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Prices and Income Board v Nair [2009] FJMC 8; Criminal Case 2095.2007 (13 October 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Criminal Case No. 2095 of 2007

BETWEEN:

PRICES AND INCOME BOARD
COMPLAINANT

AND:

KRISHNA NAIR s/o Sami Trading As Urban Dairy Shop
ACCUSED

Prosecution: Mr Kumar
Accused: in person

Date of Hearing: 21 July 2008, 23 September 2008 & 30 July 2009
Date of Judgment: 13 October 2009

JUDGMENT

[1] The Complainant, the Prices and Income Board [ hereinafter referred to as "PIB" or the "Board"], has charged the Accused, Krishna Nair (father’s name Sami) trading as Urban Dairy Shop with two offences under the Counter-Inflation Act being that the Accused, on 28 September 2007 (i) failed to cause certain fixed price controlled goods namely 13 packets of 375g FMF breakfast crackers to be legibly and conspicuously marked with the maximum retail price for the information of the public contrary to paragraph 6(a) of the Counter-Inflation (Price Control)(Foodstuffs)(No 17) Order 2007 and Sections 30(1) and 32 of the Counter-Inflation Act and (ii) had for sale by retail certain percentage controlled goods at an excessive price namely 19 packets of 85g Maggi noodles at $0.45 per packet instead of $0.40 per packet the maximum calculated price such price in excess of $0.05 per packet and 16 tins of 170g Sunbell tuna flakes at $0.90 per tin instead of $0.85 per tin the maximum calculated price such price in excess of $0.05 per tin, contrary to paragraph 9(a) of the Counter-Inflation (Price Control)(Percentage Control of Foodstuffs and certain Household Products) (No 15) Order 2007 and Sections 30(1) and 32 of the Counter-Inflation Act Cap 73.

[2] Originally there were three counts against the Accused, but the first count was withdrawn by the Complainant on 21st July 2008, leaving only the second and third counts to be heard.

[3] The Accused has not been represented by legal counsel but has represented himself in these proceedings.

[4] This matter first came for hearing before Magistrate J Waqaivolavola on 21st July 2008. The Complainant called one of its witnesses to give evidence, but its second witness was not present and the matter was adjourned to 29 July 2008 for continuation of hearing.

[5] The hearing did not proceed on 29 July 2008, it was adjourned to 23 September 2008 at which time the Complainant’s second witness gave evidence.

[6] The matter was then adjourned to 7 November 2008 for the Court to rule if there was a case to answer. On that date the Court held that the Complainant had proved the charges on a prima facie basis, and adjourned the continuation of the hearing to 24 March 2009 at the request of the Accused.

[7] On 24 March 2009 there was no water in Government Buildings and the matter was adjourned to 29 April 2009.

[8] Mr Wagaivolavola’s appointment as a Resident Magistrate was revoked on 10th April 2009 by the Revocation of Judicial Appointments Decree 2009.

[9] The matter was assigned to this Court under s 47 of the Magistrates Court Act, which provides that where a Magistrate has ceased to act as magistrate, proceedings may be heard, determined or carried to completion by his or her successor. Section 196 of the Criminal Procedure Code allows a magistrate to conclude criminal proceedings begun by another magistrate.

[10] This matter was given a date of 30 July 2009 for hearing. On that date this Court informed the Accused that, pursuant to s 196 of the Criminal Procedure Code, he had the right to require that the Complainant’s witnesses be resummoned before this Court to give evidence or he could agree to this Court continuing the hearing. The Accused chose to have this Court continue the hearing without resummoning the Complainant’s witnesses.

The Complainant’s Evidence

[11] Evidence was given for the Prosecution by two inspectors with the Prices and Income Board, Liliveleti Savou [PW1] and Muneshwar Naicker [PW2], and the following exhibits were tendered:

Exhibit 1 Inspector Report

Exhibit 2 Tax Invoice No. 29737

Exhibit 3 Tax Invoice No. 29738

Exhibit 4 1 packet FMF Biscuit

Exhibit 5 Counter-Inflation (Price Control)(Foodstuffs) (No. 17) Order 2007 [hereinafter "Order No. 17"]

Exhibit 6 Counter-Inflation (Price Control)(Percentage Control of Foodstuffs and Certain Household Products)(No. 15) Order 2007 [hereinafter "Order No. 15"].

[12] The evidence of Inspector Liliveleti Savou is that he went to the Accused’s store at 35 Viria Road to investigate a complaint lodged by a member of the public.

[13] He initially spoke to the wife of the Accused.

[14] Whilst at the shop the Accused arrived and the Inspector interviewed him.

[15] PW1 said the Accused was selling some fixed control items at a price above their maximum retail price.

[16] He also said the Accused wasn’t marking their retail price. He bought a packet of biscuits for $1.00 [Exhibit 4].

[17] On cross examination PW1 was shown a price list and he said he did not see that price list. He said he had looked for one but not seen anything like the notice shown to him.

[18] Inspector Muneshwar Prasad [PW2] confirmed that he had accompanied Inspector Savou to the Accused’s shop at Viria Road to attend to a complaint.

