High Court Rules in Infringement Case

Contributed by Shook Lin & Bok Kuala Lumpur

On June 22 2006 officers from the Ministry of Domestic Trade and Consumer Affairs conducted a raid at a night market in Penang. During the raid the officers arrested Chong Kak Hau and seized copies of pirated discs and a record book from an unnumbered stall at the market.

At first instance the Sessions Court found Hau guilty of 10 charges under Section 41(1)(b) of the Copyright Act 1987 (ie, offering for sale infringing copies of films and sound recordings), and sentenced him under that section. He appealed to the High Court in respect of four issues and the High Court held as follows:

• Hau argued that there were three conflicting versions of evidence given by the prosecution witnesses. The court found that the differences were in respect of witnesses' descriptions of the appellant's conduct at the stall. Nevertheless, all versions of the evidence indicated that the appellant was offering pirated discs for sale. The court affirmed the inference made by the Sessions Court judge that the record book with the word 'Hau' written on its cover, and containing records of sales of pirated discs, belonged to the appellant.
• The court found that each infringing pirated disc was identified and marked by the ministry officers and there was no doubt as to the identity of the exhibits. It rejected Hau's argument that the police report lodged by the leading officer had referred only to "DVDs of various titles", while the exhibit tendered before the Sessions Court contained detailed information of the title and number of units of pirated discs seized.
• Under Section 42 of the act a statutory declaration or affidavit made by or on behalf of a person claiming to be the copyright owner with a true copy of work annexed thereto is admissible in evidence in proceedings and is prima facie evidence of the facts contained therein. The prosecution tendered statutory declarations which did not annex true copies of the films. The true copies of films were tendered separately during trial. The court held that when comparing the pirated disc with a true copy of the film, it should refer to the true copy of the film annexed to the statutory declaration, and not to a true copy of film tendered separately during trial. It was mandatory to annex a true copy of work in the statutory declaration. Failure to do so rendered the statutory declaration defective and was inadmissible as prima facie evidence. As a result, the court allowed the appellant's appeal and quashed the conviction on seven charges. The court upheld the conviction for the other three charges.
• The court did not accept the evidence of a trader at the night market who said that the appellant was not the stall owner.

With the exception of quashing the conviction on seven charges where the prosecution had relied on the defective statutory declarations, the High Court affirmed the findings of the Sessions Court as the appellant had failed to raise reasonable doubt on the prosecution case.(1)

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Endnotes

(1) Chong Kak Hau v PP [2009] 8 CLJ 10.