Koh Lau Keow and others v Attorney-General

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

[1] 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.

[2] 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.

[3] 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”. 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.

[4] 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:

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”):

[5] 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:

[6] 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:

[7] 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. 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.

[8] Since its establishment, the following temple activities have been conducted on the Property:

(a) 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);

(b) daily prayer recitals in the morning and evening;

(c) ad hoc worship sessions by relatives, close friends and neighbours; and

(d) 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.

[9] 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.

[10] 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.

[11] Due to her advanced age and limited physical mobility, Koh has been contemplating ceasing all temple activities on the Property. Her adopted daughters are either unwilling or unable to continue maintaining the temple. Wishing to terminate the Trust and make provisions for the Property in a will, Koh (together with the other trustees) filed OS 1021/2012 and the decision of the Judge on that summons is the subject of the present appeal.

[12] The appellants initially sought to impeach the Trust on two grounds. First, Koh claimed that she had no intention to give up beneficial ownership of the Property absolutely when she executed the Trust Deed. Because she and her aunts did not understand English, they did not read the Trust Deed before signing it; neither did her lawyers explain to them that this would be the effect of the Trust. But at the hearing before the Judge, the appellants decided to abandon this ground. Hence, the second and only ground relied on by the appellants at the hearing below was that the Trust is not a valid charitable trust because the use of the Property “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” (ie, Purpose B) is not a valid charitable purpose. Accordingly, the Trust is void for violating the rule against perpetuities, and there is a resulting trust of the Property in favour of its original owners, of whom Koh is the only survivor.

[13] On the other hand, the respondent argued that Purpose B was charitable because it advanced religion. Significantly, he agreed in the proceedings below that Purpose B was not for the relief of poverty.

[14] The Judge held that the Trust was a valid charitable trust and dismissed the application. With respect to Purpose B, he found that the phrase “home and sanctuary” connotes “a religious institution where the defined class of persons (of that religion) is looked after and finds refuge or sanctuary” (at [31]). In his judgment, the use of the Property for this purpose directly advances religion, as the persons residing in the Property would have benefited from “passive advancement and personal spiritual contemplation” (at [36]). Furthermore, despite the respondent’s concession, the Judge found that Purpose B also had the effect of relieving poverty, given that those who choose to reside in the Property (with the approval of the trustees) are likely to be compelled by special circumstances such as orphanhood, poverty or dysfunctional family situations (at [47]).

[15] It is common ground that Purpose A and Purpose C advances the Buddhist religion and are therefore charitable. But that is not sufficient to render the trust as a whole charitable unless Purpose B is also a charitable purpose. Thus the proper construction of Purpose B is the bone of contention. The appellants submit that Purpose B is not charitable in nature. They aver that the Judge had erred in reading words into Purpose B that were not there – that is, that the Buddhist Chinese female vegetarians who choose to reside in the Property are likely to be compelled by special circumstances such as orphanhood, poverty or dysfunctional family situations. Purpose B, as drafted, is not restricted to such individuals and should not have been found to relieve poverty. Furthermore, even if the Judge’s interpretation of Purpose B were correct, the personal spiritual contemplation of the residents of the Property does not and could not advance religion or confer a public benefit.

[16] The respondent contends that the Judge was correct in interpreting “home or sanctuary” exegetically to mean a place of refuge for persons who need care or have no home of their own. Such a purpose advances religion because activities relating to social welfare undertaken by religious bodies have been held to advance religion. The element of public benefit is also present because the category of “Chinese women vegetarians of the Buddhist faith” is capable of capturing a sufficiently broad segment of the public.

[17] As for the relief of poverty, the respondent now adopts the Judge’s view that Purpose B does relieve poverty as well. He contends that the intention to relieve poverty may be inferred from the very nature of the gift itself, and it is not necessary for Purpose B to expressly stipulate that the Buddhist Chinese female vegetarians who reside in the Property must be poor.

[18] The following propositions are undisputed by the parties:

(a) The Trust must be a charitable trust to be valid. This is because (i) the Trust is stated to be “in perpetuity” and would be void for offending the rule against perpetuities (which does not apply to charitable trusts); and (ii) the Trust is a purpose trust with no definite beneficiaries and is void unless charitable.

(b) Under common law, if the funds of a charitable trust may be used for some non-charitable purpose, it will not be a valid charitable trust: see Hubert Picarda, The Law and Practice Relating to Charities (Bloomsbury Professional, 4th Ed, 2010) (“Picarda”) at pp 329–330. For it to be a charitable trust, its objects must be wholly charitable: Peter Luxton, The Law of Charities (Oxford University Press, 2001) at paras 6.01–6.03. The common law position has since been modified by s 64(1) of the Trustees Act (Cap 337, 2005 Rev Ed), which provides that no trust shall be invalidated by reason that its purposes include some non-charitable and invalid purpose as well as some charitable purpose. However, this provision is not relevant here because it does not apply to trusts declared before 14th July 1967.

(c) For a purpose to be classified as charitable, it must fall within one of the four heads of charity enunciated by Lord Macnaghten in The Commissioners for Special Purposes of the Income Tax v John Frederick Pemsel [1891] 1 AC 531 (“Pemsel”) at 583: (i) trusts for the relief of poverty; (ii) trusts for the advancement of education; (iii) trusts for the advancement of religion; and (iv) trusts for other purposes beneficial to the community.

(d) Leaving Purpose B aside, the other purposes of the Trust (see [6] above) are charitable in nature because they advance religion.

[19] Thus, the only issue before us is whether Purpose B, on its true construction, is charitable because it falls within one of the Pemsel categories. Only two of Pemsel’s categories are relevant here: trust for the relief of poverty and trust for the advancement of religion.

[20] For ease of reference, we set out again the terms of Purpose B:

[21] It is trite that the principle of benignant construction applies to charitable gifts – in other words, where a bequest is capable of two constructions, one of which would make it void, and the other would make it effectual, the latter should be adopted: Tudor on Charities (Sweet & Maxwell, 9th Ed, 2003) (“Tudor”) at para 4-002. On the other hand, the court must not strain the will to gain money for charity: Picarda at p 354.

[22] As mentioned at [14] above, the Judge’s interpretation of Purpose B hinged on the meaning he ascribed to the phrase “home or sanctuary”. First, he considered the dictionary definitions of “home” and “sanctuary” separately, as follows (at [25]–[26]):

[23] He found that the most apt definition for “home” was Definition 6 (“[a]n institution looking after people etc who need care or have no home of their own”), and the most apt definition for “sanctuary” was “a place of refuge and safety”. He then held at [31] that because there was a sufficient overlap in the meaning between “home” and sanctuary”, the phrase “home or sanctuary” should be interpreted exegetically and not conjunctively as true alternatives. In other words, instead of applying Definition 2 of “home” as a place of residence and construing it as an alternative use to which the Property might be put (thereby rendering Purpose B not exclusively charitable), the Judge read “home or sanctuary” as a phrase whereby “sanctuary” is a synonym that explains the true meaning of the word “home”, which is not Definition 2 but Definition 6. Thus, Purpose B does not allow the trustees to use the Property as a place of residence for any Buddhist Chinese female vegetarian but only those who are homeless or otherwise in need of care.

[24] With respect, we are unable to agree with the Judge’s interpretation of Purpose B as it is inconsistent with the express terms of the Trust Deed as well as the circumstances prevailing at the time the Trust Deed was executed. First, it is contradicted by cl 4, which confers on the trustees the “absolute and uncontrolled discretion” to select the persons who may reside in the Property. Equally significant is the fact that the Trust Deed nowhere states that only destitute or needy persons would be allowed to reside in the Property. Indeed this omission is completely in line with the intention as expressed in cl 4. Second, the Judge’s interpretation is inconsistent with the circumstances surrounding the execution of the Trust Deed. The uncontroverted evidence indicates that Koh had never meant to restrict the class of persons who could reside on the Property to needy Buddhist Chinese female vegetarians. Before the Trust was declared, Koh stayed on the Property together with her Aunts, and this did not change even after the Trust was declared. Beside Koh and her Aunts, the only people who had ever stayed on the Property were her relatives, and there is no evidence that these individuals were homeless or in need of care. In short, the Property was at all times used as a private residence rather than as an institution or place of refuge for needy individuals. Given this factual matrix, we do not think it was justified for the Judge to infer and conclude that the Buddhist Chinese female vegetarians who choose to reside in the Property (with the approval of the trustees) are likely to be compelled by unfortunate circumstances such as poverty or family dysfunction to live there.

