CASE REVIEW: IN RE KAH WAI VIDEO (IPOH) SDN BHD

INTRODUCTION/BACKGROUND

This is a criminal revision dated on 29th June 1985 dealing with a copyright issue. The law

governing this matter at that time is Copyright Act 1969. Everything is started on 21 May 1985.

Two informations by protected informants against the proprietor/occupier of No 26 and 26A,

Jalan New Pasir Putih, lpoh, Perak were laid on oath by Kah Wai Hoe, an employee of Syarikat

Progress Trading and Riduan bin Hashim, an employee of Classic Video Programmes Sdn. Bhd.

respectively. Both the informants had good cause to command suspicion that offences under s

15(1) had been committed. They based their conclusions on investigations carried out by their

principals of whom they said they had personal knowledge and they averred that they were duly

authorized to lay the informations concerned. They also annexed documentary evidence, in the

form of agreements, which suggested that their principals were owners of the copyright

concerned within the meaning of s 2 of the Copyright Act which provides, inter alia:

“Owner of the Copyright means the first owner, an assignee or exclusive licensee, as the

case may be, of the relevant portion of the Copyright.”

The Magistrate issued the two search warrants concerned authorizing the Chief Police Officer for

the State of Perak and Inspector Abdul Ghani bin Hassan to search the two premises for certain

articles specified in the schedules thereto, as their production was essential to enquiries being

made into offences in contravention of s 15(1). Eventually, there a few of unscheduled Articles

were seized.

The Scheduled Articles:

148 video tapes believed by the police authorities to be infringing copies of designated films

(with names of film titles stated) published in Malaya on specified dates within one month of

their publication in Hong Kong and thus qualifying for copyright in Malaysia under the Act

The Unscheduled Articles:

(a) 50 Video Cassette Recorders

(b) 22 Customer Cards

(c) 1 Programme List

(d) 4 Boosters

(e) 1 Pause

(f) 1 Equalizer

(g) 1 National Quintrix Television

(h) 1 box of Wire.

FACTS OF THE CASE:

In this case, the Magistrate issued an order requiring the return to the owner of some of the

owner of some of the articles seized by the police at Ipoh by virtue of two search warrants, in the

form prescribed under the Criminal procedure code, which he had earlier issued in consequence,

in each case, of an information on oath made pursuant to the provision of s 15(4) of the copyright

Act, 1969. The effect of the information was that the informants had good cause to suspect that

offences under s 15(1) of the Act had ben committed. Subsequently, Kah Wai Video (Ipoh) Sdn

Bhd came forward to claim certain articles seized but not specified in the search warrant. After

hearing arguments in open court, the issuing Magistrate made the said order requiring the return

of the articles to the owner through the police.

ISSUES OF THE CASE:

1. Whether the enforcement officers can seize goods not scheduled under the search warrant

according to Copyright Act, 1969, s 15(1).

2. Whether Magistrate has power to make order to return the unscheduled articles to owner.

3. Whether the seized goods must be returned to persons in whose possession they were

seized if no action is instituted within six months according to the laid principle of s. 15

(4) (b) of the Copyright Act, 1969.

RATIO DECIDENDI:

1 st Issue

Edgar Joseph Jr, the judge of the case had underlined the important principle regarding whether

the enforcement officers can seize goods not scheduled under the search warrant.

He says, “…Having regard to the circumstances of this case, I find that Inspector Abdul Ghani

bin Hassan had reasonable grounds for believing and obviously did believe that the unscheduled

articles constituted material evidence in relation to the crime for which he entered the two

premises or they showed implication in some other offences of the same kind.”

In other words, he concluded that the enforcement officers can seize goods not scheduled under

the search warrant by virtue of s 15(1), Copyright Act 1969 as long as he could prove that he had

reasonable grounds for supposing that copyright would or might be thereby infringed.

He found to decide respectively with the support from the cases; Frank Truman Export v

Metropolitan Police Commissioner [1970] 1 AB 693, 708, 709, and Chic Fashions (West

Wales) Ltd v Jones.

In Frank Truman Export v Metropolitan Police Commissioner [1970] 1 AB 693, 708, 709, the

principle deduced in the laid statement made by Swanwick J. He says that:

“In Chic Fashions (West Wales) Ltd v Jones the police entered the premises of the company

under a warrant authorising them to search for stolen clothes made by a named company. They

found and seized stolen clothes made by other companies. The Court of Appeal held that they

were justified. Lord Denning MR cited a number of cases, including Elias v Pasmore, and also

a Scottish case, Pringle v Bremner and Stirling, from which he deduced the proposition that, in

the interests of finding out wrongdoers and repressing crime, the judges had extended the

authority of the warrant at least this far:

‘In my opinion, when a constable enters a house by virtue of a search warrant for stolen goods,

he may seize not only the goods which he reasonably believes to be covered by the warrant, but

also any other goods which he believes on reasonable grounds to have been stolen and to be

material evidence on a charge of stealing or receiving against the person in possession of them or

anyone associated with him.’

Commentary

The position in s. 15 (1) of the Copyright Act 1969 is clear. It allows the enforcement

officers to seize “any” copy or contrivance used, intended to be used or capable of being used for

the commission of a copyright offence.1 Regarding the first finding, we averred that the judge

Edgar decided that the police inspector on the ground that he had a reasonable believe that the

unscheduled articles constituted material evidence in relation to the crime so he was justified on

seizing those articles.

