IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 007 of 2015

STATE

v

NITESH CHAND

Counsel: Ms. J. Prasad for the State.
Ms K. Jamnadas for the respondent.

Dates of hearing: 24 February, 2015
Date of Judgment: 11 March, 2015

JUDGMENT

The State appeals with the consent of the Director of Public Prosecutions a decision of a Magistrate at Suva to acquit the respondent on the following charge:

Statement of Offence

Dealing with infringing objects: contrary to s.121(1)(d)(i) of the Copyright Act 1999.

Particulars of Offence

Nitin Prasad and Nitesh Chand on the 14th day of June 2013 at Suva in the Central Division, other than pursuant to a copyright licence, in the course of business, offered for sale or hire three DVDs of the match between Fiji and Classic All Blacks aired on Fiji Broadcasting Corporation Ltd on 12th June 2013 being the copyright of Fiji Rugby Union and/or Fiji Broadcasting Corporation Ltd knowing or ought reasonably to have know that the said DVDs were infringing copies of a copyright work.

2.	The accused entered a plea of guilty to the charge on the 7th August 2014.

3.	On the 4th December 2014 he admitted the summary of facts and mitigated.

4.	On the 27th January 2015, the Magistrate in delivering "sentence" overturned the plea of guilty and acquitted the accused.

5.	The Director of Public Prosecutions appeals that order on the following grounds:

i)	that the learned Magistrate erred in law in overturning the plea of guilty and acquitting the accused person after a conviction had been entered; 

ii)	that the learned Magistrate erred in law and in fact in holding that the offence of dealing with infringing objects contrary section 121(1)(d)(i) requires premeditation and the selling of hundreds of copies; and

iii)	That the learned Magistrate erred on law and in fact in making a finding that the accused person was not selling the DVDs in the course of business

6.	The facts of the case agreed in the Court below are:

"The accused was the branch manager of Exotic Movies World at Nina Street in 2013. Exotic Movie World is in the business of selling DVDs. On 13th June 2013, the accused offered for sale 3 copies of the match between Fiji and Classic All Blacks at the Exotic Movie World at Nina Street. The match in question took place on 12 June 2013. The match was organized by Fiji Rugby Union which granted FBCL the exclusive licence to broadcast the match. The match was broadcast on 12 June 2013 by FBCL.

The DVDs being offered for sale by the accused person was (sic) purchased by various members of the public who then surrendered the copies of the DVD to the Police. The Police carried out investigations and it was found upon examination of the DVDs that they were infringing copies of the broadcasted match between Fiji and Classic All Blacks. Exotic Movies World did not have any licence to sell the DVDs of the match. Upon viewing the DVDs the FBCL logo was clearly seen on the top of the screen. The DVDs sold by the accused were plain CDs with the words "Fiji vs. NZ" written with a marker.

The accused person was aware that the said copies of the DVDs were infringing copies of the match between Fiji and Classic All Blacks when the said DVDs were sold.

The accused was caution interviewed and admitted selling 3 DVDs of the match between Fiji and Classic All Blacks at question and answer 13 and 14. A copy of the interview notes is annexed to the facts."

7.	The Magistrate called for sentencing submissions from both parties and then on the 7th January 2015 delivered the following sentence:

"1.	The accused pleaded guilty to one count of the charge of "dealing with infringing objects" contrary to section 121(1)(d)(i) of the Copyright Act 1999.

2.	On the 13th June 2013 the accused offered for sale three DVD copies of a video recording of the match between Fiji and Classic All Blacks. The sales took place at the Exotic Movie World video shop at Nina Street in Suva. The match took place the day before these sales and has been exclusively broadcasted by Fiji Broadcasting Corporation Ltd.

3.	The Summary of Facts says that the three persons who purchased the DVDs surrendered them to police whom investigations found that Exotic Movie World did not have the licence to sell them.

Mitigation

4.	The accused, who was the video shop's branch manager at the time, was aware that what he did was an act of copyright infringement. However, he said he had merely sold the items in order to buy lunch for himself and some workmates. The return he got for selling them was six dollars, after he had bought them from someone else for a dollar each.

5.	Counsel for the prosecution states the offence is designed to protect intellectual property right by penalizing people who do not pay any money to the owner and yet make a benefit out of it. This is simply stealing in another form.

6.	Although I agree with counsel for the State, I do not find that the accused took the action that he did as a matter of premeditation. He says he was merely selling the DVDs to buy lunch and there is no evidence that there was an intention to sell more "in the course of his business". Had he been caught with selling a larger number, say, one hundred or more, then this Court would probably have concluded that this was intention to infringe copyright. As it is, selling three DVDs was more an example of a misguided action taken by the accused rather than an intention to deprive the FBCL of its copyright benefits. Strictly therefore, he is not liable under section 121(1)(d)(i) of the Copyright Act 1999. He was not selling the DVDs "in the course of a business.".

7.	The guilty plea is overturned and the accused acquitted.

28 days to appeal."

8.	Section 121(1) of the Copyright Act 1999 reads:

121 –(1)	a person who, other than pursuant to a copyright licence –

(a)	makes for sale or hire
(b)	….
(c)	….
(d)	In the course of business –

(i)	offers or exposes for sale or hire
(ii)	 exhibits in public, or
(iii)	Distributes

(e)	In the course of business or otherwise, sells or lets for hire, or
(f)	……
An object that is, and that person knows or ought reasonably to know is an infringing copy of a copyright work, commits an offence.

121.(5)	A person who commits an offence under this section is liable on conviction -

(a)	in the case of an offence against subsection (1) to a fine of $5000 for every infringing copy to which the offence relates ……..and to imprisonment for 12 months.

9.	It would have been far better had the prosecution brought the charge under s.121(1)(e) but that is not the point of the appeal.

10.	It is difficult to understand the Magistrate's reasoning that these C.Ds were not offered for sale "in the course of business". The first two sentences in the summary of facts establish that fact. The accused was the manager of a store in the business of selling DVDs (my emphasis). So when he offers one or more DVDs for sale he is obviously doing it in the course of his business no matter what the reason is he gives for selling them. When he says he wanted to sell them to get money to buy lunch for the staff, it is irrelevant. He is selling in his store which store is a business selling DVDs. It matters not whether he sells one or sells a hundred - the amount he sells is again irrelevant. It would appear that the Magistrate would want to see large scale offering for sale to establish a presumption that this was a business venture. But the legislation does not provide for such a presumption. The level of fine pertains to one copy or more.

11.	The ground of appeal that the Magistrate cannot reverse a plea after a conviction cannot be made out because the record shows that the Magistrate never convicted the accused ever after he had entered his plea of guilty and had admitted the facts. It was at that stage that the Magistrate should have found him guilty and convicted him but he did not. Perhaps he was minded even then to acquit the accused.

The first ground of appeal is dismissed.

12.	There is nothing in the legislation that requires a Court to find premeditation on the part of the accused. This finding of the Magistrate is erroneous and the State's second ground of appeal succeeds.

13.	Every element of this offence is made out in the summary of facts and unfortunately the Magistrate has no legal basis to his odd deductions in paragraph 6 of his sentence.

14.	The acquittal is set aside and the plea of guilty restored. The accused, having admitted the facts in the Court below, is convicted of the offence. The case is to be called again before the Magistrate in order that he may pass sentence for the offence. 

15.	He is to appear before the Magistrate on Wednesday 18th March at 9.15am.

P. K. Madigan
Judge

At Suva
11 March 2015