Public Prosecutor v Phua Keng Tong and Another

JurisdictionSingapore
JudgeL P Thean J
Judgment Date05 February 1986
Neutral Citation[1986] SGHC 5
Docket NumberMagistrate's Appeals Nos 178, 179 and 181 of 1984
Date05 February 1986
Published date19 September 2003
Year1986
Plaintiff CounselRoy Neighbour (Deputy Public Prosecutor)
Citation[1986] SGHC 5
Defendant CounselHE Cashin (Murphy & Dunbar)
CourtHigh Court (Singapore)
Subject MatterFreedom of expression,Communication and dissemination of information,Whether Official Secrets Act unconstitutional,Whether s 5(1) of Official Secrets Act ultra vires art 14(1) of Singapore Constitution,art 14 Constitution of the Republic of Singapore,Unauthorized communications and receipt of classified documents,Whether mens rea necessary,Adequacy of sentence,ss 5(1)(e), (1)(f), (2), 12 & 17(2) Official Secrets Act (Cap 233, 1970 Ed),Meaning of 'security',Criminal Law,Constitutional Law,'Security',Official Secrets Act,s 5(1) Official Secrets Act ()Cap 233, 1970 Ed),Fundamental liberties,Words and Phrases,Statutory offences

There are three appeals before me and they arose out of a joint trial of three charges against Frederick Tan Im Kian (Tan) and one charge against Phua Keng Tong (Phua) before the learned senior district judge in the subordinate courts. The three charges against Tan read as follows:

Charge in DAC5307/83

You, Frederick Tan Im Kian, are charged that you between 31 October 1983 and 11 November 1983 at the Ministry of Foreign Affairs City Hall, Singapore, having in your possession a document, namely, Ministry of Foreign Affairs Information Note No 133/83, which you had obtained owing to your position as the Director of the Protocol and Consular Division of the said Ministry, did communicate the said document to one Phua Keng Tong, an unauthorised person, and you have thereby committed an offence under s 5(1)(e)(f) of the Official Secrets Act (Cap 233) and punishable under s 17(2) of the said Act.



Charge in DAC 5305/83

You, Frederick Tan Im Kian, are charged that you, between 8 November 1983 and 11 November 1983 at the Ministry of Foreign Affairs, City Hall, Singapore, having in your possession a document, namely, Notes of Meeting between Dr Tony Tan Keng Yam, Minister for Trade and Industry and Mr Paul Volcker, Chairman, Federal Reserve Board, in Mr Paul Volcker`s office, on Wednesday 28 September 1983 at 3pm, which you had obtained owing to your position as the Director of the Protocol and Consular Division of the said Ministry, did attempt to communicate the said document to one Phua Keng Tong an unauthorised person, and you have thereby committed an offence under s 5(1)(e)(f) of the Official Secrets Act (Cap 233) read with s 12 of the said Act and punishable under s 17(2) of the said Act.



Charge in DAC 5306/83

You, Frederick Tan Im Kian, are charged that you, between 8 November 1983 and 11 November 1983 at the Ministry of Foreign Affairs, City Hall, Singapore, having in your possession a document, namely, Notes of Meeting between Dr Tony Tan Keng Yam, Minister for Trade and Industry and Mr Malcolm Baldrige, US Secretary of Commerce, in Mr Baldrige`s office, on Thursday 29 September 1983 at 3.15pm which you had obtained owing to your position as the Director of the Protocol and Consular Division of the said Ministry, did attempt to communicate the said document to one Phua Keng Tong, an unauthorised person, and you have thereby committed an offence under s 5(1)(e)(f) of the Official Secrets Act (Cap 233) read with s 12 of the said Act and punishable under s 17(2) of the said Act.



