DATUK TANG CHAI YOONG v 1. ) FOO WAH CHEK didakwa atas kapasitinya sebagai Presiden Persatuan Hainan Selangor Dan Wiilayah Persekutuan (WA-24NCvC-2272-06/2024)

FOO WAH CHEK (NRIC NO: 440613-10-5331) (In his capacity as President of Persatuan Hainan Selangor dan

TAN KUAN FENG (NRIC NO: 590418-10-6295) (In his capacity as Deputy Secretary General of Persatuan Hainan Selangor dan Wilayah Persekutuan)

PERSATUAN HAINAN SELANGOR DAN WILAYAH PERSEKUTUAN (REGISTRATION NO: PPM-007-14-27111952) ... DEFENDANTS JUDGMENT 30/10/2024 14:44:26 WA-24NCvC-2272-06/2024 Kand. 24 S/N T2rtq/Xbk0ON1cZm15p7sw [1] At its heart, this case concerns the interplay between a society's right to self-governance and the court's role in ensuring procedural fairness. The Plaintiff, a former President of the Selangor and Federal Territory Hainan Association (the Association), seeks to challenge both his suspension and subsequent expulsion from the Association, arguing these decisions were ultra vires the Association's Constitution and in breach of natural justice. The Association, in defending its actions, maintains it acted within its constitutional powers and afforded the Plaintiff adequate procedural fairness. [2] After careful consideration of the submissions and evidence before this Court, it was concluded on 14 October 2024 that the Association had acted within its constitutional powers and that there was no breach of natural justice that would have warranted this Court's intervention. Thus, the Plaintiff’s suit vide its Originating Summons (OS) was dismissed. This Court declined to grant the prayers prayed for by the Plaintiff for:

A declaration that the decision of the General Council (GC) suspending the Plaintiff's membership for 5 years effective from 14.12.2023 is ultra vires the Constitution and an usurpation of the Disciplinary Committee's (DC) jurisdiction;

A declaration that the Plaintiff's expulsion as a member during the Extraordinary General Meeting (EGM) held on 17.4.2024 is ultra vires the Constitution and in breach of natural justice;

An order that the Plaintiff's membership be restored forthwith. S/N T2rtq/Xbk0ON1cZm15p7sw [3] The Plaintiff, dissatisfied with this Court’s decision has lodged an appeal at the Court of Appeal. Herein are this Court’s assessments whereby it had balanced the autonomy of societies to manage their internal affairs against the fundamental requirements of natural justice, while also considering the scope of judicial intervention in such matters. Background Facts [4] The Plaintiff is a former member of the Association, the Third Defendant in this suit, having previously served as its President between 2018 and 24.12.2021, and as Deputy President between 04.01.2022 and 19.07.2023. The First and Second Defendants are the current President and Deputy Secretary General of the Association respectively. [5] The Association has a history spanning over 131 years since its establishment in 1889. It owns and manages the Thean Hou Temple in Kuala Lumpur, which serves as both a religious institution and a popular tourist attraction, particularly for marriage registrations among the Chinese community. [6] The sequence of events leading to the filing of this suit vide OS can be summarized chronologically:

On 14.10.2023, pursuant to an investigation order by the Executive Committee (ExCo), the DC issued a Notice of Disciplinary Inquiry to the Plaintiff regarding 13 charges relating to his tenure as President and Deputy President.

The Plaintiff submitted his written reply to the charges on 25.10.2023.

The DC conducted hearings on 3.11.2023 to 4.11.2023 where the Plaintiff was represented by counsel Ms. Karen Lee Foong Voon, while Mr. Ricky Tan acted for the Association.

On 21.11.2023, the DC issued its report to the Exco, finding all 13 charges against the Plaintiff to be unproven and baseless.

On 29.11.2023, the ExCo studied the DC's report and made its recommendations to the GC.

On 18.12.2023, the Association issued a letter to the Plaintiff that notified him that after having “studied and accepted the Disciplinary Committee investigation report, proposals and recommendations of the General Council for disciplinary action against” the Plaintiff, his membership was suspended for 5 years from 14.12.2023.

On 5.1.2024 the Plaintiff submitted his appeal against the decision and requested a copy of the DC's report and findings, the ExCo’s decision and recommendation, and the GC’s grounds for its findings.

On 26.3.2024, the GC conducted an internal hearing of the appeal in the Plaintiff's absence and dismissed it.

On 2.4.2024, the Association issued a Notice of EGM to be held on 17.4.2024, which included two additional motions seeking the Plaintiff's expulsion.

On 12.4.2024, through a letter signed by the First Defendant, the Association informed the Plaintiff of the reasons for dismissing his appeal. The letter further detailed why while the DC had found him not guilty of the charges, the ExCo disagreed with these findings.

On 17.4.2024, at the EGM, the Association passed motions to expel the Plaintiff based on new allegations regarding: • Allegedly misleading members about DBKL's approval for a 99-feet Mazu Statue. • Alleged breach of Clause 12.2 regarding property conversion without proper approval. [7] The 13 original charges against the Plaintiff included allegations of: • Failure to obtain approval for legal fee payments • Improper custody of legal documents • Failure to disclose case developments and legal fees • Abuse of position regarding foreign delegates' visits • Unauthorized chairing of meetings • Improper use of the title "Datuk" • Non-fulfilment of a donation pledge S/N T2rtq/Xbk0ON1cZm15p7sw The Issues [8] The parties submitted their respective legal positions on the following issues for this Court’s determination:

Whether the Plaintiff's OS is premature for failure to exhaust domestic remedies under s40 of the

Whether the General Council's decisions to suspend and subsequently expel the Plaintiff were ultra vires the Constitution;

Whether there was a breach of natural justice in the proceedings against the Plaintiff. Analysis and Decision [9] The parties’ affidavits that adduced the letters, correspondences, the Association’s constitution were taken into consideration by this Court in assessing the Plaintiff’s suit and the Defendants’ objections. Issue 1: Failure to Exhaust Domestic Remedies [10] The threshold issue is whether this court should entertain the OS given s40 SA. This section provides that disputes between members and registered societies "shall be decided in the manner directed by the rules of the registered society; and the decision so given shall be binding and conclusive on all parties without appeal, and shall not be removable to S/N T2rtq/Xbk0ON1cZm15p7sw any court or restrainable by injunction; and application for the enforcement thereof may be made to a Session Court. ", and they may by consent refer the dispute to the Registrar of Societies. [11] The Defendants relied on Rajagopal A/L Nagamuttu v Jawatankuasa Pengurusan Kuil Sri Maha Mariamman, Kelana Jaya & Ors [2019] MLJU 380 where the High Court held that disputes should first be referred to the Registrar of Societies before court action is initiated. Another High Court case was also referred to by the Defendants – Shafie bin Bakri & Ors v Dr Hassan bin Yusoff & Ors [2018] MLJU 1295 where it was ruled that this provision ought to be exhausted before charging to the courts. The other cases decided by the High Court cited by the Defendants were Hendry James Yakim & Anor v Datuk Seri Mohd Najid & Ors [2014] 1 LNS 834, Jaga Jothy a/p C Thiagarajah & Ors v Persatuan Rumah Berhala Sri Nageswari [2021] MLJU 2815, Dato Cheah Swee Huat v Cheah Sin Kwong (didakwa sebagai pemegang jawatan She Tek Tong Cheah Kongsi) & Ors [2022] MLJU 1590. [12] The Plaintiff contended that s40 SA did not apply as the Association is not a "mutual benefit society" as defined under s2 SA. The Association's objectives under Clause 3 of its Constitution - promoting friendly relations, culture, education and managing the Thean Hou Temple - do not align with the definition of a mutual benefit society which focuses on providing financial relief and maintenance to members. The Plaintiff submitted that in any event, even if s40 SA was applicable, it was not mandatory to refer to the Registrar of Societies because of the words “may by consent”. [13] However, this Court noted that the Plaintiff’s written submissions did not mention the last objective under Clause 3 of the Association’s S/N T2rtq/Xbk0ON1cZm15p7sw Constitution which is to promote social and national welfare activities. This Court found that the Association is a mutual benefit society. This Court agreed with the submissions of the Defendant that if at all, the Registrar of Societies could determine the status. [14] As such, this Court found that s40 SA was applicable and that the Plaintiff should have exhausted this avenue prior to seeking recourse to this Court. It would have been different if the Defendants had not consented to such referral to the Registrar of Societies. Or that the Registrar of Societies had refused to deal with the dispute. Nonetheless, this legal route applicable was not exercised. Then perhaps it would have lended merit to the Plaintiff that this Court was the proper forum. In tandem with the decided cases, this Court was also of the view that the road to resolution should have first pitted at the Registrar of Societies as envisaged by SA, the governing law dealing with matters concerning societies and its members such as this case. Issue 2: Ultra Vires the Constitution [15] The Plaintiff's main contention is that the DC had cleared him of all 13 charges, yet the GC had proceeded to suspend him. He argued that the GC’s action was ultra vires as the Constitution does not empower the GC to override the DC's findings. [16] Having examined the Constitution carefully, this Court disagreed with the Plaintiff’s interpretation. Clause 8.3(b) provides: “Upon receipt of an Investigation Order by the Executive Committee, the Disciplinary Committee shall convene a meeting or meetings for S/N T2rtq/Xbk0ON1cZm15p7sw the purpose of conducting an inquiry on the complaint. Within sixty

days from the date of receipt of the Order, the outcome of the inquiry together with a proposal in writing shall be submitted by the Disciplinary Committee to the Executive Committee for a verdict.” [17] This clearly indicates the DC's role is investigative and advisory, not determinative. It was the ExCo who had the power to pass a verdict and in this case, forwarded to the GC its decision and recommendation for disciplinary action against the Plaintiff. The GC is the supreme governing body of the Association. It consisted of 45 members of the Association of whom 42 were elected at the AGM. The Plaintiff, the former President who had also held the post of Deputy President was well aware of the powers of the respective committees in the Association. The DC does not have power greater than the GC. Even the letter from the Association dated 18.12.2023 spelled out the position in an obvious manner: “1. The Disciplinary Committee have upon receipt of the Investigation Order by the Association Executive Committee have convened meetings, conducting inquiries on the complaints against you, made proposals and submitted their report and proposals to the Executive Committee.

The Executive Committee have on 29/11/2023 studied the Disciplinary Committee report and proposals made decision and recommendation to the General Council for disciplinary action against you.

The General Council have studied and accepted the Disciplinary Committee investigation report, proposals and S/N T2rtq/Xbk0ON1cZm15p7sw recommendation of the Executive Committee decided to take disciplinary action against you for your activities against the interest of the Association. You are therefore hereby notified that your Association membership IS SUSPENDED for a period of Five (5) years WITH IMMEDIATE EFFECT from 14/12/2023.” [18] This Court thus found the Plaintiff’s contention incorrect. This is further reinforced with Clause 13.1 of the Constitution that vested the GC with final authority and power to “determine any point on which the Constitution is silent." The General Council therefore had acted within its powers in making the ultimate decision on disciplinary matters. And, as per the Constitution, its decision is final and binding. [19] The Plaintiff's reliance on the DC's findings being binding was misplaced. Unlike the Legal Profession Act 1976 cited by the Plaintiff, the Association's Constitution does not explicitly require the GC to affirm or accept the DC's recommendations. [20] Regarding the expulsion at the EGM, while the motions were not part of the original Court Order requiring the EGM, nothing in the Constitution prevents additional motions from being tabled. The GC acted within its authority to present these motions for members' consideration. It did not amount to any transgression of the said Court Order requiring EGM which was in fact held. S/N T2rtq/Xbk0ON1cZm15p7sw Issue 3: Natural Justice [21] The principles of natural justice - particularly the right to be heard (audi alteram partem) and rule against bias (nemo judex in causa sua) - apply to society proceedings as established in Darshan Singh v Farid Kamal Hussain [2004] CLJ 410. In this case, this Court did not find any of the principles breached. It was highlighted during arguments which this Court accepted that the Plaintiff had full opportunity to defend himself during the 2-day hearing before the DC where he was represented by counsel. [22] The Plaintiff had opted to exercise his right to appeal against the disciplinary decision by the ExCo. The Association had not prevented him from forwarding his appeal. This Court accepted the submissions by the Defendants that the actions taken by the DC, ExCo, and the GC were in accordance with the Constitution. It had heard and considered the Plaintiff’s appeal as required by the Constitution. The GC conducted it on 26.3.2024, the manner and mode chosen by the GC fell within its general powers under Clause 13.1. The decision by the ExCo which is final and binding was communicated to the Plaintiff. Additional Observations [23] There were additional observations by this Court that warranted notation which included:

The Constitution does not mandate disclosure of the DC report to the Plaintiff. So the repeated demands for the DC report, while understandable, have no constitutional basis.

The allegation of conflict of interest regarding Ricky Tan appears to be an afterthought, not raised during the DC proceedings.

The complaint about lack of notice for the EGM motions is undermined by the fact that the charges related to conduct during his presidency, matters he would have been well aware of.

The Defendants demonstrated adherence to the Constitution's framework while exercising their discretionary powers reasonably. [24] The Plaintiff had also challenged his expulsion at the EGM of 17.04.2024. The EGM notice dated 2.4.2024 included two motions for the Plaintiff's expulsion based on allegations that:

He misled members regarding DBKL's approval for the 99-feet Mazu Statue at AGMs in 2017, 2018 and 2021; and

He breached Clause 12.2 of the Constitution by proceeding with property conversion without proper approval. S/N T2rtq/Xbk0ON1cZm15p7sw [25] The Plaintiff contended these were new charges that should have been referred to the DC under Clause 8.3 of the Constitution. While this argument had some merit, this Court found that it did not invalidate the EGM's decision for several reasons:

The Constitution does not expressly require all disciplinary matters to be first heard by the DC;

Clause 7.1 of the Constitution vests the "prime authority and power in governing the management of the Association" in

The General Meeting's authority includes the power to make decisions affecting membership, as evidenced by various provisions in the Constitution;

The charges were sufficiently specific and related to matters within the Plaintiff's knowledge as former President. [26] The Plaintiff argued that his inability to attend the EGM due to his suspension constituted a breach of natural justice. This Court disagreed with the position as his absence was a natural consequence of his valid suspension. The suspension of membership rights necessarily includes the right to attend meetings. This position is supported by established authorities including Darshan Singh (supra), where the Court of Appeal recognized that valid suspension of membership carries with it the suspension of associated rights. S/N T2rtq/Xbk0ON1cZm15p7sw [27] The notice period for the EGM complied with Clause 7.3(c) of the Constitution, which required 14 days' notice. The motions for expulsion were clearly stated in the notice dated 2.4.2024, giving the Plaintiff sufficient time to take legal advice or make written representations if he wished to do so. But, there was absence and/or failure on the Plaintiff’s part to do so. [28] While the Plaintiff argued that he should have received personal notice of the charges, this Court found that the EGM notice was sufficient because it had clearly set out the allegations against him. The matters related to his conduct as President, of which he had personal knowledge. The Constitution does not require any special form of notice for EGM motions. The Plaintiff could have still made written representations despite his suspension. [29] The most substantial question is whether the EGM had the power to expel members. The Plaintiff argued this power lies exclusively with the DC under Clause 8.3. However, this Court ruled that the EGM did have this power for the following reasons:

Clause 7.1 vests "prime authority and power" in General

While Clause 8.3 provides one mechanism for disciplinary action, it does not explicitly make this the exclusive mechanism;

Clause 13.1 empowers the General Council to interpret any point on which the Constitution is silent;

The democratic nature of societies generally recognizes the ultimate authority of their general meetings;

The serious nature of the allegations - involving potential misrepresentation to members and breach of constitutional requirements - made it appropriate for the general membership to decide. [30] Although the procedure adopted by the Association may not have been ideal, this Court found that it did not breach either the Constitution or principles of natural justice. The Plaintiff's suspension was valid, and his consequent inability to attend the EGM was a natural result of that suspension. The charges were clearly communicated through proper notice, and the EGM acted within its constitutional powers in passing the expulsion motions. [31] It was a vital fact that the EGM was never found to be unlawfully conducted and the resolution passed to terminate the Plaintiff’s membership was never found to be invalid. Hence, the Plaintiff cannot run to this Court to seek a declaration to set aside the termination when he did not even take action to first obtain such findings. The Plaintiff had submitted during the arguments that he was not questioning the EGM. [32] As observed in Hari Krishnan A/L Jeyapalan v Annathi @ Ananthi A/P Subramaniam [2024] 859 CLJU, while natural justice requires adequate notice and opportunity to respond, these requirements S/N T2rtq/Xbk0ON1cZm15p7sw must be considered in their context. Here, the Plaintiff had notice of the charges and could have responded in writing. His inability to attend the EGM was due to his own suspended status, not any procedural unfairness by the Association. [33] Furthermore, the charges related to matters of direct concern to the general membership - alleged misrepresentation at AGMs and unauthorized property dealings. These were appropriate matters for the general membership to decide through an EGM rather than through the disciplinary process. [34] This Court had also considered the case laws cited by the Plaintiff and found the facts distinguishable for the application as submitted by the Plaintiff. [35] This Court was of the view that the legal position submitted by the Defendants were correct in this case and the channels for the Plaintiff to ‘righten the alleged wrong’ was sill open to him. The first option was not this Court. Conclusion [36] The Defendants' conduct throughout aligned with Lord Denning's guidance in Lee v Showmen's Guild of Great Britain [1952] 1 All ER 1175 that courts will ensure fair play and adherence to procedural rules, but will not otherwise interfere with a society's internal decisions. At p1181 his Lordship penned: S/N T2rtq/Xbk0ON1cZm15p7sw “In the case of social clubs the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club, and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter anymore than from the decisions of a family conference. They have nothing to do with social rights or social duties. On any expulsion they will see that there is fair play. The will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules, but will not otherwise interfere.” [37] That approach was approved by our Federal Court in Chong Kah Lim & Ors v Yong Su Hian [1979] 2 MLJ 11 and referred to by the Court of Appeal in Darshan Singh (supra). [38] For all the reasons above, it was the ruling of this Court that:

The Plaintiff ought to have first referred this matter to the Registrar of Societies as per s40 SA;

The GC acted within its constitutional powers in suspending the Plaintiff;

The expulsion of the Plaintiff by the EGM was valid;

The Plaintiff suffered no breach of natural justice. S/N T2rtq/Xbk0ON1cZm15p7sw [39] Accordingly, the OS was dismissed with costs of RM10,000 to be paid by the Plaintiff to the Defendants. DATED 28 OCTOBER 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR For the Plaintiff: N. Subramaniam and Lum Chee Seng T/n Lum Chee Seng & Associates For the Defendants: Joshua Kevin, Leng Wie Mun and Reuben Ong Shen Myn T/n Kevin & Co.