PART 7 APPLICATION OF PROPERTY CY-PRÈS
AND ASSISTANCE AND SUPERVISION OF
CHARITIES BY COURT AND COMMISSIONER |
| Occasions for applying property cy-près |
19.—(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy‑près are as follows:| (a) | where the original purposes, in whole or in part —| (i) | have been as far as may be fulfilled; | | (ii) | cannot be carried out; or | | (iii) | cannot be carried out according to the directions given and to the spirit of the gift; |
| | (b) | where the original purposes provide a use for part only of the property available by virtue of the gift; | | (c) | where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; | | (d) | where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the spirit of the gift, or to be practical in administering the gift; or | | (e) | where the original purposes, in whole or in part, have, since they were laid down —| (i) | been adequately provided for by other means; | | (ii) | ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or | | (iii) | ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift. |
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| (2) Subsection (1) does not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy‑près, except insofar as those conditions require a failure of the original purposes. |
| (3) References in subsections (1) and (2) to the original purposes of a gift are to be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable. |
| (4) It is declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy‑près, to secure its effective use for charity by taking steps to enable it to be so applied. |
| (5) This section applies to property given for charitable purposes, even though it was so given before 1 January 1995. [21 |
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| Application cy-près of gifts of donors unknown or disclaiming |
20.—(1) Property given for specific charitable purposes which fail is to be applicable cy-près as if given for charitable purposes generally, where it belongs to a donor who —| (a) | after the prescribed advertisements and inquiries have been published and made, and after the prescribed period beginning with the publication of those advertisements has expired, cannot be identified or cannot be found; or | | (b) | has executed a disclaimer in the prescribed form of the donor’s right to have the property returned. |
| (2) Where the prescribed advertisements and inquiries have been published and made by or on behalf of trustees with respect to any such property, the trustees are not liable to pay to any person in respect of the property if no claim by the person to be interested in the property is received by the trustees before the expiry of the period specified in subsection (1)(a). |
(3) For the purposes of this section, property is conclusively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, insofar as it consists of the proceeds of —| (a) | cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or | | (b) | any lottery, competition, entertainment, sale or similar money‑raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken. |
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(4) The General Division of the High Court may by order direct that property not falling within subsection (3) is, for the purposes of this section, to be treated (without any advertisement or inquiry) as belonging to donors who cannot be identified, where it appears to the General Division of the High Court —| (a) | that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or | | (b) | that it would be unreasonable, having regard to the nature, circumstances and amount of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned. [40/2019] |
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(5) Where property is applied cy-près by virtue of this section, the donor is deemed to have parted with all the donor’s interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (3) or (4) —| (a) | the scheme must specify the total amount of that property; | | (b) | the donor of any part of that amount is entitled, if the donor makes a claim not later than 6 months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the governing board members of the charity after that date in connection with claims relating to the donor’s gift; and | | (c) | the scheme may include directions as to the provision to be made for meeting any such claim. [34/2010] |
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(6) Where —| (a) | any sum is, in accordance with any directions in a scheme, set aside for meeting any such claims; but | | (b) | the aggregate amount of any such claims actually made exceeds the relevant amount, |
| then if the Commissioner so directs, each of the donors in question is entitled only to such proportion of the relevant amount as the amount of the donor’s claim bears to the aggregate amount referred to in paragraph (b); and for this purpose, “relevant amount” means the amount of the sum so set aside after deduction of any expenses properly incurred by the governing board members of the charity in connection with claims relating to the donors’ gifts. |
[34/2010] |
| (7) For the purposes of this section, charitable purposes are deemed to fail where any difficulty in applying property to those purposes makes that property or the part not applicable cy‑près available to be returned to the donors. |
| (8) In this section, except insofar as the context otherwise requires, references to a donor include persons claiming through or under the original donor, and references to property given include the property for the time being representing the property originally given or property derived from it. |
| (9) This section applies to property given for charitable purposes, even though it was so given before 1 January 1995. [22 |
