Yu Peng Hsueh-Shu v PP

• Jurisdiction: Singapore
• Judgment Date: 25 August 2011
• Date: 25 August 2011
• Docket Number: Magistrate's Appeal No 41 of 2011 No 46 of 2011
• Court: High Court (Singapore)

Yu Peng Hsueh-Shu

Plaintiff

and

Public Prosecutor and another matter

Defendant

[2011] SGHC 198

Choo Han Teck J

Magistrate's Appeal No 41 of 2011 (District Arrest Cases Nos 301-307 of 2011) and Criminal Motion No 46 of 2011

High Court

Copyright—Offences—Offender distributing hard disks containing infringing copies of copyrighted subject-matter—Each hard disk embedded in karaoke player that was distributed for trade—Whether relevant article was each hard disk or each infringing copy—Section 136 (2) (b) Copyright Act (Cap 63, 2006 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Offender pleaded guilty to copyright infringement offences—Trial judge treated each infringing copy as an article—Trial judge considered offender's profit-mindedness as aggravating factor—Whether custodial sentence justified—Whether sentence manifestly excessive—Section 136 (2) (b) Copyright Act (Cap 63, 2006 Rev Ed)

The appellant pleaded guilty to three charges of copyright infringement under s 136 (2) (b) of the Copyright Act (Cap 63, 2006 Rev Ed) (‘the Act’) . The charges specified that, at the material time, she possessed for distribution hard disks which contained infringing copies of ‘visual recordings’ and ‘song titles’ when copyright subsisted in those ‘works’. The statement of facts also stated that several recording companies, which were the relevant copyright owners, confirmed that the ‘music videos’ were infringing copies. The appellant had embedded each hard disk in a karaoke player which she then sold for a profit of $100 to $250.

There were 24 hard disks containing 8,436 infringing copies in these three charges - five hard disks which contained 4,286 infringing copies in the first charge; ten hard disks which contained 3,272 infringing copies in the second charge; and nine hard disks which contained 878 songs in the third charge. Four other charges of the same nature were taken into consideration for sentencing purposes. They involved a further 6,407 infringing copies contained in 21 hard disks.

The trial judge took the view that the relevant ‘article’ in the charges was each infringing copy of the copyrighted subject-matter and not each hard disk. In determining the appropriate sentence, two precedents where custodial sentences were imposed for similar offences were applied. The trial judge also noted that the appellant continued to distribute the hard disks for six months after knowing that they were infringing articles. The appellant received an aggregate of seven months' imprisonment.

On appeal, defence counsel submitted that the sentence was manifestly excessive because, as a matter of law, the relevant article in this case should be each hard disk, and there were thus 24 and not 8,436 articles. The Prosecution submitted that if the defence's construction of the relevant article was accepted, a future offender would simply store many infringing copies of copyrighted subject-matter on one hard disk and distribute it.

Held, allowing the appeal:

(1) What constituted an ‘article’ for the purposes of s 136 (2) of the Act was a question of fact because the existence of the infringing copies and articles had to be proven as matters of fact. But what ‘article’ meant in s 136 (2) was a matter of legal interpretation as well because the provision stated ‘any article which [the accused] knows ... to be an infringing copy of the work’. The question that arose by implication was whether an infringing copy was the article or there were instances in which an article might comprise several infringing copies: at [3].

(2) An ‘article’ had to contain an ‘infringing copy’. There could not be infringing copies of anything else apart from the subjects enumerated in s 7 (1) of the Act. Since infringing copies could only exist in relation to a subject-matter that was specified for in the Act, the copyrighted subject-matter that constituted the offences in this case had to fall within those specified categories: at [3].

(3) The Act clearly distinguished between original ‘works’ and ‘subject-matter other than works’. Copyright in the latter was a copyright which subsisted independently of and did not affect or detract from copyright in the former. The infringing copies in this case had to be a reference to ‘sound recordings’. The recording companies which ascertained the legitimacy of the subject-matter in the hard disks were not necessarily the relevant copyright owners of the literary and musical works that might have subsisted independently in each sound recording. This distinction was important and had to be clearly stated and either proved or admitted. Hence, the charges should have used the term ‘sound recordings’ instead of ‘works’; and s 136 (2) read with s 136 (5) of the Act for the offence to be clearly stated: at [4].

(4) Where one ‘movie title’ was pirated by reproducing it on one storage disc for sale, it was not reasonable, correct or fair to regard that one storage disc as four infringing articles despite there being an infringing copy in relation to each of the various copyrightable subject-matters that comprised the movie. It was fair to say that there was only one infringing article, the storage disc itself. This interpretation was fair because the parties would have had in mind a transaction that involved the sale of a storage disc, matching the intentions of the offender and buyer.

The understanding that an article had to be construed from the offender's perspective was also reflected in the language of s 136 (2) which used the terms ‘sell’, ‘let for hire’, ‘offer or expose for sale or hire’, ‘distribute’ or ‘exhibit in public’ in relation to the article. Those acts could only be carried out with respect to the thing, that is, the article that the offender dealt with the consumer. Here, it was incorrect to treat each infringing copy of a sound recording as an article in itself. The infringing copies of sound recordings were not and could not have been distributed in any other way by the appellant: at [5].

(5) The fear that an offender would simply store many infringing copies of copyrighted subject-matter on one hard disk and distribute that hard disk did not recognise that there might in fact already be several copyrighted works or other subject-matter in a single product such as a ‘movie’ or a ‘music video’. The elements of an offence had to not be mixed up with an assessment of the offender's degree of culpability at once. They had to be considered in turn: at [6].

(6) Given that the legislative policy behind the copyright offences was to punish and deter copyright infringements that were committed for commercial benefit, and the plain wording of s 136 (2) , the proper focus in defining the key element of the offence, the term ‘article’...