Megahock Pipes & Profile Manufacturing v Tenaga Nasional Berhad (J-02(NCVC)(W)-2022-10/2018 & J-02(NCVC (W)-1966-09/2018)

On the issue of trespass, I find that the Plaintiff had not proven its case, 15 as the Defendant had had a lawful purpose and had entered the factory premises to carry out their statutory duties under the Electricity Supply Act 1990. There was no force or damage involved, and I do accept that the element of surprise was quite necessary under the circumstances, which did in fact result in the detection of a non-permanent tampering of 20 the mechanism for the recording usage and/or consumption of electricity.” We have perused the evidence of PW4, Mohd Nasrul Hisham bin Mat Ruf, an engineer with TNB given in cross-examination and re-examination of PW4. According to him, the inspection was conducted at 25 Megahock’s factory on 23/9/2014 at about 2.15 am. We find there is no reason to disturb the finding of fact of the learned JC that the SEAL team was armed with a search warrant as it is supported by the testimony of PW4. Hence, we find there is no reason to disturb the learned JC’s finding on trespass. 30 On the issue of tampering, the learned JC has stated, among others, in his Grounds of Judgment- 4 “8. The inspection team had found a device which was called a “clamp” 5 attached, or rather, “plugged-in” to the bottom of the Test Terminal Block (“TTB”) and held or wedged in place with a short PVC pipe between the TTB and the ground. The clamp was little more than an improvised plug-in device to by-pass the circuitry in the normal flow of electricity comprised in the TTB. 10 9. The bottom cover of the TTB had apparently been reversed, shifted or realigned in such a way as to open up holes or spaces to allow for the clamp to be inserted through those holes/gaps presented, which purpose was to create a by-pass and thwart the correct recording of the actual usage or consumption of electricity passing through the TTB. 15 …

This had constituted a tampering which would be unlawful and regulated under the provisions of Section 37(1), (3) and (14) of the Electricity Supply Act 1990.” 20 The learned JC had pointedly at the trial (re-examination stage) posed the following question to SP3, Ahmad Syahir bin Iswaidi, TNB juruteknik at p.282 lines 5-16 “Ikatan Teras Bersama (Jilid 2)”: “YA: Encik Syahril, kalau Clamp atau PVC Pipe tu tak jumpa, boleh ke bukti apa-apa? Ada usikan ka, boleh dibukti dari kejanggalan 25 pembacaan meter? SP-3: Tidak boleh. Kerana nilai Amp pada meter tersebut dalam keadaan normal. Kemudian ekuidisi (sic) meter tersebut juga dalam keadaan normal. Kalau ikut, mengikut keputusan dalam borang pemeriksaan, 30 muka surat 1, semasa clamp tersebut ada pada TTB, saya sebutkan purata untuk ekuidisi (sic) meter tersebut iaitu kejituan meter -88.08 dan apabila kita menanggalkan clamp tersebut kejituan meter tu menjadi 0.28%. 35 5 YA: Kalau pelekat pada meter koyak adakah itu satu kesalahan kalau tak 5 nampak clamp, tak nampak benda lain, ada bukti usikan, tapi pelekat itu tak sempurna rupa dia, dikoyak atau diusik. Boleh kah itu menjadi satu kesalahan tanpa ada bukti clamp atau yang lain? SP-3: Tidak.” 10 (Emphasis added) We find there is no reason to disturb the finding of facts with regard to tampering made by the learned JC as these findings are supported by evidence. 15 We therefore find there are no appealable errors in respect of the learned JC’s finding in respect of the issue of liability. Appeal 1966 20 On the issue of quantum, with respect we disagree with the learned JC in reducing TNB’s claim to a 3 year period and awarding damages in the sum of RM2,392,287.25. In our judgment the calculation for the loss of revenue is as submitted by TNB in that the computation for loss of revenue is calculated based on an estimation and the Guideline by the 25 Energy Commission. Hence the method of calculation is that prepared by PW5 based on average consumption for 92 days from 1/10/2014 until 1/10/2015 and duly certified by PW6 as a fair, acceptable and reasonable method and the period claimed is for 5 years for the period of 23/9/2009 until 23/9/2014 in accordance with the Energy Commission 30 Guideline. 6 (See Tenaga Nasional Bhd v. Ichi-Ban Plastic (M) Sdn Bhd & Other 5 Appeals [2018] 3 CLJ 557 at 590 [86]) Consequently, we make the following orders:

Appeal 2022 is dismissed with costs of RM50,000.00 and the decision of the High Court dated 26/8/2018 is hereby affirmed; and 10

Appeal 1966 is allowed with costs of RM20,000.00 to the extent that the Order of the High Court dated 26/8/2018 allowing TNB’s claim for the amount of RM2,392,287.25 is substituted with a sum of RM3,987,145.42.

Costs is subject to payment of allocatur. 20