Mazu case: Tuesday verdict over status of body

Kota Kinabalu, Apr 18, 2009: Judicial Commissioner Yew Jen Kie has fixed April 21 for ruling on whether the Kudat Thean Hou Charitable Foundation chaired by former Chief Minister Tan Sri Chong Kah Kiat is an illegal organisation.

This issue pertained to a bid by Chief Minister Datuk Seri Musa Hj Aman and three others to strike out a suit by Chong who alleged they abused their power over his Mazu project.

In their application, they contend that Chong and the Foundation does not have the legality to challenge their decision in rescinding the approval given by the Kudat Town Board to the Foundation to build a 88-feet Mazu statue because it had not been registered with the Registrar of Societies.

On Friday, Leading Counsel Datuk Mohammad Shafee Abdullah for the applicants, in further submission, insisted the Foundation must be registered, as it was a statutory requirement.

He also pointed to the representation for Chong and the Foundation by solicitors Shelly Yapp to register the Foundation under Trustee Incorporated but which was rejected.

Shafie questioned what qualified Shelley Yap to act as the Foundation's "Representor", whether it was directly or Chong's tenure with the firm.

He contended the respondent only engaged Shelly in 2009 but lumped the 2005 setting up of the Foundation in a desperate attempt to show "nexus of knowledge", a point submitted by Chong's counsel Ansari Abdullah who raised four other points.

"Basically you cannot opt out of a statute requirement. You must be registered as a Society," submitted Mohammad, among others.

However, Counsel Ansari countered that the Foundation is a Private Trust and Chong and the others in it are not members but trustees.

He said there is no statutory requirement that one must register a Trust in either the Trustees Act or the Trustees Incorporation Ordinance, which only required the trustees to be registered only if they wished to do so.

He explained the relationship between Chong and Shelly in that the declaration of trust was prepared and executed in Nov 2005 in the presence of Teo Chee Kang, a partner in the firm.

Ansari cited knowledge by all the defendants. The Kudat Town Board accepted submission of the plans. They processed and approved it. After approving they collected money and issued receipt in the name of the Foundation.

Later, they allowed the Foundation to start work. Millions of Ringgit was spent without their ever raising the fact that it was unregistered. This was not a case of mere silence, he argued.

"In this case it is not mere silence, they acted on my client's Foundation. When they suspended work they never asked, 'Are you a registered body?'

When they withdrew approval they never told Chong that the Foundation was not a legal body. They never raised legality status but proceeded to file an application to strike out the writ.

Addressing the court, Ansari said even if the court were to rule that the Foundation is a Society or not a Private Trust, the respondent would fall back on the "Tungku Abdullah" case where the subject assumed the role of Promoter or Initiator.

Even if the Foundation is not a Private Trust or does not exist legally, then Chong is promoter or initiator of the project. "He does exist. As Plaintiff, there is interest, nexus, connection, he's no stranger to the project. He is suing as a person affected by the withdrawal decision. He is an individual whose interest is being affected."