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

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeTay Yong Kwang J
Judgment Date22 December 2014
Neutral Citation[2014] SGHC 270
Citation[2014] SGHC 270
Defendant CounselKhoo Boo Jin, Ang Ming Sheng Terence and Kanesh Balasubramaniam (Attorney-General's Chambers),Dhillon Dinesh Singh and Teh Shi Ying (Allen & Gledhill LLP)
Date22 December 2014
Subject MatterNatural Justice,Administrative Law,Judicial Review
Plaintiff CounselKirpal Singh s/o Hakam Singh (Kirpal & Associates)
Docket NumberOriginating Summons No 440 of 2014
Hearing Date06 November 2014,31 October 2014
Published date30 December 2015
Tay Yong Kwang J: Introduction

This originating summons (“OS 440/2014”) was brought by the applicants, Robin Per Ah Seng (“Mr Per”) and Tee Bee Kiaw (“Mdm Tee”) (referred to collectively as “the Applicants”), for leave to file an application for a quashing order in respect of four decisions made by the respondents, the Housing and Development Board (“HDB”) and the Minister for National Development (“the Minister”) (referred to collectively as “the Respondents”). The Minister was represented by the Attorney General. Three of the four decisions were made by HDB while one was made by the Minister. The decisions sought to be impugned by the Applicants were as follows: HDB’s notice of intention dated 6 October 2010, served pursuant to ss 56(1)(h) and 56(3) of the Housing and Development Act (Cap 129, 2004 Rev Ed) (“the Act”), to compulsorily acquire the Applicants’ 4-room flat in Bukit Batok (“the Property”); HDB’s decision under s 56(5) of the Act to reject the Applicants’ appeal; the Minister’s decision under s 56(6) of the Act to reject the Applicants’ further appeal; and HDB’s notice of vesting dated 20 April 2011, issued pursuant to s 57 of the Act. The parties agreed to have the present application heard on a consolidated basis, where the application for leave would be heard together with the substantive merits of the case.

The parties first came before me on 31 October 2014. After hearing the parties’ submissions, I adjourned the hearing for the Applicants to request, on an urgent basis, the record of changes in the Applicants’ address with the Immigration and Checkpoints Authority (“ICA”). The ICA provided the details on 5 November 2014 and the parties appeared before me again on 6 November 2014. After hearing further arguments concerning the information provided by the ICA, I dismissed the present application on the basis that it was made beyond the three-month period set out in O 53 r 1(6) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“RC”) and also that the Applicants failed on the substantive merits of the case. The Applicants have appealed against my decision. I now set out the grounds for my decision.

The facts The purchase and the subletting of the Property

The Applicants purchased the Property on 1 October 2007 for $368,000 under the HDB’s Public Scheme. A concessionary interest rate loan was provided by HDB in the amount of $288,000.

On 21 January 2009, the Applicants entered into a corporate tenancy agreement with Offshore Construction Specialist Pte Ltd (“Offshore Construction”) for the subletting of two bedrooms at a rate of $2,050 per month. The period of the lease was 24 months commencing on 1 February 2009 and ending on 31 January 2011.

The inspection of the Property

On 23 December 2009, HDB received an anonymous tip-off alleging that the Applicants were subletting the entire flat. The informant also claimed that the Applicants were residing in a condominium known as the Blue Horizon.

On 25 May 2010, officers from the HDB conducted an inspection of the Property. During the inspection, a signed statement was obtained from one Mr Sayeh Dedi Mahdy (“Mr Sayeh”), an employee of Offshore Construction residing in the Property at that point in time. For ease of reference, the contents of the statement are reproduced below:

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.

Apart from the signed statement, the HDB officers also took photographs of the living room, the three bedrooms and the kitchen. Coloured copies of those photographs were tendered by Mr Khoo Boo Jin (“Mr Khoo”) from the Attorney-General’s Chambers (“AGC”) at the hearing on 31 October 2014.

Mr Wong Yew Wah (“Mr Wong”), one of the HDB officers who conducted the inspection, filed an affidavit with the following observations concerning the state of the Property: there were ashtrays containing cigarette butts on the table in the living room; there was a strong smell of smoke; Mr Sayeh and his two flatmates each occupied a bedroom in the Property; the bedrooms were sparsely furnished and each bedroom contained only a single bed; there were no personal effects in any of the rooms to suggest that a family of three had resided in it; and the tenants hung their laundered marine uniforms in front of the fridge and above the kitchen cabinets.