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| Entrusting charity property to Public Trustee and termination of trust |
| 21.—(1) The General Division of the High Court may by order vest any property held by or in trust for a charity in the Public Trustee or authorise or require the persons in whom the property is vested to transfer it to the Public Trustee, or appoint any person to transfer the property to the Public Trustee; and the property may be vested in the Public Trustee with or without powers of management as the General Division of the High Court may direct. [40/2019] | (2) Where any property is held by or in trust for a charity, or is comprised in any testamentary gift to a charity, the property may, with the agreement of the Public Trustee, be transferred to him or her; and the Public Trustee’s receipt for the property comprised in a testamentary gift to a charity is a complete discharge of the personal representative. |
| (3) Where property is vested in the Public Trustee in trust for a charity, the General Division of the High Court may make an order discharging the Public Trustee from the trusteeship as respects all or any of that property. [40/2019] |
| (4) Where the Public Trustee is discharged from his or her trusteeship of any property, or the trusts on which he or she holds any property come to an end, the General Division of the High Court may make such vesting orders and give such directions as may seem to the General Division of the High Court to be necessary or expedient in consequence. [40/2019] |
(5) No person is —| (a) | liable for any loss occasioned by the person’s acting in conformity with an order under this section or by the person’s giving effect to anything done pursuant to that order; or | | (b) | excused from so doing by reason of the order under this section having been in any respect improperly obtained. |
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| (6) No vesting or transfer of any property pursuant to this section operates as a breach of a covenant or condition against alienation or give rise to a forfeiture. [23 |
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| Concurrent jurisdiction with General Division of High Court for certain purposes |
22.—(1) Subject to the provisions of this Act, the Commissioner may, with the consent of the Attorney‑General, by order exercise the same jurisdiction and powers as are exercisable by the General Division of the High Court in charity proceedings for the following purposes:| (a) | establishing a scheme for the administration of a charity; | | (b) | appointing, discharging or removing a governing board member of a charity or trustee for a charity, or removing an officer or employee; | | (c) | vesting or transferring property, or requiring or entitling any person to call for or make any transfer of property or any payment. [34/2010; 40/2019] |
| (2) The Commissioner does not have jurisdiction under this section to try or determine the title to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity, or to try or determine any question as to the existence or extent of any charge or trust. |
| (3) Before exercising any jurisdiction under this section, the Commissioner must give notice of his or her intention to do so to each of the governing board members except those who cannot be found or who have no known address in Singapore; and the notice may be given by post and, if given by post, may be addressed to the governing board member’s last known address in Singapore. [34/2010] |
| (4) The Commissioner must not exercise his or her jurisdiction under this section in any case (not referred to him or her by order of the General Division of the High Court) which, by reason of its contentious character, or of any special question of law or of fact which it may involve, or for other reasons, the Commissioner may consider more fit to be adjudicated on by the General Division of the High Court. [40/2019] |
| (5) An appeal against any order of the Commissioner under this section may at any time, within the 3 months beginning with the day following that on which the order is published, be brought in the General Division of the High Court by the charity or any of the governing board members, or any person interested in the charity, or by any person removed from any office or employment by the order. [24 [34/2010; 40/2019] |
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| Power to act for protection of charities |
23.—(1) Where, at any time after the Commissioner has instituted an inquiry under section 10 with respect to any charity, the Commissioner is satisfied —| (a) | that there is or has been any misconduct or mismanagement in the administration of the charity; and | | (b) | that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity, |
| the Commissioner may, with the consent of the Attorney‑General, do one or more of the following things: |
| (c) | by order remove any trustee, governing board member, officer, agent or employee of the charity who has been responsible for or privy to the misconduct or mismanagement or has by his or her conduct contributed to it or facilitated it; | | (d) | by order establish a scheme for the administration of the charity; | | (e) | despite anything in the governing instruments of the charity, by order restrict the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charity without the Commissioner’s approval. [34/2010] |
(2) Where, at any time after the Commissioner has instituted an inquiry under section 10 with respect to any charity, the Commissioner is satisfied —| (a) | that there is or has been any misconduct or mismanagement in the administration of the charity; or | | (b) | that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity, |
