Carpenters Fiji Ltd v Fijian Competition and Consumer Commission [2018] FJHC 74; HAA119.2017 (14 February 2018)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA 119 of 2017
(Magistrates’ Court Case No. 04 of 2017)

BETWEEN:

CARPENTERS FIJI LIMITED T/A/ MH HYPERMARKET

AND:

FIJIAN COMPETITION AND CONSUMER COMMISSION (formally known as Fiji Commerce Commission)

Counsel : Mr E Narayan for the Appellant
Ms S Jiuta for the Respondent

Date of Hearing : 19 December 2017
Date of Ruling : 14 February 2018

RULING

[1] This is an application for an enlargement of time to appeal against conviction and sentence pursuant to section 248 of the Criminal Procedure Act 2009. The application is supported by an affidavit sworn by Koro Tuitubou, Legal Admin Officer of Carpenters Fiji Limited t/a MH Hypermarket. In addition, both parties have filed detailed written submissions. Both the written and oral submissions of the parties have been considered.

[2] On 9 February 2017, the respondent commenced criminal proceedings by way of Summons, charging the appellant with the following offence:

To Carpenters Fiji Limited T/A MH Hypermarket of Naviti Street, Lautoka

You are hereby commanded to appear at nine o’clock in the forenoon of the 2^nd day of May 2017 at the Magistrate’s Court at the Court House Lautoka, there to answer the charge(s) set out hereunder and be dealt with according to law.

Provided that your personal attendance will be excused and the case may then be disposed of in your absence if:-

(a) You admit the offence and plead guilty in writing or
(b) You appear by advocate

Statement of Offence (c)

Offering for Sale Certain Non Price Control Items at a price different to the Price Being Displayed on the Shelve, Contrary to Section 77(1) (g), (2) and Section 129(3) of the Commerce Commission Decree No. 49 Decree of 2010.

Particulars of Offence (d)

Carpenters Fiji Ltd T/A MH Hypermarket did on the 24^th day of December 2014 at Lautoka in the Western Division being a trader was offering for sale certain non price control items at a price different to the price being displayed on the shelve, namely 5 pkts of 100g of Suhana Meat Masala at $4.19 per pkts instead of 3.99 per pkt the price displayed on the shelve and appropriately 55 bars of 80g of Giv Beauty soap at $0.89 per bar instead of $0.69 per bar the price displayed on the shelve.

[3] The Summons was served on Asha Chand (Shop Manager), Lautoka. On 2 May 2017, no appearance was made on behalf of the appellant in the Magistrates’ Court. The case was adjourned to 11 July 2017 for formal proof.

[4] On 11 July 2017, the case proceeded to hearing. There was no appearance of the appellant at the hearing. The prosecution called one witness, Mr Nilesh Prasad. Mr Prasad’s evidence was that on 24 December 2014, he carried out a routine inspection of MH Hypermarket situated at Naviti Street, Lautoka in his capacity as a Commerce Commission inspector. He was accompanied by another inspector for this inspection. When he entered the supermarket, he introduced himself to the manager, Mr Reddy and advised him of the purpose of his visit. Mr Reddy consented to an inspection. During the inspection, Mr Prasad discovered that the supermarket was selling certain price controlled spices and soap at a price higher than the price displayed on the shelves. Mr Reddy was warned of prosecution.

[5] On 30 December 2014, Mr Prasad took a statement from Mr Reddy under caution. Mr Reddy gave a statement. He blamed the price variance on a commuter glitch. He said that for those two items under investigation, the consumers were charged the lower prices displayed on the shelves and not the higher prices that were stored in their commuter system. He said that every time a consumer would bring those two items to the counter for payment, they would overwrite the price and charge the displayed price. The record of caution interview was tendered in evidence together with the photographs of the two items with their displayed prices.

[6] In a written judgment delivered on 15 August 2017, the learned Magistrate found the appellant guilty as charged. On 12 September 2017, the appellant was sentenced to a fine of $20,000.00.

[7] Section 248 of the Criminal Procedure Act 2009 provides:

(1) Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant’s lawyer, and within 28 days of the date of the decision appealed against-

(a) it shall be presented to the Magistrates Court from the decision of which the appeal is lodged;

(b) a copy of the petition shall be filed at the Registry of the High Court; and

(c) a copy be served on the Director of Public Prosecutions or on the Commissioner of the Fiji Independent Commission Against Corruption.

