Koh Lau Keow and others v Attorney-General

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 19 August 2013
• Neutral Citation: [2013] SGHC 155
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1021 of 2012
• Published date: 27 August 2013
• Year: 2013
• Hearing Date: 28 June 2013
• Plaintiff Counsel: Leonard Manoj Kumar Hazra (Damodara Hazra LLP) and Tang Hang Wu (instructed)
• Defendant Counsel: Zheng Shao Kai / Fu Qi Jing (Attorney-General's Chambers)
• Subject Matter: TRUSTS
• Citation: [2013] SGHC 155

Tay Yong Kwang J: Introduction

This action concerns a trust declared over 10 Rangoon Lane (previously known as 156E Rangoon Road) (“the Property”). The plaintiffs took out these proceedings to set aside the trust on the ground that it is a non-charitable purpose trust and sought a declaration that the first plaintiff is the sole beneficial owner of the Property. I dismissed the action on the basis that the trust is a valid charitable purpose trust. The plaintiffs have appealed and I now give the reasons for my decision.

Background

The first plaintiff, Koh Lau Keow (“Koh”), was born in China in 1917 and has been a devout vegetarian Buddhist since childhood. She came to Singapore in 1936 to work and to undertake religious activities. She was very close friends with three elderly women whom she addressed as aunts even though they were not related to her by blood or marriage (“the Aunts”).

In 1948, Koh acquired the Property to establish a temple and to provide a home for the Aunts. Koh paid for the Property with an upfront cash payment of $1900 and a loan of $1600. Despite Koh paying for the Property, Koh and the Aunts were named as joint tenants of the Property. At that time, Koh was travelling frequently and she did not want the Aunts to be left without a home should anything untoward happen to her.

Subsequent to the purchase, Koh erected a simple single-storey wooden building which was divided into a worship hall in front and two rooms at the back. The worship hall was used as a temple (named the Chee Teck Kwang Im Temple, hereinafter “the Temple”). The two rooms were used as living quarters for Koh and the Aunts. In 1957, a concrete building was erected (with Koh paying for the entire costs of the building). The concrete building was similarly divided into two sections, with the front used as the Temple and the back (comprising a kitchen, two bedrooms and a living room) used as a private residence.

Soon after the purchase of the Property, Koh was advised that she could ask for property tax exemption on the basis that the Property was used as a temple for religious worship. Koh applied unsuccessfully for exemption twice, in April 1948 and July 1949. In a letter dated 22 July 1949 to Koh, the Municipal Assessor stated that:

…

2. In April 1948, a similar request was received on your behalf from Messrs. Richard Chuan Hoe Lim & Co. In reply the Municipal Assessor required to know :- (a) Whether the property was vested under a Deed of Trust, and if so, the names of the Trustees in whom the management of the building is vested?

…

3. No reply was received to this letter, and therefore the matter has not been considered for exemption. 4. Upon having your reply, I will look into the question and put your request before the Municipal Commissioners, but, I think, it is improbable that exemption will be granted, unless the property is actually vested in Trustees.

[emphasis added]

A third application in May 1960 proved to be successful. After the successful application, Koh was told by her then lawyers, M/s Wee Swee Teow (“Wee Swee Teow”) that it would be helpful, for evidential purposes, to sign a document declaring that the Property was being and would continue to be used for religious purposes.

It was in that context that Wee Swee Teow prepared a declaration of trust which was executed on 12 October 1960 (“the Declaration of Trust”) by Koh and the Aunts. The pertinent extracts of the Declaration of Trust state:

…

WHEREAS the said [Koh and the Aunts] are seised for an estate in fee simple as joint tenants in possession free from incumbrances of the land and premises described in the Schedule hereto and have for some time past permitted the said land and premises and the buildings erected thereon to be used occupied and enjoyed as a temple or place of public worship for persons professing the Buddhist faith and as a home or sanctuary for Chinese women vegetarians of the Buddhist faith and as a place for practising promoting teaching and studying the doctrines principles and teachings of the Buddhist Religion.

AND WHEREAS with the object of perpetuating such use occupation and enjoyment of the said land and premises and the buildings now and from time to time erected thereon for the purposes aforesaid, the said [Koh and the Aunts] are desirous of dedicating the same to charity and of settling the same in manner hereinafter appearing.

