Corporate Management Services Ltd (trading as Hot Bread Kitchen) v Fijian Competition and Consumer Commission [2022] FJHC 138; HAA 12 of 2021 (24 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 12 OF 2021

BETWEEN :	CORPORATE MANAGEMENT SERVICES LIMITED TRADING AS HOT BREAD KITCHEN of Vakabale Street, Lautoka.
	APPELLANT
A N D :	FIJIAN COMPETITION AND CONSUMER COMMISSION formally known as Fiji Commerce Commission.
	RESPONDENT

Counsel : Mr. D. Nair for the Appellant.
Ms. A. Ali for the Respondent.

Date of Submissions : 22 February 2022
Date of Hearing : 10 March 2022
Date of Judgment : 24 March 2022

JUDGMENT

BACKGROUND INFORMATION

1. The appellant was charged in the Magistrate’s Court at Lautoka for one count of selling by retail certain fixed price control goods at an excessive price contrary to paragraph 8 of the Counter Inflation (Price Control) (Foodstuff) No. 7 Order 2009 Schedule 1, Item 3 of the Commerce (Price Control) (Foodstuff) (Amendment) No. 2 order 2011 and section 50, section 52 (a) and section 129 (3) of the Commerce Commission Decree 49 of 2010.
   
2. It was alleged that the appellant on 13^th of January, 2011 being a trader was selling by retail certain fixed price control goods at an excessive price namely 12, 400g of small unsliced whole meal bread at $1.12 per bread instead of $0.88 per bread the maximum calculated price such price in excess of $0.24 per bread.
   
3. On 22^nd October, 2020 the appellant by its counsel pleaded not guilty and the matter proceeded to hearing. The prosecution called one witness and the defence called two witnesses.
   
4. On 4^th February, 2021 the learned Magistrate found the appellant guilty and was convicted accordingly. After hearing mitigation on 12^th March, 2021 the appellant was fined the sum of $10,000.00 and also ordered to pay $2,000.00 as prosecution costs payable within one month.
   
5. The brief facts were as follows:
   
   1. On 13^th January, 2011 an inspection was carried out at the Vakabale Street, Lautoka Shop of the appellant company by a FCCC Inspector. The complainant informed the Shop Manager Alesi Naivalu of his inspection. During the course of the inspection, the complainant noticed that a small whole meal unsliced bread was being sold for retail at $1.12 per bread.
      
   2. The item in question was weighed in the shop and then taken to the Ministry of Industry, Tourism, Trade and Communication to be weighed again. Upon investigation, it was revealed that the price of 400g small whole meal unsliced bread was to be sold on retail for the maximum price of $0.88 under proportionate pricing whereas the appellant was selling the same bread for $1.12.
      
   100. The appellant was subsequently charged for selling by retail certain fixed price control goods at an excessive price.
        

APPEAL TO THE HIGH COURT

6. The appellant being dissatisfied with the conviction and the sentence of the Magistrate’s Court filed a timely appeal in the High Court.
   

APPEAL AGAINST CONVICTION

(1) The learned Magistrate erred in law and in fact in holding that the new fixed price control order dated 29^th December, 2010 tendered as “PEX 3” was a Gazette Notice and published when the Prosecution failed to lead any admissible evidence to support this finding.

(2) The learned Magistrate erred in law and/or in fact in holding that the Respondent has proved the elements of the charge when the receipt dated 13/1/2011 “DEX-1” that was issued proved that the commodity that was sold was not a price control item specified in the Counter Inflation (Price Control) (Foodstuff) (No. 7 Order 2009 schedule 1, Item 3 of the Commerce (Price Control) (Foodstuff) (Amendment) (No. 2 Order 2011) dated 29/12/2010.

(3) The learned Magistrate erred in law and fact in holding that the evidence of the two Defence witnesses was not credible and unreliable without giving any cogent reasons whereas in the contrary their evidence was relevant and identified the commodity that was sold which corresponded with the receipt issued “DEX-1”.