[25] We note that the respondent has contended that the intentions of the settlor should be inferred from the Trust Deed as a whole, and that the actual use of the Property as a private residence by Koh and the trustees should be regarded as a breach of trust instead of causing the trust to fail. But this is plainly a circular argument, as whether or not there has been a breach of trust depends on how this Court should construe Purpose B. We further reject the proposition that extrinsic evidence should be ignored when interpreting a trust deed. While purely subjective and uncorroborated evidence by a settlor as to his intentions at the time the trust deed was drafted is inadmissible (Tudor at para 4-004), objective evidence of the settlor’s intent is highly relevant in construing a trust deed, especially in cases where its language is ambiguous. As stated in Picarda (at p 358):

Likewise, Tudor states (at para 4-008):

Given that the word “home” in Purpose B is capable of multiple meanings, including Definition 2 (a fixed place of residence) and Definition 6 (an institution looking after people who need care or have no home of their own), it is important to consider the contemporaneous evidence to ascertain Koh’s intent when the Trust Deed was drafted.

[26] As we have noted, Koh’s use of the Property both before and after the Trust was executed demonstrates that she had intended to use it as a private residence and not as a home for the needy. This is corroborated by the 16 August 1949 Letter, which stated that the back portion of the Property was used for “dwelling purposes” by the owners (see [4] above). As this letter was written in support of a request for property tax exemption, one would expect that if Koh and her Aunts had indeed meant to use the Property as a home for the needy, they would have put this fact front and centre. Instead, their letter made it clear that half of the Property was being used as a temple and the other half as a private residence. There is also no evidence that this intention had changed by the time the Trust Deed was executed – on the contrary, this intention persisted as Koh has been living in the Property with her relatives from 1960 till today. Thus, if the respondent’s contentions were accepted, it would mean that Koh had set up the Trust with the intention of breaching it from the very outset – a rather strange proposition or outcome indeed.

[27] In endorsing the Judge’s interpretation of “home”, the respondent also cites the case of In re Isabel Joanna James [1932] 2 Ch 25 (“Re James”), in which Farwell J held that a trust to provide a “Home of Rest for the sisters of the Home of the Community of the Epiphany at Truro, the Clergy of the Diocese of Truro, and such persons as the Mother Superior for the time being of the said Home of the Community of the Epiphany at Truro shall from time to time nominate and appoint” was charitable. He stated (at 30–33):

In our view, however, Re James is distinguishable from our case. In the first place, the use of initial capital letters in “Home of Rest” indicates that the phrase was meant as a specialised term and did not simply refer to a private residence. Second, Farwell J was influenced by the fact that the named beneficiaries such as the Sisters and the clergy were either without means themselves or carrying on charitable work, and it would therefore be charitable to provide them with a home. No such assumption can be made of “Chinese women vegetarians of the Buddhist faith” – these women need not necessarily be poor or destitute (see for example the case of In re Sanders’ Will Trusts [1954] 1 Ch 265 where a trust to provide dwellings for the “working classes” was held not to be a trust to relieve poverty since “working classes” did not necessarily mean to relieve the poor). Third, there was no evidence of contrary intent on the part of the testator in Re James, whereas in our case there is evidence that the donor of the Property – Koh – had regarded the Property as a private residence and had administered the Trust as such from the very beginning. Fourth, the wording of the clause in Re James allowed Farwell J to hold that the Mother Superior’s seemingly broad discretion to nominate persons to reside in the Home of Rest was in fact restricted; this is not possible in our case as cl 4 of the Trust Deed expressly gives the trustees the absolute unfettered discretion to decide whom they wish to permit to reside at the Property.