…

… [Koh and the aunts] hereby declare that they and the trustees for the time being of this deed (hereinafter called “the trustees”) shall henceforth stand seised of ALL the land and premises described in the Schedule hereto upon the trusts and with and subject to the powers provisions agreements and declarations hereinafter declared and contained concerning the same, that is to say:-

(1) The trustees shall permit the said land and premises and the buildings now and from time to time erected thereon to be used in perpetuity under the name of “Chee Teck Kwang Imm Tng”(hereinafter referred to as “the said Temple”) as and for all or any of the following purposes, that is to say:- (a) As and for a temple or place of worship for persons of the Chinese race professing the Buddhist faith. (b) As and for a home or sanctuary for such Chinese women vegetarians of the Buddhist faith as may from time to time be chosen by the trustees of this deed. (c) As and for a place for practising promoting teaching and studying the doctrines principles and teachings of the Buddhist Religion.

…

(4) The Chinese women vegetarians of the Buddhist faith who may reside in the said Temple shall be such persons as the trustees may from time to time in their absolute and uncontrolled discretion choose and allow with liberty to the trustees from time to time and at all times at their absolute and uncontrolled discretion to expel without assigning any reason therefor any such person or persons.

…

(6) The following provisions as to the appointment of new trustees and the removal of trustees by way of extension and variation of the statutory provisions shall apply to this deed:- (a) The number of trustees of this deed shall not at any time be less than four. (b) The power of appointing new trustees or trustee of this deed shall be vested in [Koh and the Aunts] or the survivors or survivor of them and after the death of the last survivor of them in the trustees or trustee for the time being of this deed (c) The persons who may be appointed to act and may act as trustees of this deed shall be persons of the female sex and of the Chinese race professing the Buddhist faith. (d) [Koh and the Aunts] or the survivors or survivor of them may at any time or times by deed remove any trustees or trustee of the trusts hereby created from their or her offices or office of trustees or trustee of these trusts.

…

Since its establishment, the following temple-related activities have been conducted on the Property: Mass worship sessions and celebrations four times a year (on the birthdays of the Goddess of Mercy in the second, sixth and ninth lunar month and during the Lunar New Year); Daily prayer recitals in the morning and evening; Ad hoc worship sessions by relatives, close friends and neighbours; Teaching of Buddhist doctrines to a few old and uneducated vegetarian women (but this was discontinued in 1970). The Temple was never open to the public for worship except for the aforementioned four times a year. All along, Koh only allowed a close group of relatives, friends and neighbours (initially numbering about 20 but currently numbering about 70 to 80) to freely visit or use the temple.

Two of the Aunts passed away in April 1970 and April 1975. The third, and remaining Aunt, retired as a trustee in June 1976.

The second to sixth plaintiffs were appointed as trustees between 1992 and 2003 at the behest of Koh. The third and fourth plaintiffs were adopted by Koh at birth. The second, fifth and sixth plaintiffs were close to Koh who treated them as akin to daughters. Only persons close to or related to Koh have resided on the Property, viz., the aunts, Koh’s adopted daughters, a daughter of one of Koh’s adopted daughters and a daughter of one of Koh’s relatives.

In 2005, the Inland Revenue Authority of Singapore reviewed the property tax exemption for the Property and held that property tax was payable retrospectively from 1999.

Koh, a 96-year old lady, averred that she had been contemplating discontinuing all temple activities for some years. Due to her limited physical mobility, she was not able to cope with the physical demands of maintaining the Temple and performing the usual temple activities. Koh’s daughters also had no desire to take over the management of the Temple. Koh therefore wanted to terminate the Declaration of Trust and make provisions for the testamentary disposition of the Property.

Issues raised

Koh initially claimed in her affidavit affirmed on 19 October 2012 (“the First Affidavit”) that she did not appreciate that the Declaration of Trust would have the effect of giving up ownership of the Property absolutely and forever and that she could no longer deal with or sell the Property as she wished. Neither Koh nor the Aunts had read the Declaration of Trust before signing as they did not read or understand English. She also claimed that Wee Swee Teow did not explain to her or the Aunts that this would be the effect of the Declaration of Trust. Had she been so informed, Koh (and the Aunts) would not have signed the Declaration of Trust. Further, Koh was under the mistaken belief that the purpose and effect of the Declaration of Trust were only to serve as evidence that the Property was to be used for religious purposes (so as to be eligible for property tax exemption).

After Wee Swee Teow was notified about Koh’s...