JUDGMENT

Zulkifli Bakar J:

Backgrounds

[1] At the Sessions Court, the respondent was charged under s 41(1)(d) of the Copyright Act 1987 as follows:

"Charge:

"Bahawa kamu pada 27 Oktober 2011 di Envy Internet Cafe beralamat di no 9A, Jalan Damai 2, Taman Damai Jaya, Batu 9 Cheras, 43100 Kajang, dalam daerah Kajang di negeri Selangor Darul Ehsan, telah didapati memiliki bukan untuk tujuan kegunaan persendirian dan domestic, dua salinan karya dalam bentuk permainan komputer yang bertajuk Warcraft III-Reign of Chaos dan Warcraft III-The Frozen Throne, tatkala hakcipta wujud dan masih wujud bagi syarikat Blizzard Entertainment Inc dan dengan itu kamu telah melakukan satu kesalahan di bawah s 41(1)(d) Hakcipta 1987 yang boleh dihukum di bawah s 41(1)(i) akta yang sama."

[2] Previously, the Sessions Court Judge had ruled the respondent to be acquitted and discharged without calling for defence at the close of the prosecution's case. Deputy Public Prosecutor, being dissatisfied with the decision, appealed to High Court and subsequently the High Court Judge, on last 5 May 2014 under case no 42S-197-06-2012, decided the respondent to enter his defence before the same trial judge.

[3] It is to be noted in the present case, this is an appeal by the Public Prosecutor ("appellant") against the order made by the learned Sessions Court Judge who acquitted and discharged the respondent at the end of defence's stage.

[4] Briefly, the facts of the case are as follows:

On 27 October 2011, Mohd Syafiq Jinun, Multimedia Crime Supervisor at Commercial Crime Investigation Department Bukit Aman (PW1) led the team to raid Envy Internet Cafe (hereinafter referred as "Cafe"). On the material date, one Chinese man known as "Chan Wai Hong" was found taking care of the premise of the Cafe;

Inspection was conducted by Lim Guan Hock, a Computer Technician of Sendi Mutiara Multimedia Sdn Bhd (PW4) who followed PW1 to the Cafe and found 34 computers in the Cafe comprised with two copies of computer game works with titles of "Warcraft III-Reign of Chaos and "Warcraft III-The Frozen Throne" ("PC games"), as stated in the charge;

The Prosecution alleged that it was an offence when all these 33 computers used the same copy of CD for installation of each game to be played. Datuk Lim Mok Guan, President of Sendi Mutiara Multimedia Sdn Bhd (PW6) testified that the respondent did not obtain commercial licence for installation of the two CDs at the Cafe and failed to get the permission in respect of its copyright.

[5] At the defence stage, two witnesses on behalf of the defence were called, ie the respondent (DW1) and his brother, Choo Soon Fook (DW2).

[6] The defence's case is summarised as follows:

The respondent (DW1) was the Manager of the Cafe. On day of the incident, the respondent was informed by "Chan Wei Hong" that police had led a team to raid the Cafe and thereafter the respondent went to the Cafe;

The police claimed that the respondent was using pirated copies of those two games. The respondent then explained to the police that he bought two original CDs of the games [D25(a) and D25(b)] from the agent of Sendi Mutiara Multimedia Sdn Bhd (Sam Thneah), supported by the "end user agreement" (D24) in which the company Sendi Mutiara Multimedia Sdn Bhd had agreed to supply copies of and granting licences and rights to use the PC games software to the Cafe; and

DW2 gave evidence that he was illiterate and thus he signed D24 without understanding its contents. However, DW2 contended that he was informed by the agent of Sendi Mutiara Multimedia Sdn Bhd (Sam Thneah) that there was no renewal of licence needed to be done to the PC games software.

At The Appeal In This Court

[7] Throughout the hearing of this appeal, the appellant raised two issues before this Court:

Whether the element of "reproduction" under Copyright Act 1987 was successfully proved by the Prosecution; and

Whether the trial judge had erred in receiving "good faith defence" by the respondent.

Issue (1): Whether The Eleme