Ministers must justify the discretion to classify documents in light of public interest, especially after significant time has passed.

Preliminary

[1] The Applicant, the former Chief Minister of the State of Sabah, Malaysia, is principally seeking is through Judicial Review under O 53 Rules of 2012, the following reliefs:

(a) Aircraft 9M-ATZ Crash on 6 June 1976 at Kota Kinabalu, Sabah; and

(b) Any further and/or other order this Honourable Court deems fit and/or otherwise appropriate.

[2] The crash of the Nomad very near the approach of the runway at Kota Kinabalu on the 6 June 1976 ("Double 6") is one of those incidents where every Sabahan who were adults at that time can remember exactly where they were and what they were doing. The Double 6 incident left an indelible mark on the people and history of Sabah. Among the victims were senior cabinet members, including the then Chief Minister Tun Fuad Stephens, who was also the paramount chief or "Huguan Siou" of the Kadazan Dusun indigenous group in the State.

[3] Leave under O 53 was granted by my predecessor, His Lordship Wong Siong Tung on the 8 August 2022 who also denied any stay sought by the Respondents pending their appeal to the Court of Appeal against the decision to grant leave.

[4] This decision is in respect of the substantive issues in the Judicial Review Application.

For ease of reference these grounds of judgment are divided as follows:

Paragraphs

1 - 4 Preliminaries

5 - 15 The Double 6 Crash and its aftermath

16 - 18 Judicial Review

19 - 21 Official Secrets Act ( OSA ) De-classification

22 - 30 Submissions by the Applicant

31 - 50 Submissions by the Respondents

51 -53 The Dilemma

54 - 69 The Test of Legitimacy

70 - 72 Findings, Conclusion and Order

The Double 6 Incident

[5] On 6 June 1976, the Nomad Aircraft 9M-ATZ ("The Nomad Aircraft") manufactured by the Government Aircraft Factory of Australia ("GAF"), crashed on its way from Labuan to Kota Kinabalu. The tragedy killed 11 persons, including the then Chief Minister of the Sabah State Government, Tun Fuad Stephens and several other state ministers. As a result of the death of Tun Fuad Stephens, the Applicant who was then the deputy chief minister was appointed as the Chief Minister.

[6] Separate investigations were carried out by the 3rd Respondent and the Government of Australia. The Malaysian investigation team was led by Colonel Osman Saman, consisting of officers from the Department of Civil Aviation, the Royal Malaysian Air Force, the Royal Malaysian Police, and other associated departments. This Malaysian report is henceforth referred to as "the Double 6 report".

[7] The Australian investigation, prompted by the Australian connection described above and the requirements of Annex 13 - Aircraft Accident and Incident Investigation, Convention on International Civil Aviation (the "Chicago Convention"), involved a team comprised of representatives of GAF and officials from the Australian Department of Transport. Both Malaysia and Australia have ratified the Chicago Convention.

[8] To date, neither the Double 6 report nor the Australian reports have been released.

[9] The investigations were however completed. On 28 October 1976, in response to a question posed in Parliament on whether the 3rd Respondent intended to reveal the findings of the crash, the then Deputy Minister of Communications said, in summary, the 3rd Respondent did not intend to place the full investigation report before Parliament. The investigations were however conducted by an investigation team which concluded that the tragedy did not reveal any technical errors or any act of sabotage as being the causes of the crash. What the investigation team instead discovered was that the fault was due to human error. It was said that the aircraft's cargo-hold at the back of the aircraft e