T S Laser Pte Ltd v Poh Kim Video Pte Ltd and Others

• Jurisdiction: Singapore
• Judge: Gilbert Low Teik Seang
• Judgment Date: 27 August 2003
• Neutral Citation: [2003] SGMC 29
• Court: Magistrates' Court (Singapore)
• Year: 2003
• Published date: 01 October 2003
• Plaintiff Counsel: Kirpal Singh (Messrs Kirpal & Associates)
• Defendant Counsel: Oomen Mathew (Messrs Tan Peng Chin & Partners)
• Citation: [2003] SGMC 29

1 Mr Toh Choon Hui, who is also known as “Joseph Toh”, commenced private prosecution on behalf of T S Laser Pte Ltd (the “complainants”), a company which he is the marketing manager, against the company Poh Kim Video Pte Ltd (“Poh Kim Video”) and its two directors Mr Lim Chee Yong and Mr Eu Kwan Tung, for breaches under Section 136(2)(a) of the Copyright Act. The charges against the 2 directors were proceeded on the basis that as directors of Poh Kim Video Pte Ltd, they had consented or connived in the commission of the breaches, by virtue of section 201B(4) of the Copyright Act. A set of five charges was preferred against each respondent (charges P1 to P5 against Poh Kim Video Pte Ltd, charges P6 to P10 against Eu Kwan Tung and charges P11 to P15 against Lim Chee Yong), which related to trap purchases conducted on 27^th December 2001 at 5 outlets of Poh Kim Video in Singapore at Northpoint Shopping Centre, Century Square, Junction 8 Shopping Centre, Suntec City Mall and Centrepoint.

2 At the end of the trial, I convicted Poh Kim Video on all the 5 charges preferred against it and imposed a fine of $2,000 for each charge and I acquitted both directors on their respective charges. I also declined the prosecution’s application for prosecution costs pursuant to section 401(1) of the Criminal Procedure Code to be awarded against Poh Kim Video. Against my decision, the Public Prosecutor on behalf of T S Laser Pte Ltd has lodged appeals against the sentence imposed on Poh Kim Video Pte Ltd for the 5 charges which the company was convicted on (Magistrate’s Appeal No. 80/2003/01) and the acquittal of Mr Lim Chee Yong on all the 5 charges against him (Magistrate’s Appeal No. 81/2003/01). Poh Kim Video Pte Ltd lodged an appeal against its conviction on all the 5 charges proceeded (Magistrate’s Appeal No. 80/2003/02). To-date, there has not been any appeal in respect of the acquittal of Eu Kwan Tung and the order to refuse prosecution costs.

Prosecution's case

Evidence of trap purchases

3 On 27^th December 2001, Mr Philip Tan See Wei, the Chief Investigator and managing partner of Commercial Investigations, a licensed firm of private investigators, was instructed by Joseph Toh, the marketing manager of TS Laser Pte Ltd to conduct a trap purchase of a Korean drama series known as “Bad Friends” from the various Poh Kim Video outlets in Singapore. Mr Philip Tan prepared his investigation report admitted as P18 wherein he reported having sent “operatives” to 5 Poh Kim Video outlets at Northpoint Shopping Centre, Century Square, Junction 8 Shopping Centre, Suntec City Mall and Centrepoint to conduct the trap purchases from these outlets. The receipts and plastic bags for the purchases, together with photographs of the outlets were enclosed as annexures in the report P18. The copies of “Bad Friends” purchased from these outlets were admitted and marked individually as Exhibits P19 to Exhibits P23.

Evidence of Summit CD Manufacture Pte Ltd

4 The prosecution next led evidence from two representatives of Summit CD Manufacture Pte Ltd (“Summit” or “Summit CD”) to elucidate the origins of Exhibits P19 to P23, the trap purchases from the five Poh Kim Video outlets. From the evidence of Mr Yeo Boon Hiang, the executive director of Summit, Summit is in the business of replication of compact discs. Mr Yeo further confirmed that Poh Kim Video Pte Ltd had been a client of Summit for several years. He recognised Mr Lim Chee Yong as the managing director of Poh Kim Video Pte Ltd and Poh Kim Corporation Pte Ltd (“Poh Kim Corporation”), a related company of Poh Kim Video. Initially, Mr Yeo, with Summit’s counsel on watching brief, was reluctant to testify on the origins of the exhibits. It was after an undertaking was given by the complainants not to take any action against Summit both civilly or criminally that Mr Yeo proceeded further with his testimony.

5 Mr Yeo testified that on 22^nd November 2001, his staff was given a verbal order by Poh Kim Video to replicate 2,000 pieces of “Bad Friends”. The order was to be billed to Poh Kim Corporation. In the course of his testimony, Mr Yeo was asked to examine the exhibits P19 to P23. He confirmed that the Source Identification Code (or “SID Code”) allocated to Summit by the International Federation of Phonographic Industry (IFPI) was present on the discs in these exhibits, although he could not confirm if the discs were produced by Summit.