(2) The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by the section.

(3) For the purposes of this section and without prejudice to its generality, “good cause” shall be deemed to include-

(a) a case where the appellant’s lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;

(b) any case in which a question of law of unusual difficulty is involved;

(c) a case in which the sanction of the Director of Public Prosecutions or of the Commissioner of the Fiji Independent Commission Against Corruption is required by any law;

(d) the inability of the appellant or the appellant’s lawyer to obtain a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court for these documents.

[8] In deciding an application for an enlargement of time to appeal, the courts are further guided by the common law principles. In Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012), Gates CJ said at [7]:

The rights of appeal are granted by statute within a framework of rules. Enlargement normally can only be granted because of specific powers granted to the appellate courts. No doubt because of a need to bring litigation to finality, once there is non-compliance, the courts can only exercise a limited discretion. Viliame Caubati AAU0022.03S 14th November 2003 at p.5.

[9] While the need to bring criminal litigation to finality is an important guiding principle, Gates CJ said other factors may also be considered. Those factors are at [4]:

(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court’s

consideration.

(iv) Where there has been substantial delay, nonetheless is there a ground

of appeal

(v) If time&#16>is enlargedarged, will the Respondent be unfairly prejudiced?

[10] In Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013), Marsoof Jd at [21] that ‘these factors may not be necessarily rily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of
m0;ti217;. In the same same passage, Marsoof JA also said that ‘it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that mightlt fre strict applicatlication oion of the rules of court’.

[11] Short delays have been disregarded in cases where the appellants are unrepresented and incarcerated, but in cases of excessive delay, "very exceptional circumstances would have to be established before the court would be justified in granting an extension" (R v Williams (1911) 6 Cr. App R 158).

[12] When the length of the delay is significant, the appellant is required to show a compelling case that the criteria for leave are met, albeit, the touchstone is the interests of justice in the particular case (Cama v State [2012] FJSC 4; CAV0003.09 (1 May 2012), State v Ramesh Patel Criminal Appeal No.AAU0002 of 2002S (15 November 2002)).

[13] This application for an enlargement of time was filed on 6 November 2017. The proceeding in the Magistrates’ Court was concluded September 2017 with the pronouncement of sentence. The stae statutory appeal period expired on 10 October 2017. The length of the delay is about one month.

[14] The reasons for the delay are explained in the affidavit of Mr Tuitubou. The appellant was unaware of the sentence, when it was pronounced on 12 September 2017. After the appellant learnt about the sentence and by the time a copy of the judgment and sentence was obtained from the court registry, the appeal was late by about a month.

[15] In his written submissions, counsel for the appellant raises a number of issues regarding the fairness of the proceedings in the Magistrates’ Court where guilt and punishment were determined in absentia. It is not in dispute that the appellant was served with the Summons (paragraph of Mr Tuitubou’s affidavit). The appellant’s contention is that ‘due to an erroneous oversight, it was overlooked and necessary representations were not made on the material day in court resulting in the matter proceeding to Formal Proof’. Counsel for the appellant submits that the learned magistrate could have adjourned the case and issued a warrant against the Accused of his own motion to compel attendance of the Accused in order to protect the fairness of the proceedings. Counsel further submits that the failure to accord an opportunity to present its case has resulted in a wrong judgment of conviction and an excessive sentence.

[16] At this stage, the Court is not required to reach any conclusion on the merits of the proposed grounds of appeal. The length of the delay is short and justified. The appeal is reasonably arguable. There is no specific prejudice to the respondent as a result of the late appeal. For these reasons, I grant an enlargement of time to appeal. There will be no order for costs.

Orders of the Court:

1. The application for an enlargement of time to appeal is allowed.
2. Appellant must file and serve a Petition of Appeal by 3 pm 22 February 2018.
3. Appellant’s written submissions must be filed and served by 3 pm 1 March 2018.
4. Respondent must respond by filing and serving written submissions by 3 pm 15 March 2018.
5. The appeal will be listed for hearing upon compliance with the above orders.
   

.............................................
Hon. Mr. Justice Daniel Goundar

Solicitors
Patel Sharma Lawyers for the Appellant
Fijian Competition & Consumer Commission for the Respondent