Theseira Jerry Luke v Hua Language Centre Pte Ltd

• Jurisdiction: Singapore
• Judge: Lim Wen Juin
• Judgment Date: 30 August 2021
• Neutral Citation: [2021] SGMC 58
• Court: Magistrates' Court (Singapore)
• Docket Number: Private Summons No 900025 of 2020 (Application No 2021-0622-174259)
• Published date: 02 September 2021
• Year: 2021
• Hearing Date: 11 August 2021
• Plaintiff Counsel: Byron Nicholas Xavier, Tisha Yeo and Seow Wan Li (Xavier & Associates LLC)
• Defendant Counsel: Meryl Koh and Roi Tan (Drew & Napier LLC)
• Subject Matter: Intellectual Property,Copyright,Offences,Seizure of articles and documents,Return of seized articles and documents
• Citation: [2021] SGMC 58

District Judge Lim Wen Juin:

In this application Hua Language Centre Pte Ltd (“the respondent”) seeks the return of 13 computers (and associated equipment) and 141 documents (collectively “the Items”) that were seized from its premises on authority of a warrant issued pursuant to s 136(9) of the Copyright Act (Cap 63, 2006 Rev Ed). The Items are presently in the custody of the Intellectual Property Rights Branch of the Singapore Police Force. The respondent brings this application in the context of pending criminal proceedings against it for alleged offences under s 136(3A) of the Copyright Act. Those proceedings sprang from a complaint made to a Magistrate by Theseira Luke Jerry (“the complainant”) pursuant to s 151(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”).

The basis for this application is that the criminal proceedings against the respondent were not “instituted within 6 months of the seizure” within the meaning of ss 136(10)(b) and 136(11) of the Copyright Act, the consequence being that the Items “shall be returned” to the respondent as “the person in whose possession [they were] when [they were] seized”. The complainant resists this application. His primary ground is that criminal proceedings were in fact instituted within six months of the seizure, and in the alternative he asks that I grant a retrospective extension of time to institute such proceedings.

This application gives rise to a novel albeit narrow question of principle: when are proceedings “instituted” within the meaning of ss 136(10) and 136(11) of the Copyright Act? Is it when a complaint is made, as the complainant argues, or when a summons is issued, as the respondent contends?

The Items were seized on 1 November 2019. It is not disputed that for criminal proceedings to have been instituted within six months of the seizure this had to be done by 2 May 2020 because the last day of the six-month period, 1 May 2020, was a public holiday and 2 May 2020, a Saturday, was “the next following day not being an excluded day” within the meaning of s 50(b) of the Interpretation Act (Cap 1, 2002 Rev Ed). What happened was that on 29 April 2020 the complainant’s solicitors attempted to file electronically the complaint against the respondent (with supporting documents) on the Integrated Case Management System (“ICMS”), the electronic filing service for criminal matters in the State Courts. They encountered difficulties in doing so and the difficulties persisted despite protracted correspondence with the ICMS helpdesk spanning 29 and 30 April 2020. According to the complainant’s solicitors they also called the State Courts to enquire about the possibility of going physically to court to submit hard copies or CD-ROMs containing electronic copies, but were informed by the State Courts helpdesk that they should not do so by reason of the “Circuit Breaker” measures relating to COVID-19 then in force as set out in State Courts Registrar’s Circular No 8 of 2020. The complainant’s solicitors managed eventually to complete the electronic filing of the complaint on ICMS on 4 May 2020. Thereafter on 15 July 2020 a Magistrate issued a summons against the respondent consequent to the complaint.

If the respondent is right to say that proceedings are “instituted” for the purposes of ss 136(10) and 136(11) of the Copyright Act when a summons is issued, then the Items must be returned to it given that the summons was issued well after 2 May 2020. If the complainant is right to say that proceedings are “instituted” when a complaint is made, there arises the further issue of whether the complaint was made on the day that the filing was completed on ICMS, which was two days after 2 May 2020, or on some date before 2 May 2020 in the course of the attempts made by the complainant’s solicitors to file the documents on ICMS. If the former, the Items must be returned, but if the latter, they need not be. All this assumes no extension of time, and in that connection the respondent says that only the High Court may grant such an extension and the State Courts have no power to do so.

