The Court of Appeal, in a majority ruling today, ordered Subbarau Kamalanathan to enter his defence in a Sessions Court in Seremban.

Bench chairman Mohtarudin Baki said the then Malaysian Examinations Board director Naimah Ishak was authorised to classify the examination papers under the Official Secrets Act.

Concurring with him was Justice Vernon Ong Lam Kiat who allowed the government’s appeal that the prosecution had established a prima facie case and Subbarau must enter defence.

“However, Justice Harminder Singh (Dhaliwal) is of the opinion that failure to classify each and every examination paper was fatal for the prosecution’s case,” said Mohtarudin in delivering the oral judgment.

Mohtarudin then ordered the accused to appear before the same Sessions Court judge, Jagjit Singh, but lawyer M Kulasegaran informed the bench that Jagjit had retired.

The bench then fixed mention before another Sessions Court judge on June 16.

Last September, the High Court in Seremban threw out the government’s appeal against Subbarau.

Justice Siti Mariam Othman, in her ruling, had said Sessions Court judge Jagjit had not made any factual or material error in acquitting Subbarau without calling for his defence.

On April 16, 2015, Jagjit acquitted Subbarau and another teacher, Murugan Palanisamy, for unauthorised possession of copies of the 2014 UPSR examination papers.

Jagjit ruled that the prosecution had failed to establish a prima facie case against the two, after having examined all the evidence.

Subbarau was slapped with five charges involving Mathematics Papers 1 and 2, Bahasa Tamil (comprehension), Bahasa Tamil (writing) and Science.

He allegedly committed the offences via a Samsung Galaxy Note 2 smartphone.

Murugan, 37, represented by Haresh Mahadevan and Ramzaini Idris, was accused of unauthorised possession of Mathematics, Paper I, via a Lenovo smartphone.

Both allegedly committed the offences between Sept 8 and 16, 2014, when the examination was in progress.

They were charged under the Official Secrets Act (OSA) 1972, which carries the penalty of a jail term of between one and seven years.

Judge Kamaluddin Md Said, who heard the government’s appeal against Murugan’s acquittal, also upheld Jagjit’s decision.

The government has also filed an appeal against Murugan’s acquittal in the Court of Appeal.

UPSR examination paper leaks forced 473,175 pupils from 8,384 schools nationwide to resit their Science and English papers on Sept 30.

During submission last month, government lawyer Awang Armadajaya Awang Mahmud told the bench that Naimah had been delegated the power to classify the examination papers under the OSA.

“As a public officer, under Section 16A of the OSA, she could classify documents without authorisation from the education minister,” he said.

He also said the author of a certificate which listed out the names of officers who could classify documents need not be called to testify in court.

“It is a public document and is admissible evidence. The author need only be called if it involved a private document,” he added.