Ip, Patrick v. Chan Meanne Ching Man

DCCJ 1717/2024

[2025] HKDC 1578

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1717 OF 2024

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JUDGMENT

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A.  INTRODUCTION AND BACKGROUND

1.The Plaintiff and the Defendant were colleagues at the University of Hong Kong (the “University”). The crux of their dispute in this case concerns with the “Heads of Agreement” signed by the Parties on 26 July 2019 (the “Heads of Agreement”), which contained the terms on which they agreed to settle matters arising from the breakdown of their romantic relationship. The background leading to the signing of the Heads of Agreement can be summarized as follows.

2.On or around 20 August 2018, the Plaintiff was informed by the Equal Opportunity Officer of the University Equal Opportunity Unit that the Defendant had lodged a complaint against the Plaintiff regarding the Plaintiff’s alleged conducts which could be broadly classified as sexual assault and harassment (the “Complaint”).

3.According to the University’s policy, when a formal complaint by a staff member is lodged against another staff member, the complainant and respondent would first be required to attempt to resolve the matter by mediation, and only if they failed to reach settlement through mediation would the University commence formal disciplinary proceedings in respect of the complaint lodged.

4.On 26 July 2019, the Parties entered a written “Agreement to Mediate”, whereby they agreed to resolve their dispute through mediation.

5.On the same day, the Parties attempted mediation through mediator Ms Sala Sihombing, and the Defendant agreed to withhold her complaint pending the outcome of the mediation.

6.The mediation was successful, and the Parities signed the Heads of Agreement to record the terms on which they had agreed to resolve their dispute.

7.Clause 1 of the Heads of Agreement provides: -

“A. The Parties wish to record in this Heads of Agreement the terms on which they have resolved their dispute. The Mediator will prepare a mediation agreement on these terms for the Parties to review and sign (the “Mediation Agreement”). The Parties agree that they have reached a full and final settlement of all claims against each other on the basis of the agreement set out below.”

8.Various duties of the Parties were then set out in the Heads of Agreement, which were to be performed within the stated number of days “after the signing of the Mediation Agreement”. As shall be explained more fully below, the Defendant alleges that the Heads of Agreement is not legally enforceable.

9.Despite the efforts of the mediator in having the Mediation Agreement signed, it became clear by 27 November 2019 that the Defendant would not sign the Mediation Agreement as drafted by the mediator, which led to the Plaintiff’s claim in the current proceeding seeking specific performance of the Heads of Agreement.

10.Despite having made a counterclaim, the Defendant was absent at trial, leave having been granted for her solicitors to cease to act shortly before the trial commenced. The Court’s clerk attempted to contact the Defendant to ascertaining her intention as to whether she would attend the trial or not, including notifying the ex-solicitors of the Defendant and requested them to inform the Defendant that that trial has commenced. However, those attempts were to no avail, and the Defendant did not appear at trial.

11.Pursuant to O.35 rule 1 of the Rules of the District Court (Cap.355H), the trial proceeded in the absence of the Defendant. The Plaintiff and a total of 11 other witness were called to give evidence for the Plaintiff. As the Defendant and her witnesses did not attend Court to give evidence, I shall expunge their witness statements from the trial bundles and dismiss the Defendant’s counterclaim. What remains to be dealt with is the Plaintiff’s claim.

B.  THE PARTIES’ CASE

B1.  The Plaintiff’s Case

12.The Plaintiff has been a Clinical Associate Professor in the Department of Pediatrics and Adolescent Medicine, Li Ka Shing Faculty of Medicine at the University.

13.The Parties’ relationship has gone through many ups and downs. According to the Plaintiff, the communications between the Parties were reflected largely in the email exchanges between them, which served to explain the various incidents that happened over the span of their relationship.

14.It is not disputed that the Parties first met in an event named “International Behavioral Health Conference BeHealth 2016” held in January 2016 organized by the Hong Kong Society of Behavioural Health at the Prince of Wales Hospital, where the Parties were both speakers. The Defendant, at that time, was a professor working at the University of Toronto, Canada.

15.In or around August 2016, the Defendant applied for the position of Assistant Professor in the School of Public Health (Behavioural Health Division) of the University and emailed the Plaintiff seeking his advice. Parties started to communicate regularly by email, Skype, and phone about professional, as well as personal matters.

