DANGYACH, ASHISH and DANGAYACH, TRISHA trading as COLORJEWELS v. BEIJING KUANGSHI INTERNATIONAL AUCTION (HK) LTD

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

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AND

HCA 1183/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1183 OF 2025

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(Heard Together)

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REASONS FOR DECISION

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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):

(a)  on 25 August 2023 they delivered the Emerald Ring to the Defendant on the terms set out in a written memorandum of the same date (the Memorandum). The Memorandum provided that the Emerald Ring was “delivered to [the Defendant] for examination and inspection only” and was to remain the Plaintiffs’ property. The Memorandum also stated that “no right or power [was] given to [ the Defendant] to sell pledge mortgage transfer or otherwise agree to such a sale … in case a suit is filed to collect this merchandise or any portion thereof [ the Defendant] promises to pay additional costs such as a attorneys fee fees and collection agencies fees.”

(b)  subsequently on about 13 September 2023 the Plaintiffs negotiated the sale and purchase of the Emerald Ring with Ms Agnes Siu (Ms Sui) acting as the agent for the Defendant (the Contract). During these negotiations Ms Siu orally represented that a sale of the Emerald Ring had been secured for the sum of US$1,200,000 (the Price).

(c)  the Contract was evidenced in writing by WhatsApp messages between Mr. Dangyach and Ms Siu and contained the following terms (i) payment of the price was to be made within three months from September 2023 and (ii) title to the Emerald Ring would not pass to the Defendant until full payment had been made.

(d)  the Plaintiff delivered the Emerald Ring to the Defendant pursuant to the Contract and the Defendant (at the time of the amended statement of claim dated 20 January 2026) had and retained possession of the Emerald Ring.

(e)  in breach of the Contract the Defendant has neither paid for the Emerald Ring nor returned it, despite express demands to do so from the Plaintiffs.

(f)  in the alternative, if the Defendant had been entrusted to procure the sale of the Emerald Ring, the Defendant was nonetheless still liable either to account to the Plaintiff for the price of the Emerald Ring that the Defendant had received and sold or to return the Emerald Ring to the Plaintiffs on demand, which it had failed to do.

(g)  in the further alternative by refusing to return the Emerald Ring after demand the Defendant was liable for conversion and detinue in that it continued to interfere with and deny the Plaintiffs’ proprietary rights to possession of the Emerald Ring.

(h)  further and in the alternative, the Plaintiffs made a claim in unjust enrichment.

(i)  the Defendants are liable to pay to the Plaintiffs the Price.

(j)  alternatively, a declaration that the Defendant is liable for conversion by retaining the Emerald Ring together with a mandatory injunction that the Defendant deliver the Emerald Ring forthwith and an order that damages to be assessed with interest.

8.  In its defence, the Defendant:

(a)  admits that the Emerald Ring was delivered to it on the terms of the Memorandum for examination and inspection.

(b)  denies that the Defendant negotiated to purchase the Emerald Ring from the Plaintiffs and instead avers that during communications between Ms Siu and Mr Dangyach on 13 September 2023 the Plaintiffs had agreed to engage the Defendant to procure the sale of the Emerald ring with a reference price of US$1,200,000.

(c)  as a result, the Plaintiffs are put to proof on all other aspects of their claim.

HCA 1183/2025 – the pleadings

9.  In HCA 1183/2025 the Plaintiffs aver and claim as follows (my underlining and emphasis):

(a)  by an invoice dated 25 August 2023 (the Invoice) the Defendant agreed (the Emerald Contract) to procure the sale of the Emerald for the sum of US$500,000 (the Sale Price).

(b)  the agreement between the Plaintiff and the Defendant was partly oral and partly in writing. It was in writing as evidenced by the Invoice and as evidenced by WhatsApp messages between Mr Dangayach and Ma Siu sent between October 2023 and May 2024.

(c)  the Emerald Contract contained, either as express terms or terms implied as a matter of necessity and business efficacy, the following terms: (i) the Plaintiffs would deliver possession of the Emerald to the Defendant for the purpose of allowing the Defendant to secure a sale; (ii) property in the Emerald would not be transferred to the Defendant and the Defendant would be a bailee of the Emerald pending sale; (iii) the Defendant would be a constructive trustee liable to account for the sale price of the Emerald upon the sale of the Emerald; (iv) the 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.

