Parti Keadilan Rakyat (Keadilan) Youth chief Mohd Ezam Mohd Noor's appeal against his Official Secrets Act (OSA) conviction commenced today with the court being told that a charge sheet was issued against former Melaka chief minister Abdul Rahim Thamby Chik ( photo ).

Shah Alam High Court judge KN Segara was also told that the charge sheet was annexed to a report based on the Anti-Corruption Agency's investigation on Rahim.

The report - classified as an 'official secret' - was prepared by the then senior public prosecutor Abdul Gani Patail ( photo ), who is now the attorney-general.

Upon hearing this, the judge asked the prosecution if the charge sheet - issued by a Sessions Court - was part of the report that was classified under the OSA.

Deputy public prosecutor Vong Poh Fah replied that it was merely a proposed charge against the former chief minister.

However, the judge begged to differ and argued: "It can't be a proposed charge because it had a signature of authorisation and even had a case (registration) number attached to it - 62-62-94- which meant that it had been filed in court."

Following this, Vong clarified that the charge was not a proposed charge but had been withdrawn before Rahim was brought to court.

Exact document

The judge then asked if the prosecution was contending that the official court document was part of the OSA documents which Ezam had leaked to the media in 1999.

"So is this official document part of the documents that is said to be an official secret? Can that be so? Does this bear any implication to the charge against the appellant (Ezam)?" asked the judge.

He then advised the counsel to address the issue, stating that it is important as the court must be sure of the precise secret document that has been referred to in the charge against the opposition leader

On Aug 7, 2002, then Sessions Court Judge Wan Afrah Wan Ismail slapped a two-year jail sentence on Ezam for leaking classified documents pertaining to a corruption probe on Rahim and International Trade and Industry Minister Rafidah Aziz.

He was said to have committed the offence during a press conference at Keadilan's headquarters at Menara Phileo Damansara on Nov 6, 1999. Both Rahim and Rafidah were later cleared of any wrongdoing.

The failure to set aside the conviction and sentence would seriously jeopardise Ezam's chances to contest in the coming general election.

Weak case

Meanwhile, his counsel Raja Aziz Addruse argued this morning that the prosecution had failed to establish a case against Ezam as required under the OSA.

He said the prosecution failed to prove conclusively that the photocopied documents distributed by the Keadilan leader were the exact copies of the documents that was classified as an official secret.

"To prove that the documents distributed had been the exact copies of the classified documents, it should be compared with the true original copies of the report which was never done.

"The prosecution had merely established that point through the testimony of the investigating officer who said that he was told by senior prosecutor Abdul Gani that the distributed copies were similar to the report that he had prepared and classified as secret. This is nothing but hearsay evidence," he stressed.

The veteran lawyer added that there was no evidence on the whereabouts of the original documents thus raising doubts as to whether the photocopies distributed were from the original.

Raja Aziz also argued that the prosecution's case was further weakened by the failure to call Abdul Gani to ascertain that the signatures found on the copies of the report was his.

"No evidence to show why he (Abdul Gani) could not testify to the fact himself. The prosecution's contention that he is not an important witness cannot be accepted as they had admitted the importance of Abdul Gani when applying for a postponement when the case was first called up for hearing," he noted.

He also argued that classifying the report as "secret documents" was unconstitutional and therefore unlawful.

"The documents were reports by the ACA of investigations into allegations of corruption by two senior ministers of the government. Even if they had been classified according to the procedures, such classifications would have been a gross abuse of power.

"Such an act would tantamount to shielding the wrongdoings of the ministers," he told the court.

The hearing continues on March 30.