16.In around November 2016, the Defendant visited Hong Kong again to attend an interview and career talk at the School of Public Health. According to the Plaintiff, the Defendant stayed in a flat that the Plaintiff arranged for a week, during which the Parties developed a sexual relationship. They soon became involved in an intimate relationship with each other, which lasted until around July 2018. The nature and duration of their relationship was disputed by the Defendant, which I shall address in the next part.

17.It is not disputed that from 30 December 2016 onwards, the Defendant came to Hong Kong from Canada and stayed in the Bauhinia Apartment in Sheung Wan, which the Plaintiff rented for the Defendant under her name.

18.In January 2017, the Defendant moved to a rented apartment on Conduit Road, Mid-levels. The rental agreement was signed on 20 January 2017 at the monthly rent of HK$29,000. The Plaintiff paid HK$87,000 in total being the two-month deposit and the first month’s rent.

19.The Plaintiff continued to pay for the subsequent monthly rents in addition to the utility bills for the Defendant’s home, until when the Defendant had a stable employment and income from the University in November 2017.

20.Initially, the Defendant was not aware that the Plaintiff was married. The Defendant found out that the Plaintiff was married in around late January 2017, whereupon the Defendant went to visit the Plaintiff’s office at the Queen Mary Hospital (“QMH”) and asked about this marital status.

21.On 17 February 2017, the Defendant sent an email to the Plaintiff with formal greetings “Gooding evening Dr. Ip” and signed off as “Meanne”. In the email, the Defendant informed the Plaintiff she was looking for jobs in the USA and Singapore. She asked the Plaintiff to provide his bank account so that her dad could deposit funds to pay him back in relation to the rents.

22.On 19 February 2017, the Defendant sent an email to the Plaintiff’s brother, Saimond, informing Saimond that she had been in a romantic relationship with the Plaintiff, and expressed her worries of being made a mistress of the Plaintiff. She further requested phone call with Saimond and asked for a meeting in person.

23.At the material time, the Plaintiff’s wife, Mrs. Ip, operated a florist at home. In around early May 2017, the Defendant pretended to be interested in floral decoration and approached Mrs. Ip through WhatsApp.

24.On 17 June 2017, the Defendant sent to Mrs. Ip a message that said “你應該猜到我是誰，想冷靜和你談一談”.

25.According to Mrs. Ip, on 18 June 2017 the Defendant went to the Plaintiff’s home and persistently rang the doorbell, demanding Mrs. Ip to open the door and meet her. As Mrs. Ip was alone in the flat at that time and was horrified by what she perceived as threatening behaviour, Mrs. Ip did not open the door. After the Defendant left the building, Mrs. Ip communicated with the Defendant by text messages and subsequently agreed to meet at Pacific Coffee in Mid-Levels, Hong Kong.

26.During that meeting, the Defendant inquired about Mrs. Ip’s marital status and stated that she had lost two children because of Mrs. Ip.

27.Following the meeting on 18 June 2017, the Defendant continued to contact Mrs. Ip repeatedly via WhatsApp until Mrs. Ip eventually blocked her. According to the Plaintiff, due to these behaviours of the Defendant, the Plaintiff called off a trip that he planned to go together with the Defendant.

28.By July 2017, the Parties’ relationship appeared to have stabilized. On 12 July 2017, the Defendant forwarded to the Plaintiff an email from Hong Kong Wetland Park containing a photograph of the Parties taken together earlier that day.

29.On 18 July 2017 the Defendant sent further photos of the Parties taken together.

30.Between 20 to 24 July 2017, the Defendant travelled to Shanghai. Prior to boarding, she sent an email thanking the Plaintiff for driving her to the airport and stating that she had already begun to miss him. On 21 July, she shared additional photos of herself in an email titled “M* at a Vintage café!”

31.On 30 July 2017, the Defendant sent the Plaintiff an email titled “Baby I have high fever :/”.

32.The Parties continued thereafter to exchange emails about daily life and expressed care and concern for each other. They addressed each other with endearments including “dear” and “baby” and signed off using initials such as “M*”, “P*”, and sometimes “P2”.

