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Prices and Incomes Board v Hansons Fiji Ltd [2012] FJMC 15; Criminal Case 1175.2011 (14 February 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1175/11

PIB

V

HANSONS FIJI LIMITED

Mr. Chand for the Prosecution.
The Accused absent, but pleaded guilty to the charge in writing.

Sentence

1] The Accused HANSONS FIJI Limited is charged with following offence.

CHARGE:

Statement of Offence [a]

Count 1

REFUSE TO SELL GOODS UNLESS OTHER GOODS ARE ALSO PURCHASED: Contrary to Section 87E (1) (2) (3) and Section 129 (1A) of the Commerce Commission Decree 2010.

Particulars of Offence [b]

HANSONS FIJI LIMITED t/a HANSONS SUPERMARKET being a trader of Lot 4, Makoi, Nasinu in the Central Division did on the 26th day of August, 2011 refuse to sell Rewa Life Milk 1 Liter packet unless other goods are purchased on condition that $10 purchase of other goods for 1 pkt x 11t Rewa Life Milk, $20 to $30 purchase for 2 pkt x 11t Rewa Life Milk, $50 to $70 purchase for 4pkt x 11t Rewa Life Milk and $100 purchase for 8 pkt x 11t Rewa Life Milk.

3] Facts of the case are as follows. On the 26th of August, 2011 the Commerce received a complaint from a consumer one Mr. Azheem Ali that on 25th of August, 2011 he went to purchase 1 liter Rewa Life Milk from Hansons Supermarket situated at 4 Makoi Road, Nasinu but was prevented from buying the 1 liter Rewa Life Milk. He was told by one cashier that he will have to buy other goods from the Supermarket before he can be allowed to purchase the 1 liter Rewa Life Milk. The Commission Inspectors than on the same day (26.8.2011) conducted an investigation into the allegation where the company Director one Mr. Suresh Kant was interviewed and then warned for prosecution and the company summoned to appear in Court for refusing to sell goods unless other goods were also purchased.

4] On 11th January 2012 the Hansons Super Market Director Mr. Suresh Kant wrote a letter to this court. In that he said they did limit the sale of Rewa Life Milk as product supply was limited. The basic idea of this limitation is to cater EID festival of Muslims as Milk is basic ingredient in their celebration. By doing that he further stated they did not gain extra profit and this is sake of smooth running of EID celebration. Thus, like other Supermarkets they did not sell it first come first basis. In that letter, since issues like this, because they were raided and prosecuted, he said that hereinafter they will serve first come first basis without getting unnecessary troubles. This letter did not directly inform that the accused pleads guilty to the charge. But they admit that they had refused to sell Rewa Life Milk to particular customers for "smooth running of EID celebration". The ingredients of charge have been proved. I hold that this letter creates an admission of guilt. I therefore convict the accused as charged. I now proceed to sentence the accused.

5] The maximum fine under Section 129 (1A) of the Commerce Commission Decree, 2010 is $5,000.00 for the first offence.

6] I reproduce penal section for clarity. It says;

"129.-(1) 1) Subject to subsections (2) and (3), 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 an 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.'".

7] The accused company is a first offender.

8] The accused had explained the circumstance of the offending. They said that they refused to sell the product as product was limited in supply and to cater EID celebration smoothly. The detection was done on the complaint of Mr. Azheem Zli. Mr. Ali is a Muslim as court supposes and he went to purchase I litre Rewa Life Milk from the Accused's supermarket. But he was prevented from buying I litre Rewa Life Milk and he was told to buy other goods from the supermarket before he can be allowed to purchase the 1 litre Rewa Life Milk. This is not tally with the accused's reasoning. Being a Muslim that the complainant was prevented to buy just a one packet of Rewa and he was asked to buy other products which is an unfair trading practice. HANSONS FIJI LIMITED is holding a giant customer tale and by doing this they make huge profit by asking to buy another product to qualify to buy Rewa. This is not an acceptable practice at all. I therefore see no merits in reasoning or mitigation. Further Court notes that Rewa Life Milk is a necessary, high demanding product and customer was unfairly prevented by imposing such a condition. This creates very aggravating feature of this offence.

9] In mitigation, I consider that the accused pleaded guilty in writing at first opportunity. But, they did not show any remorse or apology of to the court or to customers, but tried to justify wrong as they tried to help the smooth running of EID celebration which is diabolic lie indeed. I therefore hold the sentence should be exemplary. This is the first offence committed by the accused. Early guilty plea and the progressive approach taken by the Company to save everyone's time are considered as mitigation. The Court should look the plight of customers and the profit that gained by the accused in the event of non detection.

10] in considering all circumstances, the accused, HANSONS FIJI LIMITED shall pay fine of $1000 for this offence. In default 100 days imprisonment (Directors of the company to be imprisoned as they depicted in the Company Register under the name of HANSONS FIJI LIMITED). Prosecution is asking for $34.50 cost and The Accused should pay that cost too. Therefore total amount should be paid by the accused is $1034.50.

11] Copy of this sentencing judgment is given to the prosecution to serve he accused and the accused shall pay this fine before next review date. (If they have not appealed against this order)

12] 28 day to appeal

On 14th February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu