was told to Mr Dangyach and what he accepted or agreed regarding the taking of the Jewellery to the UAE and Saudi and as to whether the Defendant was authorised to sell the Jewellery otherwise than in return for immediate payment and otherwise on what terms. I appreciate that the evidence shows that the Plaintiffs and the Defendant operate in a largely informal manner based on trust and trade practice but the dispute that has resulted is a painful reminder that sometimes it is necessary to spell out clearly in writing and for the record what has been discussed and agreed.
Mr Sunny Chan instructed by K.C. Ho & Fong for the Plaintiffs Ms Vanessa Wong instructed by Cheng & Wong for the Defendant [1] I note that there is a discrepancy in the spelling of Mr Dangyach’s name. In the title to the actions it is spelt as Dangyach but in his First Affirmation in both sets of proceedings it is spelt in the same way as the Second Plaintiff as Dangayach but there is a manuscript correction to the spelling of his name in his Second Affirmation in both sets of proceedings to adopt the spelling in the title of the actions. I have followed the spelling in the title to the actions. | ||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 1182/2025