IN THE RESIDENT MAGISTRATE’S COURT OF FIJI
AT SUVA

Criminal Action No: 365/12

FIJI COMMERCE COMMISSION

V

KALABO INVESTMENT [LTD] trading as SHOP N’ SAVE SUPERMARKET

Prosecution : Mr. Lagilagi S. (for FCC)
Accused : Mr. Lateef S.

JUDGMENT

1.	The proceeding of this case is instituted by an officer of the Fiji Commerce Commission [hereinafter referred as FCC] who is acting in accordance with section 131 of the Commerce Commission Decree 2010.

2.	The charge reflects that it is a ‘Private Complaint’. Therefore the Court notes that the prosecution has complied with the formalities in section 56 of the Criminal Procedure Decree 2009 in filing this application.

3.	The accused is charged with the following offence.

Statement of Offence

Offered for Sale Price Control Items at Excessive Price: Contrary to paragraph 6(1) a & b of the Commerce (Price Control)(Percentage Control of Prices for Food Items) (No1) Order, 2010(Legal Notice No101) and Section 44(1), 49(1)(2) a & B, 52(a), 132(1) (2) and section 129 (1A) 0f the Commerce Commission Decree No 49, 2010

Particulars of Offence

Kalabo Invesment Ltd trading as Shop N Save Supermarket being a trader of Nabua, Suva in Central Division did on the 1st day of November 2011, Offered for sale certain price controlled items at a price exceeding the maximum retail price allowed for such items, namely; 22 packs of 1Kg Blue Peas (Own Pack) offered at $1.65 instead of $1.58 excess of 7c per 1Kg pack and 15 packs of 2Kg Blue Peas (own pack) offered at $3.29 instead of $3.16 excess of 13c per 2Kg pack.

4.	At the outset the Court has to decide whether the charge against the accused is a strict liability offence. The countries which are governed by common law principles traditionally recognize that there are two essential elements of any crime,

(1) that a certain event or state of affairs forbidden by the criminal law was caused by the accused/defendants' conduct;

(2) that conduct was accompanied by a prescribed state of mind.

This principle is enshrined in the Latin maxim "actus non facit reum nisi mens sit rea" which properly translated to mean as, "An act does not make a man guilty unless his mind also is guilty."

5.	However there are exceptions to this rule. ‘Strict Liability Offences’ are one of such exceptions. Crimes Decree 2009 identifies three categories of offences depending on the involvement of aforesaid two essential elements of crime.

•	Fault element / mens rea cases,
•	Strict liability cases,
•	Absolute liability cases.

6.	Chapter 2 of the Crimes Decree 2009 discusses on the general principles and criminal responsibility of the laws of Fiji. Section 11(2) of the Decree allows the Court to apply these principles on the other laws to the fullest extent possible. Sections 24 and 25 which are identical in general, discuss the offences of ‘Strict’ and ‘Absolute’ liability. 

7.	These Strict Liability offences are commonly summary in nature. The general principle to be applied in these types of cases was stated by Wright, J. in the often cited case of Sherras v. De Rutzen [1895] 1 QB 918, 921.

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence but the presumption is liable to be displaced either by the words of the Statute creating the offence or by the subject - matter with which it deals and both must be considered."

8.	In Harding v. Price [1948] 1 KB 695 at 701 per Lord Goddard CJ which points to the important of this distinction and how a court can decide whether it is a case of strict liability or otherwise.

"It is of utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a Statute either clearly or by necessary implication rule out mens rea as a constituent part of the crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

9.	It is to be noted that strict liability usually involve statutory requirements to conform with business regulation and other related matters. The Privy Council in Lin Chin Aik v. R [1963] AC said:

'But it is not enough in their Lordships' opinion merely to label the Statute as one dealing with grave evil and from that to infer that strict liability  was intended. It is pertinent also to inquire whether putting the Defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something that he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulation.'

10.	Section 52 creates the prohibited acts under the Commerce Commission Decree 2010. The sub section (a) states, 

s.52 'No trader shall – 

(a) 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 subsection (1) of section 44.

11.	The plane reading of the statue does not create any such mental element to compose the offence. The penal section only carries a fine on a person or an institution found guilty. Further the objective of the statue is very clear, that is to ensure equitable returns to the businesses while giving the consumers a fair opportunity over the prices of the goods and services. Therefore it is not difficult to conclude that this offence contains strict liability. 

12.	 It is indeed very difficult to draw a line between the Strict Liability and Absolute Liability. Both instances do not require any fault element or mens rea to establish the offence. However the offender will have considerable space in laying his defence in the cases of Strict Liability. The Strict Liability cases have the defence of 'Mistake of Fact' while the Absolute Liability denied of that defence. Crimes Decree allows the offenders of both instances to take any other defences as well. Nevertheless the Commerce Commission Decree 2010 carries statutory defences which will be discussed later during this judgment for the offences under this Decree. 