(d)  at the Defendant’s request the Plaintiffs delivered the Emerald on 25 August 2023 and in or around October 2023 the Defendant assured the Plaintiffs that the sale had been secured and the payment for the Emerald in the amount of the Sale Price would be forthcoming.

(e)  in breach of the Emerald Contract, the Defendant’s duties as custodian of the Emerald and the Sale Price, the Defendant has failed to pay the balance of the Sale Price since October 2023.

(f)  the Plaintiffs claim the Sale Price or alternatively a declaration that the Defendant is liable for conversion by retaining the Emerald Ring and a mandatory injunction that the defendant deliver the emerald ring fourth with damages and interest to be assessed.

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):

“6  We [he and Ms Siu] are both in the same gem stone trading business. Usually I act as the supplier. [She/the Defendant] act as intermediaries or agents who procure sales of my gems to third-party clients and buyers. Sometimes I would consign gems to her for examination and to show potential buyers. Other times she would arrange for the gems to be sold through their auctions where they would earn commission. A common practice was for me to deliver gems to her for a potential client and if a sale was agreed, she would hold the gem until full payment was received from the buyer after which she would pay me. In other words the Defendant has it all material times been an intermediary and a bailee of goods I place in their possession. Property in the gemstones were never meant to pass to the Defendant.

…..

8.  Subsequently, around September 2023, we reached an oral agreement for [the Defendant] to procure customer to purchase the [Emerald Ring] for [the Price]. This is referenced in our WhatsApp chats we’re on 13 September 2023 we discussed a 16-carat emerald… the court will see from the conversation that a buyer had been secured and that the parties were explicit that the gem would be in the Defendants possession pending the sale or the Defendant would be liable to return the [Emerald Ring] to the Plaintiff.

9.  I set out the relevant WhatsApp conversations between me and [Ms Siu] ….

[On 13 September 2023, Mr Dangyach messaged Ms Siu and 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.”]

 

…..

[On 28 September 2023 Mr Dangyach messaged Ms Siu and said “please keep the ring safe with you” and Ms Siu had replied and said “yes sure.”]

12.  ….. I crave leave to refer to the WhatsApp messages on 6 November 2023, 21 March 2024, 23 July 2024, 12 November 2024 ……

….

[On 6 November 2023, Mr Dangyach had messaged Ms Siu and said “please make sure I get payment this week. Otherwise, I want to pick the stone back”].

……

[On 21 March 2024, Mr Dangyach had messaged Ms Siu and said “if I don’t get full payment by 10th April Pls return the stone back” and Ms Siu had said in response “noted.”

[On 23 July 2024, Mr Dangyach had messaged Ms Siu and said “I need to pick up the stone and when you have money ready will deliver you back. Please arrange stone pick up today/tomorrow.” Ms Siu had replied “okay I arrange shipment if you insist”]

…..

13.  On August 2024, I found out that the [Emerald Ring] are no longer in Hong Kong. I crave leave to refer to the WhatsApp messages on 8 August ….

[Mr Dangayach messaged Ms Siu and said “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.” 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 Dangayach 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”] ”

12.  In her affirmation in HCA 1182 Ms. Siu (Siu 1) said as follows (my underlining and emphasis):

“7. On 25 August 2023 [our common friend] Lily introduced [Mr Dangayach] to me and accompanied him to visit the Defendant’s office… During our communication communications [Mr Dangyach] expressed his interest in engaging the defendant to procure the sale of his products. I explained to him that the defendant could procure the sale through auction private sale or consignment to other intermediaries with a reference price to be proposed by the Plaintiff and payment would be settled to the defendant after the Defendant’s receipt of payments from the purchases or the intermediaries. [Mr Dangyach] was experienced in trading gems and jewellery and familiar with those arrangements. As a result of our discussions, the Plaintiff and Defendant started their business relationship.

8. Subsequent to our meeting the Plaintiff delivered to the Defendant’s office the [Emerald Ring and the Emerald (together the Products] … later on 25 August 2023. As discussed in our meeting, the Products were delivered to the Defendant for procurement of sale by auction private sale or consignment to other intermediaries and payment would be settled after receipt of payments from the purchasers or the intermediaries. The Plaintiff proposed a reference price of US$1,400,000 for the [Emerald Ring] and US$500,000 for the [Emerald].

…..

10. In about September 2023, I informed [Mr Dangyach] but there was a potential purchaser and the reference price was then agreed to be reduced to US$1,200,000. Later on Lily told found a potential purchaser for the [Emerald] and the reference price was agreed at US$500,000. There had been several attempts to sell the products in vain.

11. Later on an intermediary who Lily and I had known for several years told me that there were potential purchases for the products in the UAE. Lily and I had told [Mr Dangyach] that there were potential purchases in UAE and the products would be delivered there for procurement of the sale. Soon after, the intermediary told me that I purchase it in UAE agreed to purchase the products. I [flew] to Dubai on 25 February 2024 and stayed there before I [flew] to Saudi Arabia. On 2 March 2024 I handed over the products to the intermediary in Saudi Arabia for the sale of the products. Lily and I had updated [Mr Dangayach] of the progress of the sale in UAE. There is now produced and shown to me a copy of my passport showing my arrival in UAE on 25 February 2024… There is also produced and share to me a copy of the hotel booking confirmation in Saudi Arabia… There is also share to me a copy of an agreement dated 2 March 2024… [11]

12. Lily and I kept communications on the payment status of the products with [Mr Dangyach] from time to time both by phone and meetings. We had told [Mr Dangyach] that we still had not received payment from the purchaser and thus could not make payment to him. We would continue to follow the payment and Wood make payment to the plaintiff once we received payment from the purchaser.

13. In about November 2024, Lily and I told [Mr Dangyach] that payment had not been received from the purchaser. The Plaintiff agreed to wait for the payment with an extra 10% to be paid by the defendant [Ms Siu produced an extract of Messages with Mr Dangayach on 27 November 2024, which she said showed agreement on the extra 10% payment].

14. Later on still not having received the payment the plaintiff agreed to wait further for the payment with an extra 15% to be paid by the defendant [Ms Siu produced messages between her and Mr Dangayach on 8 April 2025 which she said showed the agreement on the extra 15% payment].

15. The Defendant is not able to get back the product from the purchaser but will continue to follow up the payment. The plaintiff is well aware of this situation. The defendant will make payment to the plaintiff once payment has been received from the purchaser.

16. The Plaintiff has filed an Amended Statement of Claim on 20 January 2026 i.e. the same day on which the [Plaintiff’s] Summons was taken out. The Defendant will amend their Defence in line with the matters deposed hereto if leave to defend is granted by the Court.”

13.  In his Second Affirmation in HCA 1182/2025 (Dangyach 2 1182), Mr Dangyach states as follows (my underlining):

“Contemporaneous messages

4.  In the following paragraphs I which to highlight for the court the contemporaneous WhatsApp record exhibited at AD2 to my first affirmation (the WhatsApp Record), the messages show the following …

(1) On 13 September 2023 a buyer for the [Emerald Ring] was secured at the agreed price of US$1,200,000, with payment to be made in approximately three months;

(2) On the same day the Defendant expressly agreed in writing that the [Emerald Ring] would remain in the Defendant’s custody until full payment was received and reaffirmed that agreement on 28 September 2023;

(3) In breach of that express agreement the Defendant subsequently shipped the [Emerald Ring] out of Hong Kong to Saudi Arabia on or about too March 2024 and consigned it to a third-party “Toronto Projects & Services Company Limited (Toronto Projects), at a marked-up price of USD1,800,000 - all without my knowledge, consent or authority;

(4) I only discovered that the [Emerald Ring] was no longer in Hong Kong in or around late July 2024 when I attempted to collect it; and

(5) The Defendant now admits at paragraph 15 of [Siu 1] that it is unable to recover the [Emerald Ring] from the alleged purchaser.

