The final versions of classified documents need not be individually reclassified if adequately defined under the term 'official secret'.

[1] The prosecution's appeal relates to the decision of the High Court dismissing the prosecution's appeal against the decision of the Sessions Court in acquitting and discharging the respondent at the close of the prosecution case.

[2] After hearing of submission, we heard and allowed the appeal by a majority decision, with my learned brother Justice Mohtarudin Baki and I being in the majority whilst our learned brother Justice Harmindar Singh Dhaliwal dissented. This then is our majority judgment.

[3] The respondent was charged with five counts under s 8(1)(c)(iii) of the Official Secrets Act 1972 ( OSA 1972) with having possession in his Samsung Galaxy Note 2 smartphone between 9 September 2014 to 16 September 2014 the following documents, to wit:

i. "kertas soalan Bahasa Tamil-Penulisan 037 Ujian Penilaian Sekolah Rendah 2014";

ii. "kertas soalan sains 018/1 Ujian Penilaian Sekolah Rendah 2014";

iii. "kertas soalan Matematik 035/2 Ujian Penilaian Sekolah Rendah 2014";

iv. "kertas soalan Matematik 015/1 Ujian Penilaian Sekolah Rendah 2014": and

v. "kertas soalan Bahasa Tamil-Pemahaman Ujian Penilaian Sekolah Rendah 2014".

(hereinafter referred to collectively as '2014 UPSR examination papers")

The Salient Facts

[4] The brief facts as found by the Sessions Court judge is as follows:

"(a) Upon being informed by PW11 and upon making comparisons PW12 made a police report on the leakage of the UPSR 2014 Science question paper on 10 September 2014 (Exh P32);

(b) Investigations were conducted by PW15 and the accused was arrested by PW1 on 16 September 2014 at his house nombor No 591, Jalan Bukit Gelena 13, Taman Bukit Galena, Fasa 4, Negeri Sembilan. A 'Samsung Note 2' handphone (Exh P2) was seized from the accused. The arrest and seizure report is produced as Exh p1. PW9 confirmed that the telephone number 0102250064 is registered under the accused name;

(c) One Prem Kumar Padelrangam (Prem Kumar) was arrested by PW4 and a IPhone (Exh P8) was seized from him. PW8 confirmed that telephone number 0125794650 was registered under Prem Kumar's name;

(d) PW3 had examined the accused's handphone (P2) and found one image in P2. At the outset it must however be pointed out that this image is not the subject matter of any of the charges against the accused. PW3's report is marked as Exh P22;

(e) PW3 had also examined Prem Kumar's handphone (P8) and found that the images in P8 (offending images in P8) were substantially similar to the following actual UPSR question papers:

(i) Bahasa Tamil Penulisan O37 (Exh P19);

(ii) Science 018/1 (Exh P20);

(iii) Mathematic 035/2 (Exh P17);

(iv) Mathematic 015/1 (Exh P16); and

(v) Bahasa Tamil Pemahaman 036 (Exh P18);

(f) according to PW3 the images in P8 were shared by whatsapp groups and there were 3 whatsapp communications, including communications from the accused's telephone. PW3's report on P8 is marked as Exh P21. Prem Kumar, a vital prosecution's witness was not called to testify in this trial;

(g) according to PW12, she had been appointed by the Minister of Education Malaysia to classify official documents, information and material as official secret and that the UPSR 2014 question papers had been classified as 'confidential' (Sulit) by her and registered in the Buku Daftar Rahsia Rasmi (Exh P31). The certificate of appointment by the Minister was produced and after strong objections by the learned defence counsel was marked as ID29; and

(h) according to the UPSR Time table (Exh P30) -

(i) Bahasa Tamil penulisan 037 was scheduled on 10 Septem