[28] What, then, is the effect of the phrase “or sanctuary”? Reading Purpose B in context, the word “sanctuary” was probably used for its religious connotations. It is clear from the Trust Deed as a whole and the surrounding circumstances that Koh had meant to use the Property as a place to conduct Buddhist worship; indeed, as mentioned at [3] above, the Property was described as a “Chinese nunnery” in Koh’s 1957 renovation agreement. Consequently, the phrase “home or sanctuary” is more likely to mean a residence for religious individuals who would practise their faith in the course of their stay.

[29] We therefore find that Purpose B does not require the trustees to allow only homeless or needy people to stay on the Property, and cannot be said to be charitable on the basis that it relieves poverty.

[30] The next question is: does Purpose B advance religion because the individuals living on the Property would likely benefit from passive advancement and personal spiritual contemplation?

[31] In holding that it does, the Judge at [33] relied on a report by the Charity Commission for England and Wales, The Advancement of Religion for the Public Benefit (December 2008, as amended December 2011) (“English Charity Commission Report”), which stated that religion could be advanced in two ways: (i) seeking new followers or adherents, and (ii) encouraging and facilitating religious practice by existing followers or adherents (at p 24). One example of the second way is “‘passive advancement’, meaning leaving religious buildings open for people to enter and benefit from personal spiritual contemplation and the provision of property for retreat” (at pp 24–25).

[32] But it is trite law that for a trust that purports to advance religion to be considered charitable, there must be a sufficient element of public benefit (Picarda at pp 111–113). In In re White [1893] 2 Ch 41 (“Re White”), Jenkin LJ said (at 51): “A society for the promotion of private prayer and devotion by its own members, and which has no wider scope, no public element, no purposes of general utility, would be a ‘religious’ society, but not a ‘charitable’ one.” As the English Charity Commission Report itself notes (at p 21):

[33] There is a long line of authority stating that gifts in favour of individuals conducting private religious worship do not satisfy the public benefit requirement. We have already referred to Re White. It suffices to cite four more such cases here.

[34] In Cocks v Manners (1871) LR 12 Eq 574 (“Cocks v Manners”), the testatrix bequeathed her property to, inter alia, two institutions. The first was a Dominican convent consisting of Roman Catholic females living together by mutual agreement in a state of celibacy, under a common superior, for the purpose of sanctifying their own souls by prayer and pious contemplation. The second was the Sisters of Charity of St Paul, an institution composed of Roman Catholic women living together by mutual consent, whose primary object was personal sanctification, and who, as a means thereto, employed themselves in the exercise of works of piety and charity in teaching the poor and nursing the sick. Sir John Vickens VC held that the Sisters of Charity was a charitable institution because of their social work, but not the Dominican convent (at 584–585):

[35] Cocks v Manners was cited with approval by the House of Lords in Gilmour v Coats and others [1949] 1 AC 426. The latter case concerned a trust in favour of a priory consisting of cloistered nuns who devoted their lives to prayer, contemplation, penance and self-sanctification within their convent and engaged in no exterior works. The court held that the purposes of the priory were not charitable because the element of public benefit was absent. In particular, Lord Simonds rejected the argument that intercessory prayer by the nuns or edification by example could constitute benefit to the public (at 446–447):

[36] Next is the case of In re Warre’s Will Trusts [1953] 1 WLR 725 (“Re Warre’s”), where the testatrix gave the residue of her estate to be held on trust for, inter alia, the provision and upkeep of “a retreat house”. Harman J held that such a purpose was not charitable (at 728–729):

The respondent points out that Re Warre’s has been criticised by Tudor and Picarda as being wrongly decided. The authors of those textbooks argue that there is public benefit in a diocesan retreat house because it is open to any member of the Church of England, and individual retreatants return to the outside world after their short stay to mingle with their fellow citizens. As argued by Picarda (at p 128):

But this argument, even if accepted, would not apply to the present case where the clear intent of Purpose B was to create a long term residence for individuals selected by the trustees, and not a temporary religious retreat that any Buddhist Chinese female vegetarian can resort to. And while we accept that some mingling between the residents and the public might occur when the Property is open to the public four times a year for the public to participate in the religious activities, such sporadic interaction and participation is simply insufficient to change the essentially private character of Purpose B. In any event, we would underscore the fact that the terms of the Trust, in particular Purpose B, do not require the trustees to open the Property and allow the public to reside therein temporarily for the purposes of a retreat. It was because of this aspect of public participation in retreats in Re Warre’s that academic writers viewed that case as being wrongly decided.

