Charitable Trusts Ordinance, 1994

In this Ordinance, a reference to the Yang di-Pertua Negeri shall be construed as a reference to the Yang di-Pertua Negeri acting in accordance with the advice of the Majlis Mesyuarat Kerajaan

Negeri or of a member thereof acting under the general authority of the Majlis.

Charitable trust

for any religious, educational, literary, scientific or other charitable purposes; and

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for the benefit of any institution, community or class of persons in any particular area in Sarawak, he shall declare that such trust shall be a charitable trust to be administered and managed by a Board appointed by the Minister under section 4, subject to such conditions and directions generally as he shall think fit to insert in the declaration, and such declaration shall be published in the Gazette.

The declaration made under subsection (1) shall—

fix a date on which it shall come into effect;

provide the proposed name of the charitable trust;

include a statement and short description of all the properties which are to be held now or hereafter by the Board for the benefit of the charitable trust;

specify the names and description of the person or body of persons who are contributors or donors (if any) of the property;

specify the beneficiaries or intended beneficiaries thereof; and

specify the charitable purposes of the trust.

From the date fixed in the declaration made under subsection (1)—

all movable and immovable property specified in the declaration shall be vested in the Board for the furtherance and support of the purposes and intent of such charitable trust;

the person or persons in whose name or names such property is held shall thereupon transfer the same into the name of the Board, and all covenants and conditions relating to any such immovable property enforceable by or against the said person or persons before the declaration made under subsection

shall be enforceable to the same extent and by the same means by or against the Board after the date fixed in the declaration;

a copy of the declaration shall be served on the

Director of Lands and Surveys who shall cause the Register kept under the Land Code [Cap. 81 (1958 Ed.)] to be rectified in accordance with such declaration; and

the charitable trust declared and constituted under this section shall—

be a body corporate by the name described in the declaration;

have perpetual succession and power to sue and be sued in its corporate name;

have a common seal bearing the name of the charitable trust; and

provide an address (hereinafter called “the registered address”) where all notices and documents for the charitable trust may be served and, generally, where the affairs of the charitable trust are to be conducted.

Board of Trustees

a Chairman;

a Deputy Chairman;

a Secretary;

a Treasurer; and

not less than three and not more than seven other trustees, who shall be appointed by the Minister:

Provided that the Minister may order that such charitable trust shall be administered and managed by a Board already appointed under this section to administer and manage some other charitable trust if the trustees of such Board agree and adequately represent the interest of the beneficiaries.

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The trustees appointed pursuant to subsection (1) shall hold office for a term of not more than three years, but their term may be renewed or extended by the Minister.

A trustee may at any time resign his office by letter addressed to the Minister.

The appointment of any person as trustee may be revoked by the Minister if—

he has been adjudged a bankrupt;

he has breached any of the provisions of this Ordinance or regulations specified in the Schedule or the Trustee Act 1949

[Act 208];

he has been convicted of any criminal offence or any offence under the Companies Act 1965 [Act 125] and suffered a fine exceeding two thousand ringgit or imprisonment exceeding a term of one year;

he has been convicted on a charge in respect of an offence under any written law relating to corruption;

he has been absent from the State for a continuous period of more than twelve (12) months; or

the Minister is of the opinion that that person has failed to discharge his duties as a trustee on account of his insanity, ill health or for any other good reasons.

Where any vacancy in any Board shall have arisen by reason of—

death;

the removal, pursuant to subsection (4); or

resignation, of any trustee, the Minister may appoint any other person as trustee to fill such vacancy.

Procedure

The Yang di-Pertua Negeri may by regulations made under section 18 amend the Schedule.

List of property and statements of account to be kept and exhibited

a list of all property subject to the charitable trust with full particulars of any property received, acquired, disposed of, leased, pledged or mortgaged during the preceding year;

statements of account of the charitable trust, duly signed by the Chairman and Treasurer of the Board for the financial year preceding the date of submission of the said form to the Minister; and

particulars on any change of the registered address of the charitable trust.

