TS Video and Laser Pte Ltd v Lim Chee Yong and another appeal

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 19 November 2001
• Neutral Citation: [2001] SGHC 341
• Date: 19 November 2001
• Subject Matter: Court's discretionary power to grant discharge amounting to acquittal exists,Whether initial presumption in favour of discharge not amounting to acquittal,s 184(2) Criminal Procedure Code (Cap 68),Trials,Application for discharge not amounting to acquittal,Criminal Procedure and Sentencing
• Docket Number: Magistrate's Appeal Nos 246 and
• Published date: 19 September 2003
• Defendant Counsel: Lee Teck Leng (Tan Peng Chin & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Kirpal Singh (Kirpal & Associates)

: The appellants in both appeals were charged in the court below on one count each of selling infringing copies of the Pokemon television series (`the Pokemon series`), and one count each of exposing the same for sale, in contravention of s 136(1)(b) of the Copyright Act (Cap 63, 1999 Ed). At the beginning of the trial in the court below, the respondent applied for, and obtained, a discharge not amounting to an acquittal. I dismissed the appeal against the trial judge`s decision, and now give my reasons.

The background

The respondent is a director of Poh Kim Video Pte Ltd (`Poh Kim`). Poh Kim is the sole agent of United Vision Media Pte Ltd (`UVM`), which holds the exclusive home video licence for Singapore in respect of video cassette and video compact disc versions of the Pokemon series. UVM`s interest in the Pokemon series is in turn derived from an exclusive licence granted to it by Medialink International Ltd (`Medialink`), a Hong Kong company.

The appellants, TS Video and Laser Pte Ltd (`TSV`) and TS Entertainment Pte Ltd (`TSE`) are related companies. On 5 May 2000, a trap purchase of one set of the Pokemon series was carried out pursuant to Poh Kim`s instructions at TSE`s premises at Suntec City Mall. Subsequently, a second trap purchase was carried out on 11 May 2000 at TSV`s premises at Jurong Point. Pursuant to the trap purchases, a search warrant was obtained and the premises of TSV and TSE were raided on 16 May 2000. A total of 22 sets of the Pokemon series were seized from TSV, and a further 18 sets from TSE (`the seized items`). The seized items, together with the two sets acquired earlier by trap purchase, formed the basis of the charge.

The trial below

The respondent obtained an authorisation from the Public Prosecutor, pursuant to s 336(4) and (7) of the Criminal Procedure Code (Cap 68) (`CPC`), to prosecute the appellants for copyright infringement. However, on the day of the trial, the respondent informed the court below that he had been unable to procure the attendance of the Japanese copyright owners. The reason given was that the Japanese copyright owners were currently entangled in a legal dispute with Medialink in Hong Kong and were reluctant to involve themselves in the proceedings below until the resolution of the Hong Kong dispute. The respondent estimated that the Hong Kong dispute would take approximately six months to resolve, and applied for a discharge not amounting to an acquittal pursuant to s 184(2) of the CPC. This application was challenged by the appellants, who argued that they were entitled to a discharge amounting to an acquittal.

In granting the respondent`s application, the trial judge took the view that, although the delay in prosecution resulting from the unavailability of the Japanese copyright owners was not desirable, the indefinite apprehension of criminal proceedings was not a conclusive factor in determining whether to grant a discharge not amounting to an acquittal. As the charges faced by the appellants were serious charges, on matters relating to the public interest and public rights, and there were no improper motives behind the application, the delay in prosecution would not be unconscionable. The trial judge also noted that s 136(10) of the Copyright Act did not impose a time-bar to prosecution where the summons was issued more than six months after the commission of the offence, and only required the return of the seized articles.

The appeals

Before me, the appellants contended that they should have been granted a discharge amounting to an acquittal instead of a discharge not amounting to an acquittal. In so contending, they relied on four grounds: the locus standi of the respondent, the rationale for granting the application, lack of compliance with s 136(10) of the Copyright Act, and that the proceedings below were in fact de facto civil proceedings. Not only did I find that none of these grounds were relevant to the appeals, I also found that the appellant had fundamentally misunderstood the basis upon which a trial judge decides whether or not to grant a discharge not amounting to an acquittal.

THE LAW ON DISCHARGES NOT AMOUNTING TO ACQUITTALS

On when a discharge amounting to an acquittal or a discharge not amounting to an acquittal should be granted, s 184 of the CPC provides:

(1) At any stage of any summary trial before judgment has been delivered, the Public Prosecutor may, if he thinks fit, inform the court that he will not further prosecute the defendant upon the charge and thereupon all proceedings on the charge against the defendant shall be stayed and he shall be discharged from and of the same.

(2) Such discharge shall not amount to an acquittal unless the court so directs except in cases coming under section 177.

This was interpreted by Lai Kew Chai J...