[37] Last, but not least, there is the local case of Re Chionh Ke Hu, Deceased [1964] MLJ 270, where the executors of a will were directed to distribute some shares to “such persons professing or practising the Buddhist religion” as the executors in their absolute discretion thought fit. The High Court found that the trust did not advance the Buddhist faith as there was no element of public benefit, and held that it was not a charitable trust.

[38] Therefore, even if Purpose B can be said to advance religion in the sense that the women selected to live on the Property would benefit from “passive advancement”, we find that it does not benefit the public.

[39] Before leaving this issue, we would also like to address briefly the appellants’ argument that Purpose B does not satisfy the public benefit requirement because the category of “Chinese women vegetarians of the Buddhist faith” is too small. In this regard, the appellants rely on Inland Revenue Commissioners v Baddeley and others [1955] 1 AC 572, where Viscount Simonds apparently said in obiter that a charitable trust might fail the public benefit test if it restricted access to something of general utility only to a selected body of public. But it is clear on a reading of Viscount Simonds’ remarks that he was referring to the fourth head of charity, viz, other purposes beneficial to the community. This is plain from the following extracts (at 590–592):

Thus, the fact that Purpose B is restricted to Buddhist Chinese female vegetarians does not ipso facto strip it of public benefit. As we have found, the real reason why the Trust fails the public benefit requirement is that Purpose B only benefits the handful of Buddhist Chinese vegetarian women, who need not be poor, chosen in the absolute discretion of the trustees to live on the Property. Those women were, in fact, simply Koh’s close friends and relatives.

[40] The Judge held in the alternative that even if Purpose B, read alone, does not strictly constitute the advancement of religion, it is merely ancillary to the overriding charitable intention of the Trust to advance religion and therefore would not render the Trust non-charitable. In defence of the Judge’s holding, the respondent referred us to certain authorities.

[41] In Presbyterian Church (New South Wales) Property Trust v Ryde Municipal Council [1978] 2 NSWLR 387 (“Presbyterian Church”), the New South Wales Court of Appeal had to consider whether a trust of land in favour of the Presbyterian Church of Australia in New South Wales was charitable. It was found that the land had to be used for the purposes of the Presbyterian Church, which was primarily the advancement of religion but also included other purposes which were non-charitable in nature. The land was in fact used to build a home for the aged. Nonetheless, the court held that the trust was charitable because it was for the advancement of religion. Glass JA explained (at 393):

Mahoney JA similarly held as follows (at 408):

[42] In Neville Estates Ltd v Madden and others [1962] 1 Ch 832 (“Neville Estates”), the issue was whether a trust of land to a synagogue was charitable. The trust deed included a clause authorising the trustees of the synagogue to establish, inter alia, halls for religious and social purposes, pursuant to which the synagogue had erected a communal hall near the synagogue building in which social functions were held. Cross J held that this did not render the trust non-charitable because the social activities were merely ancillary to the religious activities (at 851–852):

[43] We agree that a trust in favour of a religious entity like a church or a synagogue would generally be charitable despite the fact that the entity also engages in ancillary activities which are not in and of themselves charitable. But we do not think that this principle applies here. Unlike the trusts in Presbyterian Church and Neville Estates, the Trust in the present case is not a trust in favour of an established religious entity whose primary purpose was the advancement of religion. Instead, it is a trust allowing the trustees to use the Property for all or any of three listed purposes, including Purpose B. The trustees are hence free to use the Property only for Purpose B, viz, as a residence for Buddhist Chinese female vegetarians selected in their sole discretion. This is the vital aspect of the Trust Deed which makes all the difference.