The charge against Phua is as follows:

Charge in DAC 5304/83

You, Phua Keng Tong, are charged that you between the 31 October 1983 and the 11 November 1983 at 42 Thomson Hills Drive, Singapore, did receive a document, namely Ministry of Foreign Affairs lnformation Note No 133/83 from one Frederick Tan Im Kian knowing at the time when you received it that the said document was communicated to you in contravention of the Official Secrets Act (Cap 233) and you have thereby committed an offence under s 5(2) of the said Act and punishable under s 17(2) of the said Act.



Prior to the prosecution Tan was at all material times the director of Protocol and Consular Division, Ministry of Foreign Affairs, and in that capacity received documents from ministries generally, and most of the documents he received were classified.
Tan is a close friend of Phua; they have known each other for many years. Phua was the financial manager of Philips (Singapore) a position which he had held since 1976. He joined the company in March 1973 as a group financial executive and became a financial manager in 1976. Part of his work as a financial manager involved dealing in foreign currencies. He had kept himself well-informed on financial matters and world events which would have an effect on movements of currencies, particularly the major currencies such as US dollar, Japanese yen, pound sterling and deutschmark.

Sometime in the middle of 1981 Phua started foreign currency speculations on his own and the currencies he dealt in were US dollar, Japanese yen, deutschmark, sterling pound and Hong Kong dollar.
On 26 July 1983 he purchased HK$2m on his own assessment of the situation. After his purchase he had a telephone conversation with Tan on 27 July 1983 in the course of which he enquired of the situation then prevailing in Hong Kong. In response Tan gave certain information to Phua which appeared to the latter to be favourable to his transaction on Hong Kong dollars. He asked Tan to verify the information and a subsequent telephone conversation on the same day ensued - which in fact was a follow-up of what they had previously discussed. In that second telephone conversation Phua persuaded Tan to participate in a purchase of Hong Kong dollars to which the latter imprudently succumbed. Phua then purchased in his name two further lots of Hong Kong dollar each for an amount of HK$2 m: one for himself and one for Tan. Soon after that purchase, the Hong Kong dollars took a deep plunge in the foreign exchange market. Naturally both of them became extremely concerned with the fate of Hong Kong dollars, and presumably after a series of agonizing reappraisals of the situation decided to sell their Hong Kong dollars, which they ultimately did in September 1983 sustaining a huge loss of S$228,768.22 of which Tan`s share amounted to S$80,000. Tan was very upset but was advised by Phua not to feel depressed as one could make up the loss through other transactions, and in that connection Phua mentioned two events in the ensuing 12 months on which they should focus their attention: (i) the result of Tanaka`s trial in Tokyo and (ii) President Reagan`s re-election, both of which would have an effect on the movements of currencies in the foreign exchange market.

Phua left for Europe in early October 1983 and did not return until near the end of that month or thereabout.
During the period between 27 October and 8 November 1983 Tan, in his official position received the following documents, namely:

(a) Information Note No 133/83 (Information Note) entitled `The impact of Tanaka`s conviction on Nakasone and the LDP`;

(b) Notes of meeting between Dr Tony Tan Keng Yam, Minister for Trade and Industry, and Dr Paul Volcker, Chairman, Federal Reserve Board, in Dr Volcker`s office in Washington DC on Wednesday, 28 September 1983;

(c) Notes of meeting between Dr Tony Tan Keng Yam, Minister for Trade and Industry, and Mr Malcolm Baldridge, United States Secretary of Commerce, in Mr Baldridge`s office in Washington DC on Thursday, 29 September 1983.



The first document, Information Note, was prepared by one Bernard William Baker (PW10), the Foreign Service Officer (covering Japan/South Korea desk), Political Division, Ministry of Foreign Affairs, and it was marked or stamped `Confidential` and was meant to keep the Singapore`s missions and other authorized persons informed of the specific occurrence at that time.
It was prepared following the conviction in Tokyo, two weeks earlier, of the former Japanese Prime Minister, Mr Kakuei Tanaka, by a District Court in Tokyo, on charges of corruption. The Information Note was sent to the Registry in the Ministry of Foreign Affairs on 27 October 1983 for copies to be made which were thereafter to be sent only to persons whose designations appeared in `List B to D of the Distribution List` (exh P29) and Tan was one of such persons in the List C. Tan received a copy of the Information Note and after perusal he requested his personal assistant (PW5) on 31 October 1983 to make a photocopy of the Information Note; thereafter he sent the copy (exh P9) to Phua together with a cutting of an article which appeared in T he Straits Times of 3 October 1983 entitled `Should Tanaka be found guilty ... Verdict of Lockheed scandal has many political implications` (exh D3). Accompanying the news cutting and P9 was a brief note written by Tan: `From your Partner in sorrow. Frederick` or words to that effect.