(4) The learned Magistrate erred in law and in fact in holding that it was not necessary for the Price Control Order dated 29/12/2010 to be served on the Appellant which was contrary to section 156(1) (b) of the Commerce Commission Act, 2010.

(5) The learned Magistrate erred in law and in fact in 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 section 44 of the Commerce Commission Act, 2010 had been complied with.

APPEAL AGAINST SENTENCE

(1) The learned Magistrate erred in law and fact in imposing a fine which is not only disproportionate and inconsistent but manifestly harsh and unjustified in the absence of any aggravating factors.

(2) The learned Magistrate erred in law and fact in not holding the right of the Appellant to be tried within a reasonable timeframe and the inordinate delay in the determination of the Charge was detrimental to the proceeding.

(3) The learned Magistrate erred in law and fact by disregarding the mitigating factors submitted by the Appellant without providing any cogent reasons.

(4) The learned Magistrate erred in law and fact when she failed to apply the principles of sentencing under Part VIII of the Sentencing and Penalties Act, 2009 when imposing the manifestly harsh and unjustified fine.

GROUND ONE

The learned Magistrate erred in law and in fact in holding that the new fixed price control order dated 29^th December, 2010 tendered as prosecution exhibit no. 3 was a Gazette Notice and published when the prosecution failed to lead any admissible evidence to support this finding.

7. The appellant’s counsel submits that the Commerce (Price Control) (Foodstuff) (Amendment) (No.2) Order 2011 which was tendered as prosecution exhibit no. 3 cannot be considered as a Gazette Notice. According to counsel Gazette Notices are published and the date of publication is specified therein whereas in the said order there is no evidence that it was published.
   
8. In the judgment the learned Magistrate at paragraph 22 had mentioned the above in the following words:
   

The next point raised by the defence was that the order at P. Ex. 3 was not served on the accused. P. Ex. 3 being a Gazette order there is no requirement for the complainant to serve it to the accused before the inspection. Once an order is published in a Gazette, it becomes a law from the effective date as stated in the particular gazette. This was discussed by Justice Madigan in the case of Fijian Competition and Consumer Commission v RB Patel Group Ltd [2018] FJHC 1075; HAA50.2018 (13 November 2018) in paragraph 13 of the judgment as follows:

“[13]. The Commission does make orders for price controlled items and also for the maximum prices for non-controlled items and these orders are published in the Government Gazette. Publication in the Gazette is notice to all traders in Fiji of the Commission Orders and to suggest that a trader as large and ubiquitous as RBG was not aware of the maximum prices for non-price control items is absurd.”

9. It is important to look at prosecution exhibit no. 3 in some detail, section 44 of the now renamed Fijian Competition and Consumer Commission Act (FCCC Act) gives powers to the Commission with the approval of the Minister to make price control orders as was done in this case.
   
10. The order in question is titled as legal notice no. 1 which has the force of law, the order mentions at section 1 (1) of the following:
    

Citation and Commencement

This order may be cited as the Commerce (Price Control) (Foodstuff) (Amendment) (No. 2) Order 2010 and comes into force on 1^st January, 2011.

11. This court accepts that the order was published in the Government Gazette which was notice to all traders including the appellant about the price control of items sold by the appellant. Moreover, the appellant’s counsel did not take any objections when prosecution exhibit no. 3 was tendered in court.
    
12. The legal notice came into force on 1^st January, 2011 which was sufficient notice to the appellant. The appellant did not comply with the order even after the lapse of about 12 days from the time the order came into effect. The inspection was carried out on 13^th January, 2011 and there can no justification why the order was not followed. The order had the force of law which all the traders had to follow – ignorance of law is no defence.
    
