Eng Foong Ho and Others v Attorney-General

• Judge: Chan Sek Keong CJ
• Judgment Date: 05 January 2009
• Neutral Citation: [2009] SGCA 1
• Citation: [2009] SGCA 1
• Defendant Counsel: Eric Chin and Janice Wong (Attorney-General's Chambers)
• Published date: 03 February 2009
• Plaintiff Counsel: Ang Cheng Hock and Tay Yong Seng (Allen & Gledhill LLP)
• Date: 05 January 2009
• Docket Number: Civil Appeal No 26 of 2008
• Court: Court of Appeal (Singapore)
• Subject Matter: Arts 12 and 15(1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint),Freedom of religion,Whether there was inordinate delay on part of appellants,Whether appeal involved alleged violation of Art 15(1) Constitution of the Republic of Singapore,Whether particulars of temple property in land-register erroneous and constituting questionable entry,Equal protection of the law,Whether acquisition could be challenged for bad faith notwithstanding s 5(3),Constitutional Law,Fundamental liberties,Application for declaration,Civil Procedure,Land,Whether delay in asserting one's constitutional rights a relevant factor,Registration of title,Section 5(3) Land Acquisition Act (Cap 152, 1985 Rev Ed),Order 15 r 16 and O 53 r 1 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether acquisition of temple property and not nearby mission or church in violation of Art 12 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint),Delay,Locus standi,Whether higher standard of locus standi required for application under O 15 r 16 than under O 53 r 1 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Whether appellants had locus standi to initiate proceedings

5 January 2009 Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 The appellants, who are devotees of the Jin Long Si Temple (“the Temple”) located at 61 Lorong A-Leng, Singapore 536751 (“the temple property”), sought a declaration in the court below that the acquisition of the temple property by the Collector of Land Revenue (“the Collector”) violated Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Article 12(1) states that “[a]ll persons are equal before the law and entitled to the equal protection of the law”. The trial judge (“the Judge”) dismissed the appellants’ application (see Eng Foong Ho v AG [2008] 3 SLR 437 (“the GD”)). This decision is now the subject of the present appeal.

2 The issues before this court in the present appeal correspond to the grounds on which the Judge had dismissed the application in the court below, and are as follows:

(a) whether the appellants had locus standi to institute the present proceedings;

(b) whether there had been inordinate delay on the part of the appellants in instituting the present proceedings; and

(c) whether the acquisition of the temple property was in violation of Art 12 of the Constitution.

3 The Judge held that the appellants had no locus standi to institute the present proceedings and that they had also been guilty of inordinate delay in instituting those proceedings. He also held that the acquisition of the temple property was not, in any event, in violation of Art 12 of the Constitution.

4 We turn now to consider each of these issues seriatim. Before proceeding to do so, we first set out, briefly, the background to the present appeal.

Background

5 The background to the present proceedings is very straightforward and is set out neatly by the Judge in his decision. Briefly, the temple property is subject to a trust for religious purposes. The trustees of the temple property (“the Trustees”) are not parties to the present proceedings.

6 The temple property is located near the site of the new Bartley Mass Rapid Transit (“MRT”) station. It is also adjacent to the Ramakrishna Mission (“the Mission”) as well as to the site of the former Outram Institute. Bartley Christian Church (“the Church”) stands next to the Mission.

7 The temple property was compulsorily acquired pursuant to the Land Acquisition Act (Cap 152, 1985 Rev Ed). The Gazette notification in relation to the acquisition (GN No 172/2003, published on 20 January 2003) declared that the temple property (as well as another nearby property) was acquired for the “[c]onstruction of Circle Line Stage 3 & [c]omprehensive [r]edevelopment”.

8 The Trustees, who noted that the land occupied by the Mission and the Church had not been acquired by the Collector, appealed to the authorities against the acquisition of the temple property. Much correspondence also ensued between the Trustees and the various governmental agencies. However, the Trustees were ultimately unsuccessful in their attempt to persuade the Collector to reverse the decision to compulsorily acquire the temple property. In this regard, we note that the Singapore Land Authority replied (on 21 July 2004) to a letter sent by Mr R Ravindran, Member of Parliament for Braddell Heights, on behalf of the Trustees, as follows:

1 We refer to the appeal by Mr R. Ravindran … on your behalf to the Prime Minister, dated 26 April 2004.

2 … [T]he Government does not distinguish [between] the religious groups or types of development in deciding which parcels of land to acquire. The acquisition of the temple was made after careful study and consideration.

3 Unlike the other cases cited by you in your appeal, Jin Long Si Temple is zoned Residential use in the Master Plan. The acquisition of the site will allow better optimisation of land use as it can be amalgamated with the adjoining State land for comprehensive redevelopment. This is part of our continuous effort to optimise land use in land-scarce Singapore. We therefore regret that we are unable to accede to your request not to acquire the land.

9 The Trustees were given up to 31 January 2008 to hand over the temple property to the Collector. They made one final appeal, this time to the Prime Minister, on 23 May 2007. On 20 June 2007, however, the Permanent Secretary for Law and the Permanent Secretary for National Development replied to the Trustees as follows:

We have studied your appeal and noted that the grounds for retention of Jing Long Si Temple put forth in this appeal have already been addressed previously. We regret to inform that we are not able to accede to the request to retain the temple by rescinding the acquisition.

To reiterate, the Government does not distinguish among the religious groups or types of development in deciding which parcels of land to acquire. The acquisition of the temple, made after careful study and evaluation, was to allow better optimization of land use by amalgamating with the adjoining State land for comprehensive redevelopment.

10 The appellants filed the application in the present proceedings on 16 January 2008 for a declaratory order pursuant to O 15 r 16 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).

Our decision

What this appeal is not about

11 Before proceeding to consider the issues before us, it is of first importance to note what this appeal is not about. This will assist in clarifying the substantive issue before us (which is the alleged violation of Art 12 of the Constitution), and facilitate the process of arriving at our decision on this particular issue.

12 First, as conceded by counsel for the appellants, the present appeal does not involve an alleged violation of Art 15(1) of the Constitution, which reads as follows:

Freedom of religion

15.—(1) Every person has the right to profess and practise his religion and to propagate it.

13 Secondly, counsel for the appellants, Mr Ang Cheng Hock (“Mr Ang”), confirmed that the appellants were not alleging any bad faith on the part of the Collector in relation to the acquisition of the temple property.

14 We now proceed to consider the first issue before this court, viz, whether the appellants had locus standi to institute the present proceedings in the first instance.

Did the appellants have locus standito institute the present proceedings?

15 We can deal with this point shortly. With respect, we disagree with the Judge that the appellants lacked locus standi to pursue the present proceedings.

16 Briefly put, the Judge had held as follows (at [15] of the GD):

In truth, this is a land acquisition matter that has nothing to do with religious freedom and it is for the legal owners of the temple property, namely, the trustees, who are directly affected by the acquisition order, to institute legal proceedings against the authorities if they are of the view that their rights have been infringed.

17 The Judge was, in our view, entirely correct in pointing out that no issue of religious freedom was involved here in the light of the concession by the appellants as noted above (at [12]). However, with respect, it is not, in our view, correct to conclude that only the Trustees had locus standi to institute the present proceedings. In this regard, we note that, according to the land-register, the Trustees hold the temple property, as joint tenants, “in trust for San Jiao Sheng Tang Buddhist Association (Reg No. ROS 212/83/REL) registered under the Societies Act, Cap 311, Singapore and having its office at 61, Lorong A-Leng, Singapore 536752”.[note: 1] There is no dispute that the appellants are members of the San Jiao Sheng Tang Buddhist Association. In the circumstances, we are of the view that the appellants, as members of the said association, have locus standi to file the application in the present proceedings. The respondent sought to argue that these particulars in the land-register were erroneous (constituting a “questionable entry”[note: 2]), and that a case for rectification of the land-register to reflect the correct position existed. We are unable to accept this argument. The particulars in the land-register are conclusive and it is inappropriate, in our view, for the respondent to seek to go behind the land-register as to do so would undermine the very raison d’être of the system of land registration in general and the land-register in particular (and see generally the decision of this court in United Overseas Bank Ltd v Bebe bte Mohammad [2006] 4 SLR 884). The respondent should, instead, have applied for rectification of the land-register. It is too late to do so in these proceedings.

18 With respect to the issue of locus standi, the respondents have also argued that because the appellants have proceeded by way of O 15 r 16 and not O 53 r 1 of the Rules of Court, they must satisfy a stricter test for locus standi as decided by this court in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR 112 (“Karaha Bodas”). The argument seems to be that a higher standard of locus standi is required for an application under O 15 r 16 than that under O 53 r 1. This argument has no merit whatsoever. Karaha Bodas was not concerned with the pursuit of constitutional rights. In our view, it does not matter what procedure the appellants have used. The substantive elements of locus standi cannot change in the context of the constitutional protection of fundamental rights.

19 We turn now to the second issue, viz, whether there had been inordinate delay on the part of the appellants in instituting the present proceedings.

Was there inordinate delay on the part of the appellants in instituting the present proceedings?

20 We can also deal with this point shortly. We agree with Mr Ang that although there had prima facie been a delay on the part of the appellants, this had to be viewed in its context. In particular, we agree with the appellants that they had believed that the Trustees and...