Copyright Act 1969 was repealed in 1987 with a few amendments such as in 1990, 2002

and 2003. According to the Amendment 1990, s. 44 (known as s. 15[1] of the Copyright Act

1960) of the Copyright Act 1987 is inserted to allow enforcement officers to seizes any copy and

contrivance, article, vehicle, book or document, suspected of being used in infringing activities

as long as those items are produced before the magistrate and kept in custody of the proper

authorities.

1 Ieda Madieha bt Abdul Ghani Azmi. 2004. Copyright Law in Malaysia: Cases and Commentary. Selangor, Malaysia: Sweet&Maxwell Asia. p. 663-676.

2 nd Issue

Edgar Joseph Jr, the judge of the case had highlighted the second important principle relating to

whether Magistrate has power to make order to return the unscheduled articles to owner.

With regard to this second involved question, it would depend on whether there is unlawful

exercise of discretion by Magistrate. To test whether it is unlawful discretion or not, it also

depends on whether there is reasonable cause for suspecting that any incriminating evidence can

be found in the particular premises as set out in s. 15 (1) of the Act.

As been laid down in his judgment, he has differentiated the phrase of “reasonable cause of

suspecting” with the phrase of “reasonable cause of believing”.

In his words:

“Now, it will be recalled that all that s 15(4) requires for the issue of a warrant of search is that

the Magistrate must be satisfied that the informant has “reasonable cause for suspecting” that

there are in any premises . . . any infringing copies (or any contrivance used, or to be used for

making infringing copies or capable of such use etc).

It is trite law that the words “to believe” must be distinguished from the words “to suspect.” To

believe a fact is to regard the fact as true; whereas “to suspect” would imply a readiness to

believe without sufficient data. It would introduce, to some extent, the element of imagination or

conjecture. The word “believe” cannot be equated with the word “suspect”: The New Swadeshi

Mills of Ahmedabad Ltd v SK Rattan & Ors ILR (1968) Guj 117.”

He says in further expressive words that the element of s. 15 (4) of the Act has been fulfilled

since the informant was been satisfied of having “reasonable cause for suspecting” to the result

of releasing warrant.

In his words:

“With respect, I see nothing in the point the issuing Magistrate had made when writing to this

Court to exercise its powers of revision on the ground that the search warrants were in improper

form. What was of course more important was whether the requirements of the Act under which

the warrants of search were issued had been fulfilled. I have already said why I consider that

there had been sufficient compliance for this purpose.”

In consequence, he decided that order of the issuing Magistrate directing the return of the

unscheduled articles to the owner was illegal, void and of no effect.

It has been cited in his words:

“This brings me to a consideration of the question of the validity of the order made by the issuing

Magistrate directing the return to the owner of the unscheduled articles.

In my opinion, the issuing Magistrate had neither the power nor the authority to direct the return

of the unscheduled articles seized by the police authorities to the owners even if he had second

thoughts about the propriety of his having issued the warrants of search in the first place.

Alternatively, if contrary to my primary opinion, the issuing Magistrate had the power to make

the order for return of the unscheduled articles then, on the facts, I would hold, that he ought not

to have exercised the power in the manner he did because I do not consider that there was in this

case an illegal seizure.”

3 rd Issue

The third involved question to be settled by the law is whether the seized goods must be returned

to persons in whose possession they were seized if no action is instituted within six months.

The important principle to be noted, i.e the enforcement may extend the power subject to

limitation as prescribed under s. 15 (4) (b) of the Act.

The judge in his words saying:

“Finally, I reminded the police authorities of their statutory obligations under s 15(4)(b) namely,

that if no proceedings under s 15(1) were instituted within six months of the seizure of the

scheduled and/or unscheduled articles, as the case may be, the same shall be returned to the

person or persons in whose possession they were when they were seized, or if it was not

reasonably practicable to return them to those persons, they should be disposed of in accordance

with the law, relating to the disposal of lost and unclaimed’ property.”

The judgment statement has followed the passage taken from the case of Sharma & Ors v

Satish Chandra 1954 SC 300:

“At page 302 the Court said:

“No do but a seizure and carrying away is a restriction of the possession and enjoyment

of the property seized. This, however, is only temporary and for the limited purpose of

investigation. A search and seizure is, therefore, only a temporary interference with the

right to hold the premises searched and the articles seized. Statutory regulation in this

behalf is necessary and reasonable restriction cannot per se be considered to be

unconstitutional. The damage, if any, caused by such temporary interference if found to

be in excess of legal authority is a matter for redress in other proceedings. We are unable

to see how any question of violation of article 19(1)(f) is involved ...”

This point was stated based on the corresponding Article 19 of the Indian Constitution in

countering the argument of the counsel who submitted that this case violated Article 13 of our

Constitution which provides:

“No person shall be deprived of property save in accordance with the law.””

CONCLUSION:

In conclusion, all the important principles which are been highlighted by Edgar Joseph Jr

may only be of academic purpose as s. 54 of the Copyright Act 1987 that enables the

enforcement authorities to forfeit articles seized subject to several detailed rules such as any

infringing copy or contrivance seized would have to be produced before the magistrate as set out

in s. 44 (2) of the Copyright Act 1987.

Copyright Act 1969 was repealed in 1987 with a few amendments such as in 1990, 2002

and 2003 regulating copyright offences which are outside the Penal Code.

REFERENCES:

1) Copyright Act 1987 (Act 332)

2) Copyright Act (Amendment 1990)

3) Copyright Act (Amendment 2003)

4) Actual case: [1987] 2 MLJ 459

5) Ieda Madieha bt Abdul Ghani Azmi. 2004. Copyright Law in Malaysia: Cases and

Commentary. Selangor, Malaysia: Sweet&Maxwell Asia