The letter of intention

Based on the evidence it had gathered thus far, HDB was of the view that there were sufficient grounds to establish that the Applicants were not residing in the Property. A letter of intention dated 17 July 2010 (“the letter of intention”) was sent by post to the Applicants with the following contents:

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 Act].

... The HDB is thus intending to compulsorily acquire your flat for the infringement under s 56(1)(h) of the [the 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.

[emphasis in original]

It was not disputed that the Applicants failed to respond to the letter of intention. The notice of intention

Given the lack of response from the Applicants, HDB proceeded to serve a notice of intention by pasting it on the main door of the Property on 6 October 2010. The relevant portions of the notice are set out below:

Please take notice that pursuant to Section 56(1)(h) of [the Act], the [HDB] intends to compulsorily acquire the above flat on the ground that you have sublet your flat without obtaining prior written consent of HDB.

The [HDB] has further decided that the compensation payable for the acquisition of the above flat shall be the sum of $286,500.00. ...

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

[emphasis in original]

As discussed above, this notice of intention dated 6 October 2010 was one of the decisions being challenged by the Applicants. The letter of objection to HDB

On 28 October 2010, the Applicants sent a letter of objection to HDB pursuant to s 56(4) of the Act. The Applicants made the following points in the letter of objection: The Applicants had entered into a corporate tenancy agreement with Offshore Construction and the particulars of the subtenants were registered with HDB. The Applicants did not sublet the entire Property to the tenants. The Applicants continued to reside in one of the common bedrooms in the Property. The Applicants had stayed temporarily at the first Applicant’s mother’s flat to take care of her due to her poor health after the demise of his father. The Applicants shuffled between the mother’s flat and the Property and there was never any intention to “vacate the room [in the Property] without living there”. The Applicants did not permit any of the occupiers to live in their bedroom. The room was left unlocked and the Applicants “did not give explicit permission to the occupier sleeping in the room that was kept for our own occupation”. The Applicants were negotiating for the termination of the tenancy agreement and for all occupiers to vacate the flat.

The Applicants also enclosed a copy of the tenancy agreement and the registration of the particulars of the occupiers.

The rejection by HDB

In a letter dated 29 November 2010, HDB informed the Applicants that their appeal was unsuccessful. The Applicants were also informed that under s 56(6) of the Act, HDB would proceed to vest legal ownership of the Property in itself in the event that no further appeal was made to the Minister within 28 days from the date of service of the letter of rejection. Apart from that, HDB further emphasised that subletting of the whole flat without HDB’s prior approval was an infringement of the lease and the Act. In this respect, HDB stated that proprietors “who commit the infringement are liable to have their flat compulsorily acquired”.

The letter of appeal to the Minister

By way of a letter dated 27 December 2010, the Applicants exercised their right of further appeal to the Minister under s 56(6) of the Act. In this letter, the Applicants stated that the breach was a one-off incident and that they did not commit the breach with the intention of taking advantage of government-subsidised flats for personal financial gain. The Applicants emphasised that they had purchased the Property from the resale market and that no government grant had been obtained for the purchase. Apart from that, the Applicants stated that they had rectified the breach immediately by terminating the tenancy and that the occupiers had since vacated the Property. The Applicants also mentioned that they would accept any form of penalty on account of the breach but the compulsory acquisition of the Property was “too harsh”. Finally, the Applicants appealed for compassion in the hope that the Minister would take into consideration the reason behind their temporary move to the mother’s home due to her poor health.

The rejection by the Minister

By way of a letter dated 14 March 2011, HDB informed the Applicants that their appeal to the Minister under s 56(6) of the Act was unsuccessful. It was further stated that steps would be...

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2 cases
  • Per Ah Seng Robin and another v Housing and Development Board and another
    • Singapore
    • Court of Three Judges (Singapore)
    • 30 November 2015
    ...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 The purchase and subletting of the Flat The appellants are Mr R......
  • Per Ah Seng Robin and another v Housing and Development Board and another
    • Singapore
    • Court of Three Judges (Singapore)
    • 30 November 2015
    ...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 The purchase and subletting of the Flat The appellants are Mr R......

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