Kk Satu Hartanah Sdn. Bhd. v Tenaga Nasional Berhad (WA-12BNCvC-6-01/2023)

In the law reports can be found many suits filed by Tenaga Nasional Berhad [“TNB”] against consumers for stealing electricity by tampering with the meter recording usage.

It would appear there is not much deterrent against such behaviour as the civil liability of the errant consumer, if sued by TNB under Section 38 (3) of the Electricity Supply Act 1990 (Act 447) [“Electricity Supply Act”], is merely to pay for the undercharged usage. Parliament should look at amending Section 38 (3) to increase the damages that such consumer should be required to pay to TNB.

In the appeal before me, TNB has sued the defendant in the Sessions Court under Section 38 (3) of the Electricity Supply Act for payment of RM 365,972.40 for the value of electricity stolen due to the tampering of the meter recording the electricity consumption in a premise. [“Meter”].

The suit is for stealing electricity by directly connecting the electricity supply without going through the meter. [See Enclosure 24 Respondent’s Written Submissions dated 12-06-2023 at paragraph 1].

This appeal thus allows me to review the state of the law in respect of the statutory right of TNB to sue a consumer under Section 38 (3) of the Electricity Supply Act. S/N JageYhKYkyVxieare8Daw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

Section 38 (3) of the Electricity Supply Act reads as follows - The licensee may require the consumer to pay him for the loss of revenue due to the offence committed under Subsections 37(1),

