F.C.C.C v Carpenters Fiji Ltd (trading as Max-Val-U Supermarket) [2019] FJMC 182; Criminal Case 134 of 2018 (18 October 2019)

IN THE MAGISTRATE’S COURT AT LAUTOKA, FIJI

CRIMINAL CASE NO. 134/18

F.C.C.C

V.

CARPENTERS FIJI LIMITED TRADING AS MAX-VAL-U SUPERMARKET

Counsel : Ms Choy C. for Prosecution

Mr Chand for Accused

01. The above accused body cooperate; was charged with one count of False and Misleading Representation: Contrary to Section 77(1)(g), Section 132, and Section 129 (1A),(3) of Fijian Competition and Commerce Commission Act 2010.

02. Having pleaded not guilty, the matter proceeded for hearing and as per the evidence court found the accused is guilty for the count and accordingly convicted for the same.

03. The prescribed penalty as per section 129 (1A) is a fine not exceeding $10,000 for a first offence and $100,000 for a second or subsequent offence, or imprisonment for a term not exceeding 10 years or both. However accused being a body cooperate fine is 5 times the fine provided for in the provision or, as the case may be, a fine that is 5 times the fine provided for in subsection (1). There is no set tariff for the offence.

04. I do not find any aggravating factors for this case; therefore I consider the mitigations filed on behalf the company.

05. In the mitigation much of the submissions are concentrated to the evolution of the company in to its current status and its service to the public at large. It is also emphasised that they are using the most updated EPOS to monitor and control the stocks with constant update throughout the Fiji. Further it is submitted that all the prices are updated and corrected via computer software and it would understandably impossible to do the same manually for numerous products.

06. Final statement cannot be justified in my opinion. Using software for constant or real-time update of the prices of goods is for the convenience of the company. Ordinary laymen cannot be expected or do not require to keep up themselves at the bleeding edge of the technology to match the computerised system of their merchant. In fact it is not what “Customer care” is about.

07. Thus no matter how hard it is it is the duty of the merchants to display the correct price for their products up for sale. There can’t be any “understandable impossibilities” in complying with legal provisions. “Dura Lex sed Lex” is the legal definition that explains this situation well, which means “Law is harsh, but it is the law”

08. However court took in to account the submitted circumstances of offending and the decisions by superior courts. At the same time court considered the previous convictions submitted by the complainant.

09. In line with the above findings it is evident that you fall into the subsequent offender category which carries a maximum penalty of $100,000. However considering the price disparity between the sale price and the displayed price, I chose rather a lower end fine of 50 penalty units for this offence and multiply it by 5 to be consistence with the section 129(3) of the Act.

10. Accordingly I impose you a fine of 250 penalty units for this offence False and Misleading Representation.
    
11. 28 days to appeal
    

Bandula Gunaratne
Resident Magistrate

At Lautoka
18^th October 2019