Such list of property and statements of account shall be exhibited in a conspicuous place at the registered address of the charitable trust.

The Minister may by notice in writing sent to the Board at the registered address require the Board to furnish him with any information, documents or other particulars relating to the charitable trust or its affairs.

Any person who fails to comply with the provisions of this section shall be guilty of an offence: Penalty, a fine of five thousand ringgit and imprisonment for two years.

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Powers and duties of the Board

receive, acquire, accept, purchase, hold and manage any property, movable or immovable, subject to that charitable trust;

repair, alter, renovate, improve or rebuild any premises on land belonging to the charitable trust;

invest any moneys in such authorized investments as the Board may determine;

exchange any authorized investment with another;

convey, assign, surrender and yield up, sell, pledge, mortgage, charge, demise, reassign, transfer or otherwise dispose of any movable or immovable property now or hereafter belonging to, or held for the benefit of, the charitable trust managed and administered by the Board or any interest therein;

pay or allow any debt, claim or indebtedness of the charitable trust on any evidence of such debt, claim or indebtedness as the Board deems sufficient;

compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim, action or proceeding whatsoever relating to the charitable trust;

authorize any change in the registered address of the charitable trust;

make application to the High Court to change, amend, vary or alter the purpose for which the charitable trust is established, where the Board decides that such change, amendment, variation or alteration is beneficial to the contributor, beneficiaries or the charitable trust as a whole;

appoint or engage such servants, agents, professional advisors or consultants to assist the Board in the discharge of its duties as trustees; and

do or carry out or have such specific functions, activities or duties as the Yang di-Pertua Negeri may, by Order published in the Gazette, permit or allow.

All such powers and duties shall be exercised by the Board collectively and any decision on the exercise of such powers or duties shall be made at a regularly convened meeting of the Board and agreed upon by a majority of the trustees present at such meeting.

Nothing in this section shall deem to have authorized any trustee to do or carry out or exercise any power which is contrary to the purpose of the charitable trust or for a purpose which is not a charitable purpose.

Liability of trustees

No trustee of a charitable trust shall be liable for breach of trust nor for any loss or damage by reason only of his continuing to hold an investment which has ceased to be an authorized investment.

Power of Minister to institute inquiries

When the Minister directs such inquiry, he shall appoint a person to conduct it and make a report to him.

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For the purpose of such inquiry, the person appointed by the Minister under subsection (2) to conduct the inquiry may by order direct any trustee or person having possession or custody thereof—

to furnish accounts and statements in writing with respect to any matter in question at the inquiry, being a matter on which the trustee or person has or can reasonably obtain information, or to return answers in writing to any questions or enquiries addressed to him on any such matter, and to verify such accounts, statements or answers by statutory declaration; and

to attend at a specified time and place and give evidence or produce documents in his custody or under his control which relate to any matter in question at the inquiry.

Without prejudice to the provisions of subsection (3), evidence at any inquiry may be taken on oath, and the person conducting the inquiry may for that purpose administer oaths.

Any trustee or person who fails to comply with any requirement specified in the order made under subsection (3) or who wilfully alters, defaces, suppresses, conceals or destroys any document which he is required to produce under this section, shall be guilty of an offence: Penalty, a fine of five thousand ringgit and imprisonment for two years.

Result of inquiry

Where the Minister decides to take any action against any trustee, person or any Board in consequence of the inquiry conducted under section 9, he may publish the report of the person conducting the inquiry, or such other statement of the results thereof as he thinks fit, in any manner as the Minister deems fit or appropriate to enable the trustee, person or Board against whom action is taken to conduct their defence.

Power to act for protection of trust property

that there has been in the administration of a charitable trust any misconduct or mismanagement; and

that it is necessary or desirable to act for the purpose of protecting the property of the charitable trust or securing a proper application for the purposes of the charitable trust of that property or of property coming to the charitable trust, then for that purpose the Minister may do all or any of the following things:

he may by order remove any trustee, officer, agent or employee of the charitable trust who has been responsible for or privy to the misconduct or mismanagement or has by his conduct contributed to it or facilitated it;

he may make an order with respect to the vesting in or transfer to the Amanah Raya Berhad of property held by or in trust for the charitable trust;

he may order any bank or other person who holds money or securities on behalf of the charitable trust or of any trustee for it not to part with the money or securities without his approval;

he may, notwithstanding the conditions or directions contained in the declaration made under section 3, by order restrict the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charitable trust without his approval.

[Am. Act 532.]

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The references in subsection (1) to misconduct or mismanagement shall extent to the employment for the remuneration or reward of persons acting in the affairs of the charitable trust, or for other administrative purposes, of sums which are excessive in relation to the property which is or is likely to be applied or applicable for the purposes of the charitable trust.

Before exercising any jurisdiction under this section, the

Minister shall give notice of his intention to do so to each of the trustees of the charitable trust except those who cannot be found or who have no known address in Sarawak; and the notice may be given by post and, if given by post, may be addressed to the trustee’s last known address in Sarawak.

If any person contravenes an order under subsection (1) (b)

, he shall be guilty of an offence: Penalty, a fine of five thousand ringgit and imprisonment for two years.

Additions to trust property

A copy of such originating petition shall be served on the

State Attorney-General, and exhibited at the registered address of the charitable trust.

Notice of the presentation of such a petition shall be published by the Board in at least one issue of a local newspaper circulating at the place where the charitable trust has its registered office, at least ten clear days before the hearing of the petition. Such notice shall state that any contributor or beneficiary of the charitable trust may attend the hearing of the petition either in person or by advocate to raise any objection to the application by the Board to vary, change or amend the purposes of the charitable trust.

Any Order made by the High Court to vary, change or amend the purposes of a charitable trust shall be served on the

Minister and published by the Board in one (1) issue of the Gazette within ninety (90) days from the date of the making thereof.

Any Order which is not served or published in accordance with subsection (4) shall be deemed to have lapsed after the expiry of ninety (90) days from the making thereof unless the Board shall have obtained within the said period an Order from the High Court to extend the service or publication of such Order.

No person shall be entitled to be heard at the hearing of any petition presented to the High Court under this section except the

State Attorney-General or any person duly authorized in that behalf by writing under his hand, a trustee, contributor or beneficiary of the charitable trust on whose behalf the petition is presented.

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Winding up

the purposes in respect of which that trust was declared and constituted have been fulfilled or ceased to be charitable in character;

all the property subject to the trust have been utilized or expended for the purposes thereof, or have been lost, destroyed or depreciated to a degree which rendered the fulfilment or achievement of the purposes of the trust impossible; or

for any other reasons the charitable trust should be dissolved or wound up, the Board shall, after securing the approval of the Minister, apply to the High Court, by originating petition to wind up that charitable trust.

A copy of such petition shall be served, exhibited and published in the manner set out in section 14(2) and (3).

The High Court if it grants the Order to wind up the charitable trust may also order or direct that—

the property or any interest therein subject to the charitable trust be vested in the Amanah Raya Berhad;

the manner in which the assets of the charitable trust may be accounted for;

the discharge of certain duties or the carrying out of certain acts or functions by the Board before the Order of winding up of the charitable trust shall take effect; and

such other order or direction that the High Court deems fit or necessary or expedient to make.

[Am. Act 532.]

Rules of High Court to apply to any petition under this Ordinance

The rules of the High Court regulating appeals from the

High Court shall apply to any petition presented under this Ordinance.

Who may prosecute

All Charitable Trust Boards, notifications and orders issued or made under the repealed Ordinance shall, if still subsisting or in force at the commencement of this Ordinance, continue in force, and shall have effect as if made or issued under this Ordinance, until or unless wound up, dissolved, varied or amended under and by virtue of this Ordinance.

All existing Charitable Trust Boards constituted or established under the repealed Ordinance shall, upon the coming into force of this Ordinance, be subject to the provisions of this Ordinance and to the regulations contained in the Schedule.

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