| the Commissioner may, with the consent of the Attorney‑General, do one or more of the following things: |
| (c) | by order suspend any trustee, governing board member, officer, agent or employee of the charity from the exercise of his or her office or employment pending consideration being given to his or her removal (whether under this section or otherwise); | | (d) | by order appoint such number of additional governing board members or key officers as the Commissioner considers necessary for the proper administration of the charity; | | (e) | by order vest any property held by or in trust for the charity in the Public Trustee, or require the persons in whom the property is vested to transfer it to the Public Trustee, or appoint any person to transfer the property to the Public Trustee; | | (f) | order any person who holds any property on behalf of the charity, or of any trustee for it, not to part with the property without the approval of the Commissioner; | | (g) | order any debtor of the charity not to make any payment in or towards the discharge of the debtor’s liability to the charity without the approval of the Commissioner; | | (h) | by order restrict (despite anything in the governing instruments of the charity) the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charity without the approval of the Commissioner; | | (i) | by order appoint (in accordance with section 25) a receiver and manager in respect of the property and affairs of the charity. [34/2010] |
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| (3) The references in subsections (1) and (2) to misconduct or mismanagement (despite anything in the governing instruments of the charity) extend to the employment for remuneration or reward of persons acting in the affairs of the charity, or for other administrative purposes, of sums which are excessive in relation to the property which is or is likely to be applied or applicable for the purposes of the charity. [34/2010] |
(4) The Commissioner may remove a governing board member or key officer of a charity by order made of the Commissioner’s own motion where the governing board member or key officer —| (a) | has been convicted, whether in Singapore or in any other country or territory, and whether before, on or after 1 April 2018, of an offence involving moral turpitude (but not one mentioned in section 28(1)(a)) and the conviction is not spent; | | (b) | acts as a governing board member or key officer of the charity despite being disqualified under section 28(1) or (6); | | (c) | is a corporation in liquidation; | | (d) | lacks capacity (within the meaning of the Mental Capacity Act 2008) to exercise his or her functions as governing board member or key officer; | | (e) | has not acted, and will not declare his or her willingness or unwillingness to act; or | | (f) | is outside Singapore or cannot be found or does not act, and his or her absence or failure to act impedes the proper administration of the charity. [21/2008; 34/2010; 2/2018] |
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(5) Where a person resigns as a trustee, a governing board member, an officer, an agent or an employee of a charity —| (a) | after the Commissioner has instituted an inquiry under section 10 with respect to the charity (whether before, on or after 1 April 2018), but before the Commissioner (with the consent of the Attorney‑General) makes an order under subsection (1)(c) removing the person; or | | (b) | after the Commissioner has given notice (whether before, on or after 1 April 2018) under section 30(3) of intention to remove the person under subsection (4), but before the Commissioner makes the order, |
| the Commissioner may, if the Commissioner is satisfied that the person is a person against whom the Commissioner would have made an order of removal under subsection (1)(c) or (4) if the person had not resigned, make an order declaring the person as such. |
[2/2018] |
| (6) Section 30 applies to an order under subsection (5) as it applies to an order of removal under subsection (1) or (4). [2/2018] |
| (7) Subject to section 47, an order of removal under subsection (1) or (4), and an order under subsection (5), remains in force despite any ground on which the order was made ceasing to exist or have effect (including a conviction becoming spent). [2/2018] |
(8) The Commissioner may, by order made of his or her own motion, appoint a person to be a governing board member or key officer —| (a) | in place of a governing board member or key officer removed by the Commissioner under this section or otherwise; | | (b) | where there are no governing board members, or where by reason of vacancies in their number or the absence or incapacity of any of their number the charity cannot apply for the appointment; | | (c) | where there is a single governing board member or key officer, not being a corporation, and the Commissioner is of the opinion that it is necessary to increase the number for the proper administration of the charity; or | | (d) | where the Commissioner is of the opinion that it is necessary for the proper administration of the charity to have an additional governing board member or key officer, because one of the existing governing board members or key officers who ought nevertheless to remain a governing board member or key officer cannot be found or does not act or is outside Singapore. [34/2010] |
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| (9) The powers of the Commissioner under this section to remove or appoint governing board members or trustees for a charity include the power to make any order with respect to the vesting in or transfer to the governing board members or trustees for a charity of any property as the Commissioner may make on the removal or appointment of a governing board member or trustee for the charity by the Commissioner under section 22. [34/2010] |
