1. ) Yum Shirley v 1. ) Chew Pit King (22NCVC-513-09/2015)

The adage "God helps those who help themselves" is a useful moral compass to guide one's life. However, when it comes to spiritual needs, humans’ desire for spiritual guidance has given rise to many ‘gurus’ in the history of mankind. It has also given rise to many court disputes among the followers of these guru when the guru passes away. This suit before me is one of these disputes.

The suit arose from various pronouncements made by the late Chew Choon Ming [“CCM”] (also known as Xian Sheng) who was the founder and spiritual leader of a movement known as Baitiangong Universal Spiritual Movement [“BUSM”].

Essentially the dispute is whether CCM while alive had created a valid charitable trust over all his movable and immovable properties for the advancement of BUSM. The plaintiffs who are followers of BUSM say yes. The 1st defendant who is the son of CCM as well as a trustee for the estate of CCM, and the 2nd defendant Chung Onn Soon also a trustee for the estate of CCM say no.

This suit has a convoluted history. It was filed in 2015. The trial lasted 9 days before a previous judge. His lordship heard oral testimonies from 6 witnesses in 2016 and 2017. Decision on the merits of the case was then given on 24-10-2017 in favour of the defendants.

On appeal by the plaintiffs the decision was set aside by the Court of Appeal on 14-03-2022. The Court of Appeal held that the refusal of the previous judge to allow cross-examination of the 1st defendant on two affidavits that the 1st defendant had earlier filed in a related Probate proceedings was a miscarriage of justice. [See Enclosure 131 Note on the Decision of the Court of Appeal].

The suit was remitted back to the High Court. On 04-01-2023 parties were informed that the suit would be fixed before me for case management for a limited re-trial whereby the 1st defendant was to be cross-examined on the two affidavits that he had earlier filed in the related Probate proceedings.

I heard the continued trial over three days on 23-10-2023, 06-12-2023 and 07-12-2023. Oral submissions by counsel were held before me on 06-03-2024 and 20-05-2024. Decision was reserved to 19-08-2024. I delivered decision on 19-08-2024 with the following orders and directions-i. The suit is dismissed with costs as the consent of the Attorney General [“AG”] to file this suit was not obtained as required by section 9[1] of the Government Proceedings Act 1956 (Act 359) [“GPA”]. For the record, I have not decided on the merits of the other issues raised in this trial. ii. Agreed costs to be paid by the plaintiffs to the 1st and 2nd defendants to be fixed at RM 150,000 subject to allocatur. Costs are for the first trial, appeal before the Court of Appeal and the 2nd trial before me.

These are my Grounds of Judgment.

Parties had earlier filed Enclosures 23, 24, 25 and 168 which contain numerous issues to be decided by me. At my urging to able counsel, these issues have now been reduced to six.

The Issues to Be Tried Agreed by the Parties [Enclosure 191 paragraph 2 and Enclosure 192 paragraph 1] to be determined by this Court now are-a) Was there a charitable trust created by CCM during his lifetime, of all his moveable and immoveable properties, for the advancement of BUSM? [“Trust Issue “]. b) Whether the 98% shares in Baixian Holdings purportedly registered in the 1st defendant's name on 01-06-2000 negated CCM's charitable trust referred to in Issue [a]? [“D1’s ownership of 98% shares in Baixian Holdings Issue”]. c) Do the plaintiffs have locus standi/standing to file this action? [“Locus Standi Issue”]. d) Whether the 1st defendant is estopped from denying the creation of the charitable trust by CCM (deceased) during his lifetime? [“Estoppel Issue”]. 7 e) Whether the plaintiffs are barred from bringing this action by reason of laches? [“Laches Issue”]. f) Whether the plaintiffs are barred by the doctrine of res judicata and/or issue estoppel from raising the issue of the creation of the charitable trust for determination in this action, by reason of the decision of the Kuala Lumpur High Court in Originating Summons No: 31NCvC-818- 07/2014 ("OS 818")? [“Res Judicata Issue”].

At the oral submissions hearing on 20-05-2024 both counsel agreed issue [e] Laches Issue has now been dropped.

As is clear from my orders set out above at paragraph 7, I had dismissed the suit solely on Issue [c] the Locus Standi Issue. So, it is best that I zoom in on this issue without the need to burden my grounds with the other issues on merits raised by able counsel.

Any party contemplating filing a suit for any alleged breach of an express or constructive trust for public, religious, social or charitable purposes or seeking the direction of the court for the administration of any such trust and seeking the reliefs set out in section 9[1] of the GPA must ensure that he satisfies the strict requirements of section 9[1] GPA 8 to ensure his suit is not dismissed for non-compliance with section 9[1] GPA.

This is because section 9[1] of the GPA states that whenever a claim is to be filed for any alleged breach of any express or constructive trust for public, religious, social or charitable purposes, or where the direction of the court is deemed necessary for the administration of any such trust, two or more persons having an interest in the trust and seeking the reliefs set out in section 9[1] must first obtain the consent in writing of the AG before instituting a suit.

