Sentence of 5 years for a technical offence is too harsh
The accused Subbarau a teacher was first charged under the Examination Syndicate Act which was later withdrawn and was subsequently preferred with 5 charges for an offence under Section 8(1)(c)(iii) of the Official Secrets Act 1972 on 15.12.2014 at the Seremban Sessions Court for allegedly keeping in his possession the images of 2014 UPSR examination papers.
The then learned Sessions Court Judge Dato Jagit Singh decided on 16.04.2015 that there was no prima facie case and acquitted and discharged the accused.
The Prosecution appealed on the same day to the High Court in Seremban.
In the written grounds of judgment of the Sessions Court Judge, he gave 8 findings on why there was no prima facie case against the accused.
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 accused had physical possession of Exhibits P16 – P20 question papers;
vii. That the accused 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
viii. That there is no evidence to show that the accused 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.
The case then proceeded to the Seremban High Court. The learned High Court Judge upheld the decision of the Sessions Court.
The Prosecution then filed for an appeal in the Court of Appeal.
The Court of Appeal allowed the appeal by the Prosecution and ordered that this case to be remitted back to the Seremban Sessions Court for the accused to enter defence.
Today, at the end of the Defence case, the accused was found guilty for all 5 charges and sentenced to 5 years imprisonment for each charge, to run concurrently.
It must be noted, the actual culprit who leaked the UPSR 2014 papers was never caught nor charged in court.
In the words of the learned Sessions Court judge Dato Jagit Singh who acquited the accused during the prosecution stage, the culprit is missing just like MH370!
During defence stage the defence applied to recall Dr Naimah, Director of Malaysian Examination Syndicate and the Investigating Officer, however the trial judge at defence stage dismissed the application. The defence also applied to summon TS Muhyiddin who was the Education Minister in 2014 to support the defence's case, but was dismissed by the trial judge during defence.
Among the defence raised was that the OSA is draconian piece of legislation which was taken from the English OSA predating World War 2. Most developed countries have abolished such an Act of law. Instead, develop countries have introduced Freedom of Information Act.
The reports prepared by SKMM was questioned in court where the extraction process of the alleged UPSR photos was not done properly. An internationally reknown expert witness in Digital Forensics was called to rebutt SKMM. There were possibly contamination and inconclusive findings by SKMM.
However, despite all that, the accused was found guilty. Defence managed to apply for a stay pending appeal, where the trial judge directed the accused to report to IPD Seremban every 3rd Sunday, confiscate his passport and maintain bail at RM3000.
The conviction and sentence of the new trial judge Suresh Gopalan will be appealed against at the High Court in Seremban.
The accused was represented by Mr Kula Segaran and Mr Omar Kutty and DPP Wan Shaharuddin and DPP Terrirddin appeared for the AG