6 As Mr Yeo was not the person who directly dealt with the said order from Poh Kim Video, the prosecution called Mr Seah Chow Siong, a sales executive from Summit who dealt with the order. Mr Seah confirmed that on 22^nd November 2001, he received an order to replicate 2,000 sets of “Bad Friends” whilst he was at the premises of Poh Kim Video. The order was delivered in two batches of 1,000 sets per batch on the 18^th and 28^th December 2001 respectively. The first batch was delivered by Summit to Poh Kim Video’s main office at 53 Kim Keat Road #03-03 Mun Hean Building Singapore whereas the second batch was picked up by Poh Kim Video’s own transport company. When taking the order, Mr Seah testified that he was informed by Poh Kim Video that the latter had the copyright to the series although no documentary evidence was shown as this was not the usual practice to do so. Mr Seah viewed the discs in Exhibits P19 to P23 and confirmed that the discs therein originated from Summit because they bore the SID code of Summit. Like Mr Yeo, Mr Seah also agreed that it was possible for someone else to have access to a CD pressing machine to stamp the SID code of Summit on the discs.

Evidence of copyright agent

7 Mr Chen Chao Hian, also known as “Aheng Chen”, the boss Hwa Yae Multimedia International Trading Company (“Hwa Yae”) gave testimony that Hwa Yae deals with copyright business worldwide, including the Asian region such as Singapore, Malaysia, Indonesia, Thailand, Taiwan and mainland China. Hwa Yae is not a producer of drama series but deals in the copyright business by acquiring rights for drama serials, movies and music for a certain region and thereafter, reselling the rights to a local distributor in that region, viz. a copyright agent. Apart from acquiring and reselling the rights, Hwa Yae neither manufactures nor presses the discs for distribution and sale.

8 In the case of the drama series “Bad Friends”, Mr Chen had obtained its sole copyright for Malaysia, Singapore and Brunei from MBC Production Co. Ltd. (“MBC Production”), the broadcasting station from South Korea which produced this serial. In October 2001, Mr Chen was in Korea for the Korean Music Festival and he met the representative of MBC Production. By end of November 2001, he had obtained the copyright for the region of Singapore, with the copyright commencing from 1^st December 2001 for 3 years. In support of the copyright granted for the region of Singapore, the copy of agreement between Hwa Yae and MBC Productions (governed by Korean law with right or reassignment granted to Hwa Yae) was admitted as Exhibit P25 whereas a copy of the Certificate of the Copyright was admitted as Exhibit P24. Mr Chen testified that he had received the P24 certificate first and only received P25 later in early December 2001. In his words (pages 37 of the notes of evidence),

“I got a copy of P25 … I cannot remember the date clearly, but after I received P24. I received P25 maybe in early December 2001. The date in P25 is left black because I received the certificate in late November. The terms stated in the certificate stated 1^st December 2001. Therefore, the day of agreement made no difference to me.”

9 By an agreement made with T S Laser Pte Ltd in Mandarin and governed by Taiwanese law, Mr Chen sub-licensed the rights he obtained in respect of “Bad Friends” series to T S Laser for the regions of Singapore and Malaysia, after liasing with Joseph Toh of T S Laser. The original Mandarin agreement was admitted as Exhibit P26 whereas its certified translation in English was admitted as Exhibit P27. In cross-examination (page 54 of the notes of evidence), Mr Chen gave the date of faxing and sending over a copy of P26 to be before 1^st December 2001. The original was dated 1^st December 2001 and was sent to and retained by T S Laser. According to Mr Chen, almost immediately after the agreement in P26, a request to remove Malaysia from the agreement was made by T S Laser owing to the piracy issue there. The price to be paid for each episode was also reduced accordingly. When the request to remove Malaysia was made by T S Laser, Mr Chen proceeded to draft a fresh agreement covering only Singapore, also governed by Taiwanese law and in Mandarin, before 2^nd December 2001 (page 55 of the notes of evidence). This new agreement was admitted as Exhibit P30 and its certified translation in English as Exhibit P31. MBC Production was informed accordingly on 2^nd December 2001 and agreed to the request (page 41 of the notes of evidence).

10 In mid-December 2001, Mr Chen testified that Mr Joseph Toh of T S Laser called him, informing him that a company in Singapore had wanted to distribute “Bad Friends”. Mr Chen replied that this was impossible since T S Laser held the exclusive licence for the series. Mr Toh then faxed him Exhibit P28 which showed the sleeve cover of the series “Bad Friends” wherein the distributor was one Crest Ocean (Hong Kong) Limited with a Hong Kong address and below the word “copyright”, was stated the name Poh Kim Corporation Pte Ltd and its address in Singapore. Mr Chen then faxed P28 to the offices of MBC Production in Korea to enquire if Poh Kim Video had the distribution rights for the series. Miss Hur informed him that it was not possible because T S Laser held the sole distribution rights for the series in Singapore. On 26^th December 2001, Mr Chen received an e-mail from Miss Hur who informed him that she had contacted Mr Lim of Poh Kim Video. Her conversation with Mr Lim was summarised in the...