[19] He said during inspection it was noted that the trader was selling packets of 375g FMF biscuits for $1.00 without its maximum price marked on the packet.

[20] PW2 admitted that previously the mark up was 13% but said it was 10% on the day the Accused was charged.

[21] He said the price for a tin of tuna was obtained from the Accused’s wife verbally.

The Accused’s Evidence

[22] The Accused, Krishna Nair, gave evidence on his own behalf.

[23] He said he was now retired, but he had established his business Urban Dairy Shop in 1999.

[24] He said that his shop was visited by PIB inspectors three times per year to check retail mark-ups and price displays.

[25] He alleged that there had been no prior breaches of the Counter-Inflation Act found by PIB.

[26] On 28th September 2007 he had attended a graduation ceremony at University of South Pacific.

[27] When he returned to his shop, he noticed two PIB officers in front of the shop.

[28] He said he used the back entrance to enter the shop. In the shop he noticed that PW2 was sitting in the van parked about 12 meters away.

[29] He said they were about to leave as they had issued a Price Demand Notice.

[30] The Notice was tendered as Defence Exhibit 1. It is dated 28th September 2007 and requires invoices for four items, being Maggi noodles, Sun Bell Tuna Flakes, Brunswick Mackerel in tomato sauce and Brunswick Mackerel in oil. It is signed by Manorma Nair.

[31] The Accused stated in evidence that prices could be marked or displayed, and that he didn’t have to mark individual packets.

[32] The Accused also said that he operated a small canteen, where people buy from outside. He said the price list was stuck on the right hand side of the wall, that there was a board above the counter and it was stuck to the board.

[33] The Accused tendered a handwritten price list as Defence Exhibit 2, consisting of one page of white paper marked "Price List" at the top, hand ruled, with the name of items and their prices marked in felt pen on each line, and reinforced with one sheet brown paper taped to the back.

[34] This Price List, which is not dated, shows Maggi & Chow noodles are 40c and breakfast crackers are $1.09.

[35] The Accused also raised selective enforcement, or as he referred to it, double standard, as a defence, stating that supermarkets do not mark individual packets.

[36] As evidence of this the Accused tendered two items purchased from Cost-U-Less and the receipt for the same as Defence Exhibits 3a, 3b and 3c.

[37] The Accused also admitted that his wife may have given the wrong price for tuna based on the 13% mark-up in effect prior to 10th September 2007.

The Counter-Inflation Act

[38] The Counter-Inflation Act, Cap 73 of the Laws of Fiji, makes provision for prescribing the maximum price of goods and services by Order in Part IV thereof.

[39] The Order may prescribe the maximum price or the manner in which the maximum price is ascertained.

[40] Section 21 (a) of the Counter-Inflation Act prohibits any person from selling or buying goods at a greater price than the maximum price fixed and declared by the Order.

[41] Section 23(1) of the said Act requires a trader having goods for sale in respect of which an Order has been made to display a list of the maximum prices for such goods in a prominent position on their premises.

[42] Section 23(3) of the said Act allows the Board to require specified goods to be marked with the price.

[43] Section 30(1) of the said Act provides as follows:

"A person who contravenes or fails to comply with any of the provisions of this Act or of any order, notice or requirement lawfully made or given thereunder shall be guilty of an offence."

[44] The Prosecution provided copies of the Counter-Inflation (Price Control)(Percentage Control of Foodstuffs and Certain Household Products)(No. 15) Order 2007 [Exhibit 6] and the Counter-Inflati9on (Price Control)(Foodstuffs) (No. 17) Order 2007 [Exhibit 5] to the Court.

Selling Price Controlled Goods at Excessive Price

[45] The Accused is charged in Count Three with having for sale certain percentage controlled goods at an excessive price, being 19 packets of 85g Maggi noodles at $0.45 per packet instead of $0.40 per packet and 16 tins of 170g Sunbell tuna flakes at $0.90 per tin instead of $0.85 per tin, contrary to paragraph 9(a) of Order No. 15.

[46] Paragraph 9(a) of Order No. 15 states as follows:

"No person may –

(a) sell by retail or offer for sale by retail any price-controlled item at a price in excess of that marked on such item, such maximum retail price having been calculated in the manner prescribed in clauses 6 and 7; or . . . "

[47] Clause 6 provides that the maximum retail price is the sum of the into-store cost for pricing of goods to the retailer plus the mark-up per the retail percentage prescribed in Schedule 1.

[48] Schedule 1 prescribes the retail percentage, which is 10% for item 7, canned fish, and item 13, instant noodles.

[49] The Invoices provided by the Accused to the Board show that he paid $37.20 for a carton of Sunbell Tuna containing 48 tins, and $39.00 for 2 cartons of Maggi Chow Noodles containing 60 packets per carton.

[50] On the basis of those invoices, the Board determined that the maximum retail price for the tin of tuna was $0.85 and that the maximum retail price for the Maggi noodles was $0.40 at the time of the alleged offence. The Accused did not challenge that computation.

[51] These are the same prices noted on Defence Exhibit 1, the PIB Notice requesting suppliers invoices. That Notice was signed by the Accused’s wife.