13. This ground of appeal is dismissed as frivolous.
    

GROUND TWO

The learned Magistrate erred in law and/or in fact in holding that the respondent has proved the elements of the charge when the receipt dated 12/1/2011 “D.EX-1” that was issued proved that the commodity that was sold was not a price control item specified in the Counter Inflation (Price Control) (Foodstuff) (No. 7 Order 2009) (Foodstuff) (Amendment) (No. 2 Order 2011 dated 20/12/2010).

14. A perusal of the ground of appeal suggests that the appeal is focused on the fact that the learned Magistrate had wrongly come to the conclusion that the prosecution had proven the charge when the receipt issued by the defence “D.EX-1” showed the item sold was a non price control item.
    
15. Unfortunately, in his submissions the appellant’s counsel argued about the procedure for the service of an order made by the board of the Commission pursuant to sections 58 (2) (a) and 156 (1) of the Commerce Commission Act now FCCC Act.

16. It is important for counsel to exercise care in ensuring that submissions made supported the ground of appeal. Here counsel has raised two different issues, one in his ground of appeal and another one in his submissions. The submission does not support the ground of appeal but discusses an entirely new issue, such a practice is unwarranted and superfluous. In fairness to the appellant this court has gone to the extent of addressing the issues raised in the ground of appeal as well as in the submission made.
    
17. At paragraph 19 of the judgment the learned Magistrate had taken note of the defence raised by the appellant as follows:
    

DW - 1 clearly admitted that PW-1 explained the content of P. Ex.-1 which she has acknowledged by signing. Accordingly, she has not disputed the fact that the bread purchased by the complainant was not a small whole meal unsliced bread. However, DW – 1 gave inconsistent evidence about the bread which was sold to PW -1 on the day stating that PW -1 bought a mini brown 400 grams which was a small sandwich [bread]. According to the evidence of DW-2 and D.EX.1, the bread had been a mini unsliced bread. Considering the evidence and the demeanour of the witnesses, I find that the defence witnesses are not credible and reliable in this regard. I further accept the evidence of PW-1 as credible and reliable. I find that prosecution proved the fact that the bread was a small whole meal unsliced bread as stated in the particulars of the offence.

18. The learned Magistrate has succinctly given her reasons why she did not give any weight to defence exhibit no. 1. Furthermore, the court also did not find the defence witnesses to the credible and reliable. I have once again perused the copy record and I am satisfied that the finding of credibility by the learned Magistrate was in accordance with the facts in this case. The learned Magistrate gave weight to the inspection report signed by the Shop Manager (DW-1) who had acknowledged and signed that the complainant had purchased a small unsliced whole meal bread for $1.12.
    
19. Moving on to what counsel has alluded to in his submissions, I have already mentioned in ground one above that the Commerce (Price Control) (Foodstuffs) (Amendment) (No. 2) Order 2011, legal notice no.1 published in the Government of Fiji Gazette cannot be served to all traders. The publication of the Gazette was sufficient notice and in this case the order in question came legally into effect on 1^st January, 2011. The appellant cannot blame anyone for its carelessness or oversight.
    
20. The appellant’s counsel vehemently argues that the order in question was not served on the appellant and therefore the prosecution had not proved its case. Counsel relies on the case of Rajendra Prasad Brothers Limited Trading as Rajendra’s Foodtown vs. The Fiji Commerce Commission, criminal appeal case no. HAA 46 of 2014 (29 February, 2016) where the High Court had quashed the conviction of the appellant on the grounds that the Commission had failed to serve on the appellant the new price order which had not been published in the Gazette as required under the Principal Act.
    
21. After perusing the judgment in Rajendra Prasad’s case (supra) I would like to state that there is a difference in the facts of both these cases. In Rajendra Prasad’s case the new price order was not gazetted, however, in this case the price order was published in the Government of Fiji Gazette. Aluthge J. at paragraphs 25 to 27 had made this pertinent observation in the following manner:
    

Paragraph 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)rder made pursuant uant to Section 44 (1), 45 (1) need not blished 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 oral or private nature.

(2) An Order made by the Board, and pursuant to Subsection (1), .

