In an unexpected twist of events following the conclusion of a 22-month court battle between a group of copyright owners and a retailer of Android TV boxes, the Attorney-General’s Chambers (the “AGC”) has filed a notice of appeal to the High Court against the sentences meted out by the State Court in Neil Kevin Gane v Jia Xiaofeng and Synnex Trading Pte Ltd (“Synnex Trading”).

The notice of appeal was filed one day after the sentences with the AGC explaining that the sentences imposed therein may have been excessive.

Background Facts Leading to the Notice of Appeal

On January 2018, Mr Neil Kevin Gane (the “Complainant”) commenced a private prosecution in the State Court against Synnex Trading Pte Ltd and its director, Mr Jia Xiaofeng (the “Respondents”).

The Respondents’ main business activity was the sale of Android TV boxes, which are often sold pre-loaded with applications that allow its user to stream content from various online sources, without the copyright owner’s permission. The Respondents were selling these Android TV boxes to the public for as little as S$219 each, with a subscription service providing access to pirated content for S$40 to S$170 a year.

The Complainant is a member of the Coalition Against Piracy (the “CAP”), members include notable local pay-TV operators such as Singtel and StarHub, and international entertainment titans such as Fox Networks Group and the Premier League (the “Rights Holders”).

The Complainant had brought the private prosecution on behalf of the Rights Holders, in an unprecedented move to combat the sale of Android TV boxes in Singapore. The Complainant alleged that the Respondents had wilfully infringed the copyright of the Rights Holders by facilitating the public’s access to pirated content via these Android TV boxes.

The charges against the Respondents include sections 136(3A) and 136(4) of the Copyright Act. If found guilty, the Respondents could face imprisonment not exceeding six months and/or a fine of up to $20,000.

On 30 October 2019, after a lengthy 22-month court battle, the Respondents pleaded guilty to the charges brought against them and for the act of “wilfully authorising copyright infringement of copyrighted works for commercial gain.” Synnex Trading Pte Ltd was ordered to pay a fine of $160,800, whereas Mr Jia was sentenced to 12 weeks’ imprisonment and fined $5,400.

The AGC’s Notice of Appeal against the Sentence in Synnex Trading

On 31 October 2019, the AGC filed a notice of appeal to the High Court against the sentence in Synnex Trading. The AGC did not dispute the conviction of the Respondents.

Under section 376(2) of the Criminal Procedure Code, the Public Prosecutor may appeal against any judgment, sentence or order of a court in a private prosecution.

The AGC explained in a press release that the sentencing submissions of the Complainant had relied on a previous decision of the State Courts, which has since been overruled. The Complainant’s sentencing submissions were therefore erroneous, which may have resulted in an excessive sentence against the Respondents.

Conclusion: Legal Implications of Synnex Trading and the Future of Set-Top Boxes

Notwithstanding the AGC’s notice of appeal, the decision in Synnex Trading should be welcomed by copyright owners in Singapore. The conviction of the Respondents in Synnex Trading makes it clear that the sale of Android TV boxes is an offence under the Copyright Act. The only issue remaining, to be addressed in the AGC’s appeal, is to consider the appropriate sentence to be meted out (that would be proportionate to the offence committed).

The decision is also a precursor to the upcoming amendments to the Copyright Act, which will expressly ban the distribution of set-top boxes in Singapore. According to the Singapore Copyright Review Report dated 17 January 2019, new legislative provisions will be introduced to impose civil and criminal liability on the sale of set-top boxes and the provision of any related subscription services.

A version of this article first appeared on the GALA Blog. For more information, please visit http://blog.galalaw.com/