33.In October 2017, the Defendant travelled to Toronto over a weekend to attend a wedding. During this period, the Parties exchanged emails expressing that they missed and love each other and shared with each other their daily lives. In the emails the Defendant addressed the Plaintiff as “big baby”, “dear” and singed off as “very very small baby”, “very very small baby M***” and “M*”. Whereas the Plaintiff address the Defendant as “dear”, “little baby”, “sweetheart”, and signed of as “P*”, “Super big P2”, “Big Big P2 baby”, “Your Big baby” and “Your P*”.

34.On 10 October 2017, the Defendant emailed the Plaintiff to settle her flight payment stating “Hi dear, … Could you please help me pay for the below flight? I have too many items on my credit card right now. Thank you. M*”. The flight was from New York to Hong Kong at the cost of USD 1,298.40.

35.On 4 November 2017, 1:17 a.m., the Defendant sent an email captioned “I’m drunk, and at 11:34 a.m. she sent another email captioned “We should talk”. At 2:57 p.m. the same day, she sent an email to the Plaintiff complaining that “You always disappear”. The tension reflected in those messages appeared to have dissipated by the following day, as subsequent exchanges reverted to ordinary daily communications.

36.On 8 November 2017, the Defendant pre-arranged the Plaintiff to pick her up at the “Telephone Box on Robinson Road” at 9:15 a.m. that day.

37.The next day, on 9 November, the Plaintiff emailed the Defendant at 8:38 a.m., saying “Hi dear I hope you have a nice sleep. Going to pick you up from the Telephone Box on Robinson Road at 9 am. Big big P2”. The Defendant replied at 10:04 a.m., saying “So sorry to 連累你 this morning, make you stressed and late for clinic. 謝謝寶貝來車我哦！”

38.On 10 November, the Defendant expressed dissatisfaction with the Plaintiff’s attitude and the forgetfulness over certain matters. The Plaintiff repeatedly apologized and sought forgiveness. At approximately 10:35 p.m., the Defendant wrote: “I need your honest and warm support before I can start over. You are in no position to ask for my care. I loved you like no tomorrow and you lied to me day after day. I lost our baby and you go home to another woman. I am deeply scarred and still bleeding inside every night….”

39.The following morning, on 11 November, the Defendant sent an email to both the Plaintiff and Mrs. Ip expressing strong dissatisfaction with them, stating: “I am tired of being stuck in the middle of your sad marriage…”

40.On 12 November, the Parties agreed to meet up at 10:30 a.m. At night, the Defendant emailed the Plaintiff and said that “I am throwing up a lot after medication” and asked for the Plaintiff to call.

41.By late November and December 2017, the Parties’ messages had averted to routine exchanges of greetings and arrangements for pick-ups at Robinson Road, addressing each other as “big/small baby”. On 20 December, the Defendant wrote: “Hi big big round tummy baby, Thank you again for taking time out of your busy schedule to give me a splendid evening with ballet. I feel so sorry to take so much of your time as I know you are not well lately and have a lot of work piled up. Next time, just come to my home and sleep. No need to date me when life is hectic…” .

42.In late December, there was a brief lull when the Plaintiff neither contacted the Defendant, nor answered her call for one day, prompting the Defendant to question whether he still wished to count down with her on New Year’s Eve. Thereafter the Plaintiff emailed the Defendant multiple times and expressed his care.

43.On the evening of 1 January 2018, continuing into late night and into approximately 3:00 a.m. on 2 January, the Defendant forwarded to Mrs. Ip various email communications between the Parties from 2016 and 2017 in which they had expressed love for each other. In the early hours of 2 January, the Defendant sent further emails expressing anger and included a photograph indicative of self‑mutilation.

44.Later, on 2 January 2018, the Defendant wrote to the Plaintiff “You are worse than rubbish to me. You are a child-killing, pathetic, poor, lying bastard. Please leave me alone. I do not want to see you.”

45.On 4 January 2018, the tension seemed to have eased, as the Defendant wrote an email to the Plaintiff sharing her life and thoughts, addressing the Plaintiff as “big smelly baby” and signed off as “Small and sweet baby M***”.

46.The rest of January passed by smoothly, with sustained exchanges of personal life and mutual care and affection between the Parties.

