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Fiji Commerce Commission v Ram [2012] FJMC 70; Criminal Case 290.2012 (3 May 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No: 290/12

FIJI COMMERCE COMMISSION

V

JAI RAM

Prosecution : Mr Vicky Chand (for FCC).
Accused : Appeared in person.

SENTENCE

1. You, Jai Ram is here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 24.04.2012, for committing the offence of;
   

Offered for Sale Price Control Items at Excessive Price: Contrary to Paragraph 6 (1) a & b of the Commerce (Price Control) (percentage Control of Prices for Food Items) (No. 1) Order 2010 (Legal Notice No 101) and Section 44(1), 49(1) (2) a & b, 52 (a), 132 (1) (2) and Section 129(1A) of Commerce Commission Decree, No 49 of 2010.

2. Having confirmed receiving full phase disclosures you elected to represent yourself.
   
3. Summary of Facts tendered by the Prosecution disclosed that, on 24.06.2011 at the time of the inspection by the officers of the FCC, you offered following items at New Kiwi's Minimart No 8 Disreli Road, Suva;
   

11 tins of Famers Corned Beef at $4.70 instead of $3.85 excess of $ 0.85 per tin,

10 tins of Oxford Corned Beef at $4.70 instead of $3.89 excess of $ 0.81 per tin,

09 tins of Famers Corned Beef at $2.80 instead of $2.25 excess of $ 0.55 per tin,

03 packs of Rewa Life Milk at $2.60 instead of $1.98 excess of $ 0.62 per pack

4. The aforesaid Summary of Facts was admitted by you on your own free will.
   
5. The Court convicted you for the offence you were charged with.
   
6. Section 129 of the Commerce Commission Decree outlines the penalties. The relevant subsections are:
   

(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 $5,000.00 for a first offence and $10,000.00 for a second or subsequent offence.

7. It is to be noted that the high level of maximum fine designates the seriousness of price control offences.
   
8. You have offered 33 consumer items at a higher price for sale.
   
9. His Lordship Justice Goundar in Bargain Box (Fiji) Ltd v Fiji Commerce Commission& <60; [2012] FJHC 1001; HAA001.2012 (30 March 2012) held 'Clearly, the act of selling or agreeing to sell a product above the fixed retail price gives ro a strict liability. Price control legislation ensures equs equitable returns for businesses while at the same time giving consumers a fair advantage over prices. The purpose of punishment for businesses who subvert price control goods is deterrence if the objective of the legislation is to be achieved'.
   
10. In mitigation, you stated to Court that you are 49 yrs old; married with one child; apologised for the offence; promised not to reoffend.
    
11. You stated that this offence was committed due to an act of your manager and you were not aware of this. I am not inclined to give consideration for this submission as it can be used as a genuine explanation or simply to 'get away' from the liability. A first offender will have much advantage from these types of excuses.
    
12. If a person had been previously charged and convicted for similar offences, he or she should be extra cautious at later occasions. One has to satisfy Court that the subsequent offence was committed despite all the precautionary measures initiated by him or her.
    
13. The Court observes that you have pleaded guilty before a full hearing of the case hence you are entitled for a concession.
    
14. You are not a first offender. You have two convictions for the offences of similar nature. Hence you are not entitled to the credit that is given to an offender with previous good character.
    
15. Having considered the facts above mentioned, Jai Ram I impose a fine of $ 2000 for the offence committed. In default 4 months imprisonment. Further a cost of $ 34.50 to be paid to the prosecution by the accused.
    
16. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

03rd May 2012