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New World Ltd v Prices and Incomes Board [2010] FJHC 120; HAA027.2009 (13 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. HAA 27/2009
HAA 28/3009
HAA 29/2009
HAA 30/2009

BETWEEN:

NEW WORLD LIMITED T/A ADAM
SUPERMARKET
Appellant

AND:

PRICES AND INCOMES BOARD
Respondent

Date of Hearing: 6 April 2010
Date of Judgment: 13 April 2010

Mr. S. Valenitabua for the Appellant
Mr. R. Green for the Respondent

JUDGMENT

[1] On the 8th April 2009 at the Magistrates Court at Rakiraki, the appellant company was found guilty on the company’s own plea of guilty of ten charges of Selling Price Control Goods at a Price Exceeding the Maximum Wholesale Price, contrary to paragraph 4 and 5 of the Counter-Inflation (Price Control) (Percentage Control of Foodstuffs and Certain Household Products) (No. 8) Order 2004, section 21(a), 30(1) and 32 of Cap. 73.

[2] The appellant company was sentenced on the same day. The sentences being the same at $800 per charge along with $33.75 costs on each file (there being four concurrent files); with 28 days to appeal.

[3] The appellant company filed an appeal against sentence on the 8th May 2009, two days out of time. The appeal first came before this Court as an application for leave to appeal out of time which leave I granted on the 14th December 2009, there being no real objection from Counsel for the Board.

[4] The appellant has filed four grounds of appeal which can be crystallized into two grounds:

1. That the Magistrate failed to follow accepted procedures in arriving at sentence;

2. That the sentence passed is manifestly excessive.

Procedures

[5] The appellant complains that the company was not allowed to mitigate prior to sentence. This ground can have no force in that the company chose to plead guilty by letter to the Court, thereby waiving its rights to appear either by Counsel or its officers. By pleading guilty in writing, the company can then seek to have its appearance dispensed with at later hearings by section 88(1) of the Criminal Procedure Code. There is however nothing on record to show that such dispensation had been afforded to the company.

[6] I agree with Counsel for the State that by not asking for dispensation and by not appearing was discourteous and nonchalant and in such circumstances it is not open to the company to plead that they were denied an opportunity to mitigate. This ground cannot succeed.

[7] Counsel for the Appellant submits that before a Court can impose a fine as a sentence, it is mandatory to inquire of the convicted person’s means to pay the fine. In support of that submission he
relies on authorities of Saijad Hussein v Prices & Incomes Board HAA 55/2005, Sereima Bokodi v State – HAA 75/2002 and R v King (1970) 2 All E.R. 249.

[8] The case of R v King is totally irrelevant to the submission and Counsel’s reliance on it is totally misconceived. The other authorities all concern fines of natural persons and not companies and it is therefore quite understandable that an inquiry as to means is not only highly relevant but essential in the case of a natural person.

[9] None of the authorities relied on by the appellant say that enquiry must be made into the means of a company to pay a fine, and as a consequence this ground must fail. It is hard to imagine that a company as prominent as New World Supermarket would be without the means to pay whatever fine a Court may order and for the Magistrate not to make enquiry was quite proper and understandable.

[10] The appellants final ground is that the fines imposed were harsh and excessive. The company had been previously convicted four times for the same offence and fined $100 on three occasions, and $1000 for the fourth.

[11] It would appear to this Court that in reliance on previous fines of $100, the company was very uncaring and dismissive of these present offences, not even bothering to attend to mitigate. The shock of the $800 fines then prodded it into launching this appeal.

[12] While the fines are on the "high side", they are not manifestly excessive, they are well within the means of a national company to pay. The four previous convictions for the same offence afford the company no leniency.

[13] The appeal is dismissed.

Paul K. Madigan
Judge

At Lautoka
13 April 2010