47.On 5 February 2018, the Defendant asked the Plaintiff to return keys and Octopus card into her mailbox, and addressed him as “Dr Ip” while stating: “Please do not ever contact me on personal basis again. We are only colleagues from now on and I will handle every issue with professionalism without personal favors.” Later the same day, an email captioned “Please leave me alone” was sent to the Plaintiff. According to the Plaintiff, he returned the keys that day, and identified that as the end of their relationship.

48.In the few months that followed, the Parties were apparently back to their regular way of exchanging emails, until the Plaintiff was informed by the Equal Opportunity Officer that the Defendant had lodged the Complaint on 20 August 2018.

49.As explained above, the Parties then agreed to mediate and participated in mediation where they reached agreement on the terms recorded in the Heads of Agreement. Of particular significance is that under the Heads of Agreement the Defendant should, within two working days of the signing of the Mediation Agreement, write to the University and withdraw the Complaint.

50.The Defendant refused to sign the Mediation Agreement drafted by the mediator, and did not withdraw the Complaint. The Plaintiff, who has been able and willing to perform the obligations under the Heads of Agreement, therefore commenced the present action seeking:-

(1)  A declaration that by the Heads of Agreement, a binding and enforceable contract was concluded between the Plaintiff and the Defendant on the terms contained in the same.

(2)  An order for specific performance of the Heads of Agreement.

(3)  An injunction restraining the Defendant from divulging or communicating to any other person the confidential information specified in the Agreement.

(4)  Further claim as for damages for breach of the Heads of Agreement.

51.Mr. Cheung, counsel for the Plaintiff, confirmed at trial that the Plaintiff would not pursue the claim for damages. The crux of the case is thus whether the Plaintiff is entitled to the first three of the reliefs claimed.

B2.  The Defendant’s Case

52.According to the Defendant, she moved to Hong Kong in January 2017 to take up a position as Visiting Scholar at the University. Later, the Defendant applied and entered into a long-term employment contract as a Research Assistant Professor with the Department of Psychiatry at the University in September 2017.

53.The Parties had a personal relationship in the form of casual dating between November 2016 and June 2017, coupled with a close working relationship involving multiple collaborations. During the time, the Defendant was unaware that the Plaintiff was a married as he falsely claimed to be a divorced person.

54.It was only until 18 June 2017 when the Plaintiff’s wife met the Defendant at a coffee shop that Mrs. Ip revealed her marital relationship with the Plaintiff.

55.On or about 19 June 2017, the Defendant informed the Plaintiff of her decision to cease their personal relationship and refused to enter any extramarital affair with the Plaintiff.

56.Since shortly after 19 June 2017 until 26 July 2019 (date of signing Heads of Agreement), the Plaintiff had repeatedly, by words and/or action, engaged in a course of conduct (the “Conduct”) causing her worry, emotional distress, annoyance, and/or injury to the Defendant. The pleaded particulars include: -

a.  On 27 and 28 October 2017, the Plaintiff sent numerous emails containing attachment of photos exposing presumably the Plaintiff’s genitals, which caused the Defendant anxiety and distress.

b.  Since early 2018, the Plaintiff sent numerous emails and left voicemails to the Defendant reporting (i) his intention to commit suicide (ii) his supposed ill health, and (iii) his supposed suffering from colon cancer.

c.  Since early 2018, the Plaintiff on multiple occasions trespassed into the Defendant’s office in the Office Building leaving unwanted gifts on her desk.

d.  On 31 March 2018, at a festival event held at the Hong Kong Jockey Club Sha Tin Racecourse, the Plaintiff approached the Defendant and pulled her away from the crowed demanding to drive her home.

e.  On 7 May 2018, the Plaintiff sexually assaulted the Defendant at the parking lot outside the Rayson Huang Theatre before attending a conference at the University.

f.  On 17 May 2018, 18 January and 17 February 2019, the Plaintiff waited for the Defendant at the place of her medical appointment without being invited or informed by the Defendant.

g.  On 29 March 2019, at a public seminar in Wanchai, the Plaintiff approached and stalked the Defendant as she left the venue.

57.The Defendant alleged that after the mediation on 26 July 2019:-

a.  The Plaintiff repeatedly, by words or action, engaged in a course of conduct (“Further Conduct”) which was specified in Schedule II of the Amended Defence and Counterclaim.

b.  The Further Conduct, together with such part of the Conduct were of such repetition and frequency, caused worry, emotional distress, annoyance, and/or injury to the Defendant.

