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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: ³Owner 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
1969. s 15(1). FACTS OF THE CASE: In this case. 1969. the issuing Magistrate made the said order requiring the return of the articles to the owner through the police. After hearing arguments in open court. of an information on oath made pursuant to the provision of s 15(4) of the copyright Act. Kah Wai Video (Ipoh) Sdn Bhd came forward to claim certain articles seized but not specified in the search warrant.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. in each case. 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. ISSUES OF THE CASE: 1. Whether the enforcement officers can seize goods not scheduled under the search warrant according to Copyright Act. Whether Magistrate has power to make order to return the unscheduled articles to owner. Subsequently. . 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. 2. which he had earlier issued in consequence. in the form prescribed under the Criminal procedure code.
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. In Frank Truman Export v Metropolitan Police Commissioner  1 AB 693. 15 (4) (b) of the Copyright Act. and Chic Fashions (West Wales) Ltd v Jones. the principle deduced in the laid statement made by Swanwick J. They found and seized stolen clothes made by other companies. ³«Having regard to the circumstances of this case. He found to decide respectively with the support from the cases. 709. The Court of Appeal held that they . 708. 708. 1969. Frank Truman Export v Metropolitan Police Commissioner  1 AB 693. 709. Copyright Act 1969 as long as he could prove that he had reasonable grounds for supposing that copyright would or might be thereby infringed. 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 that: ³In 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. 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.3.´ In other words. he concluded that the enforcement officers can seize goods not scheduled under the search warrant by virtue of s 15(1). RATIO DECIDENDI: 1st Issue Edgar Joseph Jr. He says.
1 Ieda Madieha bt Abdul Ghani Azmi.were justified. s. 2004. in the interests of finding out wrongdoers and repressing crime. Malaysia: Sweet&Maxwell Asia. from which he deduced the proposition that. According to the Amendment 1990. book or document. and also a Scottish case. intended to be used or capable of being used for the commission of a copyright offence. including Elias v Pasmore. 44 (known as s. he may seize not only the goods which he reasonably believes to be covered by the warrant. Copyright Law in Malaysia: Cases and Commentary. Pringle v Bremner and Stirling. article. vehicle. the judges had extended the authority of the warrant at least this far: µIn my opinion. Lord Denning MR cited a number of cases. 15 of the Copyright Act 1960) of the Copyright Act 1987 is inserted to allow enforcement officers to seizes any copy and contrivance. . Copyright Act 1969 was repealed in 1987 with a few amendments such as in 1990. Selangor. 663-676. 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. 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. 2002 and 2003. 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. 15 (1) of the Copyright Act 1969 is clear. p.1 Regarding the first finding. It allows the enforcement officers to seize ³any´ copy or contrivance used.¶ Commentary The position in s. when a constable enters a house by virtue of a search warrant for stolen goods.
. whereas ³to suspect´ would imply a readiness to believe without sufficient data. it would depend on whether there is unlawful exercise of discretion by Magistrate. 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 ³reasonable cause for suspecting´ that there are in any premises .´ To believe a fact is to regard the fact as true.2nd Issue Edgar Joseph Jr. To test whether it is unlawful discretion or not. to some extent. . 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. As been laid down in his judgment. 15 (4) of the Act has been fulfilled since the informant was been satisfied of having ³reasonable cause for suspecting´ to the result of releasing warrant.´ He says in further expressive words that the element of s. With regard to this second involved question. the element of imagination or conjecture. 15 (1) of the Act. The word ³believe´ cannot be equated with the word ³suspect´: The New Swadeshi Mills of Ahmedabad Ltd v SK Rattan & Ors ILR (1968) Guj 117. any infringing copies (or any contrivance used. . 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. It would introduce. In his words: ³Now. he has differentiated the phrase of ³reasonable cause of suspecting´ with the phrase of ³reasonable cause of believing´. It is trite law that the words ³to believe´ must be distinguished from the words ³to suspect. or to be used for making infringing copies or capable of such use etc).
the issuing Magistrate had the power to make the order for return of the unscheduled articles then. if contrary to my primary opinion. void and of no effect. I have already said why I consider that there had been sufficient compliance for this purpose.´ . 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. I would hold.In his words: ³With respect.´ In consequence. It has been cited in his words: ³This 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. 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. 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. he decided that order of the issuing Magistrate directing the return of the unscheduled articles to the owner was illegal. What was of course more important was whether the requirements of the Act under which the warrants of search were issued had been fulfilled. Alternatively. In my opinion. on the facts.
15 (4) (b) of the Act. The important principle to be noted. The damage. i. caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings. they should be disposed of in accordance with the law. Statutory regulation in this behalf is necessary and reasonable restriction cannot per se be considered to be unconstitutional. This. therefore. if any. A search and seizure is. or if it was not reasonably practicable to return them to those persons.´ The judgment statement has followed the passage taken from the case of Sharma & Ors v Satish Chandra 1954 SC 300: ³At page 302 the Court said: ³No do but a seizure and carrying away is a restriction of the possession and enjoyment of the property seized.3rd 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. only a temporary interference with the right to hold the premises searched and the articles seized.e the enforcement may extend the power subject to limitation as prescribed under s. The judge in his words saying: ³Finally. however. that if no proceedings under s 15(1) were instituted within six months of the seizure of the scheduled and/or unscheduled articles. relating to the disposal of lost and unclaimed¶ property. as the case may be. We are unable . the same shall be returned to the person or persons in whose possession they were when they were seized. I reminded the police authorities of their statutory obligations under s 15(4)(b) namely. is only temporary and for the limited purpose of investigation.
. 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.´´ CONCLUSION: In conclusion. 2002 and 2003 regulating copyright offences which are outside the Penal Code. 44 (2) of the Copyright Act 1987..´ 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: ³No person shall be deprived of property save in accordance with the law.to see how any question of violation of article 19(1)(f) is involved . Copyright Act 1969 was repealed in 1987 with a few amendments such as in 1990.. all the important principles which are been highlighted by Edgar Joseph Jr may only be of academic purpose as s.
Malaysia: Sweet&Maxwell Asia . Copyright Law in Malaysia: Cases and Commentary. 2004. Selangor.REFERENCES: 1) Copyright Act 1987 (Act 332) 2) Copyright Act (Amendment 1990) 3) Copyright Act (Amendment 2003) 4) Actual case:  2 MLJ 459 5) Ieda Madieha bt Abdul Ghani Azmi.
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