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Public Prosecutor
v
Bridges Christopher
[1997] SGHC 82

High Court — Magistrate’s Appeal No 101 of 1996

Yong Pung How CJ
27 February; 3 April 1997
Courts and Jurisdiction — Court of Appeal — Reference to Court of Appeal of
questions of law of public interest - — Exceptional nature of such questions —
Whether questions within parameters of Act - Whether court had discretion to re-
frame questions stated by Public Prosecutor — Section 60 Supreme Court of
Judicature Act (Cap 322, 1985 Rev Ed)
Criminal Procedure and Sentencing — Criminal references — Reference to Court of
Appeal of questions of law of public interest - Criminal conviction quashed by High
Court and Public Prosecutor seeking reference of questions of law raised in case —
Power to refer questions not an appeal provision — Whether questions within
parameters of Act - — Section 60 Supreme Court of Judicature Act (Cap 322, 1985
Rev Ed)

Facts
The respondent was convicted of offences under ss 5(1) and 5(2) of the Official
Secrets Act (Cap 213, 1985 Rev Ed) (“the OSA”). However, his convictions were
quashed on appeal to the High Court. Following the appeal, the Public
Prosecutor applied under s 60 of the Supreme Court of Judicature Act (Cap 322,
1985 Rev Ed) (“the SCJA”) to state eight questions of public importance for
determination by the Court of Appeal.

Held, referring six reframed questions to the Court of Appeal:

(1) The High Court was the final appellate court for criminal cases
commenced in the Subordinate Courts and generally there would be no need for
the Court of Appeal to conduct a further review. Therefore, s 60 of the SCJA
should be used sparingly lest it be made use of as an appeal provision. However,
there were certain cases where a further reference of questions of law to the
Court of Appeal may be deemed necessary to settle any conflicting issues. Such
questions must be exceptional and within the relevant parameters of s 60: at [4]
to [6].
(2) The parameters set out by s 60 of the SCJA were that: (a) the question
must be a question of law; (b) the question of law must be one of public interest;
and (c) the question must have arisen in the course of the appeal and the
determination of which by the court must have affected the event of the appeal:
at [7], [8] and [17].
(3) Whether a question of law was of public interest or not depended on the
facts and circumstances of each case and was for the court to decide. It was only
when the question fell within the four corners of s 60 that the court had a
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discretion whether to refer it to the Court of Appeal when the application was
made by someone other than the Public Prosecutor. Similarly, it was only then
that the court had no discretion but was required to refer the question when it
was stated by the Public Prosecutor: at [11].
(4) It was within the court’s discretion to reframe questions drawn up by the
Public Prosecutor in order to ensure that they fitted within the ambit of s 60.
However, such discretion did not extend beyond ensuring that the questions
posed fell within the four corners of s 60 or restating the question to make them
clearer. The court reframed the eight questions reserved by the Public
Prosecutor into six questions, but left it open to the Court of Appeal to answer
the questions as stated by the Public Prosecutor in the original form if it thought
the reframing improper: at [19], [50] and [51].

Case(s) referred to
A Ragunathan v PR [1982] 1 MLJ 139 (folld)
Abdul Salam bin Mohamed Salleh v PP [1990] 1 SLR(R) 198; [1990] SLR 301, HC
(folld)
Abdul Salam bin Mohamed Salleh v PP [1991] 2 SLR(R) 344; [1991] SLR 235, CA
(folld)
Chan Hiang Leng Colin v PP [1995] 1 SLR(R) 388; [1995] 1 SLR 687 (folld)
Lim Chin Aik v The Queen [1963] MLJ 50; [1963] AC 160 (refd)
Osman bin Ali v PP [1971–1973] SLR(R) 503; [1972–1974] SLR 106 (refd)
PP v Choo Ching Hwa [1990] 3 MLJ 229 (folld)
PP v Lim Joo Soon [1981] 1 MLJ 107 (not folld)
PP v Phua Keng Tong [1985–1986] SLR(R) 545; [1986] SLR 168 (refd)
Zainal bin Kuning v Chan Sin Mian Michael [1996] 2 SLR(R) 858; [1996] 3 SLR
121 (refd)

Legislation referred to
Official Secrets Act (Cap 213, 1985 Rev Ed) s 5
Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) s 60 (consd)
Courts of Judicature Act 1964 (No 7 of 1964) (M’sia) s 66

Bala Reddy and Jasbendar Kaur (Deputy Public Prosecutor) for the applicant;
Michael Khoo SC and Josephine Low (Michael Khoo and Partners) for the
respondent.

[Editorial note: This decision arose from questions of law of public interest reserved
by the Public Prosecutor for the Court of Appeal. See [1997] 1 SLR(R) 156. For the
Court of Appeal’s decision, see [1997] 3 SLR(R) 467.]

3 April 1997 Judgment reserved.

Yong Pung How CJ:
1 This is a motion by the Public Prosecutor under s 60 of the Supreme
Court of Judicature Act (Cap 322) (“SCJA”) to state certain questions of law
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of public importance for determination by the Court of Appeal. The motion

arises from my judgment in MA 159/1996 in which I allowed the
respondent’s appeal and quashed his convictions for offences under s 5 sub-
ss (1) and (2) of the Official Secrets Act (Cap 213) (“OSA”). I do not
propose to repeat the facts of the case, and my determination thereon,
which are stated in my judgment in the Magistrate’s Appeal (see Bridges
Christopher v PP [1997] 1 SLR(R) 156).
2 The eight questions which the Public Prosecutor wishes this court to
refer to the Court of Appeal are as follows:
Question 1: Whether, for the purpose of determining whether the
offence of unauthorised communication of information has been
committed under sub-s (i) of s 5(1) of the Official Secrets Act, the
word “information”, in the context in which it is enacted, refers to
(i) “secret official information”, or
(ii) any information as described in paras (a) to (e) of that
sub-section; and in the case of para (e), whether the said word
means any information obtained by any person or to which he
had access, owing to his position as a person who holds or has
held office under the Government, or as a person who holds, or
has held a contract made on behalf of the Government, or as a
person who is or has been employed under a person who holds
or has held such an office or contract.
Question 2: If the answer to Question 1 is (a), whether the
information relating to the change of address of any person in
Singapore is “secret official”:
(a) because of the nature of the information or,
(b) because the words “secret official” in section 5(1) qualify
the word “information”, or
(c) because of some other factor.
Question 3: If the answer to Question 1 is (b), whether, in a case
where the Prosecution has proved the commission of the offence of
unauthorised communication under s 5(1)(e)(i), [by Ganesan] the
Prosecution has to discharge the burden of proving further that the
information so communicated has not been made available to the
public from an authorised source for the purpose of proving that the
recipient thereof is a person to whom the communicator is not
authorised to communicate that information under s 5(2) of the
Official Secrets Act.
Question 4: If the answer to Question 3 is “No”, whether a prima facie
case has been made against an accused [Bridges] for the offence of
unauthorised receipt of information under s 5(2) of the Official
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Secrets Act where the Prosecution had proved that the accused had
sought and obtained the information from a police officer [Ganesan]
whom he knew or had reasonable ground to believe was a field
intelligence officer performing the duties of gathering and evaluating
intelligence on criminal activities and to have used facilities available
to his Unit or to him as a member thereof, to obtain the information.
Question 5: Whether, in the context of the Official Secrets Act, the act
of communicating information for the purpose of the offence of
unauthorised communication under s 5(1) of the Official Secrets Act
requires an intention on the part of the communicator to
communicate the information, or merely any voluntary act which has
resulted in the communication of the information to the recipient.
Question 6: Whatever the law may be in relation to Question 5,
whether the offence of unauthorised communication of information
under para (i) of s 5(1) of the Official Secrets Act requires mens rea in
addition to the actus reus of communicating, in the form of:
(a) “knowledge of the wrongfulness in committing the act
complained of” (per L P Thean J in PP v Phua Keng Tong
[1985–1986] SLR(R) 545 at [21]), or
(b) knowledge that the information being communicated is
“secret official” (per the Chief Justice in [74] of the judgment
(Bridges Christopher v PP ([1] supra)), or
(c) some other mental element, and if so, what element?
Question 7: Whether a High Court judge hearing a criminal appeal
from a decision of a Subordinate Court is bound by any decision of
the Court of Appeal made in the exercise of its appellate civil
jurisdiction (Zainal bin Kuning v Chan Sin Mian Michael [1996] 2
SLR(R) 858) on a point of practice and procedure in a civil trial.
Question 8: Whether a High Court judge hearing a criminal appeal
from a decision of a Subordinate Court should, on a point of practice
and procedure arising in a criminal trial, follow a decision of Court of
Criminal Appeal (Osman bin Ali v PP [1971–1973] SLR(R) 503) or a
decision of the Court of Appeal in the exercise of its appellate civil
jurisdiction (Zainal bin Kuning v Chan Sin Mian Michael) in relation
to that point of practice and procedure.
3 The law in relation to an application under s 60 of the SCJA is well
established and, with the possible exception of one area, is not contentious.
Before examining it, it is useful to set out the relevant parts of that section
again:
(1) When an appeal from a decision of a subordinate court in a
criminal matter had been determined by the High Court, the judge
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may, on the application of any party and shall on the application of the
Public Prosecutor, reserve for the decision of the Court of Appeal any
question of law of public interest which has arisen in the course of the
appeal and the determination of which by the Judge has affected the
event of the appeal.
…
(5) For the purposes of this section but without prejudice to the
generality of its provisions —
(a) any question of law regarding which there is a conflict of
judicial authority shall be deemed to be a question of public
interest …

