Public Prosecutor v Teo Ai Nee and Another

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 15 March 1995
• Neutral Citation: [1995] SGHC 70
• Docket Number: Magistrate's Appeal No 111/94/01
• Date: 15 March 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Tan Lay Sang and Jupiter Kong (Lee & Lee)
• Citation: [1995] SGHC 70
• Defendant Counsel: Jimmy Yim, Steven Seah and Adrian Tan (Drew & Napier)
• Court: High Court (Singapore)
• Subject Matter: Probative value versus prejudicial effect,s 136 Copyright Act (Cap 63, 1988 Ed),Copyright (Amendment) Act (No 14 of 1994) s 2 Words and Phrases,Previous raids and charges,'Where he knows',ss 31, 32, 33, 103, 104, 105, 119 & 136 Copyright Act (Cap 63, 1988 Ed),Knowledge,'Things',Test for 'ought reasonably to know',Secondary infringement,Infringement,Evidence,Similar fact evidence,'Knows or ought reasonably to know',Words and Phrases,Requisite state of mind,ss 11, 14 & 15 Evidence Act (Cap 97, 1990 Ed),Weight of evidence,Copyright

This is an appeal from the decision of district judge Jasvender Kaur in the matter of Private Summons Nos 462-463 of 1992. The respondents were proprietors of Valentine Music Centre. They were tried on three amended charges of exposing for sale infringing copies of sound recordings and two amended charges of being in possession of infringing copies of sound recordings for the purpose of selling under ss 136(1)(b) and 136(2)(a) of the Copyright Act (Cap 63, 1988 Ed) read with s 34 of the Penal Code (Cap 224). The ten sound recordings in question were imported articles. The district judge had earlier dismissed the charges without calling for their defence. She held that the sound recordings which were the subject-matter of these five charges were not infringing copies because, under s 7(1) of the Act, `copyright owner` refeture. On appeal, I held that `copyright owner` referred to the copyright owner in Singapore and remitted the case back to the Subordinate Courts for the defence to be called: [1994] 1 SLR 452 . The respondents elected to give evidence. When judgment was delivered on 30 April 1994, the learned district judge acquitted the respondents. The Prosecutor, being dissatisfied with the acquittal, appealed to the High Court again.

Legislative intervention

After the acquittal of the respondents on 30 April 1994, on 25 August 1994 Parliament passed the Copyright (Amendment) Act 1994 (No 14 of 1994) which amended the Copyright Act. The President assented to the Act on 14 September 1994 and the amendments came into force on 1 October 1994 vide S 370/94. All these happened before this present appeal. The amendments made material changes to the provisions pertaining to liability for importing. Counsel did not raise the interesting issue of which law was applicable to the present proceedings, but merely assumed that the law applicable was the law prior to the amendments.

It is of interest to note the legislative position on this matter. Section 2 of the Copyright (Amendment) Act 1994 states:

Every provision of this Act shall apply to things existing on the commencement of the provision as well as to things coming into existence after such commencement.

Subsequent provisions of the amendment Act went on to make material changes to the definition of `accessory`, `imported article the making of which was carried out without the consent of the owner of copyright` and so on.

Prima facie, the word `things` would be broad enough to encompass, as it would appear from the definitional changes, `articles`, `accessories`, `works`, and the doings of various acts comprised in the copyright, such as `importation`. If s 2 was introduced to ensure that the amendments had retrospective effect, it certainly did so with a breath of language which, by this prima facie interpretation, would have unintended consequences. For instance, if articles were imported into Singapore in reliance on the consent of the copyright owner in Singapore, but without the consent of the copyright owner in the foreign country of manufacture, would such an importation come within the ambit of the amendments and thus be prohibited? Could `things existing on the commencement of the provision` refer to the act of importation itself or the imported article, or both? The issue was whether `things` referred to physical objects, or also to acts comprised in the bundle of rights known as `copyright`.

The problem was further accentuated since: (a) the presumption was against giving statutes a construction which would give them retrospective effect, and (b) the definitional amendments would not only affect civil liabilities under the Act, but also criminal liabilities.

Resort must then be had to Parliamentary material to discern the true intention of Parliament, to adopt a construction which would `promote the purpose or object underlying the written law`: s 9A, Interpretation Act (Cap 1). This was clearly an instance where resort to Parliamentary material was sanctioned:

as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.

( Per Lord Browne-Wilkinson in , at p 634 (House of Lords).)

Section 9A(2) provides:

Subject to subsection (4), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or

(b) to ascertain the meaning of the provision when -

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable.

By s 9A(3)(c), the material which could be examined by the court could include `the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament`. This was what the Parliamentary Secretary to the Minister for Law, Assoc Prof Ho Peng Kee, said in Parliament on 25 August 1994 (Parliamentary Debates of the Republic of Singapore - Official Report, Vol 63, p 415):

Sir, these recommendations will be given effect to by an amendment to s 25. The amendment will make it clear that the relevant copyright owner whose consent must be obtained is the owner in the country of manufacture except where there is no copyright owner, in which case the relevant owner would be the owner in Singapore. Let me assure members that the amendment will not have retrospective effect. These amendments will, therefore, not affect any importation or distribution done before this amendment takes place. However, existing copyright products will be affected.

Two points could be adduced from this speech:

(i) the amendments were not intended to have retrospective effect, and should not affect any importation or distribution done before the amendments take effect.

(ii) however, existing copyright products would be affected.

The logical inference from these two points is that any importation or distribution of copyright products (which exist before the amendments take effect) done after the amendments take effect, will be affected by the amendments. Needless to say, the inference applies a fortiorito importation or distribution of products which exist after the amendments take effect. It follows that the word `things` in s 2 has to be given a restricted meaning because prima facie this word has been `overloaded` with meanings in the context of the amendment Act. An interpretation has to be adopted which treats `things` as referring only to articles, accessories and copyright works or products, but not to the bundle of incorporeal rights associated with copyright, which in the present context refers to importation or distribution.

In the context of the present case, s 2 of the amendment Act has to be read in conjunction with s 16(1) of the Interpretation Act (Cap 1). The relevant paragraphs are set out as follows:

Where a written law repeals in whole or in part any other written law, then, unless the contrary intention appears, the repeal shall not -

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed. (My emphasis.)

Section 16(1) can only be read with s 2 of the amendment Act because it is concluded above that there is no such contrary intention in s 2 which will circumscribe the operation of s 16(1). Thus, for the purposes of this appeal, the applicable law is the law as it stood on 11 March 1992 (the date indicated in the charges), because the amendments do not affect these legal proceedings.

Secondary

I nfringement: `Knowledge`

The relevant provisions in the Copyright Act and the Penal Code are set out as follows:

Section 136, Copyright Act (Cap 63) - Offences

136(1) A person who at a time when copyright subsists in a work -

(a) makes for sale or hire;

(b) sells or lets for hire, or by way of trade offers or exposes for sale or hire;

(c) by way of trade exhibits in public; or

(d) imports into Singapore, otherwise than for private and domestic use,

any article which he knows, or ought reasonably to know, to be an infringing copy of the work shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or to imprisonment for a term not exceeding 5 years or to both. (My emphasis.)

(2) A person who at a time when copyright subsists in a work has in his possession any article which he knows, or ought reasonably to know, to be an infringing copy of the work for the purpose of -

(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

(b) distributing the article for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or

(c) by way of trade exhibiting the article in public,

shall be

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