Tang Chi Kin v Tang Fong Chuen

Judgment Cited authorities (5) Cited in Precedent Map Related
Judgment Date13 September 1947
Judgement NumberCACV10/1947
CourtCourt of Appeal (Hong Kong)
CACV000010A/1947 TANG CHI KIN v. TANG FONG CHUEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 10 of 1947

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(O.J. Action No. 1 of 1946)

BETWEEN
TANG CHI KIN Appellant
(Defendant)

AND
TANG FONG CHUEN Respondent
(Plaintiff)

Coram: Mr. Justice E.H. Williams and Mr. Justice T.J. Gould

Date of Judgment: 13 September 1947

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Judgment of Appeal Judge

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1. I have arrived at the same conclusion as has been expressed by the learned President.

2. Although great stress in argument has been placed upon what have been called the "bank" cases, I do not think it follows that the proposition in broad terms at the top of page 496 of Volume 13 of Hailsham which is based upon them can necessarily be applied without reservation in the case of all forged instruments. On the facts, the present case seems to me to fall more naturally among those in which estoppel by acquiescence has been relied upon. Admittedly the requisites of a valid estoppel by representation are similar in all the different forms of that plea but I am unable to see why, where a person is labouring under a mistake as to title to land, it should make any difference whether that mistake arises through a forgery or from some other cause. The respondent in this case is said to have stood by while the appellant relied upon a title to leasehold inconsistent with the respondent's own title and bad to the knowledge of the respondent, and it is necessary to determine whether or not his silence constituted a breach of a legal duty and was thereby to be deemed a representation.

3. The general rule in such cases is expressed by Spencer Bower on Estoppel by Representation at p.61 as follows:-

"Where a person having a title right or claim to property of any kind, perceives that another person is innocently, and in ignorance, conducting himself with reference to the property in a manner inconsistent with such title, right, or claim it is the duty of the former to undeceive the other party forthwith; if he omits to do so, and if all the other conditions of a valid estoppel are satisfied, he is precluded from exercising or asserting his right or title or claim ..." It is to be noted that the "other conditions of a valid estoppel" would include damage or prejudice arising from the representation and it is upon this point that the main difference between the submissions on behalf of appellant and respondent arise. The appellant claims that mere knowledge of the fact of the forgery on the part of the respondent, with the further knowledge that the appellant in reliance upon it was exercising a right e.g. the right of possession, inconsistent with the title of the respondent, is sufficient to give rise to a duty of disclosure - though he concedes that no estoppel would arise unless damage was suffered by appellant at the time or subsequently. The respondent on the other hand contends that no duty to speak arose because although he became aware of the forgery and of the possession of the property by the appellant, he did not know that the appellant was acting to his own prejudice by expending moneys, relying on the forged documents. It is pertinent to note at once that in view of the judgment of the Court of Appeal in De Bussche v. Alt 8 Ch.D.286 at p.314 once an act infringing upon the right of a second person is completed without the knowledge of that person, his subsequent delay will not be acquiescence such as to give rise to an estoppel. Thus the respondent's failure to notify the appellant in December, 1945, cannot be deemed acquiescence in the forgery itself. Any enquiry must therefore be directed towards events...

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