Judgment

C.J. Wee CJ

1. This is an appeal by Lok Shoon Shing against his conviction on the following six charges:

   1. That he, on or about 15 December 1976 at Corina Music Centre of l6–17, Block X, New World Amusement Park, Serangoon Road, Singapore 0821, had in his possession for sale five pirated copies of a gramophone record ‘Olivia Newton John – Don’t Stop Believing’ and he had thereby committed an offence punishable under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act, Ch 188.

   2. That he, on or about 15 December 1976 at Corina Music Centre of 16–17, Block X, New World Amusement Park, Serangoon Road, Singapore 0821, had in his possession for sale five pirated copies of a gramophone record ‘Tracy Huang – Feelings’ and he had thereby committed an offence punishable under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act, Ch 188.

   3. That he, on or about 15 December 1976 at Corina Music Centre of 16–17, Block X, New World Amusement Park, Serangoon Road, Singapore 0821, had in his possession for sale five pirated copies of a gramophone record ‘Teresa Carpio – Songs For You’ and he had thereby committed an offence punishable under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act, Ch 188.

   4. That he, on or about 15 December 1976 at Corina Music Centre of 16–17, Block X, New World Amusement Park, Serangoon Road, Singapore 0821, had in his possession for sale five pirated copies of a gramophone record ‘Francis Yip – Something Old Something New’ and he had thereby committed an offence punishable under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act, Ch 188.

   5. That he, on or about 15 December 1976 at Corina Music Centre of 16–17, Block X, New World Amusement Park, Serangoon Road, Singapore 0821, had in his possession for sale five pirated copies of a gramophone record ‘Emillia Contessa – Berjoget Bersama’ and he had thereby committed an offence punishable under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act, Ch 188.

   6. That he, on or about 15 December 1976 at Corina Music Centre of 16–17, Block X, New World Amusement Park, Serangoon Road, Singapore 0821, had in his possession for sale five pirated copies of a gramophone record ‘Paul Anka – Feelings’ and he had thereby committed an offence punishable under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act, Ch 188.

2. The alleged pirated copies are cassette tapes found in the premises of Corina Music Centre of which the appellant is the sole proprietor. Section 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act (hereinafter referred to as the Act) provides as follows:

   Every person who makes, reproduces, imports for sale, sells, exposes or offers for sale, or has in his possession for sale, any pirated copies of any gramophone record, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand dollars, and in the case of a second or subsequent conviction to imprisonment for a term not exceeding one year or a fine not exceeding two thousand dollars or to both such imprisonment and fine.

3. Section 2 of the Act defines ‘gramophone record’ to mean:

   the material first embodying the recording of a sequence of sounds capable, by the use of that material, of being automatically reproduced aurally ....

   and defines ‘pirated copies, in relation to any gramophone record’, to mean:

   any copies of such record made or reproduced without the consent lawfully given by the owner of the copyright in such record.

4. When a person is charged under s 3(1) of the Act with having in his possession for sale pirated copies of a gramophone record the prosecution must prove the following four ingredients namely:

   1. he had in his possession for sale the alleged pirated copies of such gramophone record;

   2. copyright subsists in such gramophone record;

   3. the alleged pirated copies are copies of such gramophone record; and

   4. the alleged pirated copies were made or reproduced without the consent lawfully given by the owner of the copyright in such gramophone record.

5. During the trial the appellant did not dispute the evidence adduced by the prosecution to prove ingredient A. The appellant also did not challenge the evidence contained in two affidavits to prove ingredient B. The main defence at the trial rested on proof of ingredient C as the prosecution evidence to prove ingredient D was not seriously challenged and the defence offered no evidence when the appellant was called on to enter upon his defence.

6. The main contention in this appeal is that the prosecution had failed to prove that the cassette tapes in the possession of the appellant were copies of the gramophone records in which copyright subsisted. It is a question of fact, which is incumbent on the prosecution to prove, whether or not a particular cassette is a copy of a particular gramophone record (see Kwah Hai Gong v PP [1978-1979] SLR 374. The first argument advanced on behalf of the appellant is that the prosecution, although it proved that the songs in a particular cassette were the same songs in a particular gramophone record, did not adduce any evidence to prove that the sounds produced when the cassette was played were the same sounds produced when the gramophone record was played. It is argued that without such evidence there was no proof that the cassette was a copy of a particular gramophone record. I reject this argument. There was ample evidence before the magistrate for him to come to the conclusion that there was sufficient prima facie evidence that the cassettes were copies of the gramophone records within the meaning of the Act. The next argument is that on the authority of Kwah Hai Gong v PP, the prosecution must prove that the alleged pirated copy must be an exact reproduction of the gramophone record in that not only must all the songs in a gramophone record be reproduced in the cassette for the cassette to be a pirated copy of the record but also the sequence or order of the songs in the cassette must be the same as the sequence or order of the songs in the record and the number of songs must not exceed the number of songs in the record. I reject this argument also. Kwah Hai Gong’s case did not establish that proposition.

7. The other contentions raised during the hearing of the appeal rest on the argument that there was insufficient prima facie evidence or that the evidence was unsatisfactory to prove that copyright subsisted in the gramophone records or that the copyright owners had not given their consent to making reproductions of the records.

8. In my opinion there is no merit in these contentions and I am satisfied that there was sufficient prima facie evidence before the magistrate at the close of the case for the prosecution to justify his calling on the appellant to enter upon his defence on the six charges. Accordingly the appeal is dismissed.

Cases

Kwah Hai Gong v PP [1978-1979] SLR 374

Legislations

Copyright (Garmophone Records and Government Broadcasting) Act (Cap 188): s.2, s.3

Representations

KE Hilborne (Hilborne & Co) for the appellant.

EC Foenander (Deputy Public Prosecutor) for the respondents.

Chua Keng Loy (Chua, Hay & Wee)held a watching brief for the three complainants.

Notes:-

This decision is also reported at [1981] 2 MLJ 5 & [1980-1981] SLR 524.