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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 46 OF 2014
BETWEEN:
RAJENDRA PRASAD BROTHERS LIMITED TRADING AS RAJENDRA’S FOODTOWN
APPELLANT
AND:
THE FIJI COMMERCE COMMISSION
RESPONDENT
Counsel: Ms. M. Latianara for Appellant
Mr. Nemani for Respondent
Date of Hearing : 10th December 2015
Date of Judgment : 29th February 2016
JUDGMENT
01. This timely appeal has been lodged by the Appellant against the conviction and sentence imposed by the Magistrates Court of Lautoka.
Background
02. The Appellant, Rajendra Prasad Brothers Limited, T/A Rajendra’s Food Town, was charged before the Lautoka Magistrates Court with one count of selling by retail certain fixed price control goods at an excessive price, contrary to clause 9 (a) of the Legal Notice 101 Commerce (Price Control) (Percentage Control of Prices for Food Items) (No. 1) Order 2010, (hereinafter referred to as “the Legal Notice”) and Section 52 (a) and Section 129 (3) of the Commerce Commission Decree No. 49 of 2010 (hereinafter referred to as “the Decree).
03. The particulars of the charge alleged that the Appellant on 23rd February 2012 at Lautoka sold potatoes and onions at excessive prices. The company was alleged to have sold potatoes at $1.55 per kilogram instead of $1.49, the maximum calculated price set by the Fiji Commerce Commission (the Commission). The onions were alleged to have been sold at $1.50 per kilogram instead of $1.34, the maximum calculated price by the Commission.
04. The Appellant Company pleaded not guilty to the charge. At the trial, the Prosecution called two witnesses, namely Kumar and Leone Vunitabua, the Commission’s inspectors who attended the supermarket branch in question to check on the price of the potatoes and onions. At the conclusion of the prosecution case, a no case to answer submission was made which was rejected by the learned Magistrate.
05. The Appellant in support of its case called four witnesses and was subsequently convicted of the charge.
06. After mitigation submission the Appellant Company was sentenced on 6 September 2014 to the maximum fine of $50,000 to be paid within 30 days in default of which 3 months’ imprisonment would be imposed.
07. The Appellant now appeals against the conviction and sentence on the basis of the grounds contained in the Petition of Appeal filed on 1st October 2014.
The Appeal
08. There are 13 grounds of appeal in total, some of which overlap with others and are therefore addressed together. Four grounds deal with the learned Magistrate’s refusal to uphold the Appellant’s no case to answer application. Six grounds deal with the conviction after full trial and three are against the sentence imposed.
The Relevant Law
09. The charge against the Appellant was made pursuant to 3 different provisions.
Clause 9 (a) of the Legal Notice and related provisions
10. The first was clause 9 (a) of the Legal Notice which provides as follows:
No person may –
(a) sell by retail or offer for sale by retail any price controlled item at a price in excess of that marked on such items, such maximum retail price having being calculated in the manner prescribed in clauses 6 and 7; or
11. Clauses 6 and 7 referred to in clause 9 (a) above, sets out the procedure used to calculate the maximum retail price for price controlled items. This involves submissions made by the retailer to the Commission of all the relevant documentary evidence of the costs incurred in bringing in the goods and their packaging materials for retail. In summary the maximum retail price that price controlled items can be sold at is a mark up on the into-store cost of the good no greater than the retail percentage prescribed in Schedule 1 of the Legal Notice.
12. Clause 2 of the Legal Notice defines a “price-controlled item” as an item specified in Schedule 1. Potatoes and onions are included as items 14 and 15 in Schedule 1. In applying clauses 6 and 7 of the Legal Notice, the maximum price that potatoes and onions can be sold at is a markup price of 10% of all costs involved in bringing them into store.
Section 52 (a) of the Decree and related provisions
13. The second provision with which the Appellant was charged included Section 52 (a) of the Decree which provides as follows:
“No trader shall –
(a) sell or buy or offer 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;
14. The terms of Section 44 of the Decree are important as they set out the procedure by which the maximum prices are to be ordered, fixed or declared by the Commission. Section 44 states as follows:
(1) The Commission may, with the approval of the Minister, by order, fix and declare the maximum price or charges by any person (including the State) in the course of business for the sale of goods or the performance of services, either generally or in any specified part of or place in Fiji.
(2) Before making or giving an order or notice under this section (other than one which only removes or lessens a restriction), the Commission shall, give fourteen days notice in the manner prescribed in subsection (3) to the person selling the goods or performing the services which would be subject to the restriction, and shall afford to such person an opportunity of making representations to the Commission, which unless the Commission otherwise directs, shall be in writing.
(3) If it appears to the Commission to be impracticable to give notice under subsection (2) to all the persons selling the goods or performing the services, it shall instead give fourteen days’ notice by publication in the Gazette and in such other ways as it may consider appropriate of its intention to make the order and shall afford to all those persons an opportunity of making representations to the Commission which, unless the Commission otherwise directs, shall be in writing.
15. While clauses 6 and 7 of the Legal Notice regulate the procedure as to how the maximum price is to be calculated, Section 44 of the Decrees regulates the procedures as to how the maximum price is to be declared and fixed by the Commission for the purpose of becoming a lawful order of the Commission.
16. Consequently any trader that sells at a price above the price fixed by the Commission through an order made in compliance with Section 44 commits an offence under Section 52 (a). The penalty for contravening clause 9 of the Legal Notice and Section 52 (a) of the Decree is provided for in Section 129 of the Decree which states as follows:
(1) Subject to subsections (2) and (3), a person who –
(a) contravenes;
is guilty of an offence punishable on conviction by a fine not exceeding $10,000.
(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 for a first offence and $10,000 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).
Discussion of Grounds of Appeal
First Ground
17. The first ground of appeal is that the learned Magistrate erred in law and in fact in dismissing the Appellant’s no case to answer application and holding that
the Prosecution had produced admissible evidence to cover all the elements of the offence, when the Prosecution had failed to lead
any evidence that the Appellant had been served with or notified of the new fixed price control order for potatoes and onions effective
from 23rd of February 2012 tendered as PEX 3”.
18. An application of no case to answer is governed by section 231(1) of the Criminal Procedure Decree 2009 which provides as follows:
“When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence.
19. In State v. Tuivodo HAC 54 of 2014 (12th June, 2015) it was stated:
“The phrase “no evidence” has been interpreted to mean that there is no evidence on an essential element of the charged offence [Sisa Kalisoqo v State Cri. Appl. No.52of 1984]. If there is some evidence on the essential elements of the charged offence, the application for a no case to answer cannot succeed. The credibility, reliability and weight are matters for the assessors and not for the trial judge to consider at a no case to answer stage”.
20. The elements in respect of which the Prosecution had to adduce some evidence in order to establish a prima facie case sufficient to put the Appellant to its defence were as follows:
(i) a person – i.e. the company
(ii) sold or offered for sale
(iii) price control items – i.e onions and potatoes
(iv) at a price in excess
(v) of the price calculated in the manner prescribed by clauses 6 and 7 of the Legal Notice
(vi) and fixed and declared by an order made under Section 44 of the Decree.
21. Appellant agrees that evidence of two prosecution witnesses Kumar and Leone Vunitabua who were price inspectors of the Commerce Commission was consistent and credible. Both witnesses stated that they were assigned to carry out an inspection at the Appellant’s supermarket branch at Tukani Street Lautoka on 23rd February 2012. During the course of their inspection, they found that the price that the potatoes were being offered for sale was $1.55 and that the price that the onions were being offered for sale at was $1.50.
22. In Kumar’s evidence in chief, he stated that he asked the Manager of the Supermarket one Shalesh Prasad why they were selling the items at the displayed price which was incorrect and Shalesh Prasad informed that it was the price given from their office based in Suva. Mr. Kumar further stated that Shalesh Prasad called one Anand (Aman) who was in charge of the prices who in turn informed Shalesh that the company had applied for the new prices from the Commission but had not received the new prices.
23. The Commerce Commission’s price list effective from 23rd February 2012 was tendered as EX3. EX3 is titled “Commerce (Price Control) (Percentage Control of Prices for Food Items) (No. 1) Order 2010 New Prices to be effective from Thursday 23 February 2012”. It further sets out that the maximum retail price applicable to the Appellant for imported onions sold in urban areas was “$1.34” and for imported potatoes was “$1.49”.
24. One of the bases of the Appellant’s no case submission was that there was no evidence that the Appellant had been served with the new price Order. It was essential if the prosecution’s case was to succeed that they lead some evidence that the Appellant had been served with or notified of the new price Order. Respondent also agrees on that requirement.
25. The Decree, under Section 58, makes provision for circumstances where the Commission need not publish the intended price order in the Gazette. Section 58, which stipulate the manner in which the price order is fixed or declared by the Commission, reads as follows:
58 (1) Notwithstanding Section 21 of the Interpretation Act (Cap 17) an Order made pursuant to Section 44 (1), 45 (1) need not be published in the Gazette, if in the opinion of the Board.
(a) it does not affect the public in general; and
(b) it is of a personal or private nature.
(2) An Order made by the Board, and pursuant to Subsection (1), not published in the Gazette.
(a) shall be promptly delivered to the persons to whom it is directed; (emphasis added)
(b) may be proved in Court by the production of a copy thereof signed by the Board;
(c) shall come into operation on the date specified in the Order, or if not so specified, on the date of its delivery to the relevant person; and
(d) shall not cause any person to become liable to any penalty whatsoever in respect of any act committed or of the failure to do anything before the day on which it is delivered.
26. EX3 is not published in a Gazette. Therefore, under Section 58 (2) (a) of the Decree, the Commission is required to deliver the order to the person to whom it is directed. Since the Order was directed to Rajendra Prasad, Bros. Ltd, then it should have been delivered to the company.
27. Section 156 (1) (b) of the Decree sets out the manner in which service of a document or a notice is to be effected on a company. Section 156 (1) (b) of the Decree which provides as follows:
“Where under this Decree a document or a notice may be, or is required to be, given to a person, the document or notice may be given
(b) in the case of a body corporate –
(i) by delivering it to the secretary of the body corporate personally;
(ii) by leaving it at the registered office of the body corporate or at the place or principal place of business of the body corporate in Fiji with a person apparently employed there.
(iii) by sending it by post to the registered office of the body corporate or to the place or principle place of business.
28. Nowhere on the face of legal notice (EX3) does it reflect that it was served on the Appellant Company. There was no evidence led in the prosecution’s case that the Appellant had been notified of the new price order by any of the modes prescribed in the section. If the prescribed requirements for service and notification are met, then the general position will be that the recipient is deemed to have been served and is aware of it whether it was actually received by the company or not. In fact, there was no evidence at all during the course of the prosecution case, of any kind of service or notification on the company of the new price order.
29. In view of the failure to lead evidence by the Prosecution that the new price order had been duly notified as prescribed by Section 58 (2) (a), the learned Magistrate ought to have upheld the Appellant’s no case to answer application.
30. If an order or document of notice which a statutory body is empowered to make will lead to penal consequences if not complied with, especially where offence gives rise to strict liability, surely, there must be a requirement that the parties who are to be bound by it must first have received notification of the order. One of the main reasons is to facilitate their compliance. This is reflected in the provisions of Section 58 (2) (d) of the Decree which provides that no person can be liable for breach of any order made prior to its delivery.
31. Moreover, according to Section 58 (2) (b) of the Decree, order made by the Commission may be proved in Court by the production of a copy thereof signed by the Board (predecessor of the Commission). EX 3 does not bear any marking in the form of the seal of the Commission or the signature of one of its officers. Commission’s failure to tender a copy of the order duly signed by the Commission would mean that the Court could not be satisfied that the document tendered as EX3 was a true copy of the order declared by the Commission and, accordingly the no case to answer application ought to have been upheld.
32. The learned Magistrate failed to consider the effect of the complete lack of evidence on the issue of whether the appellant had been notified of the new price order and therefore fell into error when he dismissed the no case application.
Second and Third Grounds
33. The second and third grounds of appeal are that:
The learned Magistrate erred in law and in fact in dismissing the Applicant’s no case to answer application and holding that the Prosecution had produced admissible evidence to cover all the elements of the offence when the Prosecution had failed to lead any evidence to establish that the new fixed price control Order had been made in accordance with the provisions of clauses 6 and 7 of the Legal Notice 101 Commerce (Price Control) (Percentage Control of Prices for Food Items (No. 1) Order 2010.”
The learned Magistrate erred in law and in fact in dismissing the Appellant’s no case to answer application without considering the Applicant’s submissions that unless the Prosecution had established that the new fixed price control order had been made according to the stipulated processes outlined by law (clauses 6 and 7 of the Legal Notice) and which was subsequently duly served on the Appellant according to the requirements for service provided by Section 156 (1) (b) of the Commerce Commission Decree, the new price control order could not be legally enforced.
34. According to the first section of the offence, the Appellant was charged under Clause 9 (a) of the Legal Notice. This section makes it an offence for a trader to sell fixed price control goods above the maximum retail price “calculated in the manner provided by clauses 6 and 7”. Therefore, one of the elements under this offence creating provision is that the maximum retail price must be calculated in accordance with clauses 6 and 7.
35. Appellant takes up the position that there was no evidence led by the Prosecution in respect of Clauses 6 and 7 according to which the fixing of new maximum prices of price controlled items is to be effected after the retailer has submitted documentary evidence regarding it’s into store costs.
36. According to prosecution witness Chand’s evidence, he asked Prasad why the company was selling these items at excessive price. Prasad after consulting one Aman explained that they had made their submission to the Commission for new prices and were still waiting for the response and the new price list for authorized by the Commission.
37. Appellant had not challenged the evidence of Chand. In view of Chand’s evidence, a responsible person of the Appellant’s company had confirmed or admitted that submission in respect of new price change had been made to the Commission. In light of this admission, it can be implied that the entire necessary documentary evidence required under Section 44 of the Decree (which regulates the procedures as to how the maximum price is to be declared and fixed by the Commission) had already been handed over to the Commission. It was open to the learned Magistrate to find that there was some evidence on that element. Therefore, there is no basis for this ground.
38. Ground of appeal in respect of the Commission’s requirement that delivery of new price order must comply with Section 156 (1) (b) of the Commerce Commission Decree has already been dealt with.
The Fourth Ground
39. The fourth ground is that the learned Magistrate erred in law and fact in dismissing the Appellant’s no case to answer application and holding that the Prosecution had adduced admissible evidence to cover all the elements of the offence.
40. This ground is based on all the other grounds that challenged the learned Magistrate’s finding on no case to answer submission. In totality, the Prosecution failed to adduce evidence of the following:
41. In view of the above failures on the part of the prosecution, the Appellant’s no case to answer submission ought to have been upheld by the learned Magistrate.
The Fifth, Sixth and Ninth Grounds
42. (v) “The learned Magistrate erred in law and in fact in convicting the Appellant of the offence charged when there was no evidence that the new fixed price control order had been served on the Appellant in accordance with the provisions of Section 156 (1) (b) of the Commerce Commission Decree.
(iv) The learned Magistrate erred in law and in fact in convicting the Appellant of the offence charged on the basis that the service of the new fixed price control order via email on the Appellant through the email account of the company director Gitanjali Sanjina Prasad was sufficient evidence of notification, notwithstanding the provisions of Section 156 (1) (b) of the Commerce Commission Decree.”
(ix) The learned Magistrate erred in fact in convicting the Appellant of the offence charged when he found that “the Prosecution and the witnesses from the Accused company all agree that the accepted way of reply is via email. And all agreed that the authorized person to receive the email is Gitanjali Sanjina Prasad, who is one of the Director of the Company” (page 4 paragraph 4 of the judgment dated 02/09/14).”
43. Prosecution did not lead any evidence as to whether the new price control order was served on the Appellant. The only evidence relating to any notification of the new price control order was led after the conclusion of the Prosecution case and it was adduced on behalf of the Appellant company. The Appellant company had called 4 witnesses in support of its case namely Sailesh Prasad who was the Assistant Manager of the Lautoka Westfield supermarket branch which was the subject of the inspection, Kamal Jeet Singh the accounts supervisor for the company, Aman Ram the Manager of the Suva supermarket branch and Gitanjali Sanjina Prasad one of the directors of the company.
