Soon

- vs -

Public Prosecutor

Judgment

MT Chang J

1. Everything that could possibly be said in this appeal from the conviction of the appellant on three charges of having in his possession contrivances capable of being used for the purposes of making infringing copies of textbooks the copyrights of which were clearly vested in the complainant was said by learned counsel for the appellant in a long and forceful submission. I have however the misfortune of remaining unpersuaded, and I therefore up hold the conviction.

2. There was also an appeal against sentence. The appeal was not only on the ground that the fines of $1,500 on each of the three charges were excessive. It was also based on the submission that the legislation had not provided for any fine or punishment for the possession of a duplicating contrivance. Startling though this submission might be it was when one’s attention was drawn to the wording of the penal section, not so unjustified. The section creating the offences and laying the penalties was s 15, as unamended, since the offences were committed before August 1975.

   15.

   (1)

   Any person who at a time when copyright subsists by virtue of this Act in a work — (a) makes for sale or hire any infringing copy; or (b) sells, lets for hire or by way of trade exposes or offers for sale or hire any such infringing copy; or (c) distributes any such infringing copies; or (d) by way of trade exhibits in public any such infringing copy; or (e) imports into Malaysia, otherwise than for his private and domestic use, any such infringing copy; or (f) makes or has in his possession any contrivance capable of being used for the purposes of making infringing copies, shall unless he proved that he acted in good faith and had no reasonable grounds for supposing that copyright would or might be thereby infringed, be guilty of an offence and on conviction shall be liable to a fine not exceeding two hundred dollars for each infringing copy in respect of which the offence was committed (subject to a maximum of fifty thousand dollars in respect of any one offence) or to imprisonment for a term not exceeding one year, or to both,

3. With effect from 30 May 1975 the section was amended to provide for a further offence and for certain changes in the law. The amendment is however of no consequential effect on this appeal or in the interpretation thereof with regard to the penalties prescribed for the possession of contrivance.

4. Having regard to the wording of the section which has been set out in extenso to facilitate such a reference, it is in the first place obvious that there is in this sub-section, a distinction between an infringing copy and a contrivance. Secondly the penal words not “exceeding two hundred dollars for each infringing copy in respect of which the offence was committed (subject to a maximum of fifty thousand dollars in respect of any one offence)” must in the context qualify the word “fine”. If this construction is correct, it also follows that the alternative sentence of a term of imprisonment and the provision of both a fine and imprisonment must refer to the offence of possession of infringing copies.

5. The learned Deputy Public Prosecutor who was given time to reply and who handed up a written submission contended otherwise. He thought that the punishment for the offence of possession of a contrivance was a fine with no limits prescribed or a term of imprisonment or both. It is doubtless within the competency of Parliament to so legislate but his contention requires the section to be read to mean that a person “shall on conviction be liable to a fine or to imprisonment for a term not exceeding one year or both, provided that in the case of infringing copies the fine shall not exceed two hundred dollars, subject to a maximum of fifty thousand dollars in respect of any one offence.” The language is sufficiently disparage to show that such a construction must violate the cardinal principle of giving the words of a statute, in particular a penal statute, their plain and obvious meaning.

6. The alternative submission of the Deputy Public Prosecutor was that if the fine was applicable only in respect of infringing copies, then the punishment for possession of a contrivance was a term of imprisonment without the alterative of a fine. This with respect cannot be correct. The violence to the language such an interpretation does must be a clear and sufficient answer, even if it is not noticed that the term is an alterative to the fine.

7. The construction suggested by learned counsel for the appellant is to the effect that a contrivance is not a copy or an infringing copy and that s 15 by a curious hiatus fails to provide for a penalty for the offence of being in possession of a contrivance.

8. Now, s 2 which is the interpretation section, does not define contrivance. It also does not include contrivance within the definition of “copy” since copy is defined to mean “a reproduction of a work in written form, in the form of a recording or cinematograph film or in any other material form.” The penal s 15 does not speak of copy; it refers to infringing copy.

9. Even s 15(5) which reads:

   (5)	For the purpose of this section, an ‘infringing copy’ means an article which if made in Malaysia constitutes an infringement of copyright under this Act, and if made outside Malaysia would constitute an infringement of copyright under this Act if the making thereof had taken place in Malaysia.

   on a proper and reasonable construction, must mean that there is in this sub-section no extension of “infringing copy” to include a contrivance.

10. There is therefore in the Act read as a whole a clear distinction between an infringing copy and a contrivance.

11. The problem thus is squarely the construction of s 15(1) and, though not without regrets, I cannot on a proper and reasonable construction avoid the conclusion that in all probability, and perhaps unwittingly, Parliament had failed to provide a punishment for the offence of possession of contrivances for the making of infringing copies of copyright materials.

12. The appeal from the sentences must succeed. The fines if paid are to be refunded. The conviction stands.

Legislations 

Copyright Act, 1969: s. 2, s.15(1)

Representation

Sidney Augustine for the appellant.

T S Sambanthamurthi (DPP) for the respondent.