58.It is alleged that, in the premises, the Plaintiff knew, ought reasonably to have known, or was reckless as to whether the Conduct and Further Conduct would have the aforesaid effects on the Defendant. On that basis, the Defendant counterclaimed against the Plaintiff for loss arising from the damage she suffered as a result of the Plaintiff’s harassment.

59.In Sir Elly Kadoorie & Sons Ltd v Samantha Jane Bradley [2024] 4 HKLRD 428, the Court of Appeal at paragraph 32 set out the elements required to establish a cause of action in the tort of harassment. The victim has to show:-

“(1) the harasser, directly or through third parties, has, by a course of sufficiently repetitive, unreasonable and oppressive conduct, caused, and which he ought reasonably to know would cause, worry, alarm, emotional distress or annoyance to the victim;

(2) the conduct complained of must, objectively, amount to harassment (in the ordinary sense of that word);

(3) the harasser either intends to cause harm or injury to the victim by his harassing conduct, or is reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and

(4) to complete the tort, the victim must have suffered actual damage caused by the harassment. For this purpose, physical harm, including anxiety, distress, (a fortiori) recognised psychiatric illness, and financial loss would suffice.”

60.In this regard, as explained above, the Defendant and her witnesses did not attend the trial and provided no evidence in support of the alleged Conduct and Further Conduct. As such, the Defendant’s counterclaim should be dismissed.

C.  THE AGREED LIST OF ISSUES

61.The Plaintiff’s legal representatives and the Defendant’s former legal representatives previously agreed on the list of issues for trial. The ones that remain relevant after the dismissal of the Defendant’s counterclaim are as follows:

(1)  In respect of the Heads of Agreement:

(a)  Whether the Heads of Agreement is a binding and enforceable agreement;

(b)  Whether the Defendant has breached the Heads of Agreement by refusing to sign the Mediation Agreement; and

(c)  Whether the Plaintiff is entitled to the reliefs sought.

(2)  Whether certain emails disclosed by the Plaintiff on the Plaintiff’s list of documents are authentic or not.

D.  ANALYSIS

D1.  Whether the Heads of Agreement is binding and enforceable?

62.The crucial issue of this case is whether the Heads of Agreement constitutes a binding and enforceable agreement, or whether it is merely an “agreement to agree” contingent upon execution of a later “Mediation Agreement”.

63.The law in this regard is well established. The touchstone is the parties’ intention, assessed objectively from the word used and the parties’ conduct. Lord Clarke explains this in paragraph 45 in the Supreme Court case of RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG [2010] 1 WLR 753:

“45. The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”

64.There are various possible permutations to the purpose and effect of agreements that envisage a further, more formal, agreement to be signed. These are explained by the High Court of Australia in Masters v Cameron (1954) 91 CLR 353 at 360-361:

“Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v. Miller (1878) 3 App Cas 1124 when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. His Lordship proceeded: " . . . as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed" (1878) 3 App Cas, at p 1151 : see also Sinclair, Scott & Co. Ltd. v. Naughton [1929] HCA 34; (1929) 43 CLR 310, at p 317 . A case of the second class came before this Court in Niesmann v. Collingridge [1921] HCA 19; (1921) 29 CLR 177 where all the essential terms of a contract had been agreed upon, and the only reference to the execution of a further document was in the term as to price, which stipulated that payment should be made "on the signing of the contract". Rich and Starke JJ. observed (1921) 29 CLR, at pp 184, 185 that this did not make the signing of a contract a condition of agreement, but made it a condition of the obligation to pay, and carried a necessary implication that each party would sign a contract in accordance with the terms of agreement. Their Honours, agreeing with Knox C.J., held that there was no difficulty in decreeing specific performance of the agreement, "and so compelling the performance of a stipulation of the agreement necessary to its carrying out and due completion" (1921) 29 CLR, at p 185 : see also O'Brien v. Dawson [1942] HCA 8; (1942) 66 CLR 18, at p 31.”

