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Sony Music Entertainment Incorporated v Akief [1995] FJHC 58; Hbc0179j.94s (28 March 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 0179 OF 1994

BETWEEN:

SONY MUSIC ENTERTAINMENT INCORPORATED
AND OTHERS
Plaintiffs

AND

MOHAMMED AKIEF
(f/n Abdul Sadik) AND OTHERS
Defendants

H.K. Nagin for the Plaintiffs
S. Parshotam for the First Defendant

Date of Hearing: 28th March 1995
Date of Judgment: 28th March 1995

JUDGMENT

The First Defendant has pleaded guilty to a Motion dated 13th February 1995 that he be committed for disobeying an Anton Piller Order of this Court made on the 19th of April 1994.

The Plaintiffs claim to be the holders of the copyright or exclusive licensors in various sound records and cassettes and video cassettes and recordings or copyright cinematographic films.

Paragraph 6 of the Order was in the form of an interlocutory injunction restraining the Defendants inter alia from making, selling and offering for sale illicit goods which were defined in paragraph 1 of the Order as including copies of any sound recordings being in the form of audio cassettes or otherwise fewer than 50 years old the copyright or exclusive licences to which rests in the Plaintiffs.

A copy of the Order was served on the First Defendant on the 19th of April 1994 and the First Defendant has pleaded guilty to disobeying the Order.

The act of disobedience occurred on the 5th of October 1994 when an agent of the Plaintiff one Seini Ravasu purchased four counterfeit or unauthorised cassette recordings from the Defendant's shop at Kasabia Arcade, Suva.

In his opening counsel for the Plaintiffs stated that over 2,000 illicit tapes have been seized from the First Defendant together with a very fast dubbing machine.

For the purpose of these proceedings I disregard that statement because the charge against the Defendant relates to only four illicit tapes.

In two affidavits sworn respectively by the Defendant on the 28th of February and 14th of March 1995 the Defendant states that he has been in the audio cassette business since 1990 and estimates that there would be about seven or eight shops similar to his carrying on a similar business. In addition there would probably be many more smaller shops which sell such tapes but do not deal exclusively in audio tapes.

In paragraph 8 of his affidavit of 28th of February the Defendant complains that he does not know why the Plaintiffs have picked upon him as the only person dealing in illicit tapes. He also says that the audio tape business in Fiji and particularly in Suva is very competitive and also all sorts of tactics are used by traders in gaining market share and sales.

These latter statements are not denied by the Plaintiffs and from my own experience in the last twelve months I would be prepared to accept the Defendant's claim.

In his affidavit of the 14th of March the Defendant states that:

"As a matter of commercial necessity, on 27 February 1995, I transferred my business known as `Luck Rick Dee's Music Shop' to a Joeli Gucake and Savenaca Gucake. This business hitherto had two (2) retail outlets in Suva, one known as Shop No. 4 Waimanu Rd and the other Shop No. 9 Kasabia Arcade."

The Defendant also says that he has no further interest in this business and is now involved only in the production of tapes of local artists for wholesaling.

His counsel Mr. Parshotam submits that a custodial sentence is not called for in this case and that the appropriate penalty is to discharge the Defendant while administering a reprimand to him.

On the other hand counsel for the Plaintiffs submits that despite the Defendant's plea of guilty, discharging him is not appropriate even with a reprimand because the Court must make it clear that its orders will not be flouted.

Mr. Nagin submits that an appropriate penalty would be a fine of $1,000.00 for each of the four tapes seized on the 5th of October 1994.

Neither counsel could refer me to any authorities on the question of penalty in a case such as this, possibly because this is the first of its kind in which a committal order has been made.

I am not certain of this but it is certainly the first case with which I have had to deal.

I myself have in the last twelve months made two Anton Piller Orders preventing the sale of copy goods in which the copyright or exclusive licence has been held by another person or persons. I am satisfied that there is probably a thriving commercial retail trade in the illicit sale of goods such as those involved here. Nevertheless I can understand, if not feel a certain sympathy for the Defendant, in his claim that he has been singled out as the only perpetrator or seller of illicit tapes.

That however does not exonerate the Defendant because he admits that he has acted illegally. His claim in paragraph 8 of his affidavit of 28th February may certainly explain but could not excuse his conduct.

I consider his offence serious and that this Court must show that its orders are to be obeyed and that if they are not anyone disobeying them must take the consequences.

To the Defendant's credit he has admitted the offence and has not wasted the Court's time.

Obviously he took a commercial gamble that he would not be caught by the Plaintiffs and obviously he has also made some money out of his misdeeds. Unfortunately for him he lost his gamble and so must pay the price.

I agree with both counsel that this case does not call for a custodial sentence and I consider that the suggested fine of $4,000.00 proposed by Mr. Nagin is too high on the facts of this case. For this reason I consider a fine of $1,500.00 is sufficient as the Defendant is a first offender. The fine is to be paid by 28th of April 1995 and in default of such payment the Defendant will be sentenced to fourteen days' imprisonment.

JOHN E. BYRNE
JUDGE

HBC0179J.94S