and (14) and any reasonable expenses directly incurred by the licensee under this section including expenses incurred in respect of reconnection of electricity in the manner as have been directed by the Commission: … [Emphasis added] [7] Under Section 2 of the Electricity Supply Act “consumer” means a person who is supplied with electricity or whose premises are for the time being connected for the purpose of supply of electricity by a supply authority or a licensee. [8] The defendant denies the existence of a contract with the plaintiff on the ground that the defendant is not the registered user or customer of the plaintiff at any point of time. The defendant counter claimed against the plaintiff for wrongful trespass and damages. [See Enclosure 26 Appellant’s Written Submissions dated 13-09-2023 at paragraphs 4, 26 and 27]. [9] The Learned Sessions Court Judge heard the full trial on 16-06-2022, 06-07-2022 and 07-07-2022. He delivered decision on the 27-12-2022 and allowed the plaintiff's claim for RM 365,972.40 with interest and cost of RM 20,000.00. He also dismissed the defendant's Counterclaim with cost of RM 18,000. [See Order of Court in Enclosure 3 Appeal Record pages 18 - 19]. S/N JageYhKYkyVxieare8Daw [10] The defendant appealed against the entire decision to me. The Sessions Court Judge’s Grounds of Decision can be seen in Enclosure 7 Additional Record of Appeal. [11] On 27-09-2023 I dismissed the appeal with costs of RM 20,000. The defendant has filed an appeal to the Court of Appeal. These are my Grounds of Decision. The parties will be referred to as they were in the Sessions Court. The plaintiff’s pleaded case in the Statement of Claim [Enclosure 3 pages 26 to 31] [12] At the request of the defendant, the plaintiff has agreed to supply electricity to the defendant under a supply agreement as provided under the Electricity Supply Act. [See Appeal Record Volume 2 page 516]. [13] The electricity was supplied to the premises at No. 9-1, Jalan LEP 1/1C, Taman Lestari Putra, 43300 Seri Kembangan, Selangor [“Premises”]. [See Appeal Record Volume 2 page 517]. [14] The defendant is the registered user for the Premises via User Account No. 6132 210044854909. The business conducted on the Premises is Bitcoin. [See Appeal Record Volume 2 page 487]. [15] On 21-05-2020 the plaintiff through their employees / workers had conducted an investigation on the meter at the premises without the presence of the defendant and observed that there are elements of S/N JageYhKYkyVxieare8Daw tampering, adjustment and / or disturbance and / or modification and / or damage to the Meter. [“Tampering”] [See Meter Inspection and Testing Form dated 21-05-2020 in Appeal Record Volume 2 page 487]. [16] The Tampering to the Meter is an offence under Section 37[1], 37[3] and 37[14] of the Electricity Supply Act. [17] Based on investigations, the plaintiff calculated the usage of electricity that was not recorded from 19-09-2018 to 21-05-2020 is RM 365,972.40. The plaintiff claims this sum from the defendant. The defendant’s Defence and Counterclaim [Enclosure 3 pages 34 to 47] [18] The defendant pleaded that the plaintiff has no valid and enforceable contract to supply electricity to the defendant and the defendant is not the registered user or customer of the plaintiff’s at any point of time in the Premises. [19] The defendant alleges the Premises has been rented by the defendant to a tenant Yap Wai Hong (“Tenant”) since 15-09-2018. [See Defence and Counterclaim paragraph 5]. [20] In its Counterclaim the defendant alleges that the plaintiff has supplied electricity to the Premises without its consent. [See Defence and Counterclaim paragraph 34]. S/N JageYhKYkyVxieare8Daw [21] In its Counterclaim the defendant also alleges that the plaintiff has conspired with the Tenant to misuse the Premises. [See Defence and Counterclaim paragraph 35]. [22] In its Counterclaim the defendant further alleges that due to the negligence of the plaintiff, the defendant was not able to rent or sell the Premises. [See Defence and Counterclaim paragraphs 42 to 45]. [23] The defendant counterclaimed for losses and damages of RM 1,075,000. [See Defence and Counterclaim paragraphs 46 and 47]. Judgment of the Sessions Court on the claim by the plaintiff [24] The Sessions Court judge heard the witnesses and in a detailed 37 - pages Grounds of Decision set out his reasons to rule in favour of the plaintiff. Judgment of the Sessions Court on the Counterclaim by the defendant [25] The Sessions Court dismissed the Counterclaim on the ground the defendant failed to prove its case. In particular, the learned judge held that the defendant’s main witness SD1 has no personal knowledge at all as SD1 was not at the Premises when the inspection was conducted by the plaintiff’s staff. [See Grounds of Judgment paragraphs 48 – 52] [26] The learned judge also held the defendant failed to call as a witness their Tenant and invoked Section 114 illustration [g] of the Evidence S/N JageYhKYkyVxieare8Daw Act 1950 adverse presumption against the defendant. [See Ground of Judgment paragraphs 53 - 56]. [27] The learned judge further held the defendant failed to lodge a police report that the plaintiff’s staff and their Tenant have conspired to defraud the defendant. This shows the allegation by the defendant that the plaintiff’s staff has conspired with their Tenant to misuse the Premises is not credible. [See Grounds of Judgment paragraph 66]. [28] On the special damages claimed in the Counterclaim, the learned judge held the defendant failed to produce any documents at all to support the quantum. [See Grounds of Judgment paragraphs 67 - 68]. Issues before me Appeal by defendant against judgment [29] In the appeal before me the defendant raised the following three [3] grounds why the appeal against judgment should be allowed - i. There is no contract between the plaintiff and the defendant and the defendant categorically denied signing the undated electricity application form that is in Part C of Agreed Bundle of Documents. [See Enclosure 26 Appellant’s Written Submissions paragraphs 7.1 and 49.3]. ii. The plaintiff failed to tender the purported wires alleged in the Meter Tampering as evidence. [See Enclosure 26 Appellant’s Written Submissions paragraph 50.3]. S/N JageYhKYkyVxieare8Daw iii. The plaintiff failed to prove the claim of RM 365,972.40 for the usage of electricity that was not recorded from 19-09-2018 till 21-05-2020. [See Enclosure 26 Appellant’s Written Submissions paragraph 51]. Appeal by defendant against the dismissal of its Counterclaim [30] In the appeal before me against the dismissal of its Counterclaim the defendant raised the following five [5] grounds – i. The evidence given by SD1 is not hearsay evidence. [See Enclosure 26 Appellant’s Written Submissions paragraph 52]. ii. Presumption of adverse inference under Section 114(g) Evidence Act 1950 was wrongly invoked against the defendant for failing to bring the Tenant to give evidence. [See Enclosure 26 Appellant’s Written Submissions paragraph 53]. iii. It is not proven that the application for electricity supply to the defendant’s Premises was a bulk application made by the Developer. [See Enclosure 26 Appellant’s Written Submissions paragraph 54]. iv. There is negligence in the plaintiff’s taking care of the feeder pillar and distribution box of the Defendant’s Premises. [See Enclosure 26 Appellant’s Written Submissions paragraph 55]. v. The Sessions Court is wrong to hold there is no document in support of the defendant’s Counterclaim. [See Enclosure 26 Appellant’s Written Submissions paragraph 56]. S/N JageYhKYkyVxieare8Daw Analysis of the Court Appeal by the defendant against judgment [31] I begin with the appeal by the defendant against judgment. The Law on a claim by Tenaga Nasional Berhad against a consumer under Section 38 (3) of the Electricity Supply Act [32] It is now settled law that in a claim by Tenaga Nasional Berhad under Section 38 (3) of the Electricity Supply Act against a consumer, as defined under Section 2 of the Electricity Supply Act, all that TNB needs to do is to prove the following four requirements on a balance of probabilities :-

