Overruling the Court of Appeal, Justice Mary Lim said former AG Apandi Ali was wrong to give Nai Ninn Sararaksh and Ho Choon Teik consent to commence proceedings in respect of the 178-year-old property.
Delivering the unanimous decision of the apex court today, Lim said the duo had not fulfilled the conditions set out in Section 9 of the Government Proceedings Act 1956 to be entitled to the consent.
Section 9(1) of the Act provides that two or more persons having an interest in any express or constructive trust for public, religious, social or charitable purposes may upon securing the consent of the AG institute a suit in respect of matters relating to the trust.
“The impugned consent of May 31, 2016 is invalid and is liable to be quashed.
“The High Court had rightly granted the orders sought in a judicial review proceeding,” Lim said in her 33-page judgment released two days ago.
Also on the panel hearing the appeal were Justices Nordin Hassan and Abdul Karim Abdul Jalil.
In 1845, the East India Company (EIC), acting on behalf of Queen Victoria, established a public trust to manage the temple affairs of the Siamese (Thai) and Burmese inhabitants on the island.
A piece of land – known as Lot 104, Seksyen 4, Bandar Georgetown, Daerah Timur Laut – was alienated to both communities.
In November 1994, the trustees of both communities secured from the High Court an order subdividing Lot 104 into Lots 2102 and 2103, resulting in the establishment of a separate and distinct trust for each community.
Since the Burmese trust had no source of revenue, it entered into a joint venture agreement with Airmas Development Sdn Bhd and formed Five Star Heritage as the corporate vehicle to develop part of Lot 2103, which was further divided into Lots 10029 and 10030.
Lot 10029 was registered in the name of Five Star Heritage, while Lot 10030 named the five individuals as proprietors.
In May 2016, Nai and Ho wrote to Apandi and obtained consent to begin legal action against the Penang Burmese Trust.
They named Five Star Heritage and Burmese descendants Toon Toolseram, Maung Aung Thou, Moong Bam, Moung Ban Chowi and Maung Shwe Winn as defendants in the suit.
In response, the six defendants applied for judicial review to challenge the AG’s decision to grant Nai and Ho consent.
In November 2021, then judicial commissioner George Varughese held that Nai and Ho had no legal standing to bring the action.
Varughese held that the duo, who are Malaysians of Thai and Chinese origin respectively, were not of Burmese descent and, therefore, did not have an interest in the trust.
He also issued a declaration that the Penang Burmese Trust was a valid private trust for the benefit of the Burmese community in the state.
Varughese said Apandi, who was the AG between July 2015 and May 2018, had only considered the representations made by Nai and Ho but had failed to take into account the representations of the six, especially as to why the Penang Burmese Trust was a private trust.
As a result, Varughese held that Apandi’s exercise of discretion ran afoul of Section 9 of the Act and was susceptible to judicial review.
Varughese also noted in his judgment that the Penang Burmese Trust had become a private trust under an agreement between the Thai and Burmese trustees.
On June 15 last year, the Court of Appeal reversed the High Court’s ruling, which led to the present appeal.