44. It was Sailesh Prasad’s evidence that when the inspectors came to the supermarket, he rang Aman Prasad (DW3) who is responsible for making the relevant submissions to the Commission for the fixing of the prices for potatoes and onions. Aman Prasad informed him that he had not received any notification from the Commission.
45. Aman Prasad in his evidence confirmed that he received a telephone call from Sailesh Prasad asking whether there had been any change in the price for potatoes and onions and he told Sailesh that as far as he was aware, there was none as he had not received any notification. After the phone call, he then rang Shazneen at the Commission in Suva office and enquired whether there had been any changes in the prices and he was told that there had been. Shazneen then emailed the Suva branch email account with the new price order.
46. The printout of the email message from Shazneen was tendered marked as DEX1. According to DEX1, it was sent on 23 February 2012 at 2:02 pm from Shazneen Ali to foodtownsuva@connect.com.fj. The first part of the email printout stated as follows:
“Dear Mr. Ram
Please refer attached price list as requested.
Regards
Shazneen”
47. The second part of the email printout represents an earlier email message from Christina Kumar of the Commerce Commission to Gitanjali Prasad sent on 22 February 2012 at 2.58 p.m. and the subject of the email was “price list”. The body of the email stated as follows:
“Dear Stakeholder,
Kindly find attached, the Price List for Potatoes and Onions, effective from Thursday 23 February, 2012.
Kind Regards
Ms. Christina Kumar
Personal Secretary
Fiji Commerce Commission
Phone: 3372178
48. What the second part of DEX1 purports to show is that the new price control order was sent to Gitanjali Prasad’s email account on 22 February 2012, the day before it was to come into effect. The email was ‘cc’ to several other individuals. In her evidence in chief, Gitanjali Prasad stated that none of the other email addresses belonged to any other employee of the company. She was asked whether she had received the email on 22nd or 23rd February 2012 and said “No”. It was Gitanjali Prasad’s evidence which was not disputed by the Prosecution that she only became aware of the email when she returned to Fiji in about March 2012. In her evidence she stated that on 22nd and 23rd February 2012 she was in Vietnam.
49. She further stated that when she travelled overseas she programmed her email account with automated messages that says she is out of the country and could not attend to emails and that Aman Ram from Suva should be contacted on the specified number.
50. DEX3 is a copy of an email printout of the automated email reply generated and sent to the senders of emails to Gitanjali Prasad. It is contained at the final page of Supplementary Court Record agreed by both parties. It shows that an email from gitanjali_prasad@hotmail.com was sent to foodtownsuva@connect.com.fj on 22 February 2012 at 7.15 titled “Vacation reply” with the following message:
“Thanks for your email.
For ALL URGENT inquiries regarding RP-Foodtown, please contact or Aman Ram in Suva on: 3322131.
Kind regards”
51. Gitanjali Prasad in her evidence confirmed the above message was the automated email response she programmed and that Christina Kumar of the Commission would have received an identical email in response to the email she had sent on 22 February 2012 at 2.58. This evidence was not challenged by the Prosecution in their cross-examination of Gitanjali Prasad. In fact, Prosecution did not take issue with the fact that Gitanjali Prasad remained unaware of the Commission’s email sent on 22 February 2012 at 2.58 until she returned to Fiji in March 2012. Thus as a matter of fact, the single individual that the Commission had sent the new price order to (in respect of the company,) being Gitanjali Prasad, was unaware of it on the material dates, that is the 22nd and 23rd of February 2012.
52. Having admitted the fact that the delivery of notice of the new fixed price order was effected by way of email to the Appellant, Respondent argues that the practice of delivery of such notices evolved over time between the Appellant and the Commission must be read into Section 156 (1) (b) of the Decree and delivery via email must be recognized as a legally valid mode of delivery.
53. Respondent further argues that given many modes of communication present in the 21st Century apart from postal the rules relating to post ought also to reflect other modes of communication and the intention of the Clause on delivery ought to be interpreted having taken into consideration the modes of communication that are present today. He also suggests that this court adopt purposive rule of interpretation and the ‘delivery’ must be interpreted in its entirety under its purpose.
54. As stated above, Section 156 (1) (b) clearly provides the methods for the service of documents and notices on a company. It makes no provision for service to be effected through email transmissions.
