The Attorney General's refusal to consent to the appointment of new trustees was upheld as reasonable under section 9 of the Government Proceedings Act, with no evidence of misconduct.

JUDGMENT

Kamardin Hashim JCA:

Introduction

[1] This is an appeal by the Appellant/Applicant against the decision of the High Court at Penang in dismissing the Appellant/Applicants judicial review application under O 53 of the Rules of 2012 (ROC 2012). Leave to commence judicial review proceedings was earlier granted by the same Court on 28 September 2016, which was affirmed by this Court (see: Peguam Negara Malaysia v. Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan), [2019] 1 MLJ 307 ).

[2] The Appellant/Applicants judicial review proceedings was directed against the refusal of the Respondent to give consent under s 9 of the Government Proceedings Act 1956 (the Act) to initiate a proceeding for the purpose of appointing an additional or a new trustee in the public charitable trust of Liam Hood Thong Chor Seng Thuan Pulau Pinang (the Association).

[3] We heard the Appellant/Applicants appeal on 18 June 2020 wherein at the end of it, after hearing the parties and taking into consideration the written and oral submissions, we dismissed the appeal and affirmed the decision of the High Court. We now give our reason in doing so.

[4] For ease of reference the parties will be referred to in this judgment as they were described in the Court below.

The Background Facts

[5] The undisputed facts were well encapsulated in the grounds of judgment of the learned Judicial Commissioner of the High Court (learned JC) which we reproduce below with necessary modification.

[6] One Cheah Leong Kean, deceased (the Testator) had executed a Will and Codicil dated 6 May 1941 and a Trust Deed dated 6 May 1941 wherein the Testator had bequeathed the 4 pieces of land listed below and cash to the amount of RM15,000.00 for the construction of a Pagoda on the lands and a further amount of RM5,000.00 to be invested and the income arising from such investments to be used to maintain the Pagoda for the benefit of all devotees professing the Buddhist faith and conducting Buddhist religious customs of the Deity Liam Hood Tong Chor Seng Tuan.

[7] The lands referred to in the Will of the Testator are as follows:

(i) Geran No 20348 Lot 491

(ii) Geran No 20349 Lot 492

(iii) Geran No 5935 Lot 292

(iv) Geran No 20273 Lot 963

all situated in s 1, North East District in State of Penang (hereinafter referred to as the said Lands).

[8] Since the death of the Testator the initial trustees had failed to carry out the building of the Pagoda as per the terms of the Trust and the sums of money had been used up completely. On 20 August 1982 an Order declaring the said Lands to be a Public Charitable Trust was handed down by His Lordship Judicial Commissioner Mustapha bin Hussain (as his Lordship was then) and that the principles of the cy-pres doctrine be applicable.

[9] Since that Order, the said Lands had been vested in the names of Robert Teng Lye Hock (deceased), So Miau Song, Tai Chong, Yeow Teow Giap (deceased) and Tan Siew Joo ("existing Trustees").

[10] In the 35 years that have lapsed since the said Order, there had been no effort taken by the existing Trustees to carry out the wishes of the Testator or by way of cy-pres and the said Lands have been left vacant.

[11] The Association comprises of the followers of the Buddhist faith and devotees of the said Deity. The Association frequently has religious functions and prayers to the said Deity. There is currently no place of worship for the Deity and the Association carries out these prayers and other religious and charitable functions at makeshift premises.

[12] The Association had endeavoured to secure funding from third parties to build the said Pagoda. However as a precondition of the said promised funding, the Association needs to be appointed as a trustee, to provide it with the necessary legal standing to execute Agreements on behalf of the said Trust.

[13] In view of the above, the Association had, vide letters dated 20 November 2014 and 6 July 2015 applied to the Honourable Attorney Ge