Marimuttu & Sons Fiji Ltd v Fiji Commerce Commission [2012] FJHC 1235; HAA008.2012 (26 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 008/2012

BETWEEN:

MARIMUTTU & SONS FIJI LIMITED
Appellant

AND:

FIJI COMMERCE COMMISSION
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Mr. A. Sen for the Appellant
Mr. S. Nandan for the Respondent

Date of Hearing: 17th July 2012

Date of Judgment: 26th July 2012

JUDGMENT

1. On the 3rd April 2012, in the Magistrates Court at Savusavu the appellant company entered a plea of guilty to one charge of failing to mark the maximum ceiling price of a price controlled item contrary to paragraph 8(1) of the Commerce (Price Control) (Percentage Control of Prices for Food Items) (No.1) Order 2010 (Legal Notice No. 101) and section 54(3), 59 and Section 129(3) of the Commerce Commission Decree No. 49 of 2010.
   
2. The particulars of the offence pleaded to were that the company charged being a trader did on the 12th October 2011 at Savusavu had for sale by way of retail certain price controlled items namely; 13 1 kg bags of sugar, and failed to mark the same with the maximum retail selling price for the information of the public.
   
3. The facts of the case were admitted by the Company and the Magistrate proceeded then to fine the Company the sum of $7,000 plus $35 costs. It is against this fine and costs order that the appellant company appeals.
   
4. The facts of the case were that on 12th October 2011 officers of the Commerce Commission carried out a normal Price Control Inspection on the appellant's shop. They found that the appellant was displaying bags of sugar for sale but had failed to mark the maximum retail selling price on the pack. Pursuant to Section 59 of the Commerce Commission Decree 2010, an on-the-spot penalty of $3000 was imposed on the company. The company failed to pay the on-the-spot fine and ass a consequence, these proceedings were instigated.
   
5. The company is well established and has been operating in the Savusavu area running small outlets such as service stations, grocery stores and drapery shops.
   
6. The maximum penalty for failing to mark the maximum retail price on goods is $15,000 for a natural person and $20,000 for a body corporate.
   
7. The appellant company's grounds of appeal are that the fine imposed is totally inconsistent with fines imposed on like cases and that the sentence is "ultra vires".
   
8. The Commission submits that the fine is quite proper, it is less than half the stated maximum penalty and it is a sum well within the Magistrate's discretion to impose.
   
9. Analysis

The fine imposed is certainly not "ultra vires" and appellant's counsel never explained why it should be so.

10. Fines passed on very large corporate supermarket traders are usually in the range of $500 to $1000 and this fine would therefore appear to be very much higher than the fine normally imposed.
    
11. There was no evidence before the Court that the appellant company actually sold any sugar at a price higher than the maximum retail price and there are no other aggravating features pertaining.
    
12. The company has one previous conviction for the same offence, however it is spent and the Magistrate properly said that he would ignore it. For some reason he took into account a previous conviction in 2007 for illegal increase in rent. Such a conviction is totally irrelevant to this offence.
    
13. It is a normal procedure of natural justice that when imposing a financial penalty against a natural person or a smaller body corporate that enquiry be made as to means to pay. No such enquiry was made by the Magistrate and Mr. Sen submits that a fine of this magnitude would cripple the trader so convicted.
    
14. This Court agrees that the fine imposed is excessive and no reason is given by the Magistrate why it is so out of line with fines in similar cases.
    
15. The fine imposed below is set aside but the costs order of $35 still remains. A new fine of $800 is imposed.
    

Paul K. Madigan
JUDGE

At Labasa
26th July, 2012