Carlton Brewery (Fiji) Ltd v Western Bottling Company Ltd [1997] FJHC 171; Hbc0228j.96s (13 November 1997)

Fiji Islands - Carlton Brewery (Fiji) Ltd v Western Bottling Company Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL JURISDICTION

ACTION NO. HBC0228 OF 1996

BETWEEN:

CARLTON BREWERY (FIJI) LIMITED
Applicant
(Plaintiff)

AND:

WESTERN BOTTLING COMPANY LIMITED
First Respondent
(Defendant)

AND:

MOHAMMED JAMAL
F/N MOHAMMED KAMAL
Second Respondent
(Defendant)

AND:

PREMA PRASAD
F/N RAM PRASAD
Third Respondent
(Defendant)

IN THE MATTER of an Application by
CARLTON BREWERY (FIJI) LIMITED for Orders of Committal

AND:

IN THE MATTER of proceedings pending in an action
bearing Action No. HBC0288 of 1996.

S. Stanton and S. Sharma for the Applicant
A. Singh for the Second and Third Respondents Date of Hearing: 4th November 1997
Date of Judgment and Sentence: 13th November 1997

JUDGMENT (REMARKS ON SENTENCE)

On 23rd May 1996 I granted various Orders against the Respondents in Chambers. Those orders provided inter alia as follows:

"1. An injunction that the Defendants and each of them be restrained until further Order of the Court in the meantime from doing or authorising the doing as regards all Defendants whether by their servants, agents, officers or in respect of any corporate Defendant by their directors or by their officers, servants or agents or any of them or otherwise howsoever the following acts that is to say:

(a) From passing off or attempting to pass off and from assisting, enabling or procuring others to pass of and from doing any act calculated or intended to lead to the passing off of any glass bottle having embossed, stamped moulded, blown, branded or otherwise marked on each or any such bottle the Fiji Trade Mark No. 7023 in Class 43 being a clover leaf device the with letters CBF and the words FIJI BEER THIS BOTTLE ALWAYS REMAINS THE PROPERTY OF CARLTON BREWERY (FIJI) LIMITED (hereinafter 'the bottle') containing a liquid product as or for or as being in any way connected with the liquid contents of the bottle of the Plaintiff or as by virtue of its being contained in the said bottle as being made by or under the supervision of or with the approval of the Plaintiff.

(b) in any making, selling, offering to treat, advertising or offering for sale, distributing or otherwise manufacturing or parting with the possession, power, custody or control of or over, or destroying or defacing or hiding any stacks of the bottles being the totality of the supplies of all bottles filled and empty wheresoever situated and bearing the trademarks referred to in paragraph (a) above such trademarks being the sole and exclusive property of the Plaintiff or to which the Plaintiff has a proprietary interest thereto.

(c) directly or indirectly informing or notifying any person, company or firm (otherwise than for the purposes of seeking legal advice from properly qualified professional lawyers) of the existence of the proceedings or of the provisions of this Order or of the Plaintiffs' interest in these proceedings or otherwise warning any person, company or firm that proceedings may be brought against them by the Plaintiff.

7. An Order that the Defendants their servants and agents be restrained from infringing or attempting to infringe or assisting, enabling or procuring others to infringe the Plaintiffs' registered trademark viz.; Fiji Trade Mark No. TM 2593, 7023, 7248, 7728, 21680, 22215, 22919, 18796 and 187797.

8. An order that the Defendants by their servants and agents be restrained from infringing or attempting to infringe or assisting enabling or procuring others to infringe the Plaintiff's marks in the said goods and by the affixing of labels thereon or obliterating the Plaintiff's marks to the said bottles as used in the Plaintiff's business."

The orders were duly served on the Respondents. The orders also were specifically endorsed inter alia as follows:

"AND THE COURT DOTH DECLARE that in default of compliance with any provision of this Order by any of the Defendants their officers, servants or agents or any person appearing to be in charge of any of the said premises or vehicles, or trucks or van the Plaintiff shall be at liberty to apply to the Court for the immediate committal to prison of any person in default without further notice to him or her," and "FURTHER IF (each of the principal defendants) neglect to obey this Order by the time therein limited or disobey this Order then....(each of the principal defendants) will be liable to process of execution for the purpose of compelling the said (defendants) to obey the same."

The orders were not contested by the Respondents.

The Applicant's claim essentially revolved around the trademarks of which it was registered as proprietor and which are fully described in the Statement of Claim annexed to the Writ herein paragraphs 2-6.

The Applicant claims the infringement of the trademarks and the conversion of its property in the form of the bottles referred to in paragraph 5 of the claim consisting principally of a distinctive label and embossment on each bottle of a clover leaf device with the letters "CBF" and embossed at the bottom with the words "FIJI BEER THIS BOTTLE ALWAYS REMAINS THE PROPERTY OF CARLTON BREWERY (FIJI) LIMITED".

The First Respondent manufactured aerated water bottled as soft drinks under the name "POPS" together with fruit juice cordial. The Second and Third Respondents were at all material times directors of the First Respondent.

The Court was informed by counsel for the Applicant at the beginning of this hearing on 4th November that the First Respondent was wound-up on the 25th of July 1997, and a Receiver Manager was appointed. The present proceedings concern only the Second and Third Respondents as I was informed by counsel for the Applicant that the First Respondent intends to abide by the orders of this Court and is not being pursued by the Applicant any further.

The relief sought with respect to the Second and Third Respondents is for an order that they be committed to prison for their joint and several contempt of this Court in that they did in breach of the orders made and more particularly identified in paragraph 8 (supra):

"(a) contra to Order 7 as made on 23 May 1996 they jointly and severally as servants of the First Respondent did infringe and/or attempted to infringe and/or did assist, enable or procure others to infringe the Plaintiff's registered trademarks viz Fiji Trademark Nos TM 2593, 7023, 7248, 7728, 21680, 22215, 22919, 18797 (the Plaintiff's mark) by acquiring, storing and bottling for wholesale and/or retail the First Respondent's products together with labelling the same contra to the said Orders as made and provided;

(b) contra to Order 8 the Second and Third Respondents did infringe and did assist and/or procure others to infringe the Applicant's marks in the said bottles by the affixing of labels thereon and the obliteration of the Applicant's marks on the said bottles contra to the said Order made and provided;

(c) did jointly and/or severally in breach of Order 1(a) by passing off or attempting to pass off and did assist, enable and/or procure others to pass off by the acquisition, storage and ultimately filling of the Applicant's bottles and distributing them in bottles bearing Fiji Trade Mark No. 7023 in Class 43 to retail outlets in Viti Levu;

(d) did contra to Order 1(b) cause to be made stacks of the Applicant's bottles both filled and empty at the First Respondent's premises at Waqadra Industrial Sub-division, Namaka, Nadi and Lautoka contra to the said Order as made and provided."

The charges were read to the Respondents, each of whom pleaded guilty to each charge. I was satisfied that they understood the charges against them and accordingly found them guilty and convicted them.

I then heard addresses from their counsel Mr. Singh and senior counsel for the Applicant.

On behalf of the Respondents Mr. Singh submitted that as Western Bottling Company Limited had now gone into liquidation and receivership there was no chance that his clients will repeat the offences for which I convicted them. This does not necessarily follow because there is nothing to prevent the Respondents if they are so minded from commencing business on their own and obtaining the Applicant's bottles again. I hope however that in view of the sentences I am going to impose they would consider this chance as not worth taking.

It was also submitted that the First Respondent is a Councillor on the Town Council of Nadi and in September 1996 was re-elected for another three years. It was put to me that if I were to sentence Mr. Jamal to a term of imprisonment exceeding 12 months he would be disqualified from continuing as a Councillor.

It was also put to me that he is aged 51 and this is his first conviction. It was further said that even if he were fined or some other punishment was imposed on him it will ruin his whole life. Finally it was said that the First Respondent is very remorseful for what he has done; he has pleaded guilty immediately to save the Court's time.

As to his wife the Third Respondent it was submitted, and not contested by the Applicant, that of the two she was the lesser offender and that this is also her first conviction. Mr. Singh conceded however that as a Director of the Western Bottling Company Limited she knew what was going on but was not involved full time in her husband's activities on behalf of the company.

I accept these remarks about both Respondents. It was then submitted by Mr. Singh that I should grant both Respondents absolute discharge under Section 44 of the Penal Code or discharge them subject to the condition that they commit no offence during the period prescribed by Section 44 of not exceeding 12 months from the date of the orders.

In his remarks on sentences Mr. Stanton stated that the Applicant would see a term of suspended sentence as within the tariff and within the range.

With due respect to Mr. Stanton and the Applicant I do not consider this case calls for a suspended sentence on either Respondent. My not inconsiderable experience in the Criminal Courts both as an advocate and on the bench convinces me that generally speaking suspended sentences are but a trap and a snare, calculated in my view to instil a false sense of security and delusion in the mind of the offender as to the seriousness of the offence which he or she has committed. In my judgment the sentence which this Court should impose must bear some similarity to the offences for which the Respondents have been convicted. Their conduct, but particularly that of the Second Respondent, shows a calculated and deliberate defiance of the orders of this Court and the sentences which I intend to impose must be likewise calculated and emphatic and designed to bring home to the Respondents and to any members of the public at large who may have similar ideas that Court orders are meant to be obeyed and not flouted at the whim of persons subject to them. Were it otherwise we would exist in a state of anarchy as distinguished from the civilised state in which we are fortunate to live.

