(v) Bahasa Tamil pemahaman 036 was scheduled on 10.9.2014 from 10.30 am to 11.20 1m.” DECISION OF THE SESSIONS COURT JUDGE [5] The Sessions Court judge (trial judge) found that the prosecution had failed to establish a prima facie case in respect of all the charges Page 5 of 15 against the respondent. The following were inter alia the basis of the trial judge’s findings: i. The prosecution failed to prove the documents specified in the charges (Exhibits P16 – P20) are official secret; ii. The classification of the 2014 UPSR examination papers as official secret by PW12 is null and void and of no effect as PW12’s appointment is not in accordance with s 2B of the OSA 1972; iii. The appointment certificate of PW12 (ID29) by the Minister of Education is not authenticated and therefore inadmissible; iv. That PW12 was not a reliable and credible witness; v. That the non-calling of the Minister who issued ID29 is fatal to the prosecution’s case and therefore adverse presumption under s 114(g) of the Evidence Act is invoked; vi. That the prosecution failed to prove that the respondent had physical possession of Exhibits P16 – P20 question papers; vii. That the respondent did not have the prerequisite knowledge (mens rea) nor was he in a position to acquire any knowledge that the offending images in P8 were linked to the 2014 UPSR examination papers; and Page 6 of 15 viii. That there is no evidence to show that the respondent had ‘obtained’ the Exhibit P16 – P20 question papers as per the offending images in P8 and had ‘retained’ them in contravention of the OSA 1972. [6] On appeal, the High Court concurred with the findings of the trial judge, hence the prosecutions appeal to this Court. SUBMISSION OF COUNSEL [7] Learned DPP submitted on two main issues. The first related to the question of whether PW12 is a person who is empowered to classify documents as official secret. The second issue relates to the elements of the offence under s 8(1) of the OSA 1972. [8] On the first issue, learned DPP argued that PW12 is a public officer designated as the director of the Malaysian Examination Board (MEB). As such, PW12 is a person charged with responsibility of examinations in Malaysia within the meaning of s 16A of the OSA 1972. PW12 is directly empowered to regularise all affairs pertaining to examination and examination papers nationwide. Therefore, as mandated by s 16A, even without appointment as a ‘classifying officer’, PW12 can in her very capacity as the director of the MEB certify documents as official secret. [9] Insofar as the certificate of appointment (exhibit ID29) appointing PW12 by the then Education Minister is concerned, learned DPP argued that ID29 is a public document by virtue of s 74 read together with s 78(1)(a)(ii) & (iii) of the Evidence Act 1950 renders ID29 a public document whereby the need to call the maker is dispensed with (PP v Page 7 of 15 Hoo Chee Keong [1997] 4 MLJ 451; Syarikat Jengka Sdn Bhd v Abdul Rashid Bin Harun [1981] 1 MLJ 201 (FC)). [10] On the second issue, learned DPP argued that there are four elements of the offence under s 8(1) of the OSA 1972. First, that the documents specified in the charges are official secret. Second, the respondent has in his possession the offending documents. Third, the offending documents were obtained by the respondent in contravention of the OSA 1972. And, fourth the respondent retained the offending documents when he had no right to retain them. [11] The documents forming the subject matter of the charges are in the form of whatsapp images in Prem Kumar’s handphone P8. The evidence of SP3 and SP4 together with the data analysis (Exhibit P21) made by SKMM confirm that the offending images found in P8 was sent to ‘MHS Ipoh Whatsapp Group’ from the respondent’s handphone P2. SP3 who conducted an analysis found that the Whatsapp conversations contained 67 images comprising of pages of the documents particularised in the five charges. The images were identified and marked as the following exhibits: P16 – 15 images of Kertas Matematik 015/1 P17 – 10 images of Kertas Matematik 035/2 P18 – 22 images of Kertas Bahasa Tamil Pemahaman 036 P19 – 4 images of Kertas Bahasa Tamil Penulisan 037 P20 – 16 images of Kertas Sains 018 [12] Learned DPP argued that even though none of the offending images were found in the handphone of the respondent, the evidence clearly shows that all 67 images came from one source i.e. the respondent’s Page 8 of 15 handphone. The evidence of SP9 further confirmed that handphone nos. 010-2250064 and 012-5794650 were registered under the respondent’s and Prem Kumar’s names respectively. As such, it was argued that there is a strong nexus implicating the respondent (Lee Wang Fatt v PP [2014] 1 LNS 1270). [13] Learned DPP also argued that it can be inferred that the respondent had prerequisite knowledge and thus mens rea possession of the offending images before sending