TNB is a licensee under the Electrical Supply Act 1990.

The consumer is TNB’s registered consumer of electricity supplied to the premises.

Its meter at the premises had been tampered with, making it impossible to record the amount of electricity that was supplied to the premises for the period claimed; and

The tampering caused it to suffer loss of revenue in the sum claimed for the period claimed. S/N JageYhKYkyVxieare8Daw [See Thomas Thomas @ Mohan A/L K Thomas v Tenaga Nasional Berhad [2018] 5 MLJ 831 CA Abdul Rahman Sebli JCA at [26]] [33] All four requirements are essentially questions of fact. The principle in appellate intervention on such findings of fact is well settled, that an appellate court will be slow to interfere with such findings unless it can be shown that no reasonable tribunal properly appraised of the facts and the law would have arrived at such conclusion. [See Thomas Thomas at [27 - 28]]. [34] As long as the defendant is TNB’s registered consumer of electricity supplied to the premises, it is not a defence that he is not the consumer of the electricity and that the electricity charges were incurred by his tenant. [See Thomas Thomas at [8]]. [35] TNB is only obliged to prove that its meter at the premises had been tampered with. TNB need not prove the identity of the person who tampered with the meter for the purposes of a claim under Section 38(3) - (5) of the Electrical Supply Act. TNB is also not required to prove that it is the defendant i.e. registered consumer who tampered with the meter. Section 38(1) speaks of ‘an offence has been committed’ and not ‘an offence has been committed by the registered consumer’. [See Thomas Thomas at [11 and 13] and Tenaga Nasional Bhd v Asia Knight Bhd [2018] 5 CLJ 227 CA Vernon Ong Lam Kiat JCA at [12]]. S/N JageYhKYkyVxieare8Daw [36] However, the registered consumer is not without a remedy. His recourse is to bring in his tenant who used the electricity and / or the person who tampered with the meter as a third party for indemnity. [See Thomas Thomas at [23]]. Grounds relied on by the defendant for its appeal against judgment. [37] I now examine the 1st ground relied on by the plaintiff for its appeal against judgment. 1st Ground - There is no contract between the plaintiff and the defendant and the defendant categorically denied signing the undated electricity application form that is in Part C of Agreed Bundle of Documents. [See Enclosure 26 Appellant’s Written Submissions paragraphs 7.1 and 49.3] Defendant’s Case [38] The defendant alleges they did not apply for electricity supply from the plaintiff. The defendant also alleges they have rented the Premises to the Tenant from 15-09-2018 to 31-10-2020. [See Appeal Record Defence and Counterclaim page 35 at paragraphs 3 and 5] Plaintiff’s case [39] SP7 for the plaintiff, Normala Osman a Customer Executive at the plaintiff’s branch at Puchong, has testified that she processed an S/N JageYhKYkyVxieare8Daw application from the defendant for electricity supply to the Premises in February 2017. [See Witness Statement Q and A 11 to 39 in Appeal Record pages 372 - 379] [40] The application asked for electricity supply to the Premises by 07-03-

