IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 365/12

FIJI COMMERCE COMMISSION

V

KALABO INVESMENT [LTD] trading as
SHOP N' SAVE SUPERMARKET

Prosecution : Mr. Lagilagi S, (for FCC).
Accused : Mr. Lateef S.

SENTENCE

1.	You are here today to be sentenced following the find of 'guilt' by this court on 13.12.2012, 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.	The facts elicited during the case disclose that, on 01.11.2011 at the time of the inspection by the officers of the FCC, you offered following items at Shop N Save Supermarket in Nabua;

•	22 packs of 1Kg Blue Peas (Own Pack) offered at $1.65 instead of $1.58 excess of 7c per 1Kg pack, and

•	15 packs of 2Kg Blue Peas (own pack) offered at $3.29 instead of $3.16 excess of 13c per 2Kg pack.

3.	The court convicts you for the offence on the findings given by its judgment dated 13.12.2012.

4.	Section 129 of the Commerce Commission Decree outlines the penalties. The relevant subsection states as follows,

(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.

5.	It is to be noted that the high level of maximum fine designates the seriousness of price control offences.

6.	At the time of the alleged offence it was found that you have offered 37 price controlled consumer items at a higher price for sale.

7.	His Lordship Justice Goundar in Bargain Box (Fiji) Ltd v  Fiji Commerce Commission  [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 rise to a strict liability. Price control legislation ensures 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'.

8.	In mitigation, your counsel submitted that it was not an intentional act to gain undue profit. He stated that the offence was committed during the Dewali season in 2011 when the accused supermarket attempted to cater their customers to avoid any shortfall of items. He said that being a large supermarket there is a higher possibility of having these types of human errors. Further he added that the previous conviction recorded in 2011 on another offence and it has no relation to this matter. 

9.	However the view of this court is that if a person had been previously charged and convicted for a similar offence, 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 been initiated by him or her. 

10.	The court observes that you have never been convicted for this offence during the past hence you are entitled for a concession. 

11.	 Having considered the above mentioned positions, the court imposes a fine of $ 1000 on the accused for the offence committed. In default 3 months imprisonment. Further a cost of $ 34.50 to be paid to the prosecution by the accused.

12.	Twenty eight (28) days to appeal.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

01st February 2013