Megastar Entertainment Pte Ltd and Another v Odex Pte Ltd

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 28 April 2005
• Neutral Citation: [2005] SGHC 84
• Docket Number: Criminal Revision No 2 of 2005
• Date: 28 April 2005
• Year: 2005
• Published date: 29 April 2005
• Plaintiff Counsel: Kirpal Singh (Kirpal and Associates)
• Citation: [2005] SGHC 84
• Defendant Counsel: Lau Kok Keng and Siew Kum Hong (Rajah and Tann)
• Court: High Court (Singapore)
• Subject Matter: Section 136(9) Copyright Act (Cap 63, 1999 Rev Ed),Whether information recorded in electronic medium on computer hard disk drive falling within meaning of "document",Whether search warrants issued under s 136(9) of Copyright Act permitting seizure of documents evidencing infringement,Whether search warrants drafted in sufficiently specific and limiting terms,Whether search warrants issued under s 136(9) of Copyright Act defective, vague or lacking in proper particulars,Search warrants,Criminal Procedure and Sentencing,Scope of search warrants,Whether use of categories and lists prohibited in framing of search warrants,Form,Sections 136(9), 136(12) Copyright Act (Cap 63, 1999 Rev Ed), s 378(3) Criminal Procedure Code (Cap 68, 1985 Rev Ed), s 3(1) Evidence Act (Cap 97, 1997 Rev Ed)

28 April 2005

Yong Pung How CJ:

1 This was a petition for criminal revision in respect of seven search warrants, Nos 63A to 69A of 2004 (“the search warrants”), issued to the respondent under s 136(9) of the Copyright Act (Cap 63, 1999 Rev Ed) (“the Copyright Act”).

2 I dismissed the petition and give my reasons as follows.

The parties

3 The respondent is in the business of providing foreign television programmes, in particular, various well-known Japanese animation series (or more commonly known as “anime”), to local television stations for broadcasting, as well as distributing authorised copies of these programmes to retailers for sale to the public.

4 There was some dispute as to the true nature of the petitioners’ business. The petitioners described themselves as private limited companies in the business of wholesale acquisition of copyright and licences in various films and drama series from overseas. On the other hand, the respondent asserted that the two petitioners were members of a group of related companies known as the “TS” group of companies, and that the petitioners were primarily engaged in retail sales of Digital Video Discs, also known as Digital Versatile Discs (“DVDs”), and Video Compact Discs (“VCDs”) in various languages and genres to consumers at a number of retail outlets across Singapore.

The complaints and the issue and execution of the search warrants

5 On 8 September 2004, the respondent made seven complaints (“the complaints”) under s 136(9) of the Copyright Act before a district judge sitting as the Chambers Magistrate in the Subordinate Courts. Pursuant to the complaints, the district judge ordered the search warrants in relation to six units of the Lam Leong Building occupied by the petitioners, and a vehicle with the licence plate number YK5888T.

6 The Schedule to each of the search warrants read as follows:

1. Any unauthorised copies of the Odex Programmes (including but not limited to episodes of “Gundam Seed” and “Fruits Basket”), a non-exhaustive list of which is set out in Annex A herein, and any unauthorised copies of the AVPAS Programmes, a non-exhaustive list of which is set out in Annex B herein.

2. Any document (in whatever form, including but not limited to information existing in computer readable form, any computer and/or hard disk integral to any computer) or article constituting evidence of the commission of any offence under sections 136(1), (2) or (3) of the Copyright Act, in relation to the Odex Programmes and the AVPAS Programmes, by physical copy or by imaging.

7 The same day, from around 5.00pm onwards, the search warrants were executed and various items were seized from the petitioners’ premises by the raiding party, which was comprised of representatives of the respondent; officers from the Intellectual Property Rights Branch of the Criminal Investigation Department, Singapore Police Force (“IPRB”); solicitors from M/s Rajah & Tann, the respondent’s solicitors; private investigators from the firm, Commercial Investigations; and digital forensic experts from TechBiz FrisMan Pte Ltd (“TechBiz”). The items seized, which generally related to various Japanese anime titles such as “Gundam Seed”, “Fruits Basket”, “Gear Fighter Dendoh” and “s-CRY-ed”, included numerous VCDs, DVDs, cardboard packaging, stickers and sleeve papers. Various other documents, notes transaction summaries, sales invoices and tax invoices were also seized from the petitioners’ premises.