65.McLelland J suggests in Baulkham Hills Private Hospital Pty Limited v G R Securities Pty Limited & others (1986) 40 NSWLR 622 that there may be a 4^th category:

“The intention of the parties to be legally bound by their consensus is sufficiently clearly expressed to take the case out of the third class of cases referred to in Masters v Cameron (1954) 91 CLR 353 at 360-362, that it, “… cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own” (at 361). There is in reality a fourth class of case additional to the three mentioned in Masters v Cameron, as recognised by Knox CJ, Rich J and Dixon J, in Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 at 317, namely, “…one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms”. Their Honours refer to the speech of Lord Loreburn, in Love & Stewart v S Instone & Co (1917) 33 TLR 475 at 476, where his Lordship said that:

‘It was quite lawful to make a bargain containing certain terms which one was content with, dealing with what one regarded as essentials, and at the same time to say that one would have a formal document drawn up with the full expectation that one would by consent insert in it a number of further terms. If that were the intention of the parties, then a bargain had been made, none the less that both parties felt quite sure that the formal document could comprise more than was contained in the preliminary bargain.’ ”

66.In Yau Shik Yin v Goldrite Ltd and Others HCCW 420/2012, 15 July 2015 Harris J had to consider whether a preliminary settlement agreement which envisaged the signing of a further formal settlement agreement had the effect of creating a binding contract. The relevant Clause V.17 (reproduced in paragraph 17 of the judgment) reads:-

“This Preliminary Settlement Agreement supersedes all prior negotiation, representation and/or discussion made by any of the Parties and contains all the key settlement terms reached by the Parties subject to the making of a formal Settlement Agreement encapsulating all the terms set out herein. Any variation must be agreed by all parties in writing.”

67.Harris J (at paragraphs 22-25) referred to Masters and Baulkham Hills and found the situation within the 1^st category, concluding that “I am of the view that [Clause V.17] was simply intended to record that it was envisaged that a formal agreement in the form of a Tomlin order (clause V.9) would be produced and that until that time the Agreement was binding and it could only be altered if all Parties so agreed in writing.”.

68.Applying these principles, I find the Heads of Agreement evinced the parties’ objective intention to be immediately bound (i.e. the 1^st category) for the following reasons: -

a.  Clause 1 expressly states that the parties “have reached a full and final settlement of all claims… on the basis of the agreements set out below.”, which carried with it a consensus of finality, consistent with an immediate intention to be bound.

b.  The further “Mediation Agreement” was envisaged to be prepared “on these terms” of the Heads of Agreement, indicating that the former should embody the terms already agreed in the Heads of Agreement.

c.  One aspect that requires some consideration is whether the fact that the obligation to perform on the part of the Defendant only arises after the Mediation Agreement had been signed means that the signing of the same is a condition precedent to the performance of the relevant obligation. However, borrowing the words in Masters, this “did not make the signing of a contract a condition of agreement, but made it a condition of the obligation to pay, and carried a necessary implication that each party would sign a contract in accordance with the terms of agreement.”.

d.  As such, the refusal of the Defendant to sign the Mediation Agreement did not change the fact that the parties have reached a binding and enforceable agreement embodied in the Heads of Agreement, which carried with it a necessary implication that each party should sign the Mediation Agreement in accordance with the terms of the Heads of Agreement.

69.I note that the Defendant had raised a defence along the line that as the Plaintiff had continued to harass the Defendant by engaging in the Further Conduct, the Plaintiff had repudiated the Heads of Agreement, entitling the Defendant to accept such repudiation. The Defendant has therefore been released from the performance of the obligations under the Heads of Agreement. However, as the Defendant and her witnesses did not testify in the trial, and their witness statements had been expunged from the trial bundles, there is no evidence to make good the allegation that the Defendant had committed the Further Conduct and any repudiatory breach of the Heads of Agreement.

70.As such, I find that the Heads of Agreement constituted a binding and enforceable agreement, and that Defendant has breached the Heads of Agreement by refusing to sign the Mediation Agreement and perform the substantive obligations therein.

D2. Relief

71.On the question of relief, for the following reasons the Court is satisfied that this is an appropriate case for the specific performance of the substantive obligations under the Heads of Agreement to be ordered.