55. Companies Act Cap. 247 that govern the Appellant’s company will shed more light on the contentious subject. Section 391 (1) of the Companies Act provides that:
“A document may be served on a company by sending it by post to the registered postal address of the company in Fiji, or by leaving it at the registered office of the company”.
56. The Companies Act does not make provision for notification or service on companies by way of email.
57. The Interpretation Act provides, in Section 2:
“(5) Where any written law authorizes or requires any document to be served by post, whether the expression "serve" or "give" or "send" or any other expression is used, then, unless a contrary intention appears, the service shall be deemed to be effected by properly addressing to the last known postal address of the person to be served, prepaying and posting, by registered post, an envelope containing the document, and, unless the contrary is proved, to have been effected at the time at which the envelope would be delivered in the ordinary course of the post.
(6) Where any written law authorizes or requires any notice or document to be served, then unless the contrary intention appears, such notice or document may be served either-
(a) by delivering it to the person on whom it is to be served; or
(b) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at their registered or principal office or sending it in a prepaid envelope addressed to the secretary or clerk of the company or body at that office”.
58. The Interpretation Act also does not make provision for notification or service of notices on companies by way of email.
59. In Duport Steels Ltd. v Sirs [1980] 1WLR 142; [1980] 1All ER 529, 541 explaining the literal rule of interpretation, Lord Diplock observed:
“where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences of doing so would be inexpedient, or even unjust or immoral".
60. All the legislative and Decree provisions cited above contain plain and unambiguous wording in respect of mode of delivery of statutory orders/notices on a company and do not contemplate delivery via email and on one of its directors.
61. The purposive rule which has become the most popular and dominant interpretative tool in the UK [Attorney General of Fiji v Kumari [2015] FJCA 139; ABU065.2012 (2 October 2015)] ascertains what was intended by the words by examining the purpose of the Act and wider legal, social, economic or political external context Pepper v Hart [1992] UKHL 3; [1992] 3 WLR 1032; [1993] 1 All ER 42.
62. According to Section 2, main objectives of the Decree (in respect of trade) are to:
(a) promote the interests of the Consumers;
(b) promote effective and efficient development of industry, trade or commerce;
(c) promote effective competition in industry, trade or commerce; and
(d) ensure equitable returns for businesses with fair and reasonable prices charged to consumers.
63. The Decree strives to strike a balance between interests of the consumers and that of businesses while ensuring equitable returns for businesses with fair and reasonable prices charged to consumers.
64. It is clear; the main purpose of the penal provision is to compel the traders to comply with the new price formula of the Commission in keeping with the said objective. Noncompliance of price orders will attract penal consequences. In order to make the traders comply, they must first be notified as to the new fixed price formula. Commission had failed to do so. Thus, even application of purposive rule of interpretation will not support the argument of the Respondent.
65. In his judgment at page 4 paragraph 4 (page 131 Vol. 2) the learned Magistrate made the following finding:
"There is no dispute that the retailer has submitted the documentary evidence to the Commission. The dispute is that the manager of the Accused business argues that the reply or the official notice of maximum price from the Commission was delayed.
The Prosecution and the witnesses from the Accused company all agreed that the accepted way of reply is via email. All agreed that the authorized person to receive the email is Gitanjali Sanjina Prasad, who is one of the Directors of the company. The Prosecution evidence is very clear that they dispatch the decision on time."
66. The learned Magistrate's finding that "the accepted way of reply is via email" takes no cognizance of the mandatory legislative requirements for notification prescribed by Section 156 (1) (b) of the Decree. The learned Magistrate's reliance on the email notification as sufficient mode of delivery for the purposes of notification is contrary to the requirements of Section 156 (1) (b) of the Decree.
67. Further, the learned Magistrate's finding "The Prosecution evidence is very clear that they dispatch the decision on time" is not supported at all by the evidence. There was no evidence during the course of the prosecution's case that the new price order was served on the company, let alone via email.
68. At the final page of his judgment the learned Magistrate made the following finding:
"Therefore it is evident that the failure to adhere to the legal notice is caused because the accused company hasn't acted with due diligence."
