Couple's appeal against flat repossession rejected

HDB 'amply justified' in acquiring flat that was rented out without approval, says court

The top court dismissed a couple's appeal for a judicial review of the Housing Board's (HDB) decision to repossess their flat for illegal sub-letting.

The appeal court, comprising Judges of Appeal (JA) Chao Hick Tin, Andrew Phang and Justice Judith Prakash, found HDB was "amply justified" in compulsorily acquiring the flat and there was no evidence that the minister acted unreasonably in the move.

The case is the first to be heard by the courts involving judicial review of the compulsory acquisition of a flat. Mr Per Ah Seng, 48, and his wife, Madam Tee Bee Kiaw, sought to quash HDB's move to compulsorily acquire their four-room flat in Bukit Batok Central for unauthorised sub-letting.

HDB, acting on a tip-off in 2009, conducted investigations which showed the entire unit was rented out without approval. Mr Per denied renting out the flat, but admitted his family stayed overnight in his mother's Hougang flat at times.

HDB said its decision was not unreasonable and there was no breach of natural justice to justify a judicial review. Mr Per had been accorded due appeal process to HDB and the minister before the flat was compulsorily acquired by HDB, said HDB's lawyer Dinesh Singh Dhillon.

The High Court had dismissed Mr Per's application last year, ruling the papers were filed out of time but making clear the suit failed on the merits of the case even if the review was allowed to proceed.

"In Singapore, there is perhaps no social contract more far-reaching than that relating to flats provided by the HDB, in which the vast majority of Singapore's population lives," wrote JA Chao on the court's behalf.

The court noted that very often, subsidies are provided by the Government to make the flats more affordable but flat owners had to reciprocate by adhering to conditions in relation to the units owned.

A key preliminary issue in the case was whether the relevant section of the HDB Act prevented the court from examining the minister's decision. Many legal academics and commentators have argued against the court recognising such "ouster clauses" especially when involving tangible issues subject to review, noted JA Chao.

"Our courts have viewed such clauses with circumspection and have declined to give effect to them on several occasions," he added.

The court noted that lawyers from Allen & Gledhill as well as the Attorney-General's Chambers defending HDB and the minister respectively had declined to rely on the ouster clause in opposing the couple's bid for a judicial review.

Noting this, the court refrained "from coming to a firm conclusion on whether this ouster clause bars us from reviewing the minister's decision", wrote JA Chao in judgement grounds released yesterday.

The court, instead, opted to assume the relevant law does not appear to prevent the court from reviewing the minister's decision, noting the issues in the case were "eminently" qualified for court review.

Mr Per had appealed to the apex court where his lawyer Kirpal Singh argued HDB did not disclose sufficient details about the investigation before seizure to enable him to respond adequately.

The court disagreed, finding there were cogent public interests that justified non-disclosure, as people may "game" the system if investigative methods were revealed.

The court allowed Mr Per's appeal that the application was not filed out of time, but dismissed his case as being without merit.

Among other things, the court did not find Mr Per to be a "truthful person". The court, however, reduced the legal costs payable by Mr Per by a third.

A version of this article appeared in the print edition of The Straits Times on December 03, 2015, with the headline 'Couple's appeal against flat repossession rejected'. Print Edition | Subscribe