JUDGMENTBY: SALLEH ABAS FJ

(delivering the judgment of the Court): To contradict what was reported to have been said by the Chief Minister of Sabah, Datuk Harris Salleh, on the State policy concerning Philippines refugees -- which report was published in the New Straits Times on January 9, 1978, under the caption "Sabah will adopt open-door policy towards refugees" and on January 10 under the heading "Harris clarifies his step on refugees", on January 11 Kinabalu Sabah Times (in short K.S. Times) published an article (P3) headlined "Harris open policy on refugees under fire." This article criticized the Chief Minister for the statements he made to the New Straits Times on January 9 and 10. To lend credibility to the article, K.S. Times also published a copy of the letter written by the late Chief Minister, Tuan Haji Mohd. Faud Stephens to Tengku Ahmad Rithauddeen, the Minister of External Affairs. The letter as published in P3 was dated May 11, 1976, and carried a reference "S303/571/86" and had the signature of the late Chief Minister, Tuan Haji Mohd. Fuad Stephens. As published it did not carry the word "Rahsia".

Subsequent police investigation which was carried on pursuant to a report lodged by the Sabah State Secretary, Datuk Haji Abdul Hamid Egoh (PW5), resulted in the appellant being tried on the following charges--

(1) for receiving secret official information, or alternatively secret

official document, contrary to section 8(2) of the Official Secrets Act, 1972;

(2) for directly communicating the said information or alternatively the

said document to one Jacob Peter Bedion, contrary to section 8(1)(i);

(3) for indirectly communicating the said information or alternatively the

said document to one Sabidin Ghani, contrary to section 8(1)(i); and

(4) for not taking reasonable care of the said information or

alternatively the said document, contrary to section 8(1)(iv).

The learned trial judge found that the appellant was guilty of all the principal and alternative charges and so convicted him on all these charges. He sentenced the appellant to a fine of $ 3,000 on each charge or in default of fine to a term of nine months imprisonment; the sentences on the alternative charges being ordered to run concurrently therewith. The appellant appealed against the conviction and sentence.

At our special sitting in Kota Kinabalu on August 18, 1980, after listening to arguments of counsel of the appellant and Senior Federal Counsel we announced our decision that the convictions on the principal charges were set aside, but the convictions on the alternative charges were confirmed. We also reduced the sentences so that the appellant was then fined $ 1,000 on each of the first and fourth charges and $ 1,500 on each of the second and third charges, and in default of each fine we imposed a term of three months imprisonment. In announcing that decision we also indicated that we would give our reasons in writing later. Hence this judgment.

The main point raised in this appeal insofar as the convictions were concerned only deals with the question whether the information or document was secret. Counsel for the appellant submitted that the information and document were inseparable from each other and that the information was no longer secret because matters pertaining to Philippines refugees in Sabah were already publicly known and that therefore the document too was no longer secret. With respect we do not agree with the submission.

The letter as published in P3 is a photo reproduction in reduced size from a photostat copy, (not exhibited in court) which the appellant gave to Jacob Peter Bedion (PW7) and Sabidin Ghani (PW8), who in turn in the presence of the appellant gave it to Richard de Souza (PW4) with instruction to publish it in reduced size. The appellant said in his evidence that he received the photostat copy through the ordinary mail a few days before its publication in the K.S. Times. Jacob Peter Bedion (PW7) was on

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