[See Details of Premise at paragraphs (a) and (e)) in Appeal Record page 169] Analysis of the Court [41] The Sessions Court after hearing the witnesses in particular SP7 and SD1 believed the testimony of SP7 based on the documents produced in court. [See Ground of Judgment paragraphs 22 - 27] [42] The finding of the Sessions Court is a question of fact. The principle in appellate intervention on such findings of fact is well settled, that an Appellate Court will be slow to interfere with such findings unless it can be shown that no reasonable tribunal properly appraised of the facts and the law would have arrived at such conclusion. [See Thomas Thomas at [27 - 28]] [43] I have no reason to interfere with the finding of fact of the Sessions Court. I have perused the documents referred to in the testimony of SP7. They cumulatively show that the defendant applied to the plaintiff for electricity supply and is TNB’s registered consumer of electricity supplied to the Premises for the purposes of Section 38 (3) of the Electricity Supply Act. The documents show – S/N JageYhKYkyVxieare8Daw i. The defendant is the purchaser of the Premises i.e. Lot 11009. [See Supplemental Agreement between Menta Construction Sdn Bhd and The Nominated Purchasers as per appendix I dated 15- 04-2014.[See Appeal Record pages 448 at 452 No. 4] ii. Menta Construction Sdn Bhd in a letter to the plaintiff dated 26-04- 2017 informed that the defendant is the registered owner of the Premises i.e. Lot 11009. [See Appeal Record page 454 at No. 19] iii. A copy of the identity card of Wong Choong Sun, SD1 who is the Managing Director of the defendant, was attached for the plaintiff’s perusal. [See Appeal Record page 454] iv. The defendant filled in a Letter of Authorization for the Application of Electricity Supply addressed to the plaintiff. The letter was dated 27-02-2017, signed by the defendant and have the defendant’s chop. [See Appeal Record page 516] v. The form for Application for electricity supply was duly filled. The form states the applicant is the defendant, the address for supply is the Premises and the supply required date is 07-03-2017. [See Appeal Record page 517] vi. Form G Supervision and Completion Certificate dated 22-02-2017 was issued under the Electricity Supply Act by a contractor to the plaintiff certifying that works for the electricity supply as requested by the defendant were completed. [See Appeal Record page 518] S/N JageYhKYkyVxieare8Daw vii. Form H Test Certificate dated 22-02-2017 was issued under the Electricity Supply Act by a contractor to the plaintiff certifying that the electricity supply as requested by the defendant was safe to be used. [See Appeal Record page 520] viii. A tax invoice for RM 2910 was issued by the plaintiff to the defendant to pay for the installation of electricity. [See Appeal Record page 522] Allegation by the defendant that they didn’t sign the application forms [44] The defendant alleges that SD1 didn’t sign the Letter of Authorization for the Application of Electricity Supply addressed to the Plaintiff. This letter was dated 27-02-2017, have a signature of SD1 and have the defendant’s chop. [See Appeal Record page 516] [45] The defendant also alleges that SD1 didn’t sign the form for Application for electricity supply. The form states the applicant is the defendant, the address for supply is the Premises and the supply required date is 07-03-2017. [See Appeal Record page 517] [46] In my view, the defendant has failed to prove its allegation. The burden is on the defendant under sections 101 and 102 of the Evidence Act