4 First, as was submitted by Mr Khoo for the respondent, and not

disputed by Mr Reddy, the starting position is the general principle that the
High Court is the final appellate court for criminal cases commenced in the
Subordinate Courts. Generally, there is thus no need for the Court of
Appeal to conduct a further review. This was stated by me in Chan Hiang
Leng Colin v PP [1995] 1 SLR(R) 388.
5 The same point was made by Chan Sek Keong J (as he then was) in
Abdul Salam bin Mohamed Salleh v PP [1990] 1 SLR(R) 198; I cannot put it
any better than he did, so I content myself with repeating what he said (at
[29]–[30]):
It is on these considerations that the courts in Malaysia and Singapore
have recognised the limitations of s 60.
It is not an ordinary appeal provision to argue points of law which are
settled or novel points which can be decided by the application or
extension of established principles of law or the application of
statutory provisions which have been authoritatively construed by
higher courts. Hence, Suffian ACJ’s caution that the provision be used
sparingly lest it be made use of as an appeal provision.

It remains only to be added that this passage was approved by the Court of
Criminal Appeal which answered the questions stated. That decision was
reported in Abdul Salam bin Mohamed Salleh v PP [1991] 2 SLR(R) 344.
6 However, it is recognised that there are certain cases in which a
further reference of questions of law to the Court of Appeal may be deemed
necessary to settle any conflicting issues. Such questions must be
exceptional. Section 60 itself sets out the relevant parameters. Hence, the
question must be a “question of law of public interest which has arisen in
the course of the appeal and the determination of which by the Judge has
affected the event of the appeal”.
7 Firstly, the question must be a question of law. A mere question of fact
is not within the scope of s 60, and it is improper for the High Court to refer
such a question to the Court of Appeal.
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8 Secondly, the question of law must be one of public interest. Not

every question of law suffices. This was succinctly stated by Raja Azlan Shah
Ag L P in the Malaysian Federal Court decision of A Ragunathan v PR
[1982] 1 MLJ 139 at 141:
But it is not sufficient that the question raised is a question of law. It
must be a question of law of public interest. What is public interest
must surely depend upon the facts and circumstances of each case. We
think that the proper test for determining whether a question of law
raised in the course of the appeal is of public interest would be whether
it directly and substantially affects the rights of the parties and if so
whether it is an open question in the sense that it is not finally settled
by this court or by the Privy Council or is not free from difficulty or
calls for discussion of alternate views. If the question is settled by the
highest court or the general principles in determining the question are
well settled and it is a mere question of applying those principles to the
facts of the case, the question would not be a question of law of public
interest.

9 This passage was approved by the Court of Criminal Appeal in Abdul

Salam bin Mohamed Salleh v PP ([5] supra). In that case, I also opined in
the Court of Criminal Appeal that the questions of law should be questions
which, by their nature, would affect the outcome of cases other than those
from which they arose. There is also the passage from Chan Sek Keong J’s
judgment which I have cited earlier.
10 However, Mr Reddy also referred me to PP v Lim Joo Soon [1981]
1 MLJ 107. In that case, the Federal Court in Malaysia held:
We are of the view that the word ‘shall’ in the said s 66(1) in respect of
any application by the Public Prosecutor, should be given effect to, and
that the position here is the same as it is under the English Criminal
Appeal Act 1907. The Public Prosecutor’s application coming as it is
from such an august officer of the law removes from the discretion of
the court the right to decide on whether the question of law is of public
interest. When the Public Prosecutor applies for reference, on the clear
purport of the said s 66(1), it must be taken that any question posed by
him is of public interest, unless of course it can be shown that the
question is indeed of his own personal interest and no one else.

11 That case appears to hold that any question of law posed by the Public
Prosecutor is presumed to be of public interest unless it can be shown that it
is only of his own personal interest. With the utmost deference and respect
to the Federal Court in that case, it appears that the court may have been
confused by the arguments over the exercise of discretion with the
preconditions to s 66 of the Malaysian Courts of Judicature Act 1964. A
plain reading of s 60 (which for relevant purposes is in pari materia to s 66
of the Malaysian Act), leads to the conclusion that the question of law must
be of public interest before any question of discretion arises. It is only when
the question falls within the four corners of s 60 that the court has a
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discretion to reserve it to the Court of Appeal when the application is made