Whilst giving as much credit as I can to the pleas of guilty now made by the Respondents I cannot ignore a number of factors which must tell against giving as much weight as I otherwise would to their pleas. These are that for a period of six months both Respondents disobeyed this order. Even almost until the last the Second Respondent attempted to deceive the Court. Evidence was given in the form of an affidavit by Shankar Singh a registered Bailiff sworn on the 23rd of December 1996 that on the 16th of November 1996 in Lautoka a "POPS" truck laden with the Applicant's bottles but labelled with labels of the First Respondent and filled with the latter's products was stopped and the bottles and cartons in which they were stored were seized. The driver gave a statement which I consider it worth including in these remarks. It reads thus omitting formal parts:

"(1) That I am employed by Western Bottling Co. Ltd. of Nadi as a driver of truck No. E4011 owned by Western Bottling.

(2) That today at 8 a.m. I was instructed by Mr. Mohammed Jamal, the Managing Director, to do sales of 'POPS' drinks bottled in 750 ml CBF bottles.

(3) That I together with SARWAN KUMAR f/n Shambu Prasad, delivery boy, sold to various outlets in Lautoka area as per invoices which I confirm were in CBF (750 ml) bottles.

(4) That there were approximately 60 ctns, of Pops drinks kept in 750 ml CBF bottles in the said truck and this I have delivered upon being served with a Court Order to CBF Lautoka.

(5) That the said filling in 60 ctns of CBF bottles (750 ml) with POPS drinks were done at actory premises of Western tern Bottling at Beddoes Circle, Namaka, Nadi.

(6) That I confirm that I knew that my sale and distribution of POPS drinks in 750 ml CBF bottles were contrary to the current High Court order but as I was instructed by my boss, Mohammed Jamal I di the sales.

(7) I confirm that I gave this statement upon request and of my own free will and volition and without any threat or fear.

(8) I have surrendered all invoices and cash sale dockets voluntarily."

Mohammed Jamal however swore an affidavit on the 24th of October 1997 in which he says in paragraph 9 that the truck in question was returning the bottles to the premises of Western Bottling Company Limited which shop owners had rejected. I have no hesitation in accepting the statement of the driver of the truck particularly in view of the pleas of guilty by Mr. Jamal.

According to the documentary evidence in the form of invoices of the First Respondent seized under the order of this Court each carton of 12 bottles was sold by the First Respondent for an average price of $7.20. I was informed in committal proceedings on the 6th of November by the Applicant against Rahmat Ali that according to the Applicant 8 dozen bottles sold by Rahmat Ali to two retail outlets in the Nadi area cost $6.00 per dozen. The evidence before me is that over 1000 dozen bottles were seized by the Applicant so that for at least 6 months the loss sustained by the Applicant as a result of the Respondents' actions would be at least $6,000.00.

Having given consideration to everything which has been put to me by counsel for the parties I consider that the appropriate sentence to be passed on the Second Respondent is a fine of $2,000.00 for each month in which he disobeyed this Court's order making a total without any deduction for the pleas of guilty of $12,000.00. However because of his pleas of guilty I consider it fair to reduce this fine to $10,000.00 in default 6 months imprisonment. The fine is to be paid no later than 4.00 p.m. on the 18th of November.

I consider the appropriate fine which I should impose on the Third Respondent is $2,000.00 from which there will be a deduction of the sum of $500.00 in recognition of her pleas of guilty. The Third Respondent is therefore fined $1,500.00 in default one month's imprisonment. Her fine must also be paid no later than 4.00 p.m. on the 18th of November 1997.

There remains the question of costs which the Applicant seeks. In my judgment an order for costs is warranted because of the expenses which the actions of the Respondents have caused the Applicant to incur. First there was the preparation of all legal documents required in these proceedings including a lengthy Statement of Claim and various affidavits all containing great detail required for the prosecution of the Respondents on these charges of contempt of Court. I accept that in these matters it is important for an Applicant to be particularly thorough in the preparation of its case. Some idea of the work involved by the Applicant and its lawyers is given in the affidavits of Rupeni Mavoa, Rajan Maharaj and Shankar Singh all sworn on the 23rd of December 1996. These affidavits refer to a number of people who were required, I consider reasonably, by the Applicant to bring this matter to conclusion. A team of individuals consisting of the counsel of the Applicant, a Supervisor with the Applicant, a registered Bailiff and photographer, a Law Clerk employed by the Applicant's solicitors who also took photographs, a High Court Sheriff Officer and a Video Camera Operator was employed. In my view it is fair that the Respondents pay the costs of the Applicant which costs are to include the employment of two counsel including one overseas counsel for the hearing on an indemnity basis and I now so order. Those costs are to be taxed in default of agreement. Finally, I order the Respondents to surrender their passports immediately to the Chief Registrar of this Court who will release them when the fines are paid.

JOHN E. BYRNE
JUDGE

Legislation referred to in judgment:

Penal Code Cap. 17 Section 44.

No cases are referred to in the judgment or submissions of counsel.

Hbc0228j.96s