[See International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 at 87 FC]. Allegation that the contract with the plaintiff was signed by the Tenant and not the defendant. S/N JageYhKYkyVxieare8Daw [47] The defendant contends that the Premises has been rented by the defendant to their Tenant since 15-09-2018. [See Defence and Counterclaim paragraph 5] [48] The defendant has failed to produce evidence that their contract with the plaintiff to supply electricity has been terminated and a new contract with the plaintiff entered by their Tenant. [49] The plaintiff has produced electricity bills for the period 18-04-2018 to 20-05-2020. They were all issued in the name of the defendant. [See Appeal Record pages 666 to 691]. These bills show electricity was supplied to the defendant – based on the defendant’s application for electricity - 5 months before the alleged tenancy with the Tenant which the defendant says commenced on 15-09-2018. [See Defence and Counterclaim paragraph 5] [50] All these bills from 18-04-2018 to 20-05-2020 show payments were made by the defendant. [See Appeal Record pages 666 to 691]. The defendant can’t run the argument someone generously paid on their behalf. Contention that the undated electricity application form is in Part C of Agreed Bundle of Documents [51] The defendant contends the court cannot refer to this document as it’s a Part C document. I reject this ground. Just because a defendant refuses to accept a document as Part B purely to frustrate the case against him does not mean the Court is powerless. The Court has power to admit a Part C document if satisfied under Section 73A(2) of S/N JageYhKYkyVxieare8Daw the Evidence Act 1950. [See Bank of Tokyo-Mitsubishi (Malaysia) Bhd v Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 HC and Kubota Agricultural Machinery Sdn Bhd v Sharizan Sdn Bhd & Anor; Sharizan Sdn Bhd & Ors (Third Parties) [2001] 6 CLJ 104 HC]. [52] In Bank of Tokyo-Mitsubishi (Malaysia) Bhd v Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 HC the Court said - ...At that stage of the proceedings, all those documents have to be marked as "ID" first, but it does not stop the court from deciding on their admissibility at the end of the trial ie, during submissions stage. Section 73A(2) of the Evidence Act 1950 empowers the court to do so. The said subsection provides for the exercise of the power "at any stage of the proceedings, having regards to all the circumstance of the case". There is nothing to say that those documents cannot be admitted as evidence under s. 73A(2) just because they have only been marked as "ID". [Emphasis added] [53] SP7 for the plaintiff, Normala Osman a Customer Executive at the plaintiff’s branch at Puchong, has testified that she processed an application from the defendant for electricity supply to the Premises in February 2017. [See Witness Statement Q and A 11 to 39 in Appeal Record pages 372 - 379]. [54] I am satisfied the documents referred to by SP7 are admissible. S/N JageYhKYkyVxieare8Daw [55] In conclusion, I dismiss the 1st ground of the defendant. 2nd Ground – the plaintiff failed to tender the purported wires alleged in the Meter Tampering as evidence. [See Enclosure 26 Appellant’s Written Submissions paragraph 50.3]. Plaintiff’s case [56] The plaintiff contends that on 21-05-2020 the plaintiff’s employees / workers had conducted an investigation on the Meter at the Premises without the presence of the defendant and observed that the Meter has been Tampered with. The defendant’s case [57] The defendant denies tampering the Meter. Instead the defendant alleges the plaintiff’s staff has conspired with their Tenant to tamper with the Meter. [See Defence and Counterclaim paragraph 35] Analysis of the Court The law on assessment by a court of the credibility of an oral allegation [58] In my view, when a trial judge has to choose whether an oral allegation should be believed, the correct approach is to consider the testimonies of all the witnesses and analyse whether the oral allegation is consistent with the said person’s past conduct, past acts as well as the contemporaneous documents. The objective is to test whether the oral S/N JageYhKYkyVxieare8Daw allegation is consistent with the factual matrix and so should be accepted by the trial judge. [See YYT Import & Export Sdn Bhd v Lo Swee Ling [2023] 5 MLRH 622 HC citing Nuri Asia Sdn Bhd v Fosis Corporation Sdn Bhd [2006] 5 CLJ 307 & [2006] 2 MLRH 166 HC] [59] This is what Low Hop Bing J said in Nuri Asia Sdn Bhd v Fosis Corporation Sdn Bhd [2006] 5 CLJ 307 & [2006] 2 MLRH 166 – [13] In my judgment, the issue herein revolves around the existence or otherwise of an oral guarantee. The first step towards the resolution of this issue is to determine the burden of proof. [14] Section 101 of the Evidence Act 1950 provides as follows: 101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. [15] As the plaintiff desires this court to give judgment as to the legal right or liability, dependent on the existence of facts which he asserts in relation to the existence of an oral guarantee, the plaintiff must prove that those facts exist, in accordance with s. 101(1). Under s. 101(2), the burden of proof lies on the plaintiff (see also MBf Finance Bhd, supra, and Tenaga Nasional Berhad S/N JageYhKYkyVxieare8Daw (Formerly Lembaga Letrik Negara Tanah Melayu) v Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn. Bhd.) [1995] 4 CLJ 670 HC). [16] As this is a civil case, the burden of proof may be discharged by the plaintiff on a balance of probabilities i.e., that the plaintiff's version is probably true. [17] The evidence adduced by the parties respectively pertaining to the existence or otherwise of an oral guarantee is sharply conflicting. I therefore follow the safer approach set out by Chang Min Tat FJ (as he then was) for the Federal Court in Tindok Besar Estate Sdn Bhd, supra, ie, to refer to and rely on the witness' acts and deeds which