Food for Less (Fiji) Ltd v Fiji Commerce Commission [2014] FJHC 17; HAA004.2014 (31 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Appeal No. HAA 004 of 2014

BETWEEN:

FOOD FOR LESS (FIJI) LTD
Appellant

AND:

FIJI COMMERCE COMMISSION
Respondent

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Appellant by a director in person
Mr. S. Nandan for the Fiji Commerce Commission

Date of hearing : 15 November, 10 December 2013
Date of Judgment : 31 January, 2014

JUDGMENT

1. The appellant trading as a supermarket in Suva City faced the following charges in the Magistrate Court in Suva.
   

Count 1

Statement of Offence

Failing to indicate prices of percentage price control items contrary to paragraph 8(1) of the Commerce (Price Control)(Percentage Control of Food Items)(No. 1 Order of 2010, and sections 54(3) and 129(A) of the Commerce Commission Decree No. 49 of 2010.

Particulars of Offence

Food 4 Less (Fiji) Limited trading as Food 4 Less being a trader of Rodwell Road, Suva did on the 28th day of January, 2012 failed to legibly and conspicuously mark the price of price control items offered for sale, for the information of the public, namely, 86 x 11, Rewa Life Milk. Contrary to paragraph 8(1) of the Commerce (Price Control) (Percentage Control of Prices for Food Items) (No.1), 2010 (Legal Notice No. 101) and Sections 54(1) and 129(3) of Commerce Commission Decree No. 49 of 2010

Count 2

Statement of Offence

Cause to display low price advantage for non-price controlled item, which was false and misleading: contrary to sections 77(1)(g) and 129(3) of the Commerce Commission Decree No. 49 of 2010.

Particulars of Offence

Food 4 Less (Fiji) Limited trading as Food 4 Less being a trader of Rodwell Road, Suva did on the 28th day of January, 2012 having for sale non-price controlled item, misleading the customers by causing to legibly and conspicuously displaying a low price advantage, whereas charging higher price for the particular item at the point of sale, namely, Orchid Toilet Paper, contrary to sections 77(1)(g) and 129(3) of Commerce Commission Decree No. 49 of 2010.

To these charges, the company by a director entered pleas of guilty and proceeded to mitigation of the offences. The learned Magistrate in sentence fined the company $7,000 on the first charge and $5,000 on the second charge.

2. The appellant company was given leave to appeal out of time and relies on

the general ground of appeal that the fines are in the circumstances excessive.

3. The facts of the case are that on the 28th January 2012 inspectors of the Commerce Commission found that the supermarket operated by the appellant at Rodwell Road, failed to display the price of 86 one litre packs of Rewa Life milk, which is a price controlled item. Further inspection revealed that in addition to this lapse, the trader was misleading customers by displaying a certain price for "Orchid" toilet paper where in fact the price charged at the point of sale was 16 cents more.
   
4. The manager of the supermarket was interviewed under caution, when he admitted both offences and he was summoned to appear in the Magistrate's Court.
   
5. Section 54(3) of the Commerce Commission Decree stipulates that any goods which are price controlled by the Minister shall be "legibly and conspicuously marked" with the control price for the information of the public. The penalty (as set out in s.129(A) of that Decree) is $5,000 for a first offence and $10,000 for a second and subsequent offence.
   
6. In respect of the second charge, s.77(1)(g) of the Decree stipulates that any person in the supply of goods shall not make a representation that a price advantage of goods exists if it does not. The penalty set out in s.129(1) is $5,000 for a first offence and $10,000 for a second or subsequent offence. However when the offender is a body corporate as is the case here, that fine can be as much as five times more, that is to say $15,000 for a first offence and $50,000 for a subsequent offence.
   
7. The appellant company has two previous convictions for an offence of failing to mark the price of price controlled items but no previous convictions for the second offence of displaying a low price advantage.
   
8. In mitigation the company submitted an excuse for the first offence that employees had been tasked to display the price of the milk but they did not do that in time after "someone" had removed the display price ticket. The company claims that there was certainly no intention to deceive because the price charged at the point of sale was in fact the price controlled price.
   
9. For the second offence, the appellant company stresses that they had entered a plea of guilty and had co-operated with the authorities from the time of detection. It is their first offence for this offending and it "happened inadvertently".
   
10. The learned magistrate did not accept the excuses offered for the first offence and that it was "vague, inadequate and not credible". In considering that a store the size of Food for Less would be diligent in displaying prices, the learned Magistrate concluded that the lapse was "not unintentional". With regard to the second charge the Magistrate found that the difference between the displayed price and the price actually charged was significant and apart from being a burden to the shopper, it would generate a considerable profit in sales for the supermarket.
    

Analysis

11. This Court is not prepared to go behind the Magistrate's assessment of blame in the light of the company's mitigation. This is the third offence of failure to mark the price of a price controlled item and in those circumstances the fine of $7,000 is not unreasonable. The Commission is controlling the prices of certain goods for the benefit of the average family shopper. Any action by a trader to thwart this intention must occur a heavy fine.
    
12. Although it was the first time that the appellant company had offended in respect of price advantage and although the company had pleaded guilty and co-operated, it would mean that the company has benefitted from the Magistrate not imposing a heavier penalty on the trader being a body corporate. In terms of section 129(3) of the Decree he could have imposed a penalty of $15,000 but did not. The fine of $5,000 for the offence is reasonable.
    
13. There is no merit in the appeal and it is dismissed.
    

P.K. Madigan
Judge

At Suva
31 January 2014