The second and third documents being notes of the meetings which Dr Tony Tan had with Dr Paul Volcker and Mr Malcolm Baldrige respectively in Washington DC were prepared by Tan Jee Say (PW11), the Deputy Director with the Ministry for Trade and Industry, who was present at the two meetings and were prepared soon after his return to Singapore.
On 3 November 1983 he sent copies of the notes with several others to Tan for onward transmission to the Singapore`s missions in London and Washington DC and they were sent with a covering minute (exh P28). Both the notes of the meetings were not marked or classified `Confidential` due to an oversight on the part of PW11 which he admitted. Tan received the notes on 8 November 1983 and after perusal thereof had a copy of each made and posted the two copies (exhs P11 and P12) to Phua after writing on the reverse of P12: `Phua, I thought this would be useful for you. Fred`.

Both Tan and Phua were arrested by officers of the Internal Security Department (ISD) on 11 November 1983.
At the time of the arrest of Phua at his home, the officers found exh P9 (the copy of the Information Note) on a table in the dining hall, and Phua admitted that copy was sent to him by Tan. The officers recovered from the letter box an envelope containing exhs P11 and P12. Both Tan and Phua were charged subsequently and were tried together. At the conclusion of the trial the learned senior district judge convicted Tan on all the three charges and sentenced him to serve one day`s imprisonment and to pay a fine of $750 on each of the three charges, the sentence of imprisonment to run concurrently; he acquitted and discharged Phua on the charge against him. The Public Prosecutor appeals against the acquittal of Phua and against the sentences on Tan; Tan appeals against the convictions and sentences.

Taking the appeals in their logical order, I propose to deal with first the appeal
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22 cases
  • Bridges Christopher v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 3 April 1997
    ... ... This was written down by Tan on another piece of paper, P12. The date of change of address was stated as 6 April ... Mens rea of a s 5(2) offence ... In PP v Phua Keng Tong [1986] 2 MLJ 279 ; [1986] SLR 168 , LP Thean J ... ...
  • Tan Cheng Kwee v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 30 May 2002
    ...of any statutory provision that creates an offence: Sweet v Parsley [1970] AC 132; Lim Chin Aik v R [1963] MLJ 50; PP v Phua Keng Tong [1986] 2 MLJ 279. This presumption, however, can be rebutted by the clear language of the statute, or by necessary implication, although it is not sufficien......
  • Bridges Christopher v Public Prosecutor
    • Singapore
    • Court of Appeal (Singapore)
    • 6 November 1997
    ...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......
  • Public Prosecutor v Ng Chee Kheong and Another
    • Singapore
    • High Court (Singapore)
    • 6 August 1999
    ... ... ingredient of a criminal offence unless there were clear words to the contrary: PP v Phua Keng Tong [1986] SLR 168 ... She agreed with the respondents that the said information must be a ... ...
  • Request a trial to view additional results
1 books & journal articles
  • REQUIREMENT OF FAULT IN STRICT LIABILITY
    • Singapore
    • Singapore Academy of Law Journal No. 1999, December 1999
    • 1 December 1999
    ...Act has since been amended by the Official Secrets (Amendment) Act 1986 (Act A A660). 31 See also the earlier case of PP v Phua Keng Tong[1986] 2 MLJ 279, 284. 32 If it were so, then an honest mistake regarding the source of the information would be sufficient to negative liability, see DPP......

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