(a) shall be promptly delivered to the perso whom it is t is directed (emp added)

(>(b) may be proved in Court by the production of a copy copy thereof signed by the Board;

i>(c)l come into operation on the date specified in thin the Order, or if not so specified, on t 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.

Paragraph 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.

Paragraph 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.

22. When an order is published in the Government of Fiji Gazette then there is no need for the order to be served on anyone. The publication is construed to be judicially noticed as per section 21 of the Interpretation Act.
    
23. In this case the order was gazetted hence there was no need for any service to be effected on the appellant. It is also important to note that there is a difference between an order made by the board of the Commission which is not gazetted as per section 58 of the Principal Act and an order approved by the Minister published in the Government of Fiji Gazette in accordance with section 44 of the Principal Act.
    
24. The appellant’s counsel also argued that the procedure for bringing the price control into effect was not followed in accordance with section 44 (2) and (3) of the Principal Act in that the appellant was not heard before the price control list was gazetted. Unfortunately, this aspect of procedural short coming was not raised and/or argued by the appellant in the lower court hence it is incorrect for the appellant to bring this issue on appeal.
    
25. This ground of appeal fails due to lack of merits.
    

GROUND THREE

The learned Magistrate erred in law and fact in holding that the evidence of the two defence witnesses was not credible and unreliable without giving any cogent reasons whereas in the contrary their evidence was relevant and identified the commodity that was sold which corresponded with the receipt issued DEX-1.

26. Once again this court has difficulties in reconciling the ground of appeal with the submissions made by counsel for the appellant. The ground of appeal addresses the issue of the defence witnesses not being found credible and reliable by the learned Magistrate.

27. I have stated the above at paragraphs 17 and 18 above, additionally I wish to state that an appellate court is reluctant to interfere with the finding of credibility by the court of first instance unless it is shown on appeal that the court below had been manifestly wrong in arriving at that conclusion. The learned Magistrate had at paragraph 19 of her judgment given cogent reasons why she had not preferred the evidence of the defence witnesses after undertaking an assessment of their evidence, demeanour and the totality of the evidence.
    
28. In Ajendra Kumar Singh vs. R (1980) 26 FLR 1 the Court of Appeal said at page 9:

"...It is also set out in [Director of Public Prosecutions- v- Ping Lin [1975] 3 All ER 175] as has frequently been said that an appellate Court should not disturb a judge's findings unless it is satisfied that a completely wrong assessment of the evidence has been made, or the correct principles have not been applied".

29. After perusing the copy record I am satisfied that the learned Magistrate had correctly assessed the evidence of the prosecution and the defence witnesses in deciding the credibility of these witnesses. There is no compelling reason why this court should interfere with the fact finder’s decision in this regard.
    
30. Furthermore, the appellant’s counsel in his submissions states that the particulars of the charge mentioned 12,400 grams of small unsliced whole meal bread but the evidence showed the weight of the bread was 406-7 grams. The appellant’s counsel submits that this led to inconsistency on the identity of the bread specified in the charge and the receipt that was issued upon purchase of the bread. Counsel also submits that the receipt exhibited by the defence was not challenged by the prosecution.
    
31. The learned Magistrate has sufficiently explained the above at paragraphs 18 and 19 of her judgment. In summary the receipt “DEX-1” was issued by the appellant which was part of the defence case. At page 72 of the copy record the complainant was cross examined by the defence counsel about the receipt as follows:
    

“Q: Look at the receipt Mr. Prasad, what is the receipt say?

A: The receipt says Mini unsliced bread, that is all the receipt says...

Q: Answer the question yes or not?

A: I bought the whole meal bread 400 grams whether it was mini but I bought the whole meal bread 400 grams.

Q: So you don’t know that it was mini, small you don’t know?

A: I bought the bread as per the order, the 400 grams and the order is very clear on the whole bread in the price control. I bought the same bread, the cash register given by the Hot bread kitchen says mini which I have no control on that.”...