by someone other than the Public Prosecutor. Similarly, it is only then that
the court has no discretion but must refer the question when it is stated by
the Public Prosecutor.
12 Of course, the Public Prosecutor rarely, if ever, has any personal
interest in a criminal prosecution. Whenever he, or a deputy public
prosecutor, brings a prosecution, it is done in the public interest. Likewise,
whenever an appeal is brought by the Public Prosecutor, it is brought
because he or a deputy public prosecutor believes that it is in the public
interest that it should be brought. Similarly, when the Public Prosecutor
makes an application for questions of law to be referred to the Court of
Appeal, he must believe that it is in the public interest that they should be
referred. However, it does not necessarily follow that the questions stated
are therefore questions of law of public interest.
13 In my respectful judgment, where the Federal Court erred is that it
failed to distinguish different types of public interest. As was pointed out by
the Minister for Law during the Second Reading in the Parliamentary
Debates on 12 April 1993 on the Supreme Court of Judicature
(Amendment Bill), there is more than one type of public interest. There is
the public interest that justice is done in each individual case, and there is
the public interest that principles of law are correctly and authoritatively
decided for future cases. In neither case does the Public Prosecutor have
only a personal interest, and it is only the latter that s 60 is concerned with.
14 I would repeat what I said in the Court of Criminal Appeal in Abdul
Salam bin Mohamed Salleh v PP ([5] supra) at [11]:
It is clear from the terms of s 60 that the court has discretion whether
or not to refer a question to the Court of Criminal Appeal when the
application to the court is made by a party other than the Public
Prosecutor, even if the question satisfies all the prescribed conditions.
It is equally clear that the reference must be of a question of law of
public interest, which has arisen in the course of the appeal, and the
determination of which by the judge has affected the event of the
appeal. The crucial condition in the present case was whether these
were questions of law of public interest.
15 An application may have been made to state a question of law because
it is thought that it is in the public interest that a principle of law arising
from the case be correctly and authoritatively decided. On the other hand,
an application may have been made because it is thought that it is in the
public interest that justice is done in the individual case and that a disguised
appeal should be launched. Unless there is an express provision otherwise
in s 60 of the SCJA, the court should not abdicate the duty of sieving the
former from the latter to the office of the Public Prosecutor. Had it been the
Legislature’s intention that any question of law, no matter how trivial or
settled, is presumed or deemed to be a question of law of public interest
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merely because it is stated by the Public Prosecutor, there would be nothing

simpler than for it to state this expressly.
16 Whether a question of law is of public interest or not depends on the
facts and circumstances of each case, not the exercise of discretion. It is for
the court to decide. The contrary position comes dangerously close to
meaning that the Public Prosecutor has a right of further appeal to the
Court of Appeal on questions of law, but the accused does not. I have great
confidence in the august office of the Public Prosecutor, but I must
respectfully say that the duty of being the final arbiter of whether a question
of law is one of public interest falls on this court, not on the Public
Prosecutor’s office.
17 Turning to the third precondition, the question must have arisen in
the course of the appeal and the determination of which by this court must
have affected the event of the appeal. There is no difficulty with what this
requirement means, and reference need only be made to PP v Choo Ching
Hwa [1990] 3 MLJ 229.
18 There remains the last principle, which, as I have stated, is that the
court retains a discretion whether or not to refer a question to the Court of
Appeal when the application is made by a party other than the Public
Prosecutor, even if the question satisfies all the prescribed conditions.
However, where such an application, satisfying all the conditions, is made
by the Public Prosecutor, the court has no discretion but must reserve them
for the Court of Appeal.
19 Bearing in mind the principle that the conditions prescribed by s 60
for the reservation of questions to the Court of Appeal must be satisfied,
whether the questions are stated by the Public Prosecutor or some other
party, and also the principle that there is no discretion if a question
satisfying all the conditions are stated by the Public Prosecutor, I twice
ascertained from Mr Reddy whether the court has the discretion to reframe
questions drawn up, even by the Public Prosecutor, to ensure that they fit
within the ambit of s 60. I was fortified by Mr Reddy’s reply in both
instances that the court must have such a discretion. Nevertheless, I do not
think that such a discretion extends beyond ensuring that the questions
posed fall within the four corners of s 60 or restating the questions so that
they are made clearer. In doing so, the court should always bear in mind the
substance of the questions stated.
20 I turn now to the questions which the Public Prosecutor wishes this
court to reserve for the Court of Appeal.