69. The learned Magistrate in arriving at this conclusion failed to consider the legislative requirements for service or delivery of the new price order on the company. As the statutory body tasked with the regulation of price control of consumer goods, the Commission ought to be held to the standards prescribed by the Decree. There was no evidence that the notification of the new price control order had been delivered or served on the company in accordance with Section 156 (1) (b) and the Appellant.
Seventh Ground
70. The seventh ground of appeal is that the learned Magistrate erred in law and fact in convicting the Appellant of the offence charged when he found that "any officer of the company at any time can contact the Commission and had the opportunity to get the decision" (page 5 paragraph 3 of the judgment), and in so doing, shifted the responsibility of notification of any new fixed price control orders from the Fiji Commerce Commission to the Appellant."
71. The following extract from the Magistrate's judgment sets out the context relevant to the above finding:
"However it is very clear that the notification of the change of price was emailed to the person who is supposed to be entrusted with that authority namely Gitanjali Sanjina Prasad. This delay was caused because she was out of the country and there was no mechanism for other members of the company to receive the email sent by the Commission. This was verified by Mr. Ram in his evidence that he has to consult with the Commission to get the decision. This shows although there is an authorized person to receive the decision, any other officer of the company at any time can contact the Commission and had the opportunity to get the decision".
72. In coming to this finding the learned Magistrate has overlooked the prescribed requirements for service. The onus for the notification or service of any new price control order rests on the Commission. This is made expressly clear by Section 58 (2) (a) of the Decree. If the Commission has not fulfilled the mandatory requirement to deliver a copy of the order, any lack of enquiry by the Appellant should not be held against it to the extent that penal consequences flow.
Eighth Ground
73. The learned Magistrate erred in law and in fact in convicting the Appellant of the offence charged when there was no evidence that the Appellant or its officers and staff had any knowledge of the change in the maximum price fixed by the Fiji Commerce Commission for potatoes and onions that would be effective from the 23rd of February 2012.
74. There was no evidence led by the Prosecution to establish that, at the time of the inspection, the company was aware of the change in the price of potatoes and onions. The evidence led on behalf of the Appellant established that the company had no knowledge of the new price change. However, had the company been served with the new price control order in accordance with the requirements of the Decree then actual knowledge on the part of the company would be immaterial. By establishing the fact that, at the time of the inspection, the company was not aware of the change in the price of potatoes and onions, the Appellant had created a reasonable doubt in the prosecution case that the new price control order was in fact served in accordance with the Decree.
Tenth Ground
75. The learned Magistrate erred in law in finding that the Prosecution had proved its case beyond reasonable doubt.
76. In light of Section 58 (2) (d) of the Decree which states:
(a) Shall not cause any person to become liable to any penalty whatsoever in respect of any act committed or of the failure to do anything before the day on which it is delivered,
this court is of the view that the Commission's non-compliance with the provisions regarding notification or service of the new price control order under the Decree when the same was not gazetted together with the fact that, at the time immediately before the inspection, the Company was unaware of the change in the new price control order Prosecution failed to prove the charge beyond reasonable doubt. Therefore, conviction recorded against the Appellant ought to be quashed.
Eleventh, Twelfth and Thirteenth Grounds
77. (xi) The learned Magistrate erred in fact and law in imposing, the maximum fine for the offence charged, when the circumstances of the offending do not represent the worst of its kind.
(xii) The learned Magistrate erred in fact and law in imposing a fine of $50,000 being the maximum fine for the offence charged and in so doing, failed to give the Petitioner any credit for the mitigating factors submitted.
(xiii) The fine of $50,000 is harsh and excessive having regard to all the circumstances of the case
78. Since the court has already decided that the Prosecution failed to prove the charge beyond reasonable doubt and the conviction recorded against the Appellant ought to be quashed, need to discuss appeal grounds raised in respect of the sentence will not arise and any such discussion will only be of academic importance. Therefore I do into intend to deal with those grounds.
79. For the reasons given in my judgment, I quash the conviction and set aside the sentence imposed on the Appellant by the learned Magistrate of Lautoka. Appellant is entitled to claim the deposited fine when the appealable time period has elapsed.
Aruna Aluthge
Judge
At Lautoka
29th February, 2016
Solicitors: Young & Associates for Appellant
Reddy & Nandan Associates for Respondent
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