Lance Court Furnishings Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu JC
• Judgment Date: 22 September 1993
• Neutral Citation: [1993] SGHC 222
• Docket Number: Criminal Motion No 32 of 1992
• Date: 22 September 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Dedar Singh Gill (Drew & Napier)
• Citation: [1993] SGHC 222
• Defendant Counsel: Bryan Ghows (Khattar Wong & Pnrs),S Palaniappan (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Complainant did not allege that accused knew or ought to have known of infringements,s 136 Whether proper,Constitution of the Republic of Singapore art 38(5),Whether public prosecutor a proper party to action where no criminal prosecution had been commenced against alleged infringer,Construction of statute,Statutory Interpretation,s 74(2) Copyright Act (Cap 63, 1988 Ed),s 136(9) Copyright Act (Cap 63, 1988 Ed),Copyright Act (Cap 63, 1988 Ed),Artistic works,ss 74(2) Copyright Act (Cap 63, 1988 Ed),Infringement,Scope,s 136 Copyright Act (Cap 63, 1988 Ed),Whether proper,Motion to set aside,Whether 'industrially applied' in s 74(2)(a) includes industrial application elsewhere,Search warrants,Criminal Procedure and Sentencing,Copyright protection,Copyright,s 136(1), (2), (3), (4) & (9) Copyright Act (Cap 63, 1988 Ed),Whether three limbs of s 74(2) disjunctive or conjunctive,Subject matter,Warrants authorized search for suspected infringements where complainant did not state grounds for such suspicion,Whether copyright protection in Singapore had been forfeited when designs were industrially applied to fabrics outside Singapore,Whether offence made out under s 136(1)-(4) of Act,Warrants authorized seizure of 'documents relating to the infringement'

Cur Adv Vult

A criminal motion was filed to set aside eight search warrants issued under s 136(9) of the Copyright Act (Cap 63, 1988 Ed). The search warrants were issued on an application made by Chua Soon Chye on behalf of Anju/Woodridge Inc of New York, USA. The basis of the application was that Anju/Woodridge Inc was the owner of the copyrights in seven fabric designs published in the United States. The designs were applied to fabric manufactured in the United States and Japan and sold in Singapore. The complaint was that Lance Court Furnishings Pte Ltd offered for sale fabric with designs infringing Anju/Woodridge Inc`s copyrights.

A magistrate issued the search warrants, which were subsequently executed, but no further action was taken before the application was made to set them aside.

Preliminary issue

When the application came before me, I wanted to be satisfied that the public prosecutor was the proper respondent to the motion although Mr Palaniappan who appeared for the public prosecutor did not object to his being named as the respondent. I raised this question because no criminal prosecution had commenced in that no summons were issued against Lance Court.

The public prosecutor may be an interested party by virtue of art 35(8) of the Constitution or s 336(1) of the Criminal Procedure Code (Cap 68). Article 35(8) reads:

The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.

Section 336(1) reads:

The Attorney-General shall be the public prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code.

Counsel referred to various cases on what criminal proceedings cover, none of which dealt specifically with proceedings at the stage of the present proceedings. In the end, I found assistance from the provision under which the warrants were issued. Section 136(9) of the Copyright Act provides that:

If information is given upon oath to a magistrate that there is reasonable cause for suspecting that there are in any house, premises, vessel or other place any infringing copies of a work or other subject-matter in which copyright subsists (or any plate or contrivance used or intended to be used for making such infringing copies or capable of being used for the purpose of making such infringing copies) by means of or in relation to which any offence under subsection (1), (2), (3) or (4) has been committed, he may issue a warrant under his hand by virtue of which any police officer named or referred to in the warrant may enter the house, premises, plate or contrivance ...

This provision empowers the seizure of infringing copies of works or other matter by means or relation to which an offence under sub-ss (1), (2), (3) or (4) of s 136 has been committed, to enable proceedings to be brought under the section. The application for and the issuance of the search warrants come within art 35(8) as `proceedings for any offence`, which I construe as proceedings in relation to, or in connection with any offence. As art 35(8) refers to `proceedings` rather than `criminal prosecutions`, `proceedings` should not be limited to proceedings after the commencement of criminal prosecutions but should cover proceedings that may lead up to the prosecutions.

Section 336(1) of the Criminal Procedure Code gives the public prosecutor control over `criminal prosecutions and proceedings under this Code.` As there is no power under s 62 of the Code for a magistrate to issue search warrants in connection with offences under the Copyright Act, the issuance of such search warrants does not fall within s 336(1).

After hearing the submissions on the preliminary issue, I was satisfied that the public prosecutor was a proper party in the application by virtue of art 35(8), although the application may also be taken against Anju/Woodridge Inc and be continued if the public prosecutor does not intervene.

In the course of the arguments important questions relating to the subsistence and protection of copyright under the Copyright Act were raised which had to be dealt with.

Section 74(2) of the Copyright Act

Mr Dedar Singh, counsel for Lance Court, referred to s 74(2) and (3) and submitted that if a design in which copyright subsists is applied industrially, and the design is not registered under the Registered Designs Act 1949 [UK], then under s 74(3)(a) `it shall not be an infringement of the copyright in the work to do anything which, at the time when it is done, would have been within the scope of the copyright in the design if the design had, immediately before that time, been registered.`

Opposing positions were taken on whether the industrial application is restricted to application in Singapore only. Section 74(2) provides that:

Where copyright subsists in an artistic work, and

(a) a corresponding design is applied industrially by or with the licence of the owner of the copyright in the work;

(b) articles to which the design has been so applied are sold, let for hire, or offered for sale or hire whether in Singapore or elsewhere; and

(c) at the time when those articles are sold, left for hire or offered or exposed for sale or hire, they are not articles in respect of which the corresponding design has been registered under the Registered Designs Act 1949 of the United Kingdom, or any Act amending or substituting for that Act,

subsections (3), (4) and (5) shall apply.

Mr Singh argued that the industrial application referred to in s 74(2)(a) is industrial application anywhere. He referred to the explanation of s 74(2) given by Professor Jayakumar to the Select Committee on the Copyright Bill, and to George Wei`s comments on the provision in The Law of Copyright in Singapore at p 181. However, the minister and the author were referring to industrial applications generally, without making any distinction between...