it to Prem Kumar because (i) the images were obtained and retained by the respondent and are identical to the actual UPSR 2014 examination papers, (ii) the images were sent over a period of two days, (iii) the images were sent on 9.9.2014 and 10.9.2014 which was just prior to the UPSR examination dates, and (iv) the conduct of the respondent deleting the images in his handphone. As such, the respondent has the duty to explain his conduct (s 8 of the Evidence Act 1950; Parlan Dadeh v PP [2009] 1 CLJ 717; Khairuddin Hassan v PP [2010] 7 CLJ 129). Further, the respondent cannot avail himself as an innocent recipient (Dzulkifli Abdul Hamid v PP [1980] 1 LNS 91; Frederick Tam Im Kian v PP [1986] 1 LNS 104). Accordingly, it was argued that the element of ‘obtaining’ and retaining are closely linked tot fact that the respondent has had possession of the images of the examination papers. As such, the trial judge erred in holding that the prosecution has failed to prove that the respondent had knowledge of the existence of the images or had possession of the same. The offence was committed by the respondent at the material time when he had in his possession the images he had obtained in contravention of the OSA 1972 and retained it in his handphone and subsequently sending the images via whatsapp group knowingly that it was the UPSR examination papers. SP3 the forensic analyst from SKMM explained that the fact that none of Page 9 of 15 the images were found in the respondent’s handphone could be due to the images being deleted and thereafter overridden so that there is nothing left to extract in the handphone. As such, the fact that nothing was found in the respondent’s handphone does not negate the fact that the single source of the images came from the respondent’s handphone. [14] The main points taken by learned counsel for the respondent are as follows. First, the certificate of appointment ID29 is inadmissible because it was not signed by the Minister. As such, the adverse inference under s 114(g) should be invoked for the failure to call the Minster or the special officer of the Minister. Further, as ID29 was not gazetted, the court cannot take judicial notice of ID29. [15] Second, the documents classified by PW12 as official secret according to the register of official secret (Exhibit P31) were only drafts of the UPSR examination papers and not the final UPSR examination papers. PW12 did not give any explanation as to why there were additional signatures affixed on the register. [16] Third, there is a gap in the prosecution case because Prem Kumar was an important witness and he was not called to testify (Abdullah Zawawi v PP [1985] 2 MLJ 16 (SC)). Further, there is no evidence to show that the respondent had possession of the images [17] Lastly, learned counsel argued that s 16A is inconsistent with the interpretation of official secret in s 2 of the OSA 1972 and that as such s 16A is obnoxious, draconian and oppressive. Therefore, he argued s 16A, is void to the extent of the inconsistency (Mohammad Ezam Mohd Nor v PP [2004] 2 CLJ 595). Page 10 of 15 DECISION [18] Upon a perusal of the appeal record and after hearing of submission of counsel, we are in agreement with the submission of learned DPP. We of the considered view that the only real issue before the Court relates to the question of whether the final 2014 UPSR examination papers pursuant to the five charges are official secret. The point taken by counsel is that only the drafts of the UPSR examination papers were classified by PW12. In fact, this point was taken by the trial judge in the following words at para. 43 of the trial judge’s written judgment which is as follows: “43. It is needless to say that the date when Exhibits P16 to 20 were classified is very pertinent to the charge. Exhibits P16 to 20 are certainly not the first version (sic) that were sent to the printers for printing as admitted by PW12. Each amended copy would necessarily give birth to a fresh document and would require a fresh classification under the OSA in order to be protected as official secret. In this case the prosecution has failed to establish on a prima facie evidence that the final amended question papers in the form of Exhibits P16 to 20 were classified as official secret before the dates specified in the charge against the accused.” (Emphasis added) [19] The words ‘official secret’ and ‘document’ are defined under s 2 of the OSA 1972 as follows: ‘official secret’ means any document specified in the Schedule and any information and material relating thereto and includes any other official document, information and material as may be classified as ‘Top Secret’, ‘Secret’. ‘Confidential’ or ‘Restricted’, as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State or such public officer appointed under s 2B; Page 11 of 15 ‘document’ includes, in addition to a document in writing and part of a document –