32. The learned Magistrate in her judgment relied on prosecution exhibit no. 1, Prices and Income Board Inspection Report dated 13^th January, 2011 which the Shop Manager (DW1) had signed after the contents of the document was explained to her by the complainant. When one looks at the contents of this exhibit the defence witness had acknowledged that the bread that was sold to the complainant was 400 grams small unsliced whole meal bread. Moreover, the bread in question was weighed in the presence of the Shop Manager who confirmed the weight to be 400 grams.
    
33. Based on the above evidence, it does not matter what the content of the receipt issued by the appellant mentions because Alesi Naivalu (DW-1) the Shop Manager had acknowledged that the bread purchased by the complainant was what is mentioned in the charge. The receipt was issued by the appellant hence the complainant correctly told the court that he had no control over what was in the receipt.
    
34. As for the discrepancy between the particulars of the offence and the evidence in respect of the weight of the bread in question there is no evidence of any prejudice caused by the appellant. The appellant was represented by counsel and the actual weight of 400 grams was known to the counsel who had not taken any issue of this discrepancy but had put forward his defence based on the weight of 400 grams and not 12,400 grams. The omission is in form and not substance.

35. This ground of appeal fails due to lack of merits.

GROUND FOUR

The learned Magistrate erred in law and in fact in holding that it was not necessary for the Price Control Order dated 29/12/2010 to be served on the Appellant which was contrary to section 156(1) (b) of the FCCC Act, 2010.

36. The ground has been dealt with in ground two above and therefore there is no need for me to repeat it here. It is once again reiterated that the Price Control Order in question was published in the Government of Fiji Gazette and there was no need for the order to be served on the appellant.
    
37. Once again the submissions are not related to the ground of appeal mentioned above. In his submissions the appellant’s counsel submitted that the learned Magistrate had erred in holding that the prosecution had not produced admissible evidence in respect of all the elements of the offence. Counsel submitted that prosecution was required to provide conclusive evidence beyond reasonable doubt and identify the product sold which was not done by the prosecution and therefore it was erroneous of the learned Magistrate to come to the conclusion that the prosecution had proven the case beyond reasonable doubt.
    
38. The submission of the counsel is misconceived the Shop Manager, Alesi Naivalu (DW-1) had signed the Prices and Incomes Board Inspection Report (prosecution exhibit no.1) after it was explained to her by the complainant which was admitted by Alesi in court. Prosecution exhibit no.1 makes specific reference to 400 grams small whole meal bread which is the subject of the charge. The same bread was weighed in front of the Shop Manager and then taken to Ministry of Trade for second opinion on the weight (prosecution exhibit no.2). In my view it is incorrect of the appellant’s counsel to say that the identity of the product in question was in dispute when the evidence showed otherwise.
    
39. In her judgment the learned Magistrate has made reference to all the elements of the offence and has given her reasons for agreeing with the evidence adduced by the prosecution. The learned Magistrate accepted the evidence of the complainant and rejected the evidence of both the defence witnesses. It was open for the learned Magistrate on the evidence to come to the conclusion she had arrived at. During the oral submissions the appellant’s counsel raised an issue that the author of prosecution exhibit no. 2 from Ministry of Trade was not called to tender the letter dated 13^th January, 2011. When this document was tendered in court the appellant’s counsel did not take an objection to the tendering of this document by the complainant (page 65 of the copy record). There was also no application made by the appellant’s counsel for prosecution to produce in court the author of the letter written by Ministry of Trade for cross examination.
    

40. This ground of appeal fails for lack of merits.

APPEAL AGAINST SENTENCE

(1) The learned Magistrate erred in law and fact in imposing a fine which is not only disproportionate and inconsistent but manifestly harsh and unjustified in the absence of any aggravating factors.

(2) The learned Magistrate erred in law and fact in not holding the right of the Appellant to be tried within a reasonable timeframe and the inordinate delay in the determination of the Charge was detrimental to the proceeding.