| (10) Any order under this section for the removal or appointment of a governing board member or trustee for a charity, or for the vesting or transfer of any property, has the like effect as an order made under section 22. [34/2010] |
| (11) Section 22(4) applies to orders under this section as it applies to orders under section 22. |
| (12) An order of suspension under subsection (2)(c) must be for a fixed period, but the Commissioner may make one or more further extensions of that order, each for a fixed period. [2/2018] |
| (13) The total period of suspension under an order of suspension under subsection (2)(c) and every extension under subsection (12) of such an order must not exceed 24 months. [2/2018] |
| (14) Without affecting section 47, any order of suspension under subsection (2)(c) and any extension under subsection (12) may make provision for any matter arising out of the suspension; and if there is any inconsistency amongst the provisions made by any of the orders, the latest in time prevails. [2/2018] |
(15) For the purposes of subsection (14), provision may be made in particular —| (a) | to enable any person to execute any instrument in the name of the person suspended or to otherwise act for the person suspended; and | | (b) | in the case of a governing board member of a charity, for adjusting any rules governing the proceedings of the governing board members to take account of the reduction in the number capable of acting. [2/2018] |
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(16) Before exercising any jurisdiction under this section (otherwise than by virtue of subsection (2) or (5)), the Commissioner must give notice of his or her intention to do so to —| (a) | each of the governing board members; and | | (b) | in the case of an order —| (i) | for the removal of any trustee for the charity or key officer; | | (ii) | for the appointment of an additional trustee for the charity or a key officer; or | | (iii) | for the transfer of any property, |
| each trustee for the charity or key officer concerned, |
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| except those who cannot be found or who have no known address in Singapore. |
[34/2010; 2/2018] |
(17) Before exercising any jurisdiction under subsection (5), the Commissioner must give notice of the Commissioner’s intention to do so to —| (a) | the person against whom the Commissioner proposes to make the order under that subsection, unless the person cannot be found or has no known address in Singapore; and | | (b) | each of the governing board members of the charity from which the person resigned, if the Commissioner thinks it necessary to do so. [2/2018] |
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| (18) A notice referred to in subsection (16) or (17) may be given by post and, if given by post, may be addressed to the last known address in Singapore of the governing board member or trustee for the charity or key officer or person, as the case may be. [34/2010; 2/2018] |
| (19) The Commissioner must, at such intervals as he or she thinks fit, review any order made by the Commissioner under subsection (2)(c), (e), (f), (g), (h) or (i); and if on any such review it appears to the Commissioner that it would be appropriate to discharge the order in whole or in part, he or she must so discharge it (whether subject to any saving or transitional provisions or not). |
| (20) Any person who contravenes an order under subsection (2)(f), (g) or (h) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both. [2/2018] |
| (21) Nothing in subsection (20) is to be taken to preclude the bringing of proceedings for breach of trust against any governing board member or trustee for a charity in respect of a contravention of an order under subsection (2)(f) or (h) (whether proceedings in respect of the contravention are brought against the governing board member or trustee under subsection (20)). [34/2010] |
| (22) This section does not apply to an exempt charity. [25 |
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| Power to suspend or remove trustees, etc., from membership of charity |
| 24.—(1) This section applies where the Commissioner makes an order under section 23 removing or suspending any trustee, governing board member, officer, agent or employee of a charity from his or her office or employment (as the case may be) and the person in question is a member of the charity. [10/2007; 34/2010] | (2) If the order suspends the person in question from his or her office or employment, the Commissioner may also make an order suspending his or her membership of the charity for the period for which he or she is suspended from his or her office or employment. [10/2007] |
(3) If the order removes the person in question from his or her office or employment, the Commissioner may also make an order —| (a) | terminating his or her membership of the charity; and | | (b) | prohibiting him or her from resuming his or her membership of the charity for not less than 2 years or such time as the Commissioner may specify. [10/2007] |
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| (4) Any person who continues in his or her membership of a charity in contravention of an order under subsection (2) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part of a day during which the offence continues after conviction. [10/2007; 2/2018] |
| (5) This section does not apply to an exempt charity. [25A [10/2007] |
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| Supplementary provisions relating to receiver and manager appointed for charity |
