Fiji Commerce Commission v Food For Less (Fiji) Ltd [2013] FJMC 250; Criminal Case 1021.2011 (10 June 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 1021/11

FIJI COMMERCE COMMISSION

–V-

FOOD FOR LESS [FIJI] LTD

For the State: Mr. Vicky Chand
For the Accused: Present

SENTENCE

1. The Accused FOOD FOR LESS [FIJI] LTD is charged with the First Count of Failed to Mark Prices on Certain Price Controlled Items contrary to section 8(1) of the Commerce (Price Control) (Percentage Control of Prices for Food Items) Order (No. 1) 2010, Legal Notice No. 101 and Section 44(1) 54(1)(3)(4), and Section 129(1A) of the of the Commerce Commission Decree No. 49 of 2010 and Second Count of Failed to Mark Prices on Certain Price Controlled Itemssection7(a) of the Counter Inflation (Price Control) (Foodstuffs) (No. 7) Order 2009 and Sections 44(1) 54(1)(3)(4), 129(A) and 162 of the Commerce Commission Decree No. 49 of 2010 and the particulars of offences is as follows;
   

First Count

On the 11th day of February, 2011 of Rodwell Road, Suva in the Central Division, offered for sale and failed to mark prices on certain price control items, namely; 60 tins x 170g Pacific Ocean Tuna flakes in Oil, 100 packets x 100g Royal Classic Tea, 6 tins x 900g S-26 Gold toddler, 4 tins x 900g S-26 Original Newborn 1, 6 tins x 900g S-26 Original Progress Step 2, 8 tins x 400g Nestle Lactogen1 and 6 tins x 400g Nestle Lactogen2.

Second Count

On the 11th day of February, 2011 of Rodwell Road, Suva in the Central Division, offered for sale and failed to mark prices on certain price control items, namely; 60 x 100g FMF Breakfast Crackers, 40 packets x 200g FMF Breakfast Crackers, 200 packets x 375g Lees Breakfast Crackers.

2. The summary of facts of the case was submitted by the Prosecution and admitted by you is as follows;
   

On 11th day of February, 2011 at about 9.25am the Commission Inspectors conducted a routine price control inspection at Food for Less [Fiji] Ltd, a trader situated at Rodwell Road, Suva. The inspectors met the Manager Mr. Praveen Deo. During the inspection the inspectors noted some breach to the Commerce Commission Decree 2010. The details of the breach were as per the charge.

The breaches were explained to the Manager and he stated that his staff may have failed to mark the prices. The Manager Mr. Praveen Deo was then warned and the Company summoned to appear in court.

On 23/4/2013 the Accused Company has pleaded guilty to the Charge. Accordingly this court Convict the Accused [Food for Less [Fiji] Ltd, Rodwell Road, Suva], as Charged

3. Statutory Indication
   

Paragraph 8(1) of the Commerce (Price Control) (Percentage Control of Prices for Food Items) Order (No. 1) 2010, Legal Notice No. 101 reads;

"Subject to paragraph (2)any person having any price controlled item for sale by retail shall cause it to be legibly and conspicuously marked with the maximum retail price for the information of the public."

Section 52(a) of the Commerce Commission Decree describes the prohibited act as follows:

No trader shall sell or buy or agree 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,

Section 54 (3) of Commerce Commission Decree No. 49 of 2010 reads;

"The Commission may with regard to any specified goods, with the approval of the Minister, by order require that a person having such goods for sale by retail shall cause the same to be legibly and conspicuously marked with the price for the information of the public."

Section 129 (1) (1) Subject to subsections (2) and (3) of the Commerce Commission Decree No. 49 of 2010stipulates the penalties. It says;

A person who-

(a). Contravenes;

(b). Aids, abets, counsels or procures a person to contravene;

(c). Induces, or attempts to induce, a person whether by threats or promises or otherwise, to contravene;

(d). Is in anyway, directly or indirectly, knowingly concerned in, or party to the contravention by a person of or

(e). Conspires with others to contravene, a provision of Part 6, other than section 67, is guilty of and 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.

This is the sixth offence of the Accused Company.Sec.129(3) states;

"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)."

4. In Bargain Box (Fiji) Ltd v Fiji Commerce Commission (2012) FJHC 1001; HAA001.2012 (30 March 2012) His Lordship Justice Daniel Goundar held that for a body corporate:
   

"In his sentencing remarks, the learned Magistrate clearly considered the appellant to be a first time offender. For a first time offender, the maximum fine is $25,000.00. For a repeat Offender, the maximum fine is $50,000.00. The high level of maximum fines goes to show the seriousness of price control offences. A fine of $2,000.00 that was imposed on the appellant could hardly be considered excessive when you consider the maximum fine that is available for the offence (emphasis added)

Therefore the Maximum Fine for the Second and Subsequent offence committed by a body corporate is $50,000.00.

5. Mitigating Factors
   

I consider mitigating factors which were brought before me by the accused inwritten submission; that you;

Have pleaded guilty for the charges; had no intention to deceive your valuable customers, because a display price ticket was always there on the shelve outlining the product and their respective prices; that the items listed in the first count were all items that were sold from your cosmetic department which at that time was fully using the Electronic Point of Sale System and the commission grants exemption to individual mark prices if there's a Point of Sale System; that FMF breakfast crackers being an extremely high volume item, selling in quantities well over 500 pieces daily, is extremely impractical to mark individually, despite this, attempted to mark these products individually to the best of ability, the people responsible for marking prices are merchandisers [provided by the suppliers] and your row boys who both are unskilled workers and at times tend to overlook their duties; that there is a high staff turnover in the supermarket business which results in the miscommunication; currently the company has fully installed Point of Sale System in the Supermarket where prices are picked by scanning the barcodes and further the Commission grants exemption to individual mark prices on items if a fully operational Point of Sale is in Operation &had correctly displayed prices for items and the cashiers have correctly charged prices; considering above seeks leniency from Court.

6. Sentence
   

In the light of Sentencing Guidelines under section 4 (1) and (2) and General Sentencing Provisions under section 15(3) ) of the Sentencing and Penalties Decree consider an appropriate sentences the Accused Company. I note that this is not its first offence. His Lordship Justice Daniel Goundar in Bargain Box (Fiji) Ltd v Fiji Commerce Commission (supra) said that "high level of maximum fines goes to show the seriousness of price control offences. Having considered the above refereed judgment, maximum fine, Guilty plea, Mitigation submission as well the other factors of this case, I impose the Accused Company to pay a fine as follows;

A Fine of $5.000.00 [50 penalty units] to be paid into Court in default 500 days imprisonment. (Directors of the company to be imprisoned as depicted in the Company Register under the name of FOOD FOR LESS [FIJI] LTD).

Prosecution is asking for $34.50 cost and The Accused should pay that cost of $34.50 as well. Therefore total amount should be paid by the accused company is $5034.50

28 days to pay 28 days to Appeal.

Review: 10th July 2013.

Lakshika Fernando
Resident Magistrate

On this 10th day of June 2013