Per Ah Seng Robin and another v Housing and Development Board and another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 November 2015
• Neutral Citation: [2015] SGCA 62
• Date: 30 November 2015
• Docket Number: Civil Appeal No 188 of 2014
• Published date: 12 December 2015
• Plaintiff Counsel: Kirpal Singh s/o Hakam Singh (Kirpal & Associates)
• Hearing Date: 27 July 2015
• Defendant Counsel: Dhillon Dinesh Singh and Teh Shi Ying (Allen & Gledhill LLP),Khoo Boo Jin, Ang Ming Sheng Terence and May Ng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Application for leave to commence judicial review proceedings,Natural justice,Administrative Law,Illegality,Disclosure of evidence,Judicial review

Chao Hick Tin JA (delivering the judgment of the court): Introduction

Jean-Jacques Rousseau once spoke of a social contract that undergirds the relationship between the Government and the governed. In Singapore, there is perhaps no social contract more far-reaching than that relating to flats provided by the Housing and Development Board (“HDB”), in which the vast majority of Singapore’s population lives. Very often, subsidies of one form or another are provided by the Government to make the purchase of these flats more affordable for eligible Singapore citizens and Singapore permanent residents. But, as quid pro quo, flat owners (more accurately, long-term lessees of the flats) are expected to adhere to the 14 conditions laid down in s 56 of the Housing and Development Act (Cap 129, 2004 Rev Ed) (“the Act”). The breach of any of these conditions may result in the HDB compulsorily acquiring a flat. One such condition is the rule against unauthorised subletting under s 56(1)(h) of the Act. The present appeal raises the question of whether the HDB was right in taking back a flat (referred to hereafter as the “Flat”) from the appellants, a married couple, on that ground. The judge in the court below (“the Judge”) thought so (see Per Ah Seng Robin and another v Housing and Development Board and another [2015] 2 SLR 19 (“the GD”)), and the appellants have appealed against his decision.

Background facts The purchase and subletting of the Flat

The appellants are Mr Robin Per Ah Seng (“Per”) and his wife, Mdm Tee Bee Kiaw (“Tee”). The first respondent is the HDB, and the second respondent is the Attorney-General (“the AG”), who appears on behalf of the Minister for National Development (“the Minister”).

The appellants purchased the Flat, a four-room property (with one living room and three bedrooms) situated at Block 621 Bukit Batok Central, #07-512, Singapore 650621, on 1 October 2007 from the resale market for $368,000. The HDB provided a concessionary interest rate loan of $288,000 to the appellants under its Public Housing Scheme. Subsequently, the appellants entered into a sub-tenancy agreement with Offshore Construction Specialists Pte Ltd (“Offshore Construction”) on 21 January 2009, under which they agreed to rent out two bedrooms in the Flat to Offshore Construction, to be occupied by not more than three persons at a time, at a monthly rent of $2,050 for a period of 24 months from 1 February 2009 to 31 January 2011. The HDB approved this sub-tenancy arrangement (“the Sub-Tenancy Agreement”) on condition that the Flat would not be sublet in its entirety. The appellants declared on the HDB’s online portal sometime in April 2010 that the Flat had three occupiers living in two of the three bedrooms pursuant to the Sub-Tenancy Agreement. These three occupiers, namely, Messrs Yoosomsook Settha, Kurund Santosh Appasaheb and Cahya Adi Kurniawan (“Cahya”), were foreign workers employed by Offshore Construction.

The inspection of the Flat

On 23 December 2009, the HDB received an anonymous tip-off that the appellants were subletting the entire Flat, and that they and their young daughter were not residing in it. Instead, they were living in a private condominium apartment at 21 West Coast Crescent, #20-03, Blue Horizon, Singapore 128045 (“the Blue Horizon property”). The appellants had purchased the Blue Horizon property for $730,000 on 3 August 2007, approximately two months before purchasing the Flat. And in the process of purchasing the Flat, the appellants falsely declared to the HDB that they did not own any private property. For completeness, we should mention that shortly after the appellants purchased the Flat, Tee also separately purchased a condominium apartment at 73 Jurong West Central 3, #09-21, The Centris, Singapore 648336 (“the Centris property”) on 9 November 2007. Following the tip-off of 23 December 2009, the HDB hired a private investigator, Malaysian Investigation Pte Ltd (“the Private Investigator”), to monitor the Flat. The Private Investigator subsequently submitted a report to the HDB.

On 25 May 2010, two officers from the HDB conducted an inspection of the Flat. They found clear signs that the entire Flat had been sublet, and that the appellants and their daughter did not reside there. The officers were let in by one Mr Sayeh Dedi Mahdy (“Sayeh”), a foreign worker employed by Offshore Construction who was residing in the Flat at that point in time. Sayeh was not one of the persons registered on the HDB’s online portal as an occupier under the Sub-Tenancy Agreement.

In the course of inspecting the Flat, the HDB officers noted, among other things, that there was a strong stench of cigarette smoke in the Flat, and that there were ashtrays on the table in the living room. This struck them as odd as it is not common for a family with a young child to allow smoking in the home. The officers also found that all three bedrooms were each occupied by one foreign worker, with only one single bed in each bedroom. Each bedroom was sparsely furnished, and there were no personal effects in any of the rooms to suggest that a family of three was residing in the Flat. In addition, the foreign workers hung their washed uniforms in front of the refrigerator and above the kitchen worktop. As proof, the HDB officers took photographs, which were tendered to the Judge in the proceedings below.

The HDB officers also interviewed Sayeh, who provided the following statement dated 25 May 2010 on a piece of paper bearing the HDB’s logo: 1. I have rented the above flat from the owners since Feb 2009 till date. 2. I am occupying the flat with 2 other flatmates. 3. The monthly rental is paid by my employer. 4. The monthly utilities bills are paid by my employer. 5. The owners did not reside in the flat.

The HDB’s letter of intention

Based on the evidence that it had gathered, the HDB took the view that there were sufficient grounds to establish that the entire Flat had been sublet without its prior written approval, and that it was therefore empowered under s 56(1)(h) of the Act to compulsorily acquire the Flat. Accordingly, on 17 July 2010, pursuant to s 56(3) of the Act, the HDB sent a letter of intention to the appellants stating the following:

Dear Mr Per and Mdm Tee,

LETTER OF INTENTION TO TAKE ACTION FOR UNAUTHORISED SUBLETTING OF FLAT WHILE YOU AND YOUR FAMILY ARE NOT IN CONTINUOUS PHYSICAL OCCUPATION – APT BLK 621 BT BATOK CTRL, #07-512, S(650621)

Our investigations revealed that you have sublet your flat to Mr Sayeh Dedi Mahdy … and his 2 flatmates from the month of Feb 09 without HDB’s prior written consent and that you and your family are not in continuous physical occupation of the flat. This is a breach of the terms of the flat lease and an infringement under section 56(1) of the Housing & Development Act.

2 The HDB is thus intending to compulsorily acquire your flat for the infringement under s. 56(1)(h) of the Housing & Development Act. All payments received by the HDB from you shall be strictly on a without prejudice basis and all our rights of action against you are hereby strictly reserved. In the meantime, please take immediate steps to evict the unauthorised occupiers/unauthorised sub-tenant from your flat.

…

[underlining and emphasis in bold in original; emphasis added in italics]

It was not disputed that the appellants received this letter, but did not respond to it.

For ease of reference, we set out ss 56(1)(h) and 56(3) of the Act below:

Board [ ie , the HDB] may compulsorily acquire property sold subject to the provisions of this Part

56.—(1) The Board may compulsorily acquire any flat, house or other living accommodation sold subject to the provisions of this Part, whether before or after 2nd June 1975 — … (h) if the owner thereof assigns, underlets or parts with the possession of the same or any part thereof without obtaining the prior written consent of the Board as required by the lease; … (3) Where the Board intends to exercise its powers of compulsory acquisition conferred by this section, the Board shall serve a notice in writing on the owner of the flat, house or other living accommodation and all persons known or believed to be interested in claiming all or any part of the compensation to be paid for the flat, house or living accommodation (referred to in this Part as an interested person) stating the intention of the Board to acquire the premises and the compensation to be paid therefor. … [emphasis added]

The HDB’s notice of intention

Approximately three months later, on 6 October 2010, the HDB again notified the appellants in writing that it intended to compulsorily acquire the Flat under s 56(1)(h) of the Act. The notice of intention which the HDB sent to the appellants stated:

Please take notice that pursuant to Section 56(1)(h) of the Housing and Development Act (Cap 129, Revised Edn 2004), the Housing and Development Board (“the Board”) intends to compulsorily acquire the above flat on the ground that you have sublet your flat without obtaining prior written consent of HDB.

The Board has further decided that the compensation payable for the acquisition of the above flat shall be the sum of $286,500.00. The compensation payable shall be subject to the discharge of your mortgage loan (with interest) and deduction of all monies owing to the Board, the Town Council or other Authorities, plus Goods and Services Tax on such monies payable and all disbursements incurred by the Board.

Your attention is drawn to sub-sections (4), (5) and (6) of Section 56 of the Housing and Development Act. The sub-sections are printed overleaf for your information. YOUR ATTENTION IS ALSO DRAWN TO THE NOTE PRINTED OVERLEAF.

[emphasis in bold in original; emphasis added in italics]

Sections 56(4), 56(5) and 56(6) of the Act, which were reproduced overleaf on the notice of intention, read...