25.—(1) The Commissioner may under section 23(2)(i) appoint to be receiver and manager in respect of the property and affairs of a charity any person (other than an officer or employee of the charity) that the Commissioner thinks fit.| (2) Without limiting section 47(1), any order made by the Commissioner under section 23(2)(i) may make provision with respect to the functions to be discharged by the receiver and manager appointed by the order; and those functions must be discharged by the receiver and manager under the supervision of the Commissioner. |
(3) In connection with the discharge of those functions, any such order may provide —| (a) | for the receiver and manager appointed by the order to have such powers and duties of the governing board members of the charity concerned (whether arising under this Act or otherwise) as are specified in the order; and | | (b) | for any powers or duties exercisable or falling to be performed by the receiver and manager by virtue of paragraph (a) to be exercisable or performed by the receiver and manager to the exclusion of those governing board members. [34/2010] |
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| (4) Where a person has been appointed receiver and manager by any such order, the Commissioner may apply to the General Division of the High Court for directions in relation to any particular matter arising in connection with the discharge of those functions. [40/2019] |
| (5) The General Division of the High Court may, on an application under subsection (4), give such directions or make such orders declaring the rights of any person (whether before the General Division of the High Court or not), as the General Division of the High Court thinks just; and the costs of the application must be paid by the charity concerned. [40/2019] |
(6) The Minister may make regulations with respect to —| (a) | the appointment and removal of receivers and managers appointed in accordance with this section; | | (b) | the remuneration of such receivers and managers out of the income of the charities concerned; and | | (c) | the making of reports to the Commissioner by receivers and managers. [40/2019] |
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| (7) Regulations made under subsection (6) may, in particular, authorise the Commissioner to require a receiver and manager so appointed to give security for the due discharge of the functions of the receiver and manager, to determine the amount of remuneration of the receiver and manager, and to disallow any amount of remuneration in such circumstances as are prescribed by the regulations. [26 |
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| Power to direct application of charity property |
26.—(1) This section applies where the Commissioner is satisfied —| (a) | that a person or persons in possession or control of any property held by or on trust for a charity is or are unwilling to apply it properly for the purposes of the charity; and | | (b) | that it is necessary or desirable to make an order under this section for the purpose of securing a proper application of that property for the purposes of the charity. [10/2007] |
| (2) The Commissioner may by order direct the person or persons concerned to apply the property in the manner specified in the order. [10/2007] |
(3) An order under this section —| (a) | may require action to be taken whether or not it would otherwise be within the powers exercisable by the person or persons concerned in relation to the property; but | | (b) | may not require any action to be taken which is prohibited by any written law or expressly prohibited by the governing instruments of the charity. [10/2007; 34/2010] |
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| (4) Anything done by a person under the authority of an order under this section is deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a). [10/2007] |
| (5) Subsection (4) does not affect any contractual or other rights arising in connection with anything which has been done under the authority of such an order. [10/2007] |
| (6) Any person who contravenes an order under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part of a day during which the offence continues after conviction. [10/2007; 2/2018] [26A |
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| Power to direct application of charity property after charity ceases to exist |
27.—(1) This section applies in respect of any institution that was a charity (whether or not registered under section 7) —| (a) | from the time the institution ceases to be a charity, or ceases to exist or operate, whichever occurs earlier; and | | (b) | where the Commissioner is satisfied —| (i) | that a person or persons in possession or control of any property held by or on trust for the institution is or are unwilling to apply it properly for the purposes of the trust; and | | (ii) | that it is necessary or desirable to make an order under this section for the purpose of securing a proper application of that property for the purposes of the trust. [10/2007] |
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| (2) The Commissioner may by order direct the person or persons concerned to apply the property in the manner specified in the order. [10/2007] |
(3) An order under this section —| (a) | may require action to be taken whether or not it would otherwise be within the powers exercisable by the person or persons concerned in relation to the property; but | | (b) | may not require any action to be taken which is prohibited by any written law or expressly prohibited by the governing instruments of the institution. [10/2007; 34/2010] |
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| (4) Anything done by a person under the authority of an order under this section is deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a). [10/2007] |
| (5) Subsection (4) does not affect any contractual or other rights arising in connection with anything which has been done under the authority of such an order. [10/2007] |
| (6) Any person who contravenes an order under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part of a day during which the offence continues after conviction. [26B [10/2007; 2/2018] |
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| Disqualifications and effects of removal |
28.—(1) Subject to subsections (3) and (4), a person is disqualified from acting in any capacity specified in subsection (2) on the happening of any of the following, whether before, on or after 1 April 2018:| (a) | the person is convicted, whether in Singapore or in any other country or territory, of any offence involving —| (i) | dishonesty (including fraud, corruption, bribery and deception); or | | (ii) | terrorism, terrorism financing or money laundering; |
| | (b) | the person becomes an undischarged bankrupt; | | (c) | the person makes a composition or arrangement with, or grants a trust deed for, the person’s creditors and has not been discharged in respect of it; | | (d) | the person becomes subject to any disqualification under section 149, 149A or 154 of the Companies Act 1967. [2/2018] |
(2) The capacities for the purposes of subsection (1) are the following:| (a) | any member of the governing body or any key officer of —| (i) | any charity; | | (ii) | any person that is a governing board member of any charity; or | | (iii) | any person that is a member of any charity; |
| | (b) | any trustee for any charity. [2/2018] |
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| (3) However, a person who is subject to a disqualification in subsection (1)(b) or (d) may act in a capacity specified in subsection (2) in relation to a charity or person (as the case may be) that is a company, if the person subject to the disqualification has permission under section 148, 149 or 154 of the Companies Act 1967 to act as a director, or to (directly or indirectly) take part in or be concerned in the management, of that company. [2/2018] [Act 25 of 2021 wef 01/04/2022] |
(4) A person ceases to be disqualified under subsection (1) in the following applicable circumstances:| (a) | for disqualification under subsection (1)(a), when the person’s conviction is spent; | | (b) | for disqualification under subsection (1)(b), when the person is discharged from bankruptcy; | | (c) | for disqualification under subsection (1)(c), when the person is discharged from the composition, arrangement or trust deed; | | (d) | for disqualification under subsection (1)(d), when the period of disqualification ends. [2/2018] |
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| (5) To avoid doubt, nothing in this section affects section 7E(2)(d) of the Registration of Criminals Act 1949. [2/2018] |
(6) A person is disqualified from acting in any capacity specified in subsection (7) on the happening of all of the following, whether before, on or after 1 April 2018:| (a) | the person is removed as a governing board member, an officer, an agent or an employee, of a charity or trustee for a charity by an order made by the Commissioner under section 23(1)(c) or by the General Division of the High Court, or an order is made under section 23(5) declaring that the person is one against whom the Commissioner would have made an order of removal under section 23(1)(c); and | | (b) | the removal is or would have been on the ground of any misconduct or mismanagement in the administration of the charity —| (i) | for which the person was responsible; | | (ii) | to which the person was privy; or | | (iii) | which the conduct of the person contributed to or facilitated. [2/2018; 40/2019] |
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(7) The capacities for the purposes of subsection (6) are the following:| (a) | any capacity specified in subsection (2); | | (b) | each of the relevant capacities as follows:| (i) | if the person was removed as an officer of a charity, any officer of that charity; | | (ii) | if the person was removed as an agent of a charity, any agent of that charity; | | (iii) | if the person was removed as an employee of a charity, any employee of that charity. [2/2018] |
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(8) A person who is removed (whether before, on or after 1 April 2018) as a governing board member or a key officer of a charity by an order made under section 23(4), is disqualified from acting —| (a) | as any governing board member of that charity; and | | (b) | as any key officer of that charity. [2/2018] |
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(9) Where an order is made under section 23(5) declaring that a person is one against whom the Commissioner would have made an order of removal under section 23(4) in respect of a charity, the person is disqualified from acting —| (a) | as any governing board member of that charity; and | | (b) | as any key officer of that charity. [27 [2/2018] |
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| Persons acting in capacity from which disqualified |
| 29.—(1) Any person who acts in a capacity that the person is by reason of section 28 disqualified from acting in (called in this section a disqualified capacity) shall be guilty of an offence. [2/2018] | (2) Any thing done by the person acting in a disqualified capacity is not invalid by reason only of the person’s disqualification. [2/2018] |
(3) Where the Commissioner is satisfied that any person —| (a) | has acted in a disqualified capacity; and | | (b) | has received any money by way of remuneration or for expenses, or any benefit in kind, for acting in that disqualified capacity, |
