Public Prosecutor v Poh Kim Video Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 03 December 2003
• Date: 03 December 2003
• Docket Number: Magistrate's Appeal No 80 of 2003
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Poh Kim Video Pte Ltd

Defendant

[2003] SGHC 304

Yong Pung How CJ

Magistrate's Appeal No 80 of 2003

High Court

Criminal Law–Statutory offences–Copyright infringement pursuant to s 136 (2) Copyright Act (Cap 63, 1999 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Appeals–Whether sentence imposed was manifestly inadequate–Criminal Procedure and Sentencing–Sentencing–Penalties–Definition of “article” under s 136 (2) Copyright Act (Cap 63, 1999 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Whether advancement of unsuccessful defence at trial amounts to aggravating factor for purposes of sentencing

The respondents, Poh Kim Video Pte Ltd (“Poh Kim Video”), engaged in the sale of Video Compact Discs (“VCDs”). On 27 December 2001, one box set of the “Bad Friends” drama series (“the drama series”) was purchased from each of five different Poh Kim Video retail outlets. Each box set comprised 18 VCDs. Poh Kim Video did not have rights in the drama series as of the date of the trap purchases and the box sets were infringing copies of the drama series.

TS Laser Pte Ltd (“TS Laser”), which owned the rights to distribute the drama series in Singapore as of 1 December 2001, commenced private prosecution against Poh Kim Video for breaches under s 136 (2) of the Copyright Act (Cap 63). After a trial, Poh Kim Video were convicted of five offences punishable under s 136 (2) of the Copyright Act and sentenced to a fine of $2,000 per charge, for a total fine of $10,000. In sentencing Poh Kim Video, the magistrate considered each box set as an “article” under s 136 (2) of the Copyright Act and did not regard each VCD in the box sets as an “article”.

TS Laser appealed against the sentences imposed on Poh Kim Video, on the ground that the magistrate had failed to take into account two aggravating factors during sentencing. TS Laser also submitted that the magistrate had erred in regarding each box set as an “article” for the purposes of sentencing under s 136 (2) of the Copyright Act.

Held, dismissing the appeal:

(1) The advancement of the defence of parallel import at the trial below could not be regarded as an aggravating factor. While the scandalous conduct of one's defence may constitute an aggravating factor in certain cases, an accused was entitled to raise any type of defence necessary to his case, even if this defence was scandalous or vexatious in nature. The mere fact that a defence had not succeeded, by itself, should not be taken against an accused in assessing sentence: at [17].

(2) There was no basis for holding that the size of Poh Kim Video's retail chain should be regarded as an aggravating factor. The magistrate was justified in holding that the culpability of Poh Kim Video was lower than that of syndicated pirates engaged in copyright infringement operations on a large scale: at [21] to [22].

(3) The question of what was an “article” under s 136 (2) of the Copyright Act had to be considered on a case-by-case basis as each case had to be considered on its own facts. The court was not bound to regard each VCD in a box set as an “article” in every case: at [26].

Ahmad Shah bin Hashim v PP [1980] 1 MLJ 77 (refd)

Cherng Chiu Yung v Rahman bin Haji OmarMagistrate's Appeal No 16 of 1997 (25 February 1997) (refd)

Highway Video Pte Ltd v PP [2001] 3 SLR (R) 830; [2002] 1 SLR 129 (refd)

Lim Tai Wah v Highway Video Pte Ltd v PPPSS 162/2001 (28 August 2001) (refd)

PP v Chew AllengMagistrate's Appeal No 248 of 1993 (23 July 1997) (refd)

Zeng Guoyuan v PP [1997] 2 SLR (R) 556; [1997] 3 SLR 321 (refd)

Copyright Act (Cap 63,1999Rev Ed)s 136 (2) (consd)

Kirpal Singh (Kirpal & Associates) for the appellant

Oommen Mathew and Serena Howe (Tan Peng Chin LLC) for the respondents.

Yong Pung How CJ

1 This was an appeal against the sentences imposed on the respondents, Poh Kim Video Pte Ltd (“Poh Kim Video”), in respect of five offences under s 136 (2) of the Copyright Act (Cap 63). At the end of the hearing before me, I dismissed the appeal and now give my reasons.

Background facts

2 Poh Kim Video engage in the sale of video cassettes, compact discs, laser discs, Video Compact Discs (“VCDs”) and Digital Video Discs at 33 outlets in Singapore.

3 On 27 December 2001, private investigators were instructed by TS Laser Pte Ltd (“TS Laser”) to conduct trap purchases of a Korean drama series known as “Bad Friends” (“the drama series”) from Poh Kim Video. One box set of the drama series, comprising 18 VCDs, was purchased in each of the Poh Kim Video outlets at Junction 8 Shopping Centre, Northpoint Shopping Centre, Century Square, Suntec City Mall and Centrepoint.

4 TS Laser then commenced a private prosecution against Poh Kim Video for breaches under s 136 (2) (a) of the Copyright Act (Cap 63).

Charges

5 Five charges were preferred...