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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
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.

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In this case, 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, in the
form prescribed under the Criminal procedure code, which he had earlier issued in consequence,
in each case, of an information on oath made pursuant to the provision of s 15(4) of the copyright
Act, 1969. 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. Subsequently, Kah Wai Video (Ipoh) Sdn
Bhd came forward to claim certain articles seized but not specified in the search warrant. After
hearing arguments in open court, the issuing Magistrate made the said order requiring the return
of the articles to the owner through the police.




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1. Whether the enforcement officers can seize goods not scheduled under the search warrant
according to Copyright Act, 1969, s 15(1).

2. Whether Magistrate has power to make order to return the unscheduled articles to owner.
 3. 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. 15
(4) (b) of the Copyright Act, 1969.

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Edgar Joseph Jr, 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, ³«Having regard to the circumstances of this case, 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.´

In other words, he concluded that the enforcement officers can seize goods not scheduled under
the search warrant by virtue of s 15(1), Copyright Act 1969 as long as he could prove that he had
reasonable grounds for supposing that copyright would or might be thereby infringed.

He found to decide respectively with the support from the cases; Ò  
 


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In Frank Truman Export v Metropolitan Police Commissioner[1970] 1 AB 693, 708, 709, the
principle deduced in the laid statement made by Swanwick J. He says that:

³In cÒ  
 
! the police entered the premises of the company
under a warrant authorising them to search for stolen clothes made by a named company. They
found and seized stolen clothes made by other companies. The Court of Appeal  that they
were justified.  cited a number of cases, including Ê

and also
a Scottish case, 
   


from which he deduced the proposition that, in
the interests of finding out wrongdoers and repressing crime, the judges had extended the
authority of the warrant at least this far:

µIn my opinion, when a constable enters a house by virtue of a search warrant for stolen goods,
he may seize not only the goods which he reasonably believes to be covered by the warrant, 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.¶

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The position in s. 15 (1) of the Copyright Act 1969 is clear. It allows the enforcement
officers to seize ³any´ copy or contrivance used, intended to be used or capable of being used for
the commission of a copyright offence.1 Regarding the first finding, 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.

Copyright Act 1969 was repealed in 1987 with a few amendments such as in 1990, 2002
and 2003. According to the Amendment 1990, s. 44 (known as s. 15[1] of the Copyright Act
1960) of the Copyright Act 1987 is inserted to allow enforcement officers to seizes any copy and
contrivance, article, vehicle, book or document, 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.


1
Ieda Madieha bt Abdul Ghani Azmi. 2004. c

 
c c . Selangor,
Malaysia: Sweet&Maxwell Asia. p. 663-676.


" 

Edgar Joseph Jr, 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.

With regard to this second involved question, it would depend on whether there is unlawful
exercise of discretion by Magistrate. To test whether it is unlawful discretion or not, 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. 15 (1) of the Act.

As been laid down in his judgment, he has differentiated the phrase of ³reasonable cause of
suspecting´ with the phrase of ³reasonable cause of believing´.

In his words:

³Now, 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 ³       
  that
there are in any premises . . . any infringing copies (or any contrivance used, or to be used for
making infringing copies or capable of such use etc).

It is trite law that the words ³to believe´ must be distinguished from the words ³to suspect.´ To
believe a fact is to regard the fact as true; whereas ³to suspect´ would imply a readiness to
believe without sufficient data. It would introduce, to some extent, the element of imagination or
conjecture. The word ³believe´ cannot be equated with the word ³suspect´:    


  !"#$ ILR (1968) Guj 117.´

He says in further expressive words that the element of s. 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.
In his words:

³With respect, 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. What was of course more important was whether the requirements of the Act under which
the warrants of search were issued had been fulfilled. I have already said why I consider that
there had been sufficient compliance for this purpose.´

In consequence, he decided that order of the issuing Magistrate directing the return of the
unscheduled articles to the owner was illegal, void and of no effect.

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.

In my opinion, 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.

Alternatively, if contrary to my primary opinion, the issuing Magistrate had the power to make
the order for return of the unscheduled articles then, on the facts, I would hold, 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.´


  

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.

The important principle to be noted, i.e the enforcement may extend the power subject to
limitation as prescribed under s. 15 (4) (b) of the Act.

The judge in his words saying:

³Finally, I reminded the police authorities of their statutory obligations under s 15(4)(b) namely,
that if no proceedings under s 15(1) were instituted within six months of the seizure of the
scheduled and/or unscheduled articles, as the case may be, the same shall be returned to the
person or persons in whose possession they were when they were seized, or if it was not
reasonably practicable to return them to those persons, they should be disposed of in accordance
with the law, relating to the disposal of lost and unclaimed¶ property.´

The judgment statement has followed the passage taken from the case of
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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. This, however, is only temporary and for the limited purpose of
investigation. A search and seizure is, therefore, only a temporary interference with the
right to hold the premises searched and the articles seized. Statutory regulation in this
behalf is necessary and reasonable restriction cannot    be considered to be
unconstitutional. The damage, if any, caused by such temporary interference if found to
be in excess of legal authority is a matter for redress in other proceedings. We are unable
 to see how any question of violation of article 19(1)(f) is involved ...´

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.´´

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In conclusion, all the important principles which are been highlighted by Edgar Joseph Jr
may only be of academic purpose as s. 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. 44 (2) of the Copyright Act 1987.
Copyright Act 1969 was repealed in 1987 with a few amendments such as in 1990, 2002
and 2003 regulating copyright offences which are outside the Penal Code.
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1) Copyright Act 1987 (Act 332)
2) Copyright Act (Amendment 1990)
3) Copyright Act (Amendment 2003)
4) Actual case: [1987] 2 MLJ 459
5) Ieda Madieha bt Abdul Ghani Azmi. 2004. c
 
  
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c . Selangor, Malaysia: Sweet&Maxwell Asia