Lam Joon Shu and Others v Attorney General

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 28 September 1993
• Neutral Citation: [1993] SGCA 74
• Citation: [1993] SGCA 74
• Defendant Counsel: Laura Lau
• Published date: 19 September 2003
• Date: 28 September 1993
• Docket Number: Civil Appeal No 137 of 1992
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Phang Sin Kat and Vincent Yeo (Phang & Co)

Cur Adv Vult

The Char Yong Huay Kuan (`the association`) was first established in 1858. Its original address was 16, Pekin Street. It had been formed by the Chinese Taipoo community which originated from the ninth or Char Yong district of the Teochew prefecture of the Kwangtung province of China. The association was registered under the Societies Ordinance in 1909 when registration became necessary.

The Khee Fatt School (`the school`) was set up by the association in 1906 at a rented house in Loke Yew Road. In 1911 it, too, moved to 16, Pekin Street. Three additional storeys were built for the purposes of the school.

On 27 November 1917, 52 Hill Street was purchased in the names of two persons Ho Teck Chua and Lam Wei Fong. On 14 January 1918 these two persons by an indenture of that date declared a trust of the property (`the 1918 indenture`).

In 1937 the adjoining piece of property, 53 Hill Street, was purchased.

On 8 July 1941 the two original trustees retired and four new trustees were appointed. They were Lim Soo Ban, Lam Joo Ann, Chong Moong Seng and Lam Joon Shu. Lam Joon Shu is one of the appellants and is also the son of one of the two original trustees, Lam Wei Fong.

Around 1946, the two properties at Hill Street were acquired by the government. $70,000 was received as compensation.

On 31 July 1947 the property at 30 Cairnhill Road was purchased. The conveyance (`the 1947 conveyance`) was signed by the four trustees. It stated that the property was held in trust for the use and benefit of the school. These premises housed both the school and the association.

At a general meeting of the association and the school held on 22 May 1949, a resolution was passed to vary the terms of the 1947 conveyance. On 10 June 1949 an indenture was signed by the same four trustees to implement the resolution (`the 1949 deed`). The 1949 deed stated that one-third of the property was held in trust for the association, and the remaining two-thirds for the school.

At an extraordinary general meeting of the association, which was also an extraordinary general meeting of the school, held on 29 October 1972, it was resolved that the trustees should hold the entirety of the beneficial interest of the property in trust for the association only. In consequence, on 4 May 1973, the trustees, Lam Joon Shu and Chong Moong Seng (who had been parties to the 1949 deed) together with two new trustees, Chia Yoo Ming and Lam Thian, executed a deed (`the 1973 deed`) purporting to release the property from the trusts set up by the 1947 conveyance and the 1949 deed and declaring that all interests should thereafter be held in trust for the association.

In 1984 the school was closed down.

In 1988 the association entered into an agreement with DBS Realty to develop the land. This agreement necessitated an order clarifying the association`s beneficial ownership of the property. In consequence, this proceeding was commenced by the appellants, who are the trustees of both the association and the school, to ascertain to what extent the property, 30 Cairnhill Road, was affected by a charitable trust. The reliefs sought were as follows:

(1) A declaration that having regard to the source of the purchase money paid for the land and premises described in the schedule hereto (30 Cairnhill Road) and to the relevant position between the said Char Yong Association and its subsidiary, the Khee Fatt School, the said land and premises are now held and vested in the plaintiffs as trustees for the said Char Yong Association subject to the trusts and with the powers declared and contained in the said deed of declaration of trust dated 4 May 1973 (registered in Vol 1949 No 156) and made between the said Lam Joon Shu and Chong Moong Seng of the one part and Chia Yoo Ming and Lam Thian of the other part freed and discharged from the trusts declared by and contained in the said indenture of conveyance dated 31 July 1947 (registered in Vol 1016 No 182) and the said deed of trust dated 10 June 1949 (registered in Vol 1046 No 105).

(2) An order that the plaintiffs as such trustees as aforesaid be at liberty to carry into effect the terms and conditions of the agreement contained in the letter of DBS Realty Pte Ltd dated 14 March 1988 and addressed to the said Char Yong Association.

On 29 July 1988 while this proceeding was still pending, the court made an order, by consent, authorizing the appellants to execute a conveyance of the property at 30 Cairnhill Road to DBS Realty Pte Ltd freed and discharged from the trusts declared by and contained in the 1947 conveyance, the 1949 deed and the 1973 deed.