The imaging of hard disk drives from the petitioners’ computers

8 In addition to the items seized by the raiding party, representatives from TechBiz, the computer forensic experts engaged by the respondent for purposes of the raid, conducted various visual examinations and searches of the petitioners’ computer systems on the premises and eventually imaged the hard disk drives of a database server computer, a file server computer, and four desktop computers belonging to the petitioners.

9 As explained in the affidavit of Kelvin Low, a director of TechBiz, “imaging” is a technical term that describes the process of creating an exact replica of the content of a storage device (“the original storage device”), such as a hard disk drive, on another storage device (“the imaged storage device”). Imaging is different from the ordinary copying of data from one hard disk drive to another. Through imaging, items of data on the original storage device, including dates, time stamps, deleted files, free space and other system artefacts, can be reproduced in their exact state and form on the imaged storage device. Subsequent phases of computer forensic work can then be performed on the imaged files on the imaged storage device, thus preserving the integrity of the data on the original storage device.

10 Following the raid, all the seized items, including the imaged hard disk drives, were retained by the IPRB.

Disagreements over the inspection of the imaged hard disk drives and the Consent Agreement

11 Following the parties’ disagreement over the access, inspection and use of the information contained on the imaged hard disk drives, the parties recorded a Consent Agreement before the district judge on 12 January 2005 (“the Consent Agreement”). Under the Consent Agreement, the parties agreed to jointly conduct the extraction of files from the imaged hard disk drives at the IPRB, subject to an undertaking by the respondent not to use the information for collateral purposes. However, on 1 February 2005, the petitioners informed the district judge that they no longer wished to comply with the terms of the Consent Agreement, citing, inter alia, the present petition for criminal revision before the High Court.

Principles governing revision

12 The principles governing revision were set out in the case of Ang Poh Chuan v PP [1996] 1 SLR 326, where I held at 330, [17] that “there must be some serious injustice” and “generally it must be shown that there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial power by the court below”. Similarly, I made it clear in Mohamed Hiraz Hassim v PP [2005] 1 SLR 622 at [11] that “the court’s powers of revision are exercised sparingly, and only if the court is satisfied that some serious injustice has been caused which warrants the exercise of its powers of revision”.

13 Therefore, the onus was on the petitioners to satisfy the court that some serious injustice had been caused that warranted the exercise of the court’s powers of revision.

Issues on criminal revision

14 The petitioners’ arguments for criminal revision were that the respondent’s complaints and search warrants were defective in that:

(a) They were too vague and lacked proper particulars;

(b) The scope under para 1 of the Schedule of items to be seized was too vague and lacked proper particulars;

(c) The scope under para 2 of the Schedule of the documents to be seized was too vague and lacked proper particulars; and

(d) Under para 2 of the Schedule, the scope of the documents to be seized in respect of the “information existing in computer readable form, any computer and/or hard disk integral to any computer … by physical copy or by imaging” was too vague and lacked proper particulars and was generally too wide.

15 In addition to the arguments in respect of the complaints and search warrants, the petitioners alleged that the respondent was their “trade rival” and argued for restrictions on the manner in which the respondent could access the information obtained from the imaged hard disk drives. The respondent in turn argued that it did not engage in any form of retail sales, whereas it alleged that the petitioners and their related companies in the TS group were primarily engaged in retail sales and thus would not be competitors or trade rivals to the respondent. I was of the view that the question of whether or not the parties were “trade rivals” fell outside the ambit of the present proceedings for revision, because such arguments concerned matters that were not yet conclusively determined by the court below. The respondent also alleged that the petitioners’ refusal to comply with the Consent Agreement of 12 January 2005 amounted to contempt of court, and that the petition for revision should not be heard due to the petitioners’ alleged contempt of court. However, I was similarly of the view that the petitioners’ alleged contempt of court, and any consequences thereof, was also a matter that remained open for determination by the court below, which lay outside the scope of the present proceedings for revision.

16 Accordingly, I proceeded to hear the criminal revision in respect of the validity of the complaints and the search warrants against the petitioners.

Whether the respondent’s complaints were defective

17 The burden was on the petitioners to show that the complaints were defective in some way. However, the petitioners were not able to give any explanation as to why the complaints may have been defective. When asked in court to explain the petitioners’ allegations against the complaints, counsel for the petitioners skirted the issue, claiming instead that the complaints were “vague” and that only a small percentage of the information seized was relevant to the alleged copyright infringement. I was not in the least persuaded by these arguments. The petitioners offered no further explanation or elaboration on how the respondent’s complaints...