[44] The Judge was alive to this difficulty. He sought to overcome it at [37]–[38] by relying on the preamble to the Trust Deed, which states that the settlors were “desirous of dedicating [the Property] to charity”, and cl 1, which states that the Property shall be used for the listed purposes under the name “Chee Teck Kwang Imm Tng” (ie, Chee Teck Guan Yin Temple) (see [6] above). Such language, he held, allowed him to construe Purpose B as being ancillary to the “overriding charitable intention” of the Trust to advance religion. But it is trite law that an unequivocal statement of a general charitable intention on the part of the settlor is insufficient to render a trust charitable if, on its true construction, its purposes are in fact not exclusively charitable: In re Sanders’ Will Trusts [1954] 1 Ch 265 at 273. And the mere fact that the Property is to be named “Chee Teck Kwang Imm Tng” cannot override the express words of cl 1, which state that the trustees may use the Property for “all or any” of the listed purposes, thereby giving them the discretion not to use it as a temple at all despite its name. It thus cannot be said that the overriding object of the Trust is to advance religion, with Purpose B being merely ancillary to that purpose.

[45] Moreover, Picarda states (at 333–334) that if a non-charitable activity or benefit is an independent object of the trust (ie, it is an end in itself and not merely the means to or consequence of some other charitable end), then the trust is not exclusively charitable. The leading case cited by Picarda for this proposition is Oxford Group v Inland Revenue Commissioners [1949] 2 All ER 537 (“Oxford Group”). In that case, the appellant company sought exemption from income tax on the ground that it was a body of persons established for charitable purposes only. The appellant’s memorandum of association set out its objects as follows:

Tucker LJ noted that it was common ground between parties that the “main objects” of the appellant were expressed in cll 3(A) and 3(B), and held that although cl 3(A) was clearly charitable, cl 3(B) was not exclusively so (at 539–540). But more pertinent for present purposes was Cohen LJ’s reasoning. He held that although cl 3(C) was not a main object, paras (9) and (10) thereof conferred wide powers on the trustees to engage in non-charitable activities, and thus could not be construed as being merely ancillary to the main objects expressed in cll 3(A) and (B) (at 544–546):

[46] In our view, Cohen LJ’s reasoning in Oxford Group applies to the present case. Even if it could be said that the main object of the Trust is the settlors’ overriding charitable intention to advance religion, the language of Purpose B confers wide powers on the trustees to decide who could reside on the Property without any qualification that the individuals selected must be destitute or must contribute in some way to the running of the temple or otherwise do anything to advance religion. Purpose B therefore must be construed as an independent object of the Trust, and, because it is not a charitable purpose, it renders the Trust void.

[47] As mentioned at [10] above, IRAS had reviewed the property tax exemption for the Property in 2005 and determined that property tax was payable retrospectively from 1 January 1999. But under s 6(6)(c) of the Property Tax Act (Cap 254, 2005 Rev Ed) (“PTA”), a building is entitled to be exempted from property tax if it is used exclusively for charitable purposes. As there seemed to be an inconsistency in the position of the State in levying tax on the Property on the one hand and maintaining before us that the Trust is entirely charitable on the other, we invited the respondent to file further written submissions on this point.

[48] Having made inquiries with IRAS, the respondent conveyed the following information to us:

(a) IRAS did not have the Trust Deed in its file records. It made the decision to levy tax on the Property based on (i) a form signed by Koh stating that the Property was only used as a Buddhist temple by friends and relatives and was not open to the public, and (ii) a site inspection.

(b) Property tax was only payable with effect from 1999 because of s 21(7) of the PTA as at October 2005, which stated that tax shall not be payable in respect of a property for more than six years prior to the property’s inclusion for the first time in a Valuation List for any year.

(c) If it is proved to the satisfaction of the Comptroller that any tax has been paid in excess of the amount with which any property is properly chargeable, the owner of the property shall be entitled to have the amount so paid in excess refunded, provided that the claim for refund is made within five years of such excess payment: ss 6(13) and 6(14) of the PTA. By way of example, if a valid refund claim is made by Koh in January 2014, IRAS may refund property tax from January 2009 onwards.

[49] We record these facts here purely for the sake of completeness, as we do not think that our decision – which is based on a construction of the Trust Deed and the application of trust law – is affected in any way by this additional information.

(a) the Trust is void; and

(b) Koh is the sole beneficial owner of the Property.