KERAJAAN MALAYSIA & ORS v THEN SEE NYUK & ANOR [2018] 4 MLJ 262

Court of Appeal (Putrajaya)

Search Warrant under Copyright Law

1.     The first appellant is the Government of Malaysia while the second appellant is a Ministry of the first appellant that is responsible for intellectual property in Malaysia (“Appellants”).

2.     The Respondent is the owner of an internet café called ‘Gen X’ which conducted its business at No. 28, Tingkat Bawah, Jalan Kaskas 3, Taman Cheras, Kuala Lumpur (“Premise”).

3.     On 17 November 2009, a raid was conducted by the Appellants in the Premise upon receiving a complaint from one Sendi Mutiara Multimedia (“SMM”), a licensed corporation for the software products of the Warcraft copyright (“Products”) against illegal or unauthorised reproduction of the Products.

4.     However, after a total of one (1) year and eight (8) months, the seized objects which were alleged to be containing the Products were restored to the Respondent with no charges brought against the Respondent under the Copyright Act 1987 (“Act 332”).

5.     As a result, the Respondent brought an action in the High Court for loss and damages allegedly sustained as a result of the Appellants’ illegal raid and seizure.

6.     Following the trial in High Court, the High Court found favour for the Appellants and granted reliefs including special and exemplary damages, loss of earning, and loss of reputation.

7.     Thus, the appeal before the court is pursuant to the Appellants being dissatisfied with the findings of the High Court.

Whether the learned High Court judge is correct in deciding that the search of warrant was illegally issued by the Magistrate.

1.     The findings of the learned High Court judge pertaining to the illegal issuance of the search warrant is produced herewith as follows:

“SD8 presented a complaint based upon a Statutory Declaration prepared by SD5 which had relied upon a surveillance report that was prepared by a person who cannot be traced.  The original of the Power of Attorney (“PA”) was not tendered for perusal of this Court and the licence granted according to the PA by Blizzard Entertainment was only for a limited time ending on 31 December 2009.

In addition, this Court is deprived of hearing the reasons of the Registrar for the exercise of her discretion in granting the Warrant. In revisiting the issue of the granting of the Warrant, this Court can safely say that based upon the materials before it, it would rule that it was an unsafe exercise of discretion to grant the Search Warrant.”

2.     In addition, pertaining the fact that the prosecution has decided not to charge the Respondents, the learned High Court judge held as follows:

“the very fact that the deputy public prosecutor (‘DPP’) declined to prosecute (NFA) was indicative that the whole conduct and exercise of their powers of applying for the search warrant, of search, seizures, investigation and detention of the seized items by the Appellants was carried out in an outrageous, lackadaisical and negligent manner  lacking in the element of bona fide.”

3.     The learned senior federal counsel acting on behalf of the Appellant submitted that the search warrant was properly issued pursuant to Section 44 of Act 332 and that it was the prerogative of the public prosecutor to proceed with prosecution based on the available evidence.

4.     Section 44 of Act 332 provides as follows

“44(1) In every case where information is given on oath to any magistrate that there is reasonable cause for suspecting that there is in any house or premises any infringing copy or any contrivance used or intended to be used for making infringing copies or capable of being used for the purpose of making infringing copies, or any other article or vehicle, book or document by means of or in relation to which any offence under section 41 has been committed, he shall issue a warrant under his hand by virtue of which any Assistant Controller or police officer not below the rank of Inspector named or referred to in the warrant may enter the house or premises at any reasonable time by day or night and search for and seize any such copy, contrivance, article, vehicle, book or document”

5.     The above-mentioned law requires a magistrate to issue a search warrant if a magistrate receives information on oath that there is reasonable grounds to suspect that any infringing copy, etc. is in any premises.

6.     Therefore, two (2) elements are required in proving the validity of an issuance of a search warrant as follows:

(a)       Information on oath; and

(b)       Reasonable cause for suspecting.

7.     Upon scrutinizing the relevant facts, the Court is of the view that the Appellants had acted in reasonable cause for suspecting the offence under Section 44 of Act 332 as they had received the official complaint from SMM vide a letter dated 26 October 2009 enclosing its enforcement technical surveillance report, statutory declaration, letter of authorisation and power of attorney.

8.     The Court found that the search warrant and the raid were not done out of the blue and that there was a reasonable cause for the Appellant in conducting the raid based on the official complaint.

9.     In addition, the Court further held that the search warrant was issued pursuant to the magistrate’s criminal jurisdiction and that it was good in law.

10.  Therefore, the Court was not able find any evidence purporting to show that the raid conducted by the Appellants was done not in good faith, thus the issue on invalid issuance of the search warrant held by the learned High Court judge was obviously misconceived.

Decision

The Court of Appeal allowed the appeal with order as to costs of RM10,000.00 to be paid by the Respondents.

2.     There are several works which are eligible for copyright and is also recognized under Act 322 as follows:

(a)  Literary works;

(b)  Musical works;

(c)  Artistic works;

(d)  Films;

(e)  Sound recordings;

(f)    Broadcasts; and

(g)  Derivative works.