For ease of reference I reproduce at this juncture ss 136(9), 136(10) and 136(11) of the Copyright Act:

Offences

136.—(1) … (9) If information is given upon oath to a court that there is reasonable cause for suspecting that there is in any premises any article or document which is evidence that an offence under subsection (1), (2), (3), (3A) or (4) has been committed, the court may issue, either unconditionally or subject to such conditions as the court thinks fit, a warrant authorising a police officer to enter and search the premises for the articles and documents which are specified in the warrant, whether specifically or in any general category, and to seize any such articles and documents found at the premises. (10) If an article was seized under subsection (9) and — (a) in proceedings brought under this section, no order is made under subsection (8) as to the article; or (b) no such proceedings are instituted within 6 months of the seizure,

the article shall be returned to the person in whose possession it was when it was seized or, if it is not reasonably practicable to return it to that person, shall be disposed of in accordance with the law regulating the disposal of lost or unclaimed property in the hands of police authorities.

(11) If a document was seized under subsection (9) and no proceedings under this section are instituted within 6 months of the seizure, the document and all copies of the document shall be returned to the person in whose possession the document was when it was seized or, if it is not reasonably practicable to return the document and copies to that person, shall be disposed of in accordance with the law regulating the disposal of lost or unclaimed property in the hands of police authorities.

…

Whether proceedings are “instituted” by complaint or summons

Sections 136(10) and 136(11) of the Copyright Act refer to “proceedings brought under this section” and “proceedings under this section”. That is what needs to be “instituted” within six months. There is no doubt that proceedings “under this section” mean criminal proceedings in respect of alleged offences defined by and punishable under the sub-sections of s 136 of the Copyright Act.

The commencement of criminal proceedings generally is a matter governed by ss 150 to 156 of the CPC. Looking at these provisions, the respondent is clearly correct to say that criminal proceedings are “initiated” by way of a summons and that the making of a complaint does not without more suffice to bring criminal proceedings into existence. Section 150 provides that criminal proceedings against any person may be “initiated” by various modes including “a summons” or “any other mode for compelling the attendance of a person in court which is provided for under [the CPC] or any other written law”. From this I understand that there are no criminal proceedings against a person unless there is present the element of compulsion on that person to attend court.

A complaint lacks such compulsory character. As the CPC provides, any person may make a complaint (s 151(1)), but after examining that person on oath “immediately” as required by s 151(2)(a) the Magistrate “may dismiss the complaint if he decides that there is insufficient reason to proceed” (s 152(1)). If dismissal results there are no criminal proceedings to speak of because there is no one whose attendance in court is compelled. Alternatively the Magistrate may take the interim steps contemplated in s 151(2)(b). He may for instance “direct any police officer to make inquiries for the purpose of ascertaining the truth or falsehood of the complaint and report to the Magistrate the result of those inquiries” (s 151(2)(b)(ii)), or “postpone consideration of the matter to enable the complainant and the person complained against to try to resolve the complaint amicably” (s 151(2)(b)(iv)). Likewise, if the Magistrate takes such interim steps there are no criminal proceedings afoot in the meantime because no person is compelled to attend court to be the subject of proceedings. Thus, where a complaint is made, it is only if and when the Magistrate “issue[s] a summons for the attendance of an accused” pursuant to s 153(1) of the CPC that there are any criminal proceedings in existence.

But for purposes of ss 136(10) and 136(11) of the Copyright Act the issue is when criminal proceedings were “instituted”. This might not necessarily be the same thing as when they were “initiated” within the meaning of s 150 of the CPC, even though I accept that in ordinary everyday usage “institute” and “initiate” are generally regarded as synonyms. In the context of Art 35(8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) the High Court has opined that the verb “institute” is “appropriate to describe the commencement of criminal proceedings”: see the decision of Woo Bih Li J (as he then was) in Attorney-General v Tee Kok Boon [2008] 2 SLR(R) 412 (at [69]). Even though a complaint does not without more give rise to criminal proceedings, I think it would not be an abuse of language or otherwise nonsensical to say that the complaint marks the start of those proceedings. This is because, as Yong Pung How CJ put it in Oh Cheng Hai v Ong Yong Yew [1993] 3 SLR(R) 257 (“Oh Cheng Hai”), a complaint “triggers off the prosecution process” (at [5]). Hence as a matter of language I cannot rule out the possibility that proceedings are “instituted” under ss 136(10) and 136(11) of the Copyright Act when a complaint is made.

I do not think that the various authorities cited by the parties are conclusive of the issue. The respondent relies on TS Video and Laser Pte Ltd v Lim Chee Yong and another appeal [2001] 3 SLR(R) 639 (“TS Video”), a...