(1)  Any assessment of damages arising from the failure of the Defendant to withdraw the Complaint would be inherently speculative. In AB v University of XYZ [2020] EWHC 2978 (QB), the Claimant, who was a student at the University faced allegations of sexual misconduct. The Claimant alleged that he was denied legal representation and direct cross-examination of the complainant in breach of the contractual provisions and regulations governing student conduct at the University. Deputy Judge Hugh Southey QC said the followings at paragraph 102-105:-

“102. In principle it appears to me there is good reason why specific performance should be ordered in this case. There is no realistic way to assess damages because it is impossible to know whether the same outcome would have been reached if the Defendant had complied with its contractual obligations and permitted the claimant to be legally represented. That is a key factor and points to this being an exceptional case where specific performance should be ordered (Co-Operative Insurance Society Ltd). As already noted, the evidence was that it would be practical to hold a fresh disciplinary committee. The evidence of Ms Gower was that if that committee were to make findings that permitted the Claimant to resume his studies with the Defendant, that could happen in January 2021 subject to any academic concerns.

…

105. In light of the matters above, I will order that a further disciplinary committee is held. I hope the parties can agree the precise terms of the order.”

(2)  Further, in the English case of Hewavisenti v Wickramsinghe [2021] EWHC 2045 (Ch) (paragraphs 89-91), it was observed that the desirability of having finality weights towards the granting of specific performance in the context of a breach of settlement agreement.

“89. The foundation of the Court's exercise of its equitable jurisdiction to order specific performance by way of relief will clearly be guided by the application of justice in a given case. In the context of this case, the parties have been in dispute in relation to the operation of the joint venture since at least 2011 and have not been able to successfully wind-up the joint venture since their entry into the Settlement Agreement in 2017. One good reason for granting the Claimants' order for specific performance would be to bring some degree of finality to what has been a hard fought and highly contested relationship between the parties.”

(3)  The Court is conscious of the fact that specific performance of the Heads of Agreement involves actions to be undertaken personally by the Defendant including, inter alia, to write a letter withdrawing the Complaint.

(4)  In this regard, should the Defendant refuse to specifically perform the Heads of Agreement, an application may be made by the Plaintiff under O.45, r.8 of the Rules of District Court, which provides that:-

“If an order of mandamus, a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of thee disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.”

D3.  Authenticity of documents

72.For the sake of completeness, it is noted that:-

(1)  on 30 October 2023, the Defendant issued a Hearsay Notice under section 47A on the Evidence Ordinance and order 38 of the Rules of the High Court (Cap.4A) (the “Defendant’s Hearsay Notice”).

(2)  On 28 December 2023, the Plaintiff issued a notice under Order 27 rule 4(2) of the Rules of the High Court (the “Plaintiff’s Notice”) disputing authenticity of documents disclosed in the Defendant’s list of documents, and requiring the Defendant to prove the authenticity of the documents specified therein.

(3)  On the same date, the Defendant issued a notice under Order 27 rule 4(2) (the “Defendant’s Notice”) disputing authenticity of documents disclosed in the Plaintiff’s list of documents and requiring them to be proved at trial.

73.Mr Cheung produced Annex B to his closing submissions, which lists out items in the Plaintiff’s Notice disputing authenticity of documents disclosed by the Defendant, and Annex C, which lists out item in the Defendant’s Notice disputing authenticity of documents disclosed by the Plaintiff. The items in dispute comprised printouts of the relevant email correspondence and chat messages between the Plaintiff and the Defendant, and between the Defendant and the Plaintiff’s brother Saimond/ Mrs. Ip.

74.Although the parties did not see fit to adduce any expert evidence on the authenticity of the relevant emails, this issue was examined in quite some detail during the Plaintiff’s testimony. The Plaintiff accessed his email accounts in Court and opened the relevant email messages for verification against (i) the documents produced by the Plaintiff, and (ii) the documents produced by the Defendant. The same exercise was performed by the Plaintiff’s brother Saimond and Mrs. Ip in relation to the relevant emails and chat messages.

75.Having gone through the aforesaid exercise, while the precise method of alteration is unknown, the Court observes that in certain instances the Defendant removed content within an email or email chain and altered other contents in the documents produced.

76.At the outset, it is to be noted that in relation to the emails produced by the Plaintiff at trial bundle pp. 1072–1086, the Plaintiff is no longer able to access those emails because they were sent through a University email account accessible by the University staff, as such the Plaintiff deleted the emails as they contained private matters.

