Bargain Box (Fiji) Ltd v Fiji Commerce Commission [2012] FJHC 1001; HAA001.2012 (30 March 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 001 of 2012

BETWEEN:

BARGAIN BOX (FIJI) LTD
Appellant

AND:

FIJI COMMERCE COMMISSION
Respondent

Counsel: Mr. A. Sen for the Appellant
Mr. A. Ram and Ms. A. Mataiciwa for the Respondent

Date of Hearing: 12 March 2012
Date of Judgment: 30 March 2012

JUDGMENT

[1] The appellant was convicted and sentenced to a fine of $2000.00, after pleading guilty in the Magistrates' Court, to the following offence:

Statement of Offence

Selling Price Control Items at Excessive Price: Contrary to Paragraph (3) of Counter Inflation (Price Control) (Stationary and Text Books) (No. 24) Order 1993 and Section 52(a) and Section 129(1A) of Commerce Commission Decree, 2010.

Particulars of Offence

Bargain Box (Fiji) Ltd of Savusavu Town did on the 28th June 2011 at Savusavu in the Northern Division being a trader having for sale by way of retail 6 packets x 12 Gold Horse Colored Pencil at $2.99 per packet such price in excess of $0.69 from the maximum retail selling price of $2.30.

[2] This appeal is against both conviction and sentence.

[3] The appeal against conviction is advanced on the ground that the learned Magistrate erred in convicting and sentencing the appellant when the proceedings were irregular and void. Counsel for the appellant submits that the proceedings were not instituted in accordance with the law.

[4] The appellant is a corporation. It operates as a limited liability company with several retail outlets situated in different towns in Fiji. One retail outlet operates in Savusavu. It appears the company sells office stationeries among other products.

[5] The criminal proceedings against the appellant were instituted by an officer acting in the course of his lawful duty under section 131 of the Commerce Commission Decree. The complaint was reduced in writing and sanctioned by the Magistrates' Court, in compliance with section 56 of the Criminal Procedure Decree. After the complaint was filed, the appellant was summoned to appear in court to answer the charge. There is no defect in the complaint procedure utilized by the respondent to charge the appellant. In any event, section 57(3) of the Criminal Procedure Decree provides that the validity of any proceedings taken in relation to a complaint or charge shall not be affected by:

(a) any defect in the complaint or charge, or

(b) the fact that a summons or warrant was issued without complaint or charge.

[6] For the reasons given, I am satisfied the proceedings against the appellant were instituted in accordance with the law. The conviction stands.

[7] The first ground of appeal against sentence is that the learned Magistrate erred in imposing a sentence of $2000.00 without having due consideration to the Sentencing and Penalties Decree 2009 and in particular, Part II Sections 4–9. This ground is vague and lacks particulars of the alleged error. Counsel drafting grounds of appeal must bear in mind that a ground of appeal that lacks clarity and particulars is not helpful to the court that considers the appeal.

[8] The Sentencing and Penalties Decree codifies the principles of sentencing developed by the common law. Section 4 sets out the purposes for which sentencing may be imposed by a court and the factors that a court must have regard to when sentencing an offender. Section 5 sets out the factors to be considered in determining an offender's character. Section 6-9 concerns guideline judgments.

[9] Section 52(a) of the Commerce Commission Decree describes the prohibited act as follows:

No trader shall sell or buy or agree to sell or buy goods at a greater price than the maximum price fixed and declared by an order made under the provisions of subsection (1) of section 44.

[10] The Counter-Inflation (Price Control) (Stationery and Text Books) (No.24) Order, 1993 fixed the maximum retail price for the stationary subject of the charge at $2.30. The appellant breached these provisions of the law by either selling or agreeing to sell the stationary at a price above the fixed retail price of $2.30.

[11] Clearly, the act of selling or agreeing to sell a product above the fixed retail price gives rise to a strict liability. Price control legislation ensures equitable returns for businesses while at the same time giving consumers a fair advantage over prices. The purpose of punishment for businesses who subvert price control goods is deterrence if the objective of the legislation is to be achieved. In his sentencing remarks, the learned Magistrate considered deterrence as the purpose for sentencing the appellant. No error has been shown in the application of the Sentencing and Penalties Decree by the learned Magistrate.

[12] The second ground of appeal against sentence is that the learned Magistrate erred in imposing a sentence which is in disparity with the sentence imposed in similar circumstance on the same day.

[13] On the day the appellant was sentenced, the learned Magistrate sentenced one Osea Vakatulala to a fine of $100.00 for a similar offence (Criminal Case No. 364/11). Although this Court does not have the benefit of the facts surrounding Osea Vakatulala's offence, it is apparent from the sentencing remarks of the learned Magistrate that the charge in that case was against a natural person.

[14] Counsel for the respondent submits that the disparity principle does not apply to the appellant because of its corporate status as opposed to Osea Vakatulala who was a sole proprietor. Counsel submits that the Commerce Commission Decree provides for tougher penalties for a body corporate as opposed to a natural person.

[15] Section 129 of the Commerce Commission Decree outlines the penalties. The relevant subsections are:

(1A) Subject to subsections (2) and (3), a person found guilty of an offence under this Decree for which no other penalty is provided is punishable on conviction by a fine not exceeding $5,000.00 for a first offence and $10,000.00 for a second or subsequent offence.

(3) The maximum penalty for an offence under a provision of this Decree committed by a body corporate is a fine that is five times the fine provided for in the provision or, as the case may be, a fine that is five times the fine provided for in subsection (1).

[16] The maximum fine that applied to the appellant was $25,000.00 and not $5,000.00 as stated by the learned Magistrate in his sentencing remarks. In this regard, the appellant is fortunate that the learned Magistrate directed his mind to a lower level of maximum fine instead of $25,000.00. In any event, counsel for the respondent has referred this Court to numerous cases from the Magistrates' Court to show that fines between $1,000.00 and $2,000.00 have been imposed on companies guilty of price control offences.

[17] The disparity principle that applies to sentences imposed on co-offenders with a justified sense of grievance has no relevance to the appellant. The appellant was not a co-offender with Osea Vakatulala. They were not jointly charged with the same offence. Different levels of fines apply depending on whether the offender is a sole trader or a body corporate. The disparity in fines is justified by statute and therefore, this ground of appeal must fail.

[18] The third ground of appeal is that the sentence is harsh and excessive given that the appellant was a first time offender.

[19] In his sentencing remarks, the learned Magistrate clearly considered the appellant to be a first time offender. For a first time offender, the maximum fine is $25,000.00. For a repeat offender, the maximum fine is $50,000.00. The high level of maximum fines goes to show the seriousness of price control offences. A fine of $2,000.00 that was imposed on the appellant could hardly be considered excessive when you consider the maximum fine that is available for the offence.

[20] The final ground of appeal is that the learned Magistrate was biased. The bias issue was founded on the disparity argument advanced by the appellant. Since I have found that the disparity in the sentences was justified by the law, there is no basis to suggest that the learned Magistrate was biased in the conduct of the proceedings.

[21] All the grounds of appeal fail.

[22] The appeal is dismissed.

Daniel Goundar
JUDGE

At Labasa
Friday 30 March 2012

Solicitors:
Office of Messrs. Maqbool & Co., Labasa for Appellant
Office of the Commerce Commission, Labasa for Respondent