Thus, by the time the originating summons came on for hearing before Chao Hick Tin J, only the request for a declaration that the whole of the property at 30 Cairnhill Road was held in trust for the association remained. Chao Hick Tin J held that the trustees held one-third of the property in trust for the association and two-thirds in trust for educational or other purposes beneficial to the Chinese Taipoo community or any other community in Singapore as the appellants in their discretion, governed absolutely by the association, thought fit.

Before us, the appellants sought to show that the whole of the beneficial interest in the property was held in trust solely for the association. The appellants advanced two lines of argument. The first was that no charitable trust had in fact been set up by any of the deeds. The second was that even if such a trust had arisen, the trust was of a limited duration and hence was extinguished on the closure of the school in 1984.

The question whether a charitable trust has been created turns upon the interpretation of the 1918 indenture, the 1947 conveyance, and the 1949 deed. The appellants sought to persuade the court that none of the three deeds succeeded in creating a properly constituted charitable trust. It was conceded by the appellants that if any of the three deeds had set up a charitable trust, the 1973 deed of release had no legal effect.

The material portion of the 1918 indenture reads as follows:

Upon trust to use the same for all or any of the purposes following that is to say:

(1) As a school to be called the Khee Fatt Hok Tong for the education of Chinese Taipoo children and adults, such education to be given in the Chinese language and in such other languages as the trustees shall deem advisable.

(2) As a residence for teachers or pupils.

(3) As a classroom, meeting room, or lecture room for any educational, charitable or other purposes beneficial to the Chinese Taipoo community or such other community as the trustees shall think fit in Singapore, provided, however, that the said premises shall not nor shall any part thereof be used for any purposes whatsoever which may be inimical to the welfare or contrary to the laws of the settlement of Singapore.

Counsel for the appellants submitted that the indenture offended the principle that a charitable trust must be exclusively charitable. Clause 3 was too wide as `other purposes` beneficial to the community falls outside the definition of charity. As the trust instrument provided that the property could be used for `all or any of the purposes` specified, the whole of the fund could be applied towards a non-charitable object. In contrast, counsel for the Attorney General submitted that the words `other purposes` could be read conjunctively with the word `charitable` so that the trust fell within the fourth head of charity as defined by Lord Macnaghten in the House of Lords in Commissioners of Income Tax v John Frederick Pemsel at p 583, namely, a trust for other purposes beneficial to the community.

In Attorney General v National Provincial and Union Bank of England, the House of Lords held that although a gift for `patriotic purposes` might be for a purpose beneficial to the community, it was not necessarily charitable. Viscount Cave stated at p 265:

... Lord Macnaghten did not mean that all trusts for purposes beneficial to the community are charitable, but that there were certain beneficial trusts which fell within that category; and accordingly to argue that because a trust is for a purpose beneficial to the community it is therefore a charitable trust is to turn round his sentence and give it a different meaning. So here it is not enough to say that the trust in question is for public purposes beneficial to the community or for the public welfare; you must show it to be a charitable trust.

The above passage was approved by Lord Simonds in the House of Lords in Williams` Trustees v Inland Revenue Commissioners , at p 455.

The case of Chichester Diocesan Fund and Board of Finance (Inc) v Simpson , concerned a will `for such charitable institution or institutions or other charitable or benevolent object or objects in England`. The House of Lords held that the clause could not be read conjunctively owing to the word `or`; since not all benevolent objects were charitable, the trust failed. Of relevance is the manner in which they analyzed the word `or`, which is that used in the instrument at hand. It was the view of Lord Simonds that the primary meaning of `or` was disjunctive. Its secondary exegetical or explanatory meaning was rejected as its conjunctive meaning was a drastic one that had to be justified by a clear context. At p 369 he stated:

Since the test of validity depends on the area of choice not being extended beyond the bounds of legal charity, a meaning must be given to the words `or benevolent` which retains them within these bounds. This result, it has been contended, may be reached by giving to the word `or` not its primary disjunctive meaning but a secondary meaning which may, perhaps, be called exegetical or explanatory. Undoubtedly `or` is capable of this meaning. So used, it is equivalent to `alias` or `otherwise called`. The dictionary examples of this use will generally be found to be

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