77.From item 16 onwards of the Plaintiff’s Notice, the Plaintiff was able to produce corresponding copies of the disputed emails, and he demonstrated in court, by logging into his email account, that the emails in the webmail server corresponded to what he had produced. A few examples would suffice:-

(1)  p.1087 of the trial bundles contained an email produced by the Defendant dated 2 January 2018 at 8:32 pm purportedly sent by the Defendant to the Plaintiff, which reads: “You are a pathetic, poor, lying bastard. Please leave me alone. I do not want to see you.”

(2)  The Plaintiff’s version at p.1845 of the trial bundle reads: “You are worse than rubbish to me. You are a child-killing, pathetic, poor, lying bastard. Please leave me alone. I do not want to see you.” (underline added)

(3)  When the Plaintiff opened this email account in court, the email in the webmail server matched the version he produced.

(4)  Item 17 of the Plaintiff’s Notice is in relation to the discrepancies between pp. 1088–1089 (produced by the Plaintiff) and pp. 2764–2765 (produced by the Defendant) of the trial bundles. The Defendant’s document comprised an email dated 17 January 2018 at 10:20 p.m. which began with “Hi,” and signed off with the initials “Meanne”. The Plaintiff’s version of the same email began with “Hi dear,” and was signed “M***”. When the Plaintiff accessed this email account in court, the result matched the Plaintiff’s version.

(5)  Item 19 of the Plaintiff’s Notice is in relation to the discrepancies between pp. 1091 (produced by the Plaintiff) and 1953 (produced by the Defendant) of the trial bundles. The Defendant’s version of an email dated 20 February 2018 at 12:41 p.m. reads: “Hi, I am a bit better today. No time for lunch though. Meanne.” The Plaintiff’s version, however reads: “Hi dear, I am a bit better today. No time for lunch though. Message you after work. M***”.

(6)  Item 21 of the Plaintiff’s Notice notes discrepancies between pp. 1094–1095 (produced by the Plaintiff) and pp. 1969–1971 (produced by the Defendant) of the trial bundles. The Defendant’s email dated 28 February 2018 at 11:05 p.m. reads: “Please go see a doctor.” In the corresponding email within the Plaintiff’s email chain reads: “Please sleep well my dear. 休息，是為了行更遠的路。”

78.Further examples in the Plaintiff’s Notice disputing the authenticity of documents disclosed by the Defendant include:

(1)  Item 23: The Defendant produces an email dated Mon, Mar 19, 2018 at 3:40 in which she is said to have replied: “My dad arrived in Hong Kong already. Remember I told you he will come to Hong Kong.” (p.1098 of the trial bundles). The Plaintiff’s corresponding version, verified in court, states: “My dad arrived in Hong Kong already. Remember I told you he will come to Hong Kong in March because of a Japanese trip with his friends? 現在不方便讓你過來。有什麼事再約時間吧。 我希望你可以給我多一點空間。 It’s not about love or not. It’s about personal recovery.” (p.1988 of the trial bundles).

(2)  Item 25: The Defendant produces an email dated 20 April 2018 at 11:08 p.m. stating: “Can you please calm me down? I am not going to let you treat me like this.” The Plaintiff’s version at the same time reads: “Can you please calm me down? I don’t understand why you always get upset at me. We didn’t set a time to meet up nor did I promise you that you can sleep over at my home. 我好難的找回健康的生活，有正常的社交與習慣，你為何要難為我？ I am not going to let you treat me like this.”

79.Having considered all the evidence and submissions, the Court finds that where there are disputes as to the authenticity of the documents produced by the Parties, it is the document that the Plaintiff produced that is the authentic version. It is quite obvious to the Court that, somehow, the Defendant was able to produce versions of emails which suggested a less intimate relationship between the Parties.

F. Conclusions

80.For the reasons explained above, I shall make the following orders:-

(1)  The Defendant’s counterclaim be dismissed.

(2)  A declaration be made that the Heads of Agreement constitutes a binding and enforceable agreement between the Parties.

(3)  A declaration be made that the Defendant had breached the Heads of Agreement by refusing to sign the Mediation Agreement and perform the substantive obligations under the Heads of Agreement.

(4)  The Plaintiff and the Defendant shall specifically perform their respective obligations under the Heads of Agreements within 14 days from this Judgment.

(5)  An order nisi that Costs of the action be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

Mr Albert Cheung, instructed by LIMS Solicitors, for the plaintiff

The defendant was not represented and did not appear