5.  On any view of the facts summarise above, the defendant was obliged either to pay the plaintiff USD1,200,000 or to return the [Emerald Ring]. It is done neither. There is no defence to the plaintiffs claim and no triable issue.

…

9.  On the basis of [the Defendant’s representations that the purchaser required three months to pay] I agreed that the Defendant would procure payment of USD1,200,000 within approximately three months. The figure of USD1,200,000 was therefore not a reference price but the agreed price which the defendant was obliged to procure and pay over to me.

…

The Defendant’s express agreement that the [Emerald Ring] would remain in its custody until full payment.

12.  On 13 September, the same day the price was agreed I expressly instructed [Ms Siu] that the [Emerald Ring] was to remain in the Defendant’s custody until full payment had been received and [Ms Siu] expressly agreed [see the WhatsApp messages on 13 and 28 September 2023 quoted in [9] in Dangayach 1].

 

…

14.  The Court will see that from the very inception of the arrangement, the Defendant accepted in writing in its representative’s own words, that the [Emerald Ring] would remain in its custody until full payment was received. There was no agreement for onward shipment to the UAE or Saudi Arabia, no discussion for onward consignment to Toronto Projects, or any permission for delivery to any other person prior to receipt of full payment.

The [Emerald Ring] was sent to Saudi Arabia and consigned to Toronto Projects without my knowledge or consent

15.  … I deny that I was ever told in advance that the [Emerald Ring] would be or had been removed from Hong Kong, that I ever consented to such removal all that I had ever heard of Toronto Projects.

16. In particular:

…

(2)  I never authorised, consented to or had any knowledge of any onward consignment of my [Emerald Ring] to any further intermediary. To the contrary, my express written instruction was that the [Emerald Ring] Wood remain in the Defendant’s custody until full payment had been received.

(3)  I never authorised, consented to always was told in advance that [the Emerald Ring] would be sent to the UAE, Saudi Arabia or anywhere outside Hong Kong. I was very clear in my message on 13 September 2023 that the ring was to remain in Hong Kong, in the Defendant’s custody, until full payment had been received from the buyer ….

…

20.  I refer to paragraph 13 of [Ms Sui’s] affirmation in which [she] says that “in about November 2024” I agreed to wait for payment with an extra 10% to be paid by the Defendant. [Ms Siu] exhibit in support and extract said to show “the agreement on the extra 10% payment” …

21.  In so far as the parties have discussed the issue of the extra 10%, the discussion was premised on the condition that full payment would be made to the Plaintiff oh no before Lunar New Year in 2025 (i.e. on before 29 January 2025). This is supported by the contemporaneous messages as follows:

[23/12/24 from Mr Dangyach]: hi, any update on payment?

[23/12/24 from Ms Siu]: before lunar new year

…

[7/1/25 from Mr Dangyach]: two weeks left… Please make sure we settle this this time… No energy to wait for more

[7/1/25 from Ms Siu] no worries

…

[22/1/25 from Ms Siu]: payment should be made in HK. Please let me have your account information first.

[22/1/25 from Mr Dangyach provides the account details for Colorjewels]”

HCA 1183/2025 – the evidence adduced

14.  In his First Affirmation in HCA 1183/2025 (Dangyach 1 – 1183) Mr Dangyach says (my underlining):

(a)  by an invoice dated 25 August 2023 (the Invoice) the defendant agreed to purchase the Emerald for US$500,000.

“I should say that the arrangement between the Plaintiff and the defendant was that the defendant would secure the sale of the [Emerald] to third-party buyer and thereby earn a commission.”

(b)  despite repeated promises the Defendant as failed to pay the price or return the Emerald.

(c)  Mr Dangyach said that (my underlining and emphasis):

“10. Since September 2023, I have repeatedly chase [Ms Siu] and/or [Beijing Kuangshi] for the settlement of the Invoice. [he exhibited WhatsApp messages in the period from 31 August 2023 to 30 May 2025].

11. In our extensive WhatsApp record, spanning from September 2023 to May 2025 is a chronicle of broken commitments. [The Emerald] is referred to as the “10 cts no oil” stone, with discussions about its sale and payment beginning in early October 2023.