Question 1
21 This is a very wide question. It is no doubt a question of law and is of
public interest, for it effectively determines the scope of s 5 of the OSA and
would have far reaching consequences amongst, firstly government
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servants, and secondly, members of the public who deal with them.
However, framed in this manner, I have some reservation whether the
question is one which had arisen in the course of the appeal, the
determination of which by me had affected the event of the appeal.
22 In the appeal, I decided that addresses can be information falling
within s 5 of the OSA. The issue was effectively determined in favour of the
Prosecution, regardless of my interpretation of the word “information” in
s 5. What I had to decide there was whether it had been shown to be
protected by s 5. It was never part of the Prosecution’s case in the District
Court or before me that any information as described in s 5 is caught by
that provision.
23 The trial before the District Court took a very different course. The
Prosecution there called or adduced evidence from such a diverse selection
of government departments as the Land Transport Authority and the
Registry of Companies and Businesses to show that the information could
not have come from these departments. There was also an agreement with
the Defence that this information was not released by the Housing and
Development Board and the Central Provident Fund Board. This would
have been superfluous, and possibly misleading, if it had been the
Prosecution’s case that any information suffices.
24 In fact, the substance of the case before me in the appeal was as
follows, and I quote from Mr Reddy’s submission to me in the appeal, at
paras 34, 35 and 36:
34 It is submitted that the mere fact that such information may be
available to the public from some government bodies does not detract
from its nature as protected official information because in those
instances, the release of the information by these government bodies
would amount to the authorised release of protected information but it
is not carte blanche authorisation for the release of such information. If
this information is obtained from an unauthorised source or in an
unauthorised manner, it would amount to an unauthorised disclosure
within the meaning of OSA as an unauthorised disclosure of
information does not bring it into the public domain and those who
handle it may be liable to prosecution.
35 Official information retains its character as such and remains
protected by s 5 until it is published or released to the public by the
Government or a Government officer with authority to publish or
release it …
36 In view of the measures taken to secure this information
contained in the NRO database and the restricted access to such
information, it is clear that the information on the NRO records is
information protected by the OSA and this information could only be
released through authorised channels with proper authorisation for
authorised purposes.
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25 The argument in the District Court was much the same. I quote from
Ms Jasbendar Kaur’s submission for the Prosecution at the close of the
Defence’s case:
7 The Defence may well argue that information pertaining to the
latest addresses of individuals is not protected information as this
information is accessible to members of the public through the
Electoral Register and various governmental agencies, private
investigation agencies, credit card companies etc.

8 It is submitted that the mere fact that such information may be

available to the public from government bodies does not detract from its
nature as protected official information because in those instances, the
release of the information by these government bodies would amount
to the authorised release of protected information but is not carte
blanche authorisation for the release of such information in any other
circumstances. If this information is obtained from an unauthorised
source or in an authorised manner, it would amount to an
unauthorised disclosure within the meaning of OSA. As such, the
crucial consideration must be the manner in which such information is
obtained.

[emphasis added]

26 I did not accept this argument in the appeal for the reasons stated in
my judgment, even though I agreed with the argument that an
unauthorised disclosure of protected information does not bring it within
the public domain. On the contrary, I understood it to be a concession by
the Prosecution that information that had been released to the public by a
person authorised to do so thereby falls outside s 5. This would, by itself,
qualify the word “information” in s 5 so that it cannot be any information
as described in s 5.

27 Addressing me on the motion, however, Mr Reddy strenuously

denied that this was a concession. As I understood the Prosecution’s
position, it seemed to me to amount to saying this: never mind that
information is protected by s 5 until it is published or released to the public
by a person authorised to do so, nevertheless it remains protected by s 5
even after it has been published, released or made available to the public by
a person authorised to do so as long as some government department
chooses to ignore the fact that it had already been published, released or
made available by some other authorised person; after all any information is
caught by s 5. As I held in the appeal, this was “an inherently inconsistent
position to adopt”.

28 I have also said in my judgment that the issue of whether information

falls within s 5 is different from the issue of authorisation, implied or
otherwise, for the release of that information. This is axiomatic.
Information must first be protected before any question of authorisation to
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release it arises. One does not need authorisation to release unprotected

information.

29 Still, it is a question of law, and it is one of great public importance,

for it would affect every member of the public who ever has any occasion to
deal with any government servant or department. If what the Prosecution
contended is correct, members of the public would no doubt be surprised to
learn that information that has already been published in the Gazette or
information readily available from government departments, such as the lot
and mukim numbers of a piece of property, or the name of the Chief Justice
for that matter, is nevertheless information protected by s 5 of the OSA, and
that they pass on such information at their peril. If ordinary citizens can be
fined or even sent to prison for receiving or communicating information
that has been published, released or made available to the public by
government departments, they had better be told this, and soon.

30 Likewise, it affects every public servant if the Prosecution’s argument

is correct. If a public servant learns in the course of his employment who
the Minister heading his ministry is, that is protected information. If he
learns that there is a Subordinate Courts building at Paterson Road, that is
protected information. If a Deputy Public Prosecutor learns in the course of
preparing for a prosecution that the OSA is Cap 213, and that s 5 creates
offences, that is protected information. If a national serviceman learns in
the course of his Basic Military Training that a major outranks a captain in
the Singapore Armed Forces, that is protected information. If he learns that
the M-16 is a rifle but the F-16 is an aeroplane, that is protected
information. And if he learns that, contrary to what he had thought, his
own height is 1.72m and not 1.71m, or that his blood type is “O+”, that too
is protected information because it is in his personnel file, which must at
least be confidential. As the Prosecution contends, everything is protected
information. The ramifications are unfathomable.

