State v Ali (as Director of Coastal Trading Ltd) [2023] FJMC 33; Criminal Case 86 of 2016 (28 December 2023)

IN THE MAGISTRATE’S COURT IN SIGATOKA

CRIMINAL JURISDICTION

Criminal Case No. 86/2016

State –v- Fariyad Ali as Director of Coastal Trading Limited

For the State: Ms. Konrote

For the Accused: Mr. R. Prasad

SENTENCE

Fariyad Ali in the course of the Trial you registered your intention to change your plea to the charge. The charge was then read again to you, you understood the same and you have pleaded guilty out of your own free will to the charge. The charge is as follows: -

FIRST COUNT

Statement of Offence (a)

DEALING IN INFRINGING COPY contrary to section 121(1)(d)(i) of the Copyright Act 1999

Particulars of Offence (b)

FARIYAD ALI as Director of Coastal Trading Limited on the 18^th day of November 2014 at Sigatoka in the Western Division, in the course of business offered for sale an infringing copy of the movie titled “Maze Runner Collection” being the copyright of Twentieth Century Fox, when Fariyad Ali knew or ought reasonably to have known that the same were infringing copies.

SECOND COUNT

Statement of Offence (a)

DEALING IN INFRINGING COPY contrary to section 121(1)(d)(i) of the Copyright Act 1999

Particulars of Offence (b)

FARIYAD ALI as Director of Coastal Trading Limited on the 18^th day of November 2014 at Sigatoka in the Western Division, in the course of business offered for sale an infringing copy of the movie titled “Frozen 2-in-1” being the copyright of Walt Disney Studios, when Fariyad Ali knew or ought reasonably to have known that the same were infringing copies.

Around the subject date from the place of business in Sigatoka town, you were trading as Coastal Trading Limited for which you are the Director of, offered for sale two (2) DVDs copies. One was titled “Maze Runner Collection” and the other, “Frozen 2-in-1”. They were infringing copies of movie titles:

1. Maze Runner of which the copyright belonged to Twentieth Century Fox; and
2. Frozen of which the copyright belonged to Disney Studios.

When you offered these infringing copies, you knew or ought reasonable to have known that the copies were infringing copies. You were arrested later, interviewed under caution and charged for this offence.

The summary of the facts has been outlined to you and you have freely admitted the same therefore you stand convicted as charged.

You have three (3) previous convictions of which two are similar in nature in 2013.

Both parties submitted written submissions for mitigation and sentencing for which this Court is grateful. All relevant material have been considered in this sentence.

Mitigating Factors

Your counsel has offered the plea in mitigation as follows: -

- You are 59 years of age, married with 3 children.
- You own a retail shop at Nayawa for which you generate income from.
- You suffer from atrial fibrillation, hypertension and diabetes as shown by your medical records. I also note your need to attend to further treatment overseas.
- You seek forgiveness for what you did and are remorseful for your actions.
- You promise not to reoffend.
- You seek for a minimal fine as you also need to attend funds to attend to your medical needs.
- You seek for a lenient sentence as well as DVDs are now obsolete and so such infringements are not common now.
- You seek for the Court not to subject you to section 121(5) of the Copyright Act 1999 as this offence that is, section 121(1), is not subject to the said provision.

The State seeks for the Court to impose an appropriate sentence on you given that this is your second offence and for the Court to consider the previous conviction.
Maximum Sentence

The maximum sentence of the offence of Dealing in an Infringing Copy is a fine of $5,000 but not exceeding $50,000 in respect of the same transaction, and to imprisonment for 12 months.

Tariff

There is no tariff set yet for this offence but the following sentences are noted.

In State v Fariyad Ali [2013] FJHC Appeal No. 6 of 2013, the High Court sentenced you to a fine of $750 per copy, which came to a total of $4,500; and a suspended sentence of 4 months for a period of 18 months.

In State v Shaniel Autar Magistrate Court Criminal Case No. 370 of 2010, the Court sentenced the offender to a fine of $750 for each infringing copy; and a suspended sentence of 6 months imprisonment for 18 months.

Mitigating factors

From your mitigation submissions, I can only note two factors for this Court to consider and they are your guilty plea, although on the day of the Trial and your remorsefulness.

Sentence

In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) where the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing, which this Court adopts.

While the Court notes that infringements such as this is now becoming obsolete as your Counsel has submitted, it does not in any way weather down the essence of it being an offence against intellectual property. This Court recognizes that copyright laws and enforcement need to address any form of infringement if we are ever to promote creativity locally and remain true to our international commitment^[1]. As was said by the Supreme Court of the United States^[2], “the immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” The same remains true for Fiji. So if we are to gain from this artistic creativity whether it originates domestically or internationally, then it is the court’s duty to protect and promote this artistic creativity by applying the sentencing principles and provisions of Section 121 of the Copyright Act. On a further note, with the current reality, that is, the moving of the battlefield against copyright infringement to the wide parameters of the digital era, it goes without saying that the relevant laws and its enforcement must adapt accordingly.

In the circumstances, I hereby fine you $1,500 for each infringing copy. Given that there are two (2) copies, your total fine is $3,000. This fine of $3,000 needs to be paid in 2 months from today, in default of paying this fine, you are to be committed to 300 days imprisonment.

Further, I hereby commence your imprisonment at 9 months. I deduct 2 months for your mitigating factor, leaving you with a balance of 7 months imprisonment. I choose not to discount the guilty plea from your sentence as it was entered on the day of the Trial for a matter which had been pending for about 7 years. I have considered your current health status and the real possibility of rehabilitation in this regard against the principles of Section 4 of the Sentencing and Penalties Act of 2009, I choose to suspend your 7 months imprisonment for 3 years.

The sentence will now be explained to you in your preferred language.

28 days to appeal.

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Joseph Daurewa

Resident Magistrate

28^th December, 2023

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^[1] Fiji acceded to the Berne Convention in 1971.
^[2] Twentieth Century Music Corp v Aiken [1975] USSC 122; 422 U.S. 151 (1975)