The court reaffirmed that consent from the Attorney-General is validly granted to challenge the nature of a trust, distinguishing between public charitable and private trust.

Introduction

[1] There are three appeals before us. The first, Appeal No P 01(A)-602-10/2021 is between Nai Ninn Sararaksh ("Nai") as the appellant and Five Star Heritage Sdn Bhd and five others as the respondents ("Appeal No 602"). The second is Appeal No P 01(A)-609-10/2021 between Ho Choon Teik ("Ho") as the appellant and the same respondents ("Appeal No 609 "). The third and last is Appeal No P 01(A)-621-10/2021 between Attorney-General Malaysia ("AG") and also the same respondents ("Appeal No 621").

[2] The three appeals arose from the decision of the High Court ("HC") which had allowed an application for judicial review ("JR") filed by the respondents.

[3] Nai, Ho and AG, all opposed that application for JR filed by the respondents at the HC. The application for JR is to challenge the AG's consent dated 31 May 2016 given to Nai and Ho to continue with the proceedings in respect of an originating summons no 24NCVC-1128- 12/2014 ("OS 1128").

[4] Thus, the limited scope of the of the appeals must be borne in mind. It is only to challenge and question the said consent by the AG given in respect of OS 1128.

OS 1128

[5] There is a long history as backdrop to OS 1128. This must first be explained to better understand the dispute in the present appeals. The history, takes us back to the middle of 19th Century, Penang.

[6] On 30 May 1845, by a Trust Indenture, the British East India Company on behalf of Queen Victoria had established a Public Religious Charitable Trust for the Siamese or Thai and Burmese communities of Penang. The said Public Religious Charitable Trust involved two parcels of land known as Lot 2102 and Lot No 2103 which were subdivided from an original Lot No 104 pursuant to a Court order dated 19 October 1994. This is despite the fact that the 1845 Trust Indenture stated that no part or parcel of the Thai- Burmese Trust land shall be alienated and shall remain, continue and be for the benefit of the Thai and Burmese communities forever.

[7] Subsequently, the Thai Trustees were registered as the owners of Lot No 2102 and the Burmese Trustees were registered as the owners of Lot No 2103 pursuant to the order of the Court dated 3 October 2002.

[8] At the outset, for clarity, it should be pointed out the dispute in the present appeals does not involve the Thai Trustees or Lot No 2102. The dispute is only in respect of Lot 2103 and the Burmese Trustees.

[9] There is a consent by the AG dated 1 June 2000 which had confirmed the following:

a. named persons to be appointed as trustees for the Thai and Burmese Trusts;

b. separate administration and division of the funds of the Thai and Burmese Trusts.

[10] On 31 July 2006, the 2nd to 5th respondents in the present appeals, as Burmese Trustees, executed a Trust Deed for purposes of managing and administering the trust property and trust funds which are to benefit only the Burmese Community of Penang. It was declared therein that all that piece of land together with the building erected thereon situated in the Burmese Trust Property (Lot 2103) will be held on trust by them.

[11] Thereafter, the Burmese Trustees entered into a Joint Venture Agreement (JVA) dated 25 August 2006 with Airmas Development Sdn Bhd to develop Lot No 2103.

[12] On 31 October 2007, the Penang Burmese Trustees obtained a Court order which declared the JVA as validly entered into. It is to be noted that the Penang Burmese Trust Property has not been zoned exclusively for religious purpose. A part of it is zoned for commercial purpose. Hence, the Court sanctioned the development of the Penang Burmese Trust Property into commercial prop