Princeway Supermarket (Fiji) Ltd v Fiji Competition & Consumer Commission (FCCC) [2022] FJHC 74; HAA009.2021 (25 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 009 OF 2021

BETWEEN:
PRINCEWAY SUPERMARKET (FIJI) LTD
APPELLANT

A N D:
FIJI COMPETITION & CONSUMER COMMISSION (FCCC)
RESPONDENT

Counsel: Mr. R. K. Naidu for Appellant
Mr. K. Gauna for Respondent

Date of Hearing: 03^rd February 2022

Date of Judgment: 25^th February 2022

J U D G M E N T

1. The Appellant was charged in the Magistrate’s Court of Nausori with one count of Fail to Mark Price on Price Controlled Items, contrary to Section 54 (3) of the Fijian Competition and Consumer Commission Act and one count of Fail to Display or Mark Prices on Non-Price Controlled Items, contrary to Section 54 (4) of the Fijian Competition and Consumer Commission Act. On the 4th of March 2021, the Appellant pleaded guilty to the two offences. On the 20th of April 2021, the learned Magistrate then sentenced the Appellant, imposing a $ 10,000 fine as an aggregate sentence for both counts. Aggrieved with the said sentence, the Appellant files this appeal on the following grounds inter alia;
   style='text-inxt-indent:0pt; margin-top:0pt; margin-bottom:0pt;' value='1' >That the learned Magistrate erred in law by convi and sentencing the appellant for the wrong offence on the First Court. The Appellant was was not charged under Section 52 (a) of the Fijian Competition and Consumer Commission Act 2010.
   
   2. The learned Magistrate erred in law by imposing a sentence that is manifestly excessive and harsh for a first offender in all the circumstances of the case.
      
   100. The learned Magistrate erred in law in not allowing an appropriate discount for the utilitarian value of the early guilty plea.
        
   4. The learned Magistrate erred in law by failing to carefully weigh the Appellant’s mitigation when sentencing the Appellant.
      
2. The Court heard the oral submissions of both parties on the 3rd of February 2022. The learned Counsel for the Appellant and the Respondent submitted written submissions in addition to their oral submissions made in open Court. Having carefully perused the record of the proceedings of the Magistrate’s Court and the respective oral and written submissions of the parties, I now proceed to pronounce the judgment as follows.
   
3. In an appeal against the sentence, the Appellate Court will examine whether the sentencing Magistrate had falleo error in exercising his/hhis/her sentencing discretion. In doing that, the Appellate Court would take into consideration the following factors that:
   

i) Whether the sentencing Judge acted upon a wrong principle;
ii) Whether the sentencing Judge allowed extraneous or irrelevant matters to guide

or affect him;

iii) Whether the sentencing Judge mistook the facts;
iv) Whether the sentencing Judge failed to take into account some relevant

consideration.

4. The errors in sentencing discretion may be apparent either from the reasons given in the sentence or making inferences from the length of the sentence. (vide; Saqainaivalu v State [2015] FJCA 168; AAU0093.2010 (3 December 2015). In doing that, the Appellate Court will determine whether the see given by the lower Court is within the permissible range. Even if there has been an errorerror in exercising the sentencing discretion, the Appellate Court will still dismiss the appeal if the Appellate Court considers the sentence given by the lower Court comes within the permissible sentencing range. (vide; Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)
   
5. In this matter, the Appellant was charged with two counts under Section 54 (3) and 54 (4) of the Fijian Competition and Consumer Commission Act. However, the learned Magistrate had sentenced the Appellant for an offence under Section 52 (a) of the Fijian Competition and Consumer Commission Act and one offence under Section 54 (4) of the Fijian Competition and Consumer Commission Act.
   
6. Section 52 (a) of the Fijian Competition and Consummmission Act states that:
   

“No trader shall—

sell or buy or agree 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 section 44(1).

7. Accordingly, the offence prescribed under Section 52 (a) of the Act is different from the offence stipulated under Section 54 (3) of the Act. The learned Magistrate had sentenced the Appellant for the offence of selling goods at excessive price when the Appellant was actually charged with failure to mark the price on the price-controlled item. Accordingly, it is clear that the learned Magistrate had sentenced the Appellant on a wrong offence; hence, the sentence cannot stand. Therefore, I find this is a proper case for the Appellate Court to intervene and set aside the sentence of the learned Magistrate.
   
Considering the interest of the public and the interest of the Appellant,nd an order of re-trial would not prejudicially affect the the interest of the Appellant.

9. In conclusion, I make the following orders:
   

a) The Appeal is allowed,
The sentence dated 20th 20th of April 2021 is set aside,
ce-trial is ordered bred before another Resident Magistrate.

10. Thirty (30) days to appeal to the Fiji Court of Appeal.peal.
    

.................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva
25^th February 20>

Solicitors
Naidu Lawyers for ther the Appellant.
Fijian Competition & Consumer Commission for the Respondent.