Prosecution Case

13.	The prosecution called two witnesses in support of their case. Mr. Meli Gonevale an inspector of the FCC testified first. He states that on 01.11.2011 the FCC carried out an inspection in Nabua and particularly searched the Shop N Save Supermarket. During the search he has found 22 packs of 1Kg Blue Peas (Own Pack) offered at $1.65 instead of $1.58 excess of 7c per 1Kg pack and 15 packs of 2Kg Blue Peas (own pack) offered at $3.29 instead of $3.16 excess of 13c per 2Kg pack. This comparison was made on the price list which was in operation at the time. The same price list is marked as Ex-01. 

14.	He has informed this to Mr. Krisneel Kumar who was the manager at the time. Later this witness has put up an inspection report and another statement of himself. Both these documents were marked as Ex- 02 and Ex-03 in Court.

15.	During the cross examination the witness stated that he was not aware as to how the price list is prepared. The learned defence counsel referred the witness to the page 4 of the price list. Witness accepted that there is another different price category for 'Sunland blue Peas'. And the Court notes that it is $ 1.65 for 1Kg pack and $3.31 for 2Kg pack. At one stage witness stated that it may have bought from Sunland. However he emphasised that at the time of the search they were in Shop N Save own packets.

16.	 The witness was further questioned on the procedure of doing a search and whether they looked in to the warehouse for balance stock. He answered negative nevertheless he confirmed that there were no irregularity caused during the search.

17.	Mr. Isea Tuiraviravi the assistant inspector of the FCC testified next. He echoed the same testimony of Mr. Meli Gonevale. Then the prosecution rested their case. There were no notable inconsistency between the two witnesses and their own testimonies. There is no necessity of long reasoning evaluation to conclude that the prosecution has proved the physical element of 'Offered for sale' beyond reasonable doubt.

18.	The defence in fact did not dispute that the items were under price control, quantity recovered and the disparity of the price. Despite the stance of the defence I note that all these elements have been fulfilled by the prosecution witnesses beyond reasonable doubt.

Defence Case

19.	 Mr. Abisheik Abhiman the Chief Financial Officer of the company testified for the defence case. He stated that as it was the Dewali season they bought 30 bags of 50 Kg Blue Peas from B.L Naidu & Sons Ltd and packed in their bags to keep it for sale. According to him this arrangement was made to cater their customer's demand on the product of Blue Peas. He produced a photo copy of the invoice dated 17.10.2011.

20.	It was stated that B.L Naidu provides retail Blue Peas under the label 'Sunland'. The witness further added that they did not have the items in Sunland packs but he said that they manually calculated the price and applied the 'Sunland price' of the price list. Witness further added that they follow a similar procedure in selling Split Peas of FMF. 

21.	However during the cross examination he stated that they were aware that prior approval is needed to make amendments to the prices and he confirmed that in this case they did not seek approval from FCC. The witness posed during defence case that the incident took place as a mistaken understanding. 

Defences available under the Decree

22.	Mostly common law jurisprudence does not recognise 'Mistake' as a defence to the cases of strict liability. It is not difficult to understand that the statues of strict liability are implemented to protect the public and therefore it is necessary to avoid the offenders fabricating defences.

23.	However section 135 of the Commerce Commission Decree 2010 provides the defences of Mistake and Accident. 

s.135- (1) In any proceedings for an offence against this Decree or against any regulations or orders made there under it shall, subject to subsection (2), be a defence for the person charged to prove-

(a)	That the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and

(b)	That he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his control.

(2) if in any case the defence provided by subsection (1) involve the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he had served on the prosecutor a notice in writing giving all information in his possession identifying or assisting in the identification of that other person. 

24.	The onus of proving the defence lies on the accused person and it is on balance of probabilities. The accused did not submit that he acted on the supplied information of another. Therefore criteria of subsection (2) have no application to this instance.

25.	 Section 135 (1) (a) identifies four main defences under the Decree,

I.	Mistake,
II.	Reliance on information of another,
III.	Accident,
IV.	Some other cause beyond his control.

26.	 The evidence of the accused leads to a position where he claims that they were on a misconception, that they can apply the Sunland Blue Peas prices when they buy the bulk from Sunland and re packed it in their own Shop N Save bags. The accused did not adduce evidence that this has happened before. But stated that they follow a similar procedure for Split Peas of FMF.

27.	 Section 135 (1) (b) narrates the conditions that needs to be fulfilled by an offender who relies on any of the defences in subsection (a). - 'That he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his control'.

28.	The Court notes from the following questions and answers which were recorded during the cross examination, that the accused has failed to satisfy that he took reasonable precautions before fixing and applying the price of Sunland Blue Peas in to their own packs. 

Q: Are you aware that prior approval is needed to change the prices?
A: Yes.

Q: Did you seek approval?
A: I don't have to.

29.	Though the evidence mentioned about a similar procedure which is followed in FMF split peas, the accused had failed to provide any relevant evidence before the Court to accept the said position. Mere quotation is not sufficient to act on the point. 

30.	 Therefore the accused fails in his defence.

31.	In the absence of any other reasonable doubt this Court concludes that the prosecution has proved the charge beyond reasonable doubt. I find the accused guilty as charged.

32.	I now invite both counsel to make submissions on sentencing.

33.	Twenty eight [28] days to appeal.
Pronounced in open Court,

Yohan Liyanage
Resident Magistrate
13th December 2012