31 In the circumstances, in case I had misapprehended the thrust of the

Prosecution’s argument in the appeal, I will state Question 1. It is in the
public interest that the issue is authoritatively settled by the highest court in
Singapore. However, I must modify it to relate it to the issues raised at the
appeal. This I have done by, amongst other things, deleting the second part
of the question. This is because the answer to that part would necessarily
follow from the answer to the first part, and, in that context, it is not a
question of law of public interest. In its place, I have added a new part (b).
The question I will state is as follows:

(a) Whether the word “information” in s 5(1) of the OSA, in the

context in which it is enacted, refers to

(i) “secret official … information” as described in paragraphs

(a) to (e) of that subsection, or
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(ii) any information as described in paragraphs (a) to (e) of

that subsection.
(b) In particular, does information that has been published,
released or made available to the public by a person authorised to do
so nevertheless remain information falling within s 5 of the OSA?

Question 2
32 This question is merely an adjunct to Question 1 as framed by the
Public Prosecutor. It is, however, an academic question. I do not see how
the determination of this affected the outcome of the appeal. Nevertheless,
it seems to me that what the Public Prosecutor is trying to do is to seek the
determination of the Court of Appeal on the general question of what
criteria determine whether information falls within s 5 or outside it.
33 In the context of Question 1 as framed by me, this is still a legitimate
question of law. It is likewise of public importance, for members of the
public must be able to discern what is or is not information falling within
s 5. It would also have affected the event of the appeal. I will therefore
reframe Question 2 as follows:
If the answer to Question 1(a) is “any information” or the answer to
Question 1(b) is “yes”, when will information cease to fall within s 5 of
the OSA?

Question 3
34 With respect to the Public Prosecutor, I must admit that I have had
difficulty in understanding Question 3. The question of whether the burden
falls on the Prosecution to prove that the information communicated has
not been made available to the public from an authorised source is relevant
to the question of whether the Prosecution has proven that the information
falls within s 5. If that question has yet to be decided, I am at a loss as to how
the Prosecution can be said to have proven an offence under s 5(1)(e)(i), or
any other part of s 5 of the OSA, so far as this case was concerned. It was the
very same thing that had to be decided in the trial, both in relation to
Ganesan and the respondent, before there could be a finding that either of
them had committed any offence.
35 Nevertheless, it seems that what the Public Prosecutor wants is a
determination of the question on whom the burden lay of proving that
information falls within s 5. Normally, such a question, albeit a question of
law, would not be one of public interest. It is trite law that the burden of
proving each and every element of an offence falls on the Prosecution. I
should also add that the Prosecution had very properly conceded that the
burden lay upon it to prove each and every element of the offence.
Reference may be made to para 1 of Miss Jasbendar Kaur’s submission in
the District Court at the close of the Defence’s case. This must necessarily
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include the burden of proving that the information falls within s 5 of the
OSA.

36 However, in view of the fact that the determination of this question

would have a profound impact on each and every citizen in Singapore who
ever has to obtain information from a government servant or department, I
am of the view that the question can be said to be one of public interest. It
hardly needs to be said that the ordinary citizen is often not in a position to
discharge the burden, for this is something that is usually wholly within the
knowledge of the government. If the burden is on him, then it may, in
practical effect, render the answers to Questions 1 and 2 academic. In
relation to such a potentially wide provision as the OSA, it is a question of
great public interest.

37 This question arose from the appeal, the determination of which by

me had affected the outcome of the appeal. I effectively held that the burden
fell on the Prosecution and it had failed to discharge it because it had failed
to call the Registration Officer and therefore there was no evidence whether
the Registration Officer had published, released or made available the
addresses to the public. For this reason, I will rephrase the question to make
it clearer:

In a prosecution for an offence under s 5 of the OSA, notwithstanding

that the burden lay on the prosecution to prove that the information
falls within s 5, whether the prosecution has to prove that the
information has not been published, released or made available to the
public by a person authorised to do so.

Question 4

38 While Question 1 was too wide, Question 4 appears to me with

respect to be too narrow. As framed, it is specific to the facts of this case and
can hardly be said to be of any public interest. Still, it is not difficult to
fathom that what the Prosecution was getting at is the question of whether
it is sufficient for the Prosecution to prove that the accused knew or had
reasonable grounds to believe that the person he obtained it from is a
government servant who obtained it in the course of his employment as
such. And on a more specific, though no less important, level, the question
arose in relation to information of a class which is commonly published,
released or made available by the government. I will therefore rephrase
Question 4 to make it wider:

(a) Whether, in the case of a prosecution under s 5(2), a prima facie

case of mens rea is made out by merely proving that the recipient
knew or had reasonable grounds to suspect that that piece of
information came from a public servant who obtained it in the course
of his work, although it has not been proven that the recipient knew
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694 SINGAPORE LAW REPORTS (REISSUE) [1997] 1 SLR(R)

or had reasonable grounds to believe that that particular piece of

information falls within s 5.
(b) If the answer to (a) is “yes”, whether it makes any difference that
the information belongs to a class which is ordinarily released or
made available to the public.

Question 5
39 This is an interesting question. Unfortunately it did not arise at all in
the appeal because it was established beyond all doubt that the respondent
had intended to communicate the said information to the recipient, PW1. I
will not refer it to the Court of Appeal.

Question 6
40 The first part of this question deals with whether s 5(1) creates a strict
liability offence. It is no doubt a question of law. However, I agree with
Mr Khoo that it is not one of public interest. I have already stated the
applicable principles in relation to whether a question of law is one of
public interest. The principles applicable in determining whether an offence
is one of strict liability have long been authoritatively laid down by the Privy
Council in an appeal from this jurisdiction in Lim Chin Aik v The Queen
[1963] AC 160; [1963] MLJ 50. These principles have been consistently
applied by the courts in Singapore. The question simply involves the
application of well-established principles to s 5(1) of the OSA. The very
same question was determined by L P Thean J in PP v Phua Keng Tong
[1985–1986] SLR(R) 545, which I agreed with and followed in the appeal.
There is therefore no conflict of judicial authority. This point has been
settled for over a decade.
41 Likewise, there is no conflict of authority in relation to the second
part of this question. Although Mr Reddy submitted that L P Thean J had
held that mens rea is constituted by “knowledge of the wrongfulness in
committing the act complained of” in PP v Phua Keng Tong, it seems
evident to me that L P Thean J had been quoted out of context. In that case,
L P Thean J considered the following (at [21]):
… The question really is whether Tan communicated P9 and
attempted to communicate P11 and P12 to Phua in the knowledge that
it was wrong to do so. That of course must turn on the evidence before
the learned judge, which, so far as material, is this. Tan had been in the
Government service since 1966 and at the material time was occupying
a senior position in the Ministry of Foreign Affairs; he was a superscale
officer. He had signed undertakings to safeguard official information
on no less than three occasions; the last occasion was as recent as
4 December 1980. Tan knew that he received the documents in
question in his official position in the Ministry of Foreign Affairs; he
knew to whom these documents were authorised to be sent and he
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[1997] 1 SLR(R) PP v Bridges Christopher 695

knew that Phua was not one of such persons. He deliberately caused
copies of these documents to be made and he deliberately sent the
copies to Phua, though he did it openly.

42 In other words, Tan in that case knew that it was wrong to

communicate the documents to Phua because he knew that it was
information protected by the OSA and he knew that he did not have the
authority to communicate it to Phua. Mr Reddy’s contention that there was
a conflict of authority was even more remarkable considering that
Ms Jasbendar Kaur had in her closing submission in the District Court
acknowledged that what I have said was in fact what L P Thean J meant. At
para 25 of her closing submission, she had argued:
… However, even if this court is of the view that it is bound by the
decision in Phua’s case that mens rea is required, it is submitted that
the Phua’s test of mens rea is satisfied in this case as the first accused
knew that he was not authorised to communicate the information to
the second accused but nevertheless proceeded to communicate that
information. This appears to be the mens rea’s test applied by the
learned senior district judge in PP v Manu s/o Bhaskaran DAC 14077–
14079/92 (unreported) at p 73.

43 Much the same thing was repeated by Ms Jasbendar Kaur at paras 12

and 13 in her submission at the end of the Defence’s case. The passage must
necessarily presuppose knowledge that the information is protected
information in the first place, before any question of authorisation arises. I
have no doubt that L P Thean J merely used the words “knowledge of
wrongfulness” as a shorthand to describe the elements of mens rea which I
had held must be proven by the Prosecution. He was not referring to some
woolly concept of “wrongfulness”. There is no conflict of judicial authority.
This issue likewise has been settled for over a decade, and the test has been
consistently applied.

44 As for the question of determining the mental elements in relation to

an offence under s 5(1), this is a simple exercise of looking at the wording of
that section and relating the mental elements to the actus reus required by
it. It is hardly conceptually difficult. It is a mere application of existing
principles. While it is a question of law, it is not of public interest. I do not
think that it falls within the scope of s 60 of the SCJA.

45 For these reasons, I must express my disinclination to reserve this

question for the Court of Appeal. However, since it has not been
authoritatively decided by the Court of Appeal whether the requirement
that a question of law must be of public interest is a precondition to the
exercise of the court’s power under s 60 before any question of discretion
arises, I will state the question. In doing so, I have in mind the
consideration that it is always open to the Court of Appeal to decline to
answer the question if it is of the view that it should not have been stated.
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696 SINGAPORE LAW REPORTS (REISSUE) [1997] 1 SLR(R)

On the other hand, a refusal by this court to state a question is not

appealable.

46 Subject to some revisions to the question to make it clearer, I will

reluctantly state the following question:

(a) Whether an offence under s 5(1) of the OSA is one of strict

liability.

(b) If the answer to (a) is “no”, what are the requisite elements of
mens rea for an offence under s 5(1)?