| then, the Commissioner may by order direct the person to repay the whole or any part of the money, or benefit (at the monetary value determined by the Commissioner), received. |
[2/2018] |
(4) If the person to whom the order of the Commissioner under subsection (3) is given, without reasonable excuse, fails to comply with the order within the time specified in the order —| (a) | the person shall be guilty of an offence; and | | (b) | any amount under the order that is not repaid accrues and is recoverable as a debt due from that person to the person who paid the amount, or provided the benefit represented by the amount, to the firstmentioned person. [2/2018] |
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| (5) A person who is guilty of an offence under this section shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both and, in the case of a continuing offence, to a further fine not exceeding $100 for every day or part of a day during which the offence continues after conviction. [28 [2/2018] |
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| Publicity for proceedings under this Part |
30.—(1) The Commissioner must not make any order under this Part to establish a scheme for the administration of a charity unless at least one month previously there has been given public notice of the Commissioner’s proposals, inviting representations to be made to the Commissioner within a time specified in the notice, which must be at least one month from the date of the notice.(2) The Commissioner must not make any order under this Part to appoint, discharge or remove a governing board member or key officer of a charity or trustee for a charity (other than the Public Trustee), unless at least one month previously there has been given the like public notice as is required by subsection (1) for an order establishing a scheme, but this subsection does not apply in the case of —| (a) | an order under section 23(2)(d); or | | (b) | an order discharging or removing a governing board member or key officer or trustee if the Commissioner is of the opinion that it is unnecessary and not in the interest of the charity to give publicity to the proposal to discharge or remove the governing board member or key officer or trustee. [34/2010] |
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| (3) Before the Commissioner makes an order under this Part to remove without his or her consent a governing board member of a charity or trustee for a charity, or an officer, agent or employee of a charity, the Commissioner must, unless that person cannot be found or has no known address in Singapore, give him or her at least one month’s notice of the Commissioner’s proposal, inviting representations to be made to the Commissioner within a time specified in the notice. [34/2010] |
| (4) Where notice is given of any proposal as required by subsection (1), (2) or (3), the Commissioner must take into consideration any representation made about the proposal within the time specified in the notice, and may (without further notice) proceed with the proposal either without modification or with such modification as appears to the Commissioner to be desirable. |
| (5) Where the Commissioner makes an order which is subject to appeal under section 22(5), the order must be published either by giving public notice of it or by giving notice of it to all persons entitled to appeal against it under that subsection, as the Commissioner thinks fit. |
| (6) Where the Commissioner makes an order under this Part to establish a scheme for the administration of a charity, a copy of the order must, for at least one month after the order is published, be available for public inspection at all reasonable times at the office of the Commissioner. |
| (7) Any notice to be given under this section of any proposals or order must give such particulars of the proposals or order, or such directions for obtaining information about them, as the Commissioner thinks sufficient and appropriate, and any public notice is to be given in the manner the Commissioner thinks sufficient and appropriate. |
| (8) Any notice to be given under this section, other than a public notice, may be given by post and, if given by post, may be addressed to the recipient’s last known address in Singapore. [29 |
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| Power to authorise dealings with charity property, etc. |
| 31.—(1) Subject to this section, where it appears to the Commissioner that any action proposed or contemplated in the administration of a charity is expedient in the interests of the charity, the Commissioner may by order sanction that action, whether or not it would otherwise be within the powers exercisable by the governing board members in the administration of the charity; and anything done under the authority of that order is deemed to be properly done in the exercise of those powers. [34/2010] | (2) An order under this section may be made so as to authorise a particular transaction, compromise or the like, or a particular application of property, or so as to give a more general authority, and (without limiting subsection (1)) may authorise a charity to use common premises, or employ a common staff, or otherwise combine for any purpose of administration, with any other charity. |
| (3) An order under this section may give directions as to the manner in which any expenditure is to be borne and as to other matters connected with or arising out of the action thereby authorised; and where anything is done pursuant to an authority given by any such order, any directions given in connection therewith are binding on the governing board members for the time being as if contained in the governing instruments of the charity except that those directions may on the application of the charity be modified or superseded by a further order. [34/2010] |
