IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 463/11

FIJI COMMERCE COMMISSION-PIB

V

NEW WORLD LIMITED

Mr. Sitiveni Raikanikoda for the Prosecution.
Ms. Radhika Sunila Naidu for the accused (Sherani & Co). 

Sentence

1] The Accused New World Limited is charged with following offence. 

CHARGE:
Statement of Offence [c]

HAVING FOR SALE PERCENTAGE CONTROL GOODS OF EXCESSIVE PRICE namely 20 x 380g Solomon Blue Curry Flakes at $3.10 instead of $2.67 the maximum price and such price being in excess of 43 cents per 380g tin, 20 x 2 liter OZ Corn Oil at $9.07 instead of $8.24 the maximum price and such being in excess of 83 cents per 2 liter, 20 x 5 liter OZ Corn Oil at $22.04 instead of $18.83 and such price being in excess of $3.21 per 5 liter, contrary to schedule 1 price of Commerce (Price Control) Percentage control for food items (No. 1) Order 2010 and Section 129 (A) of the Commerce Commission Decree No. 49 of 2010. 

Particulars of Offence [b]

NEW WORLD LIMTIED t/a New World Nakasi Supermarket being a trader did on the 6th day of November, 2010 at 9 miles, Tebara Plaza, Nakasi being having for sale 20 x 380g Solomon Blue Curry Flakes at $3.10 instead of $2.67 the maximum price, 20 x 2 liter OZ Corn Oil at $9.07 instead of $8.24 the maximum price, 20 x 5 liter OZ Corn Oil at $22.04 instead of $18.83 the maximum price.

2] When summons served the accused pleaded guilty in writing. The Nakasi Branch Manager, Mr Ramesh Chand pleaded guilty in writing and I accept it as unequivocal plea and convict the accused as charged. 

3] Facts of the case are as follows. A normal price control inspection was carried out at New World Supermarket, at Tebara Plaza, 9 Miles Nasinu by Commerce Commission inspectors on the 6th day of November, 2010. On that inspection, Officers revealed the trader was having for sale percentage control goods at excessive price. Those goods were namely 20 x 380g Solomon Blue Curry Flakes at $3.10 instead of $2.67 the maximum allowable price and such price being in excess of 43 cents per 380g tin, 20 x 2 liters OZ Corn Oil at $9.07 instead of $8.24 the maximum price and such price being in excess of 83 cents per 2 liters gallon, 20 x 5 liters OZ Corn Oil at $22.04 instead of $18.83 the maximum price and such price being in excess of $3.21 per 5 liters. The above breaches of overcharging on costing were brought to the attention of the Manager one Mr Dhirendra Chand. The Manager was also shown with the current Maximum Retail Price Control Order which he was not complying with. He was warned for prosecution, charged and summons to appear in Court. 

4] New World Supermarket Nakasi Branch is another new addition to its chain of supermarkets nationwide under the registration of New World Limited. This new branch has no previous conviction but the New World Limited Trading as New World Supermarket other branches has previous conviction. These are stated below:

•	Suva Criminal Case No. 133/03 PIB v New World Super Market, Sharlima Street, Overcharging on Percentage control items, fined $100.00, cost $33.75.

•	Suva Criminal Case No. 2776/04 PIB v New World Supermarket, Yatu Lau Arcade, Overcharging on price control items. Fined $350.00 with cost of $33.75.

5] 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.'".

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

7] There is nothing to consider in previous convictions of the different branches and only thing can be considered that the accused will not get any consideration for its previous good conduct. 

8] The accused explained the circumstance of the offending. They said that the price control came into effect from 6th November 2010 when the Fiji Commerce Commission (FCC) took over from the Price and Incomes Board. The price changes came on a number of items which needed store personnel to print and display the price tickets on the shelves within the short time. The alleged offence is said to have been committed on 6th November 2010, as per the Summary of Facts, but the Summons does not give the date of offending. Therefore summons is defective. The Company is an information technology enabled retailer which is using an advanced system to manage it prices. It has a fairly good integrated system for data management. All prices are managed centrally at the Head Office in Ba. The central price management team enters the notified prices in the system and pushes it to all the 21 stores of the Company around the country. The servers are connected to the POS System (Billing machine) and the centrally administered price automatically gets inscribed into the POS system. No one at the individual stores can change the prices kept on back end server kept at the individual stores. Due to the good integrated system for data management there is no chance of any human intervention in the process, and the only human effort at each store is where the store personnel takes out the price from the system and prints tickets for display on the shelf. The prices notified centrally are the one customer of the Company pays and all stores will have the same prices on their POS System once centrally pushed at any given time. There was a very short period of time given to make the physical changes to the prices and more staff personnel were needed to print and display the price tickets on the shelves with the short time. It could have been during this intervening period that the Inspectors would have visited the store and found the old price on the shelves, which was in the process of being changed. Therefore they said that it is very unusual that the price control was with effect on 6th November 2010, and the FCC states that the same date the Inspectors came for inspection and the detection was done.

9] In Mitigation the accused said that they pleaded guilty in writing at first opportunity. They showed remorse and apologized the lapse of changing prices. This is the first offence committed by Nakasi Branch. Early guilty plea and the progressive approach taken by the Company have saved everyone's time. The date of offending is not stated in the summons. 
10] Therefore the accused seeks the dismissal of charge under section 15(j) of the Sentencing and Penalty Decree without recording a conviction. Alternatively they seek to pay a fine with or without recording a conviction under section 15 (f) of the said Decree. 

11] I first deal with the non availability of date of offence in the summons. It should be noted that all particulars are given except the date of offence. The accused pleaded guilty at first instance in writing and he has not mentioned that he was misled by not giving the date of offence. In common law jurisdictions, the defects of charge, objection for jurisdiction are to be taken before plea at the very outset that means at the time of accusation not thereafter. If those objections were not taken at the proper time, it is deemed to be waived. Thus, this objection cannot be sustained or taken as mitigation factor. There is no weight in this submission. I therefore suppress it. 
 
12] As I note in the summary of facts, this branch is a new branch for New World family. The accused's counsel said that all prices are managed centrally at the Head Office in Ba. Therefore central price management team enters the notified prices to the system. They said they have 21 branches throughout the country. It means that items were sold at excessive price at the time of detection around the country in all branches. The customers pay excessive prices for these items and Company generated huge unlawful gain by this act. All this items are high demanding items by the public and it is obvious that they generated huge profit on them. 

13] The accused said the price control came with effect from 06th November 2010 and detection is also done on the same date. This is not reasonable excuse and these types of price control are well ahead notified by the Fiji Commerce Commission at lease before 3 days. Thus, change of new price has to be done by the central price management unit accordingly and promptly. Failure to do this is not a valid excuse for this offence. At least for one hour, by no doing that, they generate huge profit around the country. I therefore hold the sentence should be exemplary. The Court should look the plight of customers and the profit that gained by the accused in the event of non detection. Therefore, I do not wish to record a non conviction as the accused sought. 

14] The accused, New World Company Limited shall fine of $2000 for this offence. In default 200 days imprisonment (Directors of the company to be imprisoned as depicted in the Company Register under the name of New World Company Limited). Prosecution is asking for $34.50 cost and The Accused should pay that cost as well. Therefore total amount should be paid by the accused is $2034.50. 

15] 28 day to appeal 

On 24th October 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate