Bridges Christopher v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 06 November 1997
• Date: 06 November 1997
• Docket Number: Criminal Reference No 1 of
• Court: Court of Appeal (Singapore)

Public Prosecutor

Plaintiff

and

Bridges Christopher

Defendant

[1997] SGCA 61

M Karthigesu JA

,

L P Thean JA

and

Chao Hick Tin J

Criminal Reference No 1 of 1997

Court of Appeal

Criminal Law–Statutory offences–Official Secrets Act–Elements required for establishing mens rea–Whether information already in public domain could be obtained in contravention of Act–Sections 5 (1) and 5 (2) Official Secrets Act (Cap 213, 1985 Rev Ed)–Criminal Procedure and Sentencing–Criminal references–Whether question of law posed of public interest–Court's discretion to reframe question–Section 60 Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint)–Criminal Procedure and Sentencing–Trials–Calling of rebuttal evidence by Prosecution–Whether civil rule applicable to criminal cases

Bridges' convictions on six charges under s 5 of the Official Secrets Act (Cap 213, 1985 Rev Ed) (“the Act”) were quashed in the High Court by the Chief Justice on appeal. The Public Prosecutor then brought the present criminal reference under s 60 of the Supreme Court of Judicature Act (Cap 332, 1985 Rev Ed, 1993 Reprint) (“SCJA”).

Bridges had been convicted for obtaining official secret information, viz the addresses and dates of changes of addresses of four individuals, from one Ganesan and divulging it to one Tan Siah Yong (“Tan”), having reasonable grounds to believe at the time he received the information that it was communicated to him in contravention of the Act, and for having in his possession this information which he had obtained in contravention of the Act and which he communicated to Tan, a person to whom he had not been authorised to communicate it. Ganesan was a field intelligence officer in the Intelligence Division of the Criminal Investigation Department, and was jointly charged with Bridges and convicted. Bridges' defence was that he did not know at the time he received the information from Ganesan relating to the current addresses and dates of changes of the four persons concerned, that Ganesan was communicating the information to him in contravention of the Act. Similarly, when he related the information to Tan he did not realise that the information had been obtained in contravention of the Act. The High Court quashed Bridges' convictions on the ground that the Prosecution had failed to prove that the information relating to the changes of addresses was or had been “secret official” and that the Prosecution had not established even a prima facie case that this information was official information protected by the Act.

The Public Prosecutor applied under s 60 of the SCJA to reserve eight questions of law of public interest to the Court of Appeal, which the Chief Justice reframed as six questions of law of public interest: (a) what “information” in s 5 (1) of the Act referred to, and whether information that had been published, released or made available to the public by a person authorised to do so nevertheless remained within s 5 of the Act; (b) If so, when the information would cease to fall within s 5 of the Act; (c) whether the Prosecution had to prove that the information had not been published, released or made available to the public by a person authorised to do so; (d) whether a prima facie case of mens rea under s 5 (2) of the Act was made out by proving that the recipient knew or had reasonable grounds to suspect that the information came from a public servant who had obtained it in the course of his work, although it had not been proven that the recipient knew or had reasonable grounds to believe that the information fell within s 5, and if so, whether it made any difference if the information belonged to a class ordinarily released or made available to the public; (e) whether an offence under s 5 (1) was one of strict liability, and if not, what were the requisite elements of mens rea;and (f) whether the Prosecution should be allowed in a summary criminal trial to call rebuttal evidence in relation to an issue in which the burden of proof was on the Prosecution and which the Prosecution ought reasonably to have foreseen, and if so, under what circumstances the trial court should allow the Prosecution to do so.

Held:

(1) As a matter of construction the collocation of words in s 5 (1) of the Act logically fell into two groups: the first was “any secret official code word, countersign or password” and the second, “any photography, drawing, plan, model, article, note, document or information”. The second group was qualified by sub-paras (a) to (e). In the present case the question was not whether the information was “secret official information” but whether it was “information obtained in contravention of this Act” under sub-para (c). In the context of the present case an offence would be committed when that information was communicated to “any person other than a person to whom he is authorised to communicate it or to whom it is his duty to communicate it” (sub-para (i) of sub-s (1)). It would equally be an offence if the person who had obtained the information did any of the acts in sub-paras (ii) to (iv): at [35].

(2) Information indisputably already in the public domain could never be obtained in contravention of the Act. An essential element of the offence would always be lacking. The same applied to information initially “protected” by the Act entering the public domain. Under s 5 (1) (a), the Prosecution bore the onus of proving that information related to or had been used in a prohibited place: at [39].

(3) Mens rea was presumed in the absence of clear words to the contrary. An inference that Bridges had reasonable grounds to believe that the information provided by Ganesan was “protected” information could not be drawn from the Prosecution's evidence. Hence the vital ingredient of mens rea was not prima facie proved: at [44], [45] and [47].

(4) The calling of rebuttal evidence in civil and criminal cases would only be allowed in the case of a matter arising ex improviso: one which the plaintiff could not reasonably have foreseen: at [51].

[Observations: The judge was the final arbiter for determining whether a question raised by the Prosecution or the convicted person was a question of public interest. Once the judge had decided that the question was one of public interest, the discretion whether to reserve it or not for the Court of Appeal arose only if the question was a convicted person's question; no such discretion existed if the question was the Public Prosecutor's question: at [24].

The judge had discretion in reframing the questions for consideration but this discretion did not extend beyond ensuring that the questions posed fell within the four corners of s 60 of the SCJA or restating the questions so that they were made clearer, bearing in mind always the substance of the questions stated: at [28].]

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)

Osman bin Ali v PP [1971-1973] SLR (R) 503; [1972-1974] SLR 106 (refd)

PP v Bridges Christopher [1997] 1 SLR (R) 681; [1997] 2 SLR 217 (folld)

PP v Phua Keng Tong [1985-1986] SLR (R) 545; [1986] SLR 168 (folld)

R v Cleghorn (1967) 51 Cr App R 291 (folld)

R v Crisp and Homewood (1919) 83 JP 121 (refd)

R v Day (1940) 27 Cr App R 168 (folld)

R v Galvin [1987] QB 862; [1987] 2 All ER 851 (folld)

R v Levy and Tait (1966) 50 Cr App R 198 (folld)

R v McKenna (1956) 40 Cr App R 65 (refd)

R v Scott (1984) 79 Cr App R 49 (folld)

R v Sullivan (1922) 16 Cr App R 121 (refd)

Regina v Frost (1839) 9 Car & P 129; 173 ER 771 (folld)

Zainal bin Kuning v Chan Sin Mian Michael [1996] 2 SLR (R) 858; [1996] 3 SLR 121 (folld)

Official Secrets Act (Cap 213, 1985 Rev Ed) ss 5 (1), 5 (2) (consd);ss 5, 5 (1) (a), 5 (1) (b), 5 (1) (c), 5 (1) (c) (i), 5 (1) (d), 5 (1) (e), 5 (1) (e) (i), 5 (1) (i), 5 (1) (ii), 5 (1) (iii), 5 (1) (iv)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint) s 60 (consd);ss 60 (1), 60 (4), 60 (5) (a)

Official Secrets Act 1889 (c 52) (UK)

Official Secrets Act 1911 (c 28) (UK) ss 2, 2 (1), 2 (1) (a), 2 (2)

Official Secrets Act 1920 (c 75) (UK)

Chan Sek Keong SC (Public Prosecutor), Bala Reddy and Jasbendar Kaur (Deputy Public Prosecutors) for the applicant

Michael Khoo SC and Josephine Low (Michael Khoo & Partners) for the respondent.

Judgment reserved.

M Karthigesu JA

(delivering the judgment of the court):

1 This criminal reference under s 60 of the Supreme Court of Judicature Act (Cap 322) by the Public Prosecutor arises from the decision of the learned Chief Justice allowing the respondent's (“Bridges”) appeal and quashing his conviction for offences under s 5 sub-ss (1) and (2) of the Official Secrets Act (Cap 213) (“the Act”). The learned Chief Justice's judgment is reported at Bridges Christopher v PP [1997] 1 SLR (R) 156 (“the first judgment”).

2 There were in all six charges against Bridges. The first three, framed under s 5 (2) of the Act, were that on dates between July and August 1993 Bridges had received from one Ganesan s/o Krishnan (“Ganesan”), a staff sergeant in the Singapore Police Force attached to the Field Intelligence Team, Criminal Investigation Department, information relating to the change of addresses of the persons named in the charges, having reasonable grounds to believe, at the time he received the said information, that such information was communicated to him in contravention of the Act; and the next three charges, framed under s 5 (1) (c) (i) of the Act were, for having in his possession, the information referred to in the first three charges which he had obtained in contravention of the Act and which he communicated to one Tan Siah Yong, a person to whom he had not been authorised to communicate it.

3...