12. [Ms Siu] repeatedly asked for patience client delays, banking issues, economic conditions and even a Buddhist retreat as follows:

13/10/2023 from Mr Dangyach - 10 cts no oil stone payment will get next week. Pls confirm.

13/10/2023 from Ms Siu - trust me Ashish we are in the same line, I’ve tried every best to push the payment and also want to complete the deals as much as you because I can receive my commission then. But you know the present economic environment is quite tough and general situation is payment made not as quick as before. I have to handle carefully as I’m afraid they will cancel the deals directly if I push too hard. I have confidence to complete the deals for that three stones hold because I know my buyers well, I use my tactics to handle them, be patient. I won’t let you down.

13/10/2023 from Mr Dangyach - from what I know the [Emerald] was customer confirmed, you told me payment is 45 days, but this payment will come early.

13/10/2023 from Ms Siu - that buyer is a little demanding and has a lot of requests, but I think she is trying to arrange money now. I’m awaiting her confirmation to come HK. It’s difficult to transfer money now

…

21/3/2024 from Mr Siu - … 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

…

21/3/2024 from Mr Dangyach - … thank you. 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.

21/3/2024 from Ms Siu - noted.

…

28/5/2025 from Mr Dangyach - we’ve been waiting for this payment for past two years and three months in the recent times. Now all of a sudden you tell me that you cannot arrange the payment now. So it’s not a very good news but I need to understand where are we going to? Because if you keep doing this, I have no other than going to the lawyer and court. I know I need to spend a lot of money but I have no other choice because the way you treating this is like you don’t care. It’s going to be close to 2 years now since you have bought the goods and you have not paid. There’s nobody who can do business like this.

28/5/2025 from [Ms Siu] - … Terribly sorry for that. We are disappointed too. I’m now in Taiwan attending a Buddhist retreat hoping this can solve our obstacle to receive the money. Will talk with you when I come back.

(d) on 6 November 2023 Mr. Dangyach had messaged Ms Siu and said “please make sure I get payment this week. Otherwise, I want to pick up the stone back.” Ms. Siu responded by saying “I just come back and I’ll push that” and Mr. Dangayach responded by saying “thanks”.

15.  In his Second Affirmation in HCA 1183/2025 (Dangyach 2 – 1183) Mr Dangyach states as follows (my underlining and emphasis):

“4. In the following paragraphs, I wish to highlight… the contemporaneous record in the WhatsApp Record and refer to the Defendant’s own documents. Taken together, the material shows the following, in substance in [Ms Siu’s] own words:

(1) the [Emerald] was delivered to the Defendant on 25 August 2023 under Invoice No. 25481 …. (the Invoice), which expressly provides on its face that “ownership of the goods set out in this invoice will not pass until payment in full of the invoice value is received by seller.”

(2) in or around September 2 October 2023, a purchaser for the [Emerald] was secured at the agreed price of USD 500,000 of which the Defendant was bound to account and pay that some over to the Plaintiff.

(3) in breach of the Invoice’s express retention of title provision and in breach of its obligations as bailee of the [Emerald] the Defendant subsequently shipped the [Emerald] out of Hong Kong to Saudi Arabia on or about 2 March 2024 and consigned it to a third-party, “Toronto Projects & Services Company Ltd” (“Toronto Projects”), at a marked up price of USD 1,000,000 - all without my knowledge, consent or authority.

(4) I only discovered that the [Emerald] was no longer in Hong Kong in or around late July 2024, when I attempted to collect it.

(5) the Defendant now admits at paragraph 15 of [Siu 1] that it is unable to recover the [Emerald] from the alleged purchaser.

5. On any view of the facts summarise above, the Defendant was obliged either to pay the Plaintiff USD 500,000 or to return the [Emerald]. It has done neither. There is no defence to the Plaintiff’s claim and no triable issue.

6. [Ms Siu] says that around September 2023 she informed me of a potential purchaser interested in the [Emerald] and that the “reference price” for the [Emerald] was USD 500,000. [Ms Siu] characterised that sum as a “reference price” rather than the price at which the Defendant was obliged to procure sale and account to the Plaintiff. …… this characterisation is wrong.

