News

Back to News

MALAYSIA: TO CHARGE OR NOT TO CHARGE – PART 2

30th March, 2018

In the previous article “Malaysian Copyright: To Charge or Not to Charge”, we have written about representatives of Gen X, Thee See Nyuk and Chong Chee Cheong had claimed various relief as itemized in the Statement of Claim. The High Court of Malaya allowed some of their claims.

The Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism had then appealed against that decision. In handing down its decision, the High Court of Malaya in Kuala Lumur stated that proper grounds would follow (if required) and these are the Court’s proper grounds.

Summary:

  1. Gen X was raided on 17 November 2009 by a team of law enforcement officers from the Ministry of Domestic Trade, Co-operatives and Consumerism after receiving a complaint from Sendi Mutiara Multimedia Sdn. Bhd. (hereinafter referred as “SMM”) whose representatives were also present during the raid.
  2. During the raid, some items were seized for investigation into possibility of offences under the Copyright Act 1987.
  3. The High Court was of the view that the search warrant was illegal due to several reasons – (i) SMM presented a complaint based on a Statutory Declaration prepared by someone which had relied upon a surveillance report that was prepared by a person who cannot be traced, (ii) it was an unsafe exercise of discretion by the Registrar to grant the search warrant based on the document mentioned in point 1 and (iii) the Deputy Public Prosecutor (DPP) was of the view 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 Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism was carried out in a negligent manner.

During the appeal, the Court considered that the Search Warrant was issued by the Registrar in exercise of her discretion based upon the application made, supported by the Mohd Suffian b. Abdul Razak’s (SD5) Statutory Declaration (SD), a letter of authorization by SMM and the Power of Attorney (PoA) from Blizzard Entertainment. This application was made ex-parte and the Court in reviewing the grant of the Search Warrant drew an analogy with the granting of an ex-parte interim injunction or ex-parte leave for committal.

In regard to the latter two, there is always opportunity for the ex-parte hearing in regard to the Search Warrant, the Court after hearing all the evidence determined whether the discretion to issue the Search Warrant was judicially exercised and by doing so, the Court concluded that the Search Warrant should not have been in the first place. The Ministry of Domestic Trade, Co-operatives and Consumerism’s officer that conducted the raid, Mr. Norisam b. Daud presented a complaint upon an SD which had relied upon a surveillance report that was prepared by a person who cannot be traced. The original copy of the PoA by Blizzard Entertainment was not tendered for perusal of the Court and the license granted according to the PoA by Blizzard Entertainment was only for a limited time.

In addition, the Court held that it was 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, the Court said that based upon the materials before it, it would rule that it was an unsafe exercise of discretion to grant the Search Warrant. The Court found that the Search Warrant should not have been granted and that the raid carried out in consequence of a warrant which ought not to have been granted was accordingly illegal.

Another point which the Court felt that it has to address to the Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism that was an attempt to suggest that Gen X, Thee See Nyuk and Chong Chee Cheong had something to do with the power failure that occurred during the raid. However since Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism who had made this allegation, the burden of proof fell squarely no their shoulders. However Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism had failed to adduce cogent, compelling or convincing evidence to satisfy the Court that Gen X, Thee See Nyuk and Chong Chee Cheong had anything to do with the power failure.

The DPP had decided not to prosecute either Gen X or Thee See Nyuk and Chong Chee Cheong. The Court said that it understood as to why the DPP arrived at such a decision. To the mind of the Court there simply was no clear, convincing or compelling evidence that Gen X, Thee See Nyuk and Chong Chee Cheong had committed any breach of copyright of Blizzard Entertainments copyright for which they had granted SMM a limited license to expire on 31 December 2009. The evidence provided by Mohd IZuan Effendy B. Yusof was clearly unsubstantiated, speculative and an afterthought and the Court refused to consider the statement.

lt is therefore the decision of the Court that while the Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism claim to have acted under Sections 44(1) and (2) of the Act, the very fact that the DPP declined to prosecute is showing 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 Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism was carried out in an outrageous, and negligent manner lacking in the element of authenticity.

Due to this, the Court decided the case in favour of Gen X, Thee See Nyuk and Chong Chee Cheong and awarded special damages of RM65,619.99 being the value of the items seized from Gen X; loss of earning which the Court assessed at RM10.000.00 per month for 20 months, representing the period from the date the goods were seized (i.e. 17 November 2009) to the date the goods were returned without prosecution (18 July 2011); loss of reputation; the raid on Gen X, Thee See Nyuk and Chong Chee Cheong Internet Cafe and the subsequent seizure of the items therefrom conveyed to all and sundry that Gen X, Thee See Nyuk and Chong Chee Cheong had purportedly broken the law in their operation of their internet café. The Court ruled that the actions of the Malaysian Government and the Ministry of Domestic Trade, Co-operatives and Consumerism, through its servants and agents including officials who represented the Ministry of Domestic Trade, Co-operatives and Consumerism during the raid had the effect of tarnishing Gen X, Thee See Nyuk and Chong Chee Cheong’s reputation especially in the light of no prosecution being instituted to justify the act of seizure.

The Court further awarded a total of RM100,000.00 as being fair, reasonable and appropriate and exemplary damages to Thee See Nyuk and Chong Chee Cheong.