Consent of the Attorney General under Section 9 of the Government Proceedings Act must be obtained before instituting a suit involving public charitable trusts; retrospective consent is invalid.

Mary Lim Thiam Suan FCJ:

[1] The central issue in these 4 appeals concerns the interpretation and understanding of the Attorney General's consent obtained under s 9 of the Government Proceedings Act 1956 [Act 359].

[2] Of the four appeals, three appeals arose from the judicial review proceedings [JR proceedings] while the fourth appeal arose from proceedings related to Originating Summons No: 24NCVC-1128-12/2014 [OS 1128]. We heard all four appeals together. After full consideration of the submissions, reasonings of the Courts below and the records of appeal, we unanimously allowed the appeals relating to the JR proceedings and dismissed the appeal relating to OS 1128.

Background Facts

[3] Both the JR proceedings and OS 1128 arose from these salient facts.Vide a trust indenture dated 30 May 1845, on behalf of Queen Victoria of the United Kingdom of Great Britain and Ireland, the East India Company created a Burmese-Siamese Trust over a plot of land known as Lot 104 in Georgetown subject to terms and conditions as found in the indenture [the Trust]. On Lot 104 was/is a temple serving the Burmese and Siamese communities living on the island of Penang, and their successors in the said Trust. Expressly, the Trust was "for the management of the affairs of their Temple". Four trustees, two from each community, were originally appointed to manage the affairs of the temple [Trustees]. Amongst those terms and conditions was that the trustees had no "right, power or authority whatsoever" to "grant, bargain, sell, assign, transfer, convert or otherwise alienate the said piece of Ground or any part or parcel thereof". The trust land "shall remain, continue for the benefit of the Burmese and Siamese Community of Prince of Wales Island and its Dependencies from henceforth forever".

[4] Despite those express terms and conditions, on 16 April 1994, the Trustees entered into a written agreement to inter alia, partition Lot 104 between the two communities. Lot 104 thus became Lots 2102 and 2103 and an order of Court dated 19 October 1994 [OS No: 24-665-1994 in the HC Penang] was secured to seal that agreement. The effect of that division left the temple remaining on the land held and still held by the Siamese trustees [Lot 2102]. The Burmese trustees continued to hold Lot 2103.

[5] On 3 October 2002, funds which had been hitherto collected from the temple amounting to over RM3,778,523.73 were equally divided between the two communities. Again, another order of Court was secured to endorse the division of funds [OS No: 24-1209-2002]. Effectively, this left the original trust now standing as two separate trusts, one for the Siamese community in respect of Lot 2102 and the other for the Burmese community in respect of Lot 2103. For this purpose, the Attorney General's consent was obtained on 1 June 2000. The High Court viewed this consent, referred to as the "1st Consent" as confirming the partition of the original Lot 104 into Lots 2102 and 2103 and that the original trust had been terminated. We will have more to say on this shortly.

[6] Following this Court order of 3 October 2002, the trustees for the Burmese community [Penang Burmese Trustees] executed a new trust deed dated 31 July 2006 [Trust Deed]. Amongst its many terms were these:

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