7. The Defendant agreed to procure the sale of the [Emerald] for the sum of USD 500,000. That agreement is partly in writing and partly oral in writing, it is evidenced by the Invoice which stipulate a consideration of USD 500,000, and expressly reserves ownership in the Plaintiffs until full payment is received. Orally, it is evidenced by the WhatsApp Record from October 2023 onwards, in which [Ms Siu] repeatedly acknowledged that a sale of the [Emerald] had been secured and the payment of USD 500,000 would be forthcoming. On the basis of those representations, I left the [Emerald] in the Defendant’s possession on the footing that the defendant would procure payment of USD 500,000 to me. The figure of USD 500,000 was therefore not a mere “reference” figure – it was the agreed price which the defendant was obliged to procure and pay over to me.

8. This is further confirmed by [Ms Siu’s] evidence at paragraph 11 of her Affirmation, where she says that on March 2024 the Defendant consigned the [Emerald] onward to Toronto Projects at a price of USD 1,000,000. That is exactly double the price quoted to me by the Defendant earlier. The Defendant cannot have been consigning the [Emerald] onward at a fixed and specific figure of USD 1,000,000 if the underlying figure of USD 500,000 to which it had committed me was, as it now claims, merely a “reference.” Plainly it was not.

9.  The markup of USD 500,000 (a margin of 100%) was supplied without my knowledge or consent. The Defendant has never offered any explanation as to the basis on which it claimed any entitlement to apply such a margin to the [Emerald.]

…

11. Accepting delivery of the [Emerald] on the footing of the Invoice, the Defendant expressly accepted that the [Emerald] was to remain the Plaintiff’s property until full payment was received, and the Defendant held the [Emerald] as bailee pending the procurement of a sale… There was no agreement for the Defendant to ship the [Emerald] out of Hong Kong, no agreement for the Defendant to consign the [Emerald] onward to any further intermediary, no agreement for the Defendant two part with possession of the [Emerald] to any person in the UAE or Saudi Arabia and no permission for delivery of the [Emerald] to any other person prior to receipt of full payment.

12. I refer to paragraph 11 of [Ms Siu’s] affirmation where [she] says that… she and one “Lily” told me the [Jewellery] Wood be delivered [to the UAE] and that on 2 March 2024, she handed the [Emerald] to Toronto Projects in Saudi Arabia. I deny that I was ever told in advance that the [Emerald] would be or had been removed from Hong Kong, that I ever consented to such removal all that I had ever heard of Toronto Projects.

13. In particular:

(1) I have never heard of “Toronto Projects & Services Company Ltd.” Neither [Ms Siu] no Lily ever mentioned that company to me. The first time I have ever encountered that name is in [Ms Siu’s] affirmation…

(2) I never authorised, consented to or had any knowledge of any onward consignment of the [Emerald] to any further intermediary. To the country, the basis on which I had partied with possession of the [Emerald] was that the Defendant Wood hold the [Emerald] as bailee and procure a sale at USD 500,000 with title not passing until full payment…

(3) I never authorised, consented to always told in advance that the [Emerald] would be sent to the UAE, Saudi Arabia or anywhere outside Hong Kong.

(4) The contemporaneous record corroborate my evidence that I had no knowledge the [Emerald] had been sent overseas until on or around July 2024.

…

15. It can be seen from contemporaneous record that is late as 23 July 2024. I was still asking [Ms Siu] to arrange the immediate return of the goods in Hong Kong. [Reference is made to the WhatsApp messages on 23 July 2024 and 8 August 2024.]

…

17. As can be seen from these exchanges, I have been actively seeking the return of the goods in Hong Kong.

18. I refer to paragraph 13 of [Ms Sui’s] affirmation in which [she] says that “in about November 2024” I agreed to wait for payment with an extra 10% to be paid by the Defendant. [Ms Siu] exhibit in support and extract said to show “the agreement on the extra 10% payment” …

19. In so far as the parties have discussed the issue of the extra 10%, the discussion was premised on the condition that full payment would be made to the Plaintiff oh no before Lunar New Year in 2025 (i.e. on before 29 January 2025). This is supported by the contemporaneous messages as follows:

[23/12/24 from Mr Dangyach]: hi, any update on payment?