Section 9 of the GPA in full states as follows:

In the case of any alleged breach of any express or constructive trust for public, religious, social or charitable purposes, or where the direction of the court is deemed necessary for the administration of any such trust, the Attorney General or two or more persons having an interest in the trust and having obtained the consent in writing of the Attorney General, may institute a suit or be joined as a party in any existing suit on behalf of the Government or the public for the purpose of:

asserting any interest or right in the trust property;

removing any trustee;

appointing a new trustee;

vesting any property in a trustee;

directing accounts and inquiries;

declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

authorizing the whole or any part of the trust property to be let, sold, mortgaged, charged or exchanged;

settling a scheme; and

obtaining such further or other relief as the nature of the case may require.

No suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with that subsection. [Emphasis added] [16] In short, section 9[1] of the GPA requires-i. A suit alleging breach of any express or constructive trust for public, religious, social or charitable purposes, or seeking the direction of the court for the administration of any such trust and seeking the reliefs set out in section 9[1] must be filed by two or more persons having an interest in the trust. ii. They must first obtain the consent in writing of the AG to file the said suit before filing. The AG has no discretion to give consent after a suit has already been instituted. [See Five Star Heritage Sdn Bhd & Ors v Peguam Negara Malaysia & Other Appeals [2024] 2 CLJ 167 FC [“Five Star”]] Application to facts [17] The 1st and 2nd defendants contend that the suit should be dismissed for these 2 reasons-i. Consent to file the suit had not been obtained from the AG as mandated by sections 9[1] and [2] of the GPA. ii. The Court should not grant a stay of the suit to allow the plaintiffs to run to the AG to obtain consent as consent cannot be obtained retrospectively. 1st reason - Consent to file the suit had not been obtained from the AG as mandated by sections 9[1] and [2] of the GPA. [18] There is much force in the submissions of learned counsel for the 1st and 2nd defendants Dato K. Kirubakaran. [19] In Five Star Mary Lim FCJ delivering the judgment of the court said at Held-

In enacting s. 9 of the GPA, Parliament intended to empower the AG in the protection of charitable trusts from abuse and to prevent proceedings affecting the charity funds from unnecessary waste of such funds. However, the decision of the AG under s. 9 of the GPA is justiciable and thereby, reviewable by the court. The AG’s power to grant or refuse consent is not absolute and is always subject to limits as prescribed by the statute itself. The failure to comply with the mandatory requirements in s. 9 renders any action or suit instituted not maintainable. …. (paras 19, 25 & 28)

Sections 9(1) and (2) provide, inter alia, that the AG only becomes involved under s. 9 where the trust is either an express or constructive trust set up for public, religious, social or charitable purposes. And, there must be an allegation of breach of such a trust; or the direction of the court is deemed necessary for the administration of such trust, in that, a court action is contemplated. Where proceedings in court are indeed contemplated, s. mandates that whoever is moving the court must first obtain the written consent of the AG and the written consent must be sought by two or more persons. The rationale being, the process allows scrutiny by the AG to check against abuse and wastage of funds and other resources. (paras 30-32) [Emphasis added] [20] A perusal of the Re-Amended Statement of Claim shows the plaintiffs are alleging breach of a charitable trust, and seeking the reliefs set out in sections 9[1] (a) and (d) of the GPA. [See Enclosure 160 Re-Amended Statement of Claim at paragraphs 30 to 47 and the reliefs prayed for in paragraphs 57(a) to (d)]. This shows the plaintiffs’ claim falls within the scope of 9[1] of the GPA. [21] Further in its pleadings the plaintiffs have admitted consent from the AG was required and that they were in the process of obtaining consent. (See Enclosure 160 Re-Amended Statement of Claim at paragraph 8 at page 84 and Enclosure 167 of the Re-Amended Reply paragraph 3 at page 230). As of now no such consent had been obtained. [22] Therefore, since consent had not been obtained the suit can be dismissed on this ground alone. [See Five Star]. [23] I now move to the 2nd reason of the 1st and 2nd defendants. 2nd reason - The Court should not grant a stay of the suit to allow the plaintiffs to run to the AG to obtain consent as consent cannot be obtained retrospectively. [24] Learned counsel for the plaintiffs Dato Bastian Vendargon contends that the Court should grant a stay pending the plaintiffs running to get the consent of the AG. He relies on Muman and others v Nagasena [1999] 4 All ER 178 CA [“Muman”] and Lee Chick Yet v Chen Siew Hee & Ors [1977] 2 MLJ 218 HC [“Lee Chick Yet”] where the Courts granted a stay of proceedings pending the plaintiffs obtaining consent. [25] In Muman Mummery LJ held at pages 183j and 184 b as follows: Order …