(3) The learned Magistrate erred in law and fact by disregarding the mitigating factors submitted by the Appellant without providing any cogent reasons.

(4) The learned Magistrate erred in law and fact when she failed to apply the principles of sentencing under Part VIII of the Sentencing and Penalties Act, 2009 when imposing the manifestly harsh and unjustified fine.

41. Despite the above four grounds the counsel for the appellant in his submissions only argued that the fine of $10,000.00 and prosecution cost of $2,000.00 were manifestly harsh, unreasonable and unjustified. Moreover, I am unable to understand how ground two above is related to appeal against sentence.
    

LAW

42. In sentencing an offender the sentencing court exercises a judicial discretion. upremrt of Fiji Fiji in n Simeli Bili Naisua vs. The State, Criminal Appeal No. CAV0010 of 2013 (20 November 2013) stahe gr for l against sentence at paragraph 19 as:-
    

“ItItIt is c is clear that the Court of Appeal will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adoin Ki Bae v The State,tate, Crim Criminal Appeal No. AAU0015 at [2]. Appellate Courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:-

҈&#160 (i)&##160;ـ upon a wrong pong principinciple;iple;
(ii) ـ Allowedlowed extraneous relevatterguideffect

(ii60;&110; ##16;&#160  #160; Mistoe facts;

>

& (i60;&##160; 60; Failed to take into account some rele relevant vant consideration.”

1. Counsel submitted that considering the fact that the difference in pricing was of 24 cents the fine and the prosecution costs were not justified. The counsel further argues that the prosecution cost of $2,000.00 was also excessive since the prosecutors were in-house salaried employees of the Commission and there was no additional cost incurred in prosecuting his matter.
   
44. In his submissions both written and oral the appellant’s counsel did not allude to any specific error made by the learned Magistrate in exercising her sentence discretion. The narration given by the appellant’s counsel did not point to any of above mentioned four factors.
    
45. The learned Magistrate had acted in accordance with section 129 (3) of the FCCC Act 2010 in imposing the fine. The maximum fine that can be imposed for a body corporate like the appellant is $50,000.00 which is five times the fine provided in section 129 (1).
    
46. The learned Magistrate had correctly followed the two tier sentencing principle, there were no aggravating factors hence the sentence was not increased. The sentence was than reduced for mitigation factors which were correctly allowed. In mitigation the appellant inter alia sought forgiveness from the court and promised not to reoffend, and has taken appropriate measures to avoid any repetition of the offending.
    
47. The fine imposed is the minimum amount that could have possibly been ordered for a repeat offender. One thing I would like to stress is that the amount of overcharging is not the issue (the amount involved can be big or small) it is the dishonesty by a trader which the legislation is trying to stop.
    
48. There are so many customers who prey victim to such practices which is the concern of this court. In this case, the appellant is lucky the fine imposed is on the lower side of the penalty. The learned Magistrate had properly exercised her sentence discretion and there is no reason why this court should intervene.
    
49. As for the award of $2,000.00 prosecution cost it is to be noted that the allegation dates to 2011 and it took ten years for the matter to be determined. It is unfair for the appellant to say that the prosecution did not incur additional costs over the years because the counsel appearing was in-house counsel. When one looks at the cost awarded it is $200.00 per year which is reasonable and justified.
    
50. The appeal against sentence is dismissed due to lack of merits. Before I leave I would like to express that the appellant’s counsel made submissions in court which were not part of the grounds of appeal, such a practice does not augur well at this level of court appearance.
    

ORDERS

1. The appeal against conviction and sentence are dismissed due to lack of merits.
2. The sentence by the Magistrate’s Court is affirmed.
   
3. 30 days to appeal to the Court of Appeal.
   

Sunil Sharma
Judge

At Lautoka
24 March, 2022

Solicitors
Messrs Nilesh Sharma Lawyers, Suva for the Appellant.
Manager Legal, FCCC, Suva for the Respondent.