[23/12/24 from Ms Siu]: before lunar new year

…

[7/1/25 from Mr Dangyach]: two weeks left… Please make sure we settle this this time… No energy to wait for more

7/1/25 from Ms Siu] no worries

…

[22/1/25 from Ms Siu]: payment should be made in HK. Please let me have your account information first.

[22/1/25 from Mr Dangyach provides the account details for Colorjewels]

20. It is indisputable that the Defendant never made any payment. In any event, even on the Defendant’s own case the Defendant has never paid the alleged “extra 10%”, nor is the Plaintiff seeking the alleged “extra 10%” in these proceedings.”

21. I refer to paragraph 14 of [Ms Sui’s] affirmation in which [she] says that later I agreed to wait further for payment with “an extra 15%” to be paid by the Defendant. [Ms Siu] exhibits in support a document said to show “the agreement on the extra 15% payment” … consisting of an extract of WhatsApp messages dated 8 April 2025. With respect, that account is wrong and [the messages do] not say what [Ms Siu] says [they say].

22. By April 2025 I had been waiting over a year and a half. I had instructed my solicitors… to issue a formal demand letter on 26 February 2025 … and on 14 March 2025, I told [Ms Siu] in writing that … “my lawyers are preparing for court processing and filing rent. I have waited enough time and all I got was false affirmation on payments.”

23. Far from agreeing to wait further, by this point I was actively seeking a written acknowledgement from the Defendant of the sums it owed me across both actions and a firm date for payment. The relevant messages in the WhatsApp Record as follows:

[8/4/2025 from Mr Dangyach] 3M … please can you sign and give me back in 1-2 days…]

[12/4/2025 from Mr Dangyach]: Please let me know when I can pick up sign agreement.

[24/4/2025 from Mr Dangyach]: please let me know when I can pick up sign agreement.

[24/4/2025 from Ms Siu]: sorry to tell that I can’t sign that, you just be patient for a little while, you will receive money very soon”

24.  These messages clearly show that no agreement was reached on the alleged “extra 15% payment.” The full account also clearly shows that [Ms Siu] refused to sign the agreement on 24 April 2025 concerning further compensation for the delay already incurred. Furthermore, [Ms Siu] tried to conceal this part by omitting it from her exhibit…

25.  The messages in March 2025 are also relevant as follows:

[14/3/2025 from Mr Dangyach]: please send me check for [Jewellery] …. with compensation. I will send to lawyer to send you acknowledgement. Let me know compensation and check date. Need urgent.

[14/3/2025 from Ms Siu]: we will ready and send you in May.

[14/3/2025 from Mr Dangyach]: lawyer need May date check now.

[14/3/2025 from Ms Siu]: will arrange in May.

26.  This is [Ms Siu’s] own promise that the defendant would arrange payment together with further compensation for the delay already incurred in May 2025 – a promise which, needless to say, the Defendant did not keep.

…

31.  I refer to paragraphs 4 and 5 of the Defence in which the Defendant alleges that the parties entered into an “Auction Consignment Contract” on or about “25 August 2025” (plainly a typographical error for 25 August 2023). A copy of that document was produced for the first time by the Defendant’s solicitors… Undercover of their letter dated 11 November 2025…

32.  Even on the Defendant’s own pleaded case - that the arrangement is governed by the Auction Consignment Contract of 25 August 2023 - the Defendant is liable. On the Defendant’s own case, the Defendant was interested with the [Emerald] for the procurement of a sale. The Defendant’s own evidence establishes:

(1)  That the [Emerald] was delivered to the Defendant on 25 August 2023.

(2)  That in or around September to October 2023 purchaser was purportedly secured.

(3)  That on 2 March 2024 the Defendant consigned the [Emerald] onward to Toronto Projects at USD 1,000,000.