were contemporaneous with the event and to draw reasonable inferences from them, adding that judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and circumstances of the case, and that plausibility should never be mistaken for veracity. [18] The above approach was also applied by James Foong J (now JCA) in Industrial Concrete Products, supra. [19] For this purpose, the police report lodged by SP1 may be used to determine the probability and plausibility of his oral evidence. The importance of a police report in providing evidence of what had actually transpired was stressed by Abdul Malik Ishak JC (now J) first in Mohd Tajuddin bin Salleh, supra, and then in Abdul Kadir bin Mohamad, supra. S/N JageYhKYkyVxieare8Daw [Emphasis added] Application of law to facts [60] I find the allegation by the defendant that the plaintiff’s staff has conspired with their Tenant to tamper with the Meter is weird and frivolous. The defendant never called their Tenant to testify. No motive has been offered as to why the plaintiff’s staff and the defendant’s Tenant would want to frame the defendant. [61] If the defendant’s allegation is indeed true, it is strange they never sued their Tenant or the plaintiff’s staff in its Counterclaim filed in this suit. Neither did the defendant file for indemnity proceedings against their Tenant or the plaintiff’s staff. No police report lodged by defendant in support of oral allegation of conspiracy. SD1 admitted he has no proof of the alleged conspiracy [62] The importance of a police report in providing credible evidence in support of an oral allegation was stressed by Abdul Malik Ishak JC first in Mohd Tajuddin Salleh v Mokhari Murgis & Anor [1993] 2 MLRH 172 at [16]; [1993] 3 CLJ 42 at [16] and then in Abdul Kadir Mohamad v Kamarulzaman Mohd Zin & Anor [2000] 4 MLRH 239; [2001] 5 CLJ 249; [2001] 1 AMR 599. [63] In the trial before the Sessions Court, SD1 Wong Choong Sun who is the Managing Director of the defendant admitted, firstly, he never lodged any police report alleging that the plaintiff’s staff has conspired with their Tenant to tamper with the Meter to frame the defendant. S/N JageYhKYkyVxieare8Daw Secondly, he admitted he has no proof of the alleged conspiracy. These are his admissions - PP: Alright. So itu adalah kecuaian Plaintif. Mr. Wong, soalan 57, you ada bagitahu Mahkamah bahawa terdapat dua laporan polis yang telah dibuat oleh Defendan. Betul? SD1: Betul PP: Setuju dengan saya tidak ada laporan polis yang dibuat berkenaan dengan Plaintif bersubahat dengan penyewa dan menyalahgunakan premis. Setuju? SD1: Betul. PP: Tidak ada laporan polis ya yang dibuat? SD1: Betul … PP: Setuju ke tidak Mr. Wong tidak ada bukti untuk tunjukkan Plaintif telah subahat dengan penyewa. Setuju atau tidak sahaja Mr. Wong? SD1: Setuju. [Emphasis added] [64] Further, the Sessions Court judge after hearing the witnesses in particular SP1 [See Witness Statement Q and A 25,27,33, 36 - 39, 67 - 69, SP2 and SP3 [See Witness Statement Q and A 9 and 10] and seeing the pictures of Tampering of the Meter produced in court [See S/N JageYhKYkyVxieare8Daw Appeal Record page 491 - 515] has believed the plaintiff. [See Ground of Judgment paragraphs 29 - 36]. [65] The law only requires the plaintiff to show on the totality of the evidence, that the meter was tampered on the balance of probabilities. [See Tenaga Nasional Bhd v Asia Knight Bhd Vernon Ong Lam Kiat JCA at [11]]. [66] The finding of the Sessions Court that there is Tampering of the Meter is a question of fact. The principle in appellate intervention on such finding of fact is well settled, that an Appellate Court will be slow to interfere with such finding unless it can be shown that no reasonable tribunal properly appraised of the facts and the law would have arrived at such conclusion. [See Thomas Thomas at [27 - 28]]. [67] Further, the Federal Court in Tenaga Nasional Bhd v Evergrowth Aquaculture Sdn Bhd & Other Appeals [2021] 9 CLJ 179 FC said - [70] In our view, the question of irrebuttable or rebuttable presumptions does not arise insofar as sub-s. 38(1) of the ESA 1990 is concerned. This is simply an inference that can be logically drawn from established fact. There is a rational relationship between the discovery of metal clamp and the inference to make that the customer caused the diversion to prevent full registration, reading and/or recording of electricity consumption by the meter. The fixing of a metal clamp at the test terminal block of TNB’s meter leads to one logical conclusion that the meter had been S/N JageYhKYkyVxieare8Daw tampered with. The law of evidence recognises an abundance of inculpatory evidence and/or circumstances that leads to a single logical conclusion. It simply meant that the court is required to make logical inference and to attribute meaning to the evidence. [71] We accept the submission of learned counsel for TNB that it is common knowledge that TNB installs a meter to record the electricity consumption of its consumers. The readings of the meter will determine the electricity charges to be paid by the consumers to TNB. [72] These metal clamps are not part of TNB’s meter. It is irrefutable that the function of the metal clamp is to circumvent and/or interfere with the actual reading or recording of the electricity consumption by TNB’s meter. The use of a metal clamp is intended to be a non-permanent form of tampering with TNB's meter, as it is easily removed to avoid detection. [Emphasis added] [68] The High Court decision in Tenaga Nasional Berhad v Api-Api Aquaculture Sdn Bhd [2015] 1 LNS 65 by Wong Kian Kheong JC does not assist the defendant. In Api-Api, Justice Wong found there was no evidence the meters have been tampered with. This can be seen from what Justice Wong said - S/N JageYhKYkyVxieare8Daw Based on the evidence adduced in this case, I find that the Plaintiff has failed to prove on a balance of probabilities ... This decision is based on the following reasons:

SP1 and SP3 had only examined the Meters at the Premises. After the Plaintiff's Team had taken the Meters from the Premises on 16.1.2007, no evidence was adduced by the Plaintiff in respect of any electronic, mechanical or technical testing of the Meters to prove tampering of the Meters. The Plaintiff as a licensee under ESA has the necessary experts, equipment and resources to examine the Meters electronically, mechanically or technically to confirm that the Meters have been tampered with; …

The Defendant has invited this court to draw an adverse inference under s. 114(g) EA against the Plaintiff for the non-production of the clamp. The Plaintiff's Team could not find the clamp at the Premises and could not therefore adduce it as evidence. Accordingly, based on Munusamy, there is no suppression of the clamp by the Plaintiff so as to attract an adverse inference under s. 114(g) EA for its non-production. [Emphasis added] [69] At the trial before the Sessions Court, SP1 has testified that the pictures show the tampering of the wire supplying electricity to the Premises. His witness statement Q and A 69 states [See Appeal Record page 310] - S/N JageYhKYkyVxieare8Daw S69: Sila lihat pada gambar di mukasurat 165 IDB. Sila terangkan berkenaan gambar-gambar tersebut. J69: Gambar bahagian atas menunjukkan pendawaian terus pada Distribution Box telah ditanggalkan. Manakala gambar bahagian bawah menunjukkan kabel sambungan terus yang telah ditanggalkan daripada Distribution Box di dalam premis no. 9-1 milik Defendan. [70] The photos of the Tampering can be seen in Appeal Record page 497. [71] On the issue of tampering of a meter, the Court of Appeal in Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd [2015] 3 MLJ 268 & [2015] 1 CLJ 400 CA said – [15] This case concerned electricity supply. We bear in mind:

Electricity is unlike fuel oils supplied in fixed quantities according to order, such that the quantity bought and supplied is clearly determined by delivery orders and invoices.

Other than the cables and switchgear by which it is supplied, it is invisible.

The bottom line remains that a consumer pays, in common language, for the quantity of electricity consumed.

That quantity is determined by a meter, installed necessarily in the premises of the consumer.

If the meter is tampered with, the recording would not reflect the actual quantity of electricity consumed.