[52] Defence Exhibit 2, the Price List, has Maggi Chow Noodles at 40c, but there is no date on that List and PW1 said he didn’t see any list like that.

[53] If there was a List posted showing that price of $0.40, then why did the Accused’s wife sign the PIB Notice agreeing to a higher price?

[54] The Accused suggested in his evidence that his wife may have mistakenly quoted a price of $0.90 for the tin of tuna flakes to the inspectors. That indirectly supports the Complainant’s case.

[55] The Court finds that the Complainant has met its onus of proof and has established beyond reasonable doubt that the Accused was selling the Sunbell Tuna Flakes and Maggi Noodles at a price in excess of the maximum retail price on 27 September 2007.

[56] In the case of Suva Co-Operative Association Limited v Prices and Income Board, 21 FLR 1 [1975], the High Court held that the offence of selling at a price in excess of maximum retail price is an offence of strict liability.

[57] The Court finds that the Accused is guilty as charged of the offence of having for sale by retail certain percentage controlled goods at an excessive price namely 19 packets of 85g Maggi noodles at $0.45 per packet instead of $0.40 per packet the maximum calculated price such price in excess of $0.05 per packet and 16 tins of 170g Sunbell tuna flakes at $0.90 per tin instead of $0.85 per tin the maximum calculated price such price in excess of $0.05 per tin, contrary to paragraph 9(a) of the Counter-Inflation (Price Control)(Percentage Control of Foodstuffs and certain Household Products) (No 15) Order 2007 and Sections 30(1) and 32 of the Counter-Inflation Act Cap 73.

Marking of Price Controlled Goods

[58] The Accused is also charged with failing to mark individual packets of FMF breakfast crackers with their maximum retail price.

[59] Paragraph 6 of the Counter-Inflation (Price Control) (Foodstuffs) (No. 17) Order 2007 provides as follows:

"(a) Any person having for sale by retail any of the goods specified in any Schedule to this Order must cause the same to be legibly and conspicuously marked with the maximum retail price for the information of the public.

(b) In the case of any retailer of butter (local) and bread, compliance with paragraph (a) may be effected by the display, in a prominent position, of a legible and conspicuous notice clearly indicating the goods to which the notice relates and the maximum retail price of the goods.

(c) If any of the goods except butter (local) and bread specified in any of the Schedules are not displayed for sale in an individual packet or container, a retailer complies with this Order if he or she displays in a prominent position, a legible and conspicuous notice clearly indicating those goods to which the notice relates and the maximum retail price of the goods."

[60] Breakfast crackers are found in Item 4 of Schedule 1, which applies to the city of Suva.

[61] The defence raised by the Accused is that he operates a canteen and he had a price list conspicuously posted on the wall. He said he was not required to individually mark the breakfast crackers.

[62] Paragraph 6(c) of Order 17 provides an exception to the requirement of individual marking of packets if the retailer does not display individual packets for sale.

[63] The evidence given by PW1 was that he purchased a packet of FMF breakfast crackers from the Accused’s wife, and the price was not marked on the packet. He never said that the breakfast crackers were on display at the canteen.

[64] The Accused, on the other hand, gave evidence that his store is a canteen and his customers buy from outside. He said there was a counter with a price list on a board above the counter.

[65] The onus of proof is on the Prosecution to show that the Accused violated paragraph 6(a) of Order No. 17.

[66] If the Accused was not displaying breakfast crackers for sale in an individual packet or container, he was not required to individually mark them but could instead display a notice with the maximum retail price.

[67] While the Prosecution’s witnesses did not give any evidence whatsoever as to whether the Accused displayed the goods for sale, PW1 said very clearly that he never saw any price list posted at the canteen. He told the Court that he had looked for a notice but didn’t see anything like the notice shown to him by the Accused.

[68] In order to qualify for the exception from marking the individual packets, the Accused was required to post a notice with the maximum retail prices. While the Accused said he had such a notice posted on a board above the counter, PW1 said he did not see any such notice while PW2 said he got the price for the tin of tuna from the Accused’s wife verbally.

[69] If there had been a price list posted, PW2 would not need to ask the Accused’s wife for the price in the first place and the Accused’s wife would not have given PW2 the wrong price.

[70] The Court prefers the evidence of PW1 and PW2 on this point to the evidence of the Accused.

[71] The Prosecution has met its onus of proof on this charge. There is sufficient evidence before this Court that the Accused did not qualify for the exception listed in paragraph 6(c) at the relevant time as there was no price list posted when the inspectors visited his shop. Therefore the Accused was not excused from marking the price on the individual packets of breakfast crackers.

[72] The Accused had admitted in his evidence that he did not mark the individual packets of breakfast crackers, and the Court finds the Accused guilty as charged of the offence of failing to cause certain fixed price controlled goods namely 13 packets of 375g FMF breakfast crackers to be legibly and conspicuously marked with the maximum retail price for the information of the public contrary to paragraph 6(a) of the Counter-Inflation (Price Control)(Foodstuffs)(No 17) Order 2007 and Sections 30(1) and 32 of the Counter-Inflation Act.

DATED this 13th day of October, 2009.

Mary L Muir
RESIDENT MAGISTRATE
SUVA