(4)  That the Defendant has not accounted to me, or paid me, any sum whatsoever in respect of the [Emerald]; and

(5)  That the Defendant cannot now recover the [Emerald].

33.  On that evidence, the Defendant has plainly breached the Auction Consignment Contract on its own case - whether by failing to account for the sale proceeds, by failing to return the [Emerald] or by having parted with possession of the [Emerald] to an overseas sub-consignee from whom the [Emerald] cannot be recovered. There is no consistent or rational reading of the Auction Consignment Agreement under which the Defendant is entitled to retain the [Emerald] consign it abroad on its own account at a marked up price failed to recover it and yet pay me nothing.”

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:

“8. The applicable principles for O.14 of RHC are also trite. These were summarised by Ng J in Guanghua SS Holdings Limited v Lim Yew Chen & Another [2022] HKCFI 1052 at [13] as follows:

(1) The Order 14 machinery works on the basis that if the plaintiff’s application is properly constituted, it is prima facie entitled to judgment unless the defendant shows cause to the contrary.

(2) The mere assertion in an affidavit of a given situation by the defendant responding to an application for summary judgment does not ipso facto ground leave to defend.

(3) The burden is on the defendant to show a real or bona fide defence or some other reason for a trial. The defendant must satisfy the court that his evidence is capable of being believed and that on the basis of such evidence there is a fair or reasonable probability of the defendant having a real or bona fide defence.

(4) In deciding whether there is a fair or reasonable probability of the defendant having a real bona fide defence, the court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather the court must look at the whole situation.

(5) In assessing the credibility of the defendant‘s factual case, while the court will not embark upon a mini trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate.

(6) If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence the defence is not credible, the court must say so; and

(7). If the defendant’s evidence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.

9. In considering whether there are triable issues, I bear in mind that the court will not take the defence on its face value but tested against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite the opportunity being given to the defendant to respond earlier: see Time Rich 08 Limited v DBE (HK) Limited (Unrep) CACV 282/2017, 16 July 2018 per Cheng JA at [5.2].”

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:

(a)  first, whether it was agreed that the Defendant would pay (or procure payment by a third- party of) an agreed price for the Jewellery by a certain date (or whether it was agreed that the Defendant would only be liable to pay an agreed price to the Plaintiffs when it received payment from, and out of sums paid by third-parties, even if the relevant third-party was late in making payment or failed to do so).

(b)  secondly, whether the Plaintiffs consented to and authorised the Defendant to remove the Jewellery from Hong Kong before receiving payment from such third-party intermediary (or buyer) for the purpose of negotiating and concluding a sale, so that the Plaintiffs accepted and agreed that the Defendant would be unable to return the Jewellery on demand (until the Defendant recovered the Jewellery from the third-party).

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):

Mr Dangyach  the ring will be in your custody till the full payment comes right, similar to all auction people

Ms Siu  of course

Mr Dangyach  I can do but need a deposit

Ms Siu  I try to bargain for you, OK?

Mr Dangyach  I don’t want 3 month later client refuse to buy… OK please:)

Ms Siu  Yes, I know, I also want to complete the deal.

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:

Ms Siu  You just wait, she will pay, she like that

Mr Dangyach  I can wait but I need deposit, even 50K is ok

Ms Siu   I’m afraid she will turn down if I ask for deposit, I know her habit.

Mr Dangyach              let me know how long you think we need to wait?

Ms Siu   I already told you that she need three month payment term …. I’ll let you know when payment made next week

Mr Dangyach  ok thanks

Ms Siu   so the 16 ctsno oil we wait till end of November

 Mr Dangyach  please keep the ring safe with you

Ms Siu  Yes sure

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]):

“[23/12/24 from Mr Dangyach]: hi, any update on payment?

[23/12/24 from Ms Siu]: before lunar new year

…

[7/1/25 from Mr Dangyach]: two weeks left… Please make sure we settle this this time… No energy to wait for more

[7/1/25 from Ms Siu] no worries

…

[22/1/25 from Ms Siu]: payment should be made in HK. Please let me have your account information first.

[22/1/25 from Mr Dangyach provides the account details for Colorjewels]”

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.