(4) Without limiting subsection (3), the directions which may be given by an order under this section in particular include directions for —| (a) | meeting any expenditure out of a specified fund; | | (b) | charging any expenditure to capital or to income; | | (c) | requiring expenditure charged to capital to be recouped out of income within a specified period; | | (d) | restricting the costs to be incurred at the expense of the charity; or | | (e) | the investment of moneys arising from any transaction. [30 |
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| Taking of legal proceedings |
| 32.—(1) Charity proceedings may be taken with reference to a charity either by the charity, or by any of the governing board members, or by any person interested in the charity, but not by any other person. [34/2010] | (2) Subject to this section, no charity proceedings relating to a charity (other than an exempt charity) may be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of the Commissioner. |
| (3) The Commissioner must not, without special reasons, authorise the taking of charity proceedings where in his or her opinion the case can be dealt with by him or her under the powers of this Act. |
| (4) This section does not require any order for the taking of proceedings in a pending cause or matter or for the bringing of any appeal. |
| (5) Where subsection (2) requires the taking of charity proceedings to be authorised by an order of the Commissioner, the proceedings may nevertheless be entertained or proceeded with if, after the order had been applied for and refused, permission to take the proceedings was obtained from the General Division of the High Court. [40/2019] [Act 25 of 2021 wef 01/04/2022] |
| (6) Nothing in subsections (1) to (5) applies to the taking of proceedings by the Attorney‑General, with or without a relator. |
| (7) Where it appears to the Commissioner, on an application for an order under this section or otherwise, that it is desirable for legal proceedings to be taken with reference to any charity (other than an exempt charity) or its property or affairs, and for the proceedings to be taken by the Attorney‑General, the Commissioner must so inform the Attorney‑General, and send the Attorney‑General such statements and particulars as the Commissioner thinks necessary to explain the matter. |
| (8) In this section, “charity proceedings” means proceedings in the General Division of the High Court brought under the jurisdiction of the General Division of the High Court with respect to charities, or brought under the jurisdiction of the General Division of the High Court with respect to trusts in relation to the administration of a trust for charitable purposes. [31 [40/2019] |
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| 33.—(1) Where a charity may be wound up by the General Division of the High Court under the Insolvency, Restructuring and Dissolution Act 2018, an application for it to be wound up under that Act by the General Division of the High Court may be made by the Attorney‑General, as well as by any person authorised by that Act. [40/2018; 40/2019] (2) Where a charity is a company or other body corporate, and has power to alter the instruments establishing or regulating it as a body corporate, no exercise of that power which has the effect of the body corporate ceasing to be a charity is valid so as to affect the application of —| (a) | any property acquired under any disposition or agreement previously made otherwise than for full consideration in money or money’s worth; | | (b) | any property representing property referred to in paragraph (a); | | (c) | any property representing income which has accrued before the alteration is made; or | | (d) | the income from any property referred to in paragraphs (a) to (c). [32 |
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| Power to relieve governing board members, etc., from personal liability |
34.—(1) If in any proceedings for negligence, default, breach of duty or breach of trust against a person to whom this section applies, whether appointed by the court or otherwise, it appears to the court before which the proceedings are taken that —| (a) | the person is or may be liable in respect thereof; but | | (b) | the person has acted honestly and reasonably and, having regard to all the circumstances of the case, the person ought fairly to be excused for the negligence, default or breach, |
| the court may relieve the person either wholly or partly from the person’s liability on such terms as the court thinks fit. |
[34/2010] | (2) Where any person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, breach of duty or breach of trust, the person may apply to the General Division of the High Court for relief, and the General Division of the High Court has the same power to relieve the person as it would have had, under subsection (1), if it had been a court before which proceedings against the person for negligence, default, breach of duty or breach of trust had been brought. [34/2010; 40/2019] |
| (3) Without limiting subsection (1), the circumstances of the case referred to in subsection (1) may include the circumstances connected with the appointment of the person. [34/2010] |
| (4) To avoid doubt and without limiting subsection (1), “liability” includes the liability of a person to whom this section applies to account for profits made or received. [34/2010] |
(5) The persons to whom this section applies are —| (a) | governing board members or trustees for charities; and | | (b) | receivers and managers in respect of the property and affairs of a charity (whether appointed under this Act or otherwise). [32A [34/2010] |
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