Koh Lau Keow and others v Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 17 March 2014
• Neutral Citation: [2014] SGCA 18
• Court: Court of Appeal (Singapore)
• Hearing Date: 13 January 2014
• Docket Number: Civil Appeal No 79 of 2013
• Plaintiff Counsel: Suresh Damodara (Damodara Hazra LLP)
• Defendant Counsel: Lim Wei Shin, Leon Michael Ryan and Russell Low (Attorney-General's Chambers)
• Subject Matter: Charities,Charitable Trusts
• Published date: 28 March 2014

Chao Hick Tin JA (delivering the judgment of the court): Introduction

This appeal concerns a trust (“the Trust”) declared in a deed on 12 October 1960 (“the Trust Deed”) by the first appellant, the plaintiff in the action below, over a property at 10 Rangoon Lane (formerly 156E Rangoon Road) (“the Property”). The action below, ie, Originating Summons No 1021 of 2012 (“OS 1021/2012”), was instituted by the appellants for a declaration that the Trust is void and that the first appellant (“Koh”) is the sole beneficial owner of the Property. The application was opposed by the respondent in his capacity as the protector of charities, and it was dismissed by the High Court judge (“the Judge”): see the report of the decision in Koh Lau Keow and others v Attorney-General [2013] 4 SLR 491. The sole issue at the hearing before the High Court and in this appeal is whether the Trust created in the Trust Deed is a valid charitable trust.

Facts

Koh, presently aged 96, was born in China and came to Singapore in 1936. Sometime in 1948, she decided to purchase the Property to serve as a home for herself and three other women (whom she refers to as her “Aunts” although they were unrelated by blood). She paid the entire purchase price of $3,500. However, in the conveyance of the Property to Koh, she added the Aunts, in addition to herself, as registered owners of the Property because she did not want them to become homeless should she pre-decease them.

Initially Koh built on the Property a small wooden structure, with a hall in the front portion and two rooms in the back portion. The hall was used as a Buddhist temple for religious worship while the two rooms were used as living quarters by Koh and her Aunts. Later, in 1957, as the wooden structure had become badly in need of repair, Koh engaged a contractor to erect a concrete single-storey building on the Property. In the agreement with the contractor, the building to be erected was described as a “Chinese nunnery”.¹ The building has since been renovated twice, in 1993 and 2009; the last renovation saw the conversion of part of the kitchen into two additional bedrooms.

Soon after purchasing the Property, Koh was advised by some devotees who prayed at the Property that she could request for an exemption from the payment of rates on the basis that the Property was being used for religious purposes, that is, as a temple. Accordingly, she engaged lawyers who corresponded on her behalf with the authorities on the issue. It appears from the correspondence that the first application for exemption was made in April 1948, and in relation to which the Municipal Assessor asked the following questions:² (a) Whether the [P]roperty was vested under a Deed of Trust and, if so, the names of the Trustees in whom the management of the building is vested? (b) Particulars as to how funds for the upkeep of the Temple are derived? (c) Whether the whole was used for public religious worship and, if not, the number of persons dwelling therein, with their occupations? (d) Was any pecuniary profit derived from the occupation of the [P]roperty, such as selling joss-sticks etc.? Koh’s lawyers did not reply to this query from the Municipal Assessor. In July 1949, Koh wrote to the Municipal Assessor again requesting for exemption from rates. The Municipal Assessor replied on 22 July 1949 repeating the questions which he had posed in the previous letter. On 16 August 1949, Lim Boon Hian (one of Koh’s Aunts) replied as follows (“the 16 August 1949 Letter”):³

…

(a) The [P]roperty was not vested under a Deed of Trust but it was owned by four female vegetarians viz: Koh Low Kiew, Chia Siang Kim, Low Wee Lan; and Lim Boon Hian as joint tenants. (b) Earnings from needle work and sewing and charity from the worshippers, help us to up-keep the temple. (c) The front portion of the premises was used for public religious worship and the back portions utilised by us for dwelling purposes. Our occupation is needle work and sewing. (d) No pecuniary gains are derived from the occupation of the Temple.

…

There is a substantial gap in the evidential record as to the further correspondence between Koh and the authorities on this issue. The next letter on record is dated 27 September 1960 from one Chan See Kan, Secretary of the Assessment Appeals Committee, informing Koh’s lawyers of the following:⁴

…

With reference to your application for exemption from payment of assessment on the above [P]roperty, I have to inform you that the Assessment Appeals Committee, at its meeting held on 17.8.60, agreed that No. 156E, Rangoon Road be exempted from the payment of rates with effect from 1.1.59 for so long as the premises are used for religious purposes.

…

Upon obtaining exemption from rates in respect of the Property, Koh was advised by her lawyers that, in view of the 27 September 1960 letter, 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. Accordingly, she and her Aunts executed the Trust Deed prepared by her lawyers. The relevant portions of the Trust Deed state:

…

WHEREAS [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, [Koh and the Aunts] are desirous of dedicating the same to charity and of settling the same in manner hereinafter appearing.

NOW THIS DEED WITNESS that for effectuating the said desire and in consideration of the premises, [Koh and the Aunts] … 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. [“Purpose A”] (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. [“Purpose B”] (c) As and for a place for practising promoting teaching and studying the doctrines principles and teachings of the Buddhist Religion. [“Purpose C”]

…

(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.

…

[emphasis added]

Two of the Aunts passed away in April 1970 and April 1975 respectively. The third and remaining Aunt retired as a trustee in June 1976 and passed away in April 1990.⁵ The second to sixth appellants were appointed as trustees between 1992 and 2003 at the behest of Koh. The third and fourth appellants were adopted by Koh at birth. The second, fifth and sixth appellants were close to Koh, who treated them as daughters.

Since its establishment, the following temple 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 on the Lunar New Year); daily prayer recitals in the morning and evening; ad hoc worship sessions by relatives, close friends and neighbours; and teaching of Buddhist doctrines to a few old and uneducated vegetarian women (but this was stopped since 1970). According to Koh, the Temple was never open to the public for worship except for the aforementioned four times a year. In other words, the public did not have any access to the Property for prayers except on these four occasions in a year. All along, she 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.

The individuals who have resided on the Property include Koh, her Aunts, her adopted daughters, her granddaughter, and one Ms Koh Chun, the daughter of one of her relatives in China. Koh deposed that no one else has lived on the Property besides these individuals.

At this juncture we would pause to explain that with the enactment of the Property Tax Ordinance 1960 (No 72 of 1960), “rates” payable in respect of property had thereafter become known as “property tax”. In 2005, the Inland Revenue Authority of Singapore (“IRAS”) reviewed the property tax exemption for the Property and informed Koh that property tax on it was payable retrospectively from 1 January 1999.

Due to her advanced age and limited physical mobility, Koh has been contemplating ceasing all temple activities on...