Questions 7 and 8

47 The Prosecution submitted that these two questions relate to the issue
of stare decisis in an appeal from a subordinate court, ie in a summary trial.
It is quite clear from [86] of my judgment (Bridges Christopher v PP ([1]
supra)) that I had distinguished Osman bin Ali v PP [1971–1973] SLR(R)
503. It is equally clear from [85] that I was minded to apply Zainal bin
Kuning v Chan Sin Mian Michael [1996] 2 SLR(R) 858 to a summary
criminal trial even if I had not been bound by it. In these circumstances,
issues of stare decisis did not arise in the appeal, and even if they did, they
did not affect the event of the appeal. Questions 7 and 8, as stated, are
academic. They do not fall within s 60.

48 Nevertheless, there is no dispute that there remains the question

whether and in what circumstances the Prosecution can be permitted to call
rebuttal evidence in relation to an issue which had not arisen ex improviso,
which had not taken the Prosecution by surprise, and upon which the
burden of proof lay on the Prosecution. This is a question of law. It is no
doubt a question of procedure. However, I am unable to accept Mr Khoo’s
argument that it is therefore not of public interest.

49 The first question reserved in Abdul Salam bin Mohamed Salleh v PP

([5] supra) was a question of procedure. It was of public interest because it
affected all summary trials and was an important question pertaining to the
administration of justice. The same is true of the question here. It relates to
the fundamental question of whether the Prosecution must prove its case
before it closes it, or whether it can make up for any shortcoming as it goes
along, as and when it pleases, so that the well-worn phrase “the Prosecution
closes its case” becomes quite meaningless. I will reserve a narrower
question even though it did not appear on the face of Questions 7 and 8:

(a) Whether the Prosecution should be allowed in a summary

criminal trial to call rebuttal evidence in relation to an issue upon
which the burden of proof is on the Prosecution, which has not taken
the Prosecution by surprise nor arisen unexpectedly in the trial, and
which the Prosecution could or ought reasonably to have foreseen.
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[1997] 1 SLR(R) PP v Bridges Christopher 697

(b) If the answer to (a) is “yes”, under what circumstances should

the trial court allow the Prosecution to do so?

Conclusion
50 In conclusion, I will reserve the following questions arising from the
appeal for the determination of the Court of Appeal:
Question 1: (a) Whether the word “information” in s 5(1) of the OSA, in the
context in which it is enacted, refers to
(i) “secret official … information” as described in paras (a) to (e) of
that subsection, or
(ii) any information as described in paras (a) to (e) of that sub-
section.
(b) In particular, does information that has been published, released or
made available to the public by a person authorised to do so nevertheless
remain information falling within s 5 of the OSA?
Question 2: If the answer to Question 1(a) is “any information” or the
answer to Question 1(b) is “yes”, when will information cease to fall within
s 5 of the OSA?
Question 3: In a prosecution for an offence under s 5 of the OSA,
notwithstanding that the burden lay on the Prosecution to prove that the
information falls within s 5, whether the Prosecution has to prove that the
information has not been published, released or made available to the
public by a person authorised to do so.
Question 4: (a) Whether, in the case of a prosecution under s 5(2), a prima
facie case of mens rea is made out by merely proving that the recipient knew
or had reasonable grounds to suspect that that piece of information came
from a public servant who obtained it in the course of his work, although it
has not been proven that the recipient knew or had reasonable grounds to
believe that that particular piece of information falls within s 5.
(b) If the answer to (a) is “yes”, whether it makes any difference that the
information belongs to a class which is ordinarily released or made
available to the public.
Question 5: (a) Whether an offence under s 5(1) of the OSA is one of strict
liability.
(b) If the answer to (a) is “no”, what are the requisite elements of mens rea
for an offence under s 5(1)?
Question 6: (a) Whether the Prosecution should be allowed in a summary
criminal trial to call rebuttal evidence in relation to an issue upon which the
burden of proof is on the Prosecution, which has not taken the Prosecution
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698 SINGAPORE LAW REPORTS (REISSUE) [1997] 1 SLR(R)

by surprise nor arisen unexpectedly in the trial, and which the Prosecution
could or ought reasonably to have foreseen.
(b) If the answer to (a) is “yes”, under what circumstances should the trial
court allow the Prosecution to do so?
51 I would add a postscript by saying that, in reserving these questions to
the Court of Appeal, I have carried out extensive surgery on the questions
framed by the Public Prosecutor, in order to bring them in my view within
s 60 of the SCJA, as well as to make some of them clearer. I would commend
to the Court of Appeal the desirability of its determination on whether this
is a proper exercise of discretion in cases where in the opinion of the court
questions stated by the parties, be it the Public Prosecutor or any other
party, do not fall within the four corners of s 60 or are unclear. In doing so,
I had in mind the consideration that it should be open to the Court of
Appeal to answer the questions as stated by the Public Prosecutor in their
original forms if it should hold that what I have done was not proper.

Headnoted by Rebecca Fay Jordan.