I would make an order staying the proceedings and the counterclaim pending an application by the claimants and the defendant for authorisation. Although the action was started as what appears to be a simple claim for possession, it is now clear from the pleadings that these are ‘charity proceedings’ both as regards the claim and as regards the counterclaim. … This, for the reasons explained, is a trust for charitable purposes, and it is clear that there are now issues in the possession proceedings which relate to the administration of those trusts, namely: (i) who are the trustees of the charity; and (ii) who is the patron of the charity. There is a possible third issue as to who are the members. Those are matters of internal or domestic dispute and are not a dispute with an outsider to the charity. These are charity proceedings within s 33(8). That means that they cannot be continued without the authorisation either of the order of the Charity Commissioners or of a judge of the High Court of Justice, Chancery Division. No such authorisation has been obtained. To allow the proceedings to continue without authorisation would be to offend the whole purpose of requiring authorisation for the charity proceedings. That is to prevent charities from frittering away money subject to charitable trusts in pursuing litigation relating to internal disputes.” [Emphasis added] [26] In Lee Chick Yet Hashim Yeop A Sani J said: … Two alternatives thus appear to be open to me. I should not in any case dismiss the suit as that might hereafter raise a question of res judicata. I can either set aside all proceedings or make an order similar to that made in Suit No. 724 of 1930, already referred to, giving the plaintiffs the opportunity of obtaining the leave of the Attorney-General. The latter course would seem to me the better in the interests of all parties as it will save the expense of instituting proceedings anew." In the context of section 9 of our Ordinance it is my view that the provision of subsection (2) does not by itself justify that the whole proceeding should be set aside at this stage. In the instant case I therefore propose to make an order that the plaintiff do within two weeks hereof comply with the provision of subsection (1) of section 9 of the Government Proceeding Ordinance, 1956 in default thereof all proceedings shall be set aside with costs to be taxed to be paid by the plaintiff to the first, second and third defendants. Costs of the present application and incidental thereto to the first three defendants in any event. [Emphasis added] Court’s analysis [27] The stay order granted in Lee Chick Yet by Hashim Yeop A Sani J has been disapproved by the FC in the recent case of Five Star. [28] Mary Lim FCJ said-Our Decision [17] On 30 January 2023, this court granted leave on the following three questions of law:

whether the consent of the Attorney General can be retrospective in the light of the clear wordings and pre-requisites stated in s. 9(1) of the Government Proceedings Act 1956 and the mandatory nature of s. 9(2) of the same Act … 47] We do not find the High Court decision of Lee Chick Yet v. Chen Siew Hee & Ors [1974] CLJU 70; [1974] 1 LNS 70; [1977] 2 MLJ 218 of assistance. Bearing in mind that it was a first-instance decision where the learned judge opined that the court could direct compliance of s. 9 within a certain time period instead of striking out the whole action, that argument is flawed. Not only does it run contrary to the plain and unambiguous terms of s. 9(1), … Conclusion [57] For the above reasons, we find for the purposes of s. 9 of Act 359, learned AG has no discretion to give consent after a suit has already been instituted. [Emphasis added] [29] In conclusion, I hold that a stay cannot be granted for the plaintiffs to run to the AG to obtain retrospective consent as under sections 9[1] and [2] of the GPA, the AG has no discretion to give consent after a suit has already been instituted. [30] I thank counsel for the parties for their submissions which had greatly assisted me.

[31] For the reasons above, the suit is dismissed with costs as the consent of the AG to file this suit was not obtained. For the record, I have not decided on the merits of the other issues raised in this trial. [32] Agreed costs to be paid by the plaintiffs to the 1st and 2nd defendants to be fixed at RM 150,000 subject to allocatur. Costs are for the first trial, appeal before the Court of Appeal and the 2nd trial before me. …………(signed)…………… Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 03rd September 2024 COUNSEL: 1) Bastian Vendargon, Gene Vendargon, Marcus Lee Min Lun, Emily Wong, How Li Nee, Ng Soon Kiat and Lim Yi Shean for plaintiffs. (Marcus Lee (Kuala Lumpur)) 2) K Kirubakaran and Chong Kah Yee for 1st and 2nd defendants. (Shui Tai (Petaling Jaya)) LEGISLATION REFERRED TO: 1) Five Star Heritage Sdn Bhd & Ors v Peguam Negara Malaysia & Other Appeals [2024] 2 CLJ 167 FC. 2) Lee Chick Yet v Chen Siew Hee & Ors [1977] 2 MLJ 218 HC. 3) Muman and others v Nagasena [1999] 4 All ER 178. CASES REFERRED TO: 1) Section 9 of the Government Proceedings Act 1956 (Act 359). 2) Section 9[1] of the Government Proceedings Act 1956 (Act 359). 3) Section 9[1](a) of the Government Proceedings Act 1956 (Act 359). 4) Section 9[1](d) of the Government Proceedings Act 1956 (Act 359). 5) Section 9[2] of the Government Proceedings Act 1956 (Act 359).