Even if the meter is placed in a room that is kept locked, someone may still access it or intercept the electricity cables before reaching and thereby bypassing the meter. [16] The High Court did not err in applying common sense to hold that giving notice before an inspection makes the inspection an act of futility. Further, once tampering is established, the party who did so is, upon a balance of probabilities, the consumer who pays the electricity bill. Who else would gain by doing so? The arguments as to who actually used the electricity, and the giving of notice before an inspection, are arguments with no merit, and probably only to lead the trial astray from focusing on the relevant issues. Likewise, the argument that electricity bills had been regularly paid as billed every month. What difference does that make as the meter reader merely read what the meter shows. It does not preclude that the meter was not recording actual consumption. The germane question is how to determine the amount of electricity consumed when a meter has been tampered not to read it or to read it correctly. [Emphasis added] [72] In conclusion, I dismiss the 2nd ground of the defendant which contends that there is no evidence the Meter has been tampered with. 3rd Ground – The plaintiff failed to prove the claim of RM 365,972.40 for the usage of electricity that was not recorded from 19-09-2018 till S/N JageYhKYkyVxieare8Daw 21-05-2020. [See Enclosure 26 Appellant’s Written Submissions paragraph 51]. The plaintiff’s case [73] SP5 and SP8 have testified on the calculation of the electricity usage that was not recorded. The defendant’s case [74] Three defendant contends the plaintiff failed to prove the claim of RM 365,972.40. Analysis of the Court [75] The Sessions Court after hearing the witnesses in particular SP5 [Witness Statement Q and A 12 - 31, 48 - 61] and SP8 believe the plaintiff. [See Ground of Judgment paragraph 37 - 47]. [76] The finding of the Sessions Court is a question of fact. The principle in appellate intervention on such finding of fact is well settled, that an Appellate Court will be slow to interfere with such finding unless it can be shown that no reasonable tribunal properly appraised of the facts and the law would have arrived at such conclusion. [See Thomas Thomas at [27 - 28]]. [77] On the issue of calculating the amount of stolen electricity, the Court of Appeal in Tenaga Nasional Berhad v AWP Enterprise (M) Sdn S/N JageYhKYkyVxieare8Daw Bhd [2015] 3 MLJ 268 & [2015] 1 CLJ 400 CA through Abdul Wahab Patail JCA said – [17] For the electricity supplier, it is impossible to turn back the clock and re-meter the consumption. The determination is necessarily by an estimate. … [24] … In our view, if it is established that a meter had been tampered with and its readings does not reflect the actual consumption of electricity, and the additional charge or back charge imposed upon the consumer is not demonstrated to be manifestly unreasonable, excessive or wrong, the amount due is proved upon a balance of probabilities. [25] In the final analysis:

a consumer must pay for the electricity he consumes;

he should not be allowed to benefit from tampering of meters to pay less, as it results in the general public paying more for their electricity; and

since the clock cannot be turned back to re-measure the consumption, only estimates can be made, and if such estimate is not shown to be manifestly unreasonable, excessive or wrong, it may be accepted as proof upon a balance of probabilities of the amount estimated and claimed. [Emphasis added] S/N JageYhKYkyVxieare8Daw [78] The above passage by the Court of Appeal in Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd on the calculation of stolen electricity was referred to by the Federal Court in Tenaga Nasional Bhd v Ichi-Ban Plastic(M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557 FC. [79] It is significant the Federal Court didn’t say the Court of Appeal in Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd was wrong in its analysis. The Federal Court said - [86] … Where precise evidence is available as for example if there is a special device to measure the loss of revenue due to the tempering of electricity supply, naturally the Court expects to have it, but where it is not the Court must do the best it can. In other words, there could be other evidence in lieu of precise evidence. For example, approximation or estimation may be used provided it is reasonable and fair. This would depend on the quality of evidence adduced in Court to support that approximation or estimation… [Emphasis added] [80] In conclusion, I dismiss the 3rd ground of the defendant that the plaintiff failed to prove the claim of RM 365,972.40 for the usage of electricity that was not recorded. [81] I now move on to consider the defendant’s appeal against the dismissal of its Counterclaim. S/N JageYhKYkyVxieare8Daw Grounds relied on by the defendant for its appeal against the dismissal of its Counterclaim Analysis of the Court [82] I would observe that there are wild allegations and claims in the Counterclaim. This shows the defendant has no credibility and are clutching at straws. [83] I repeat what I have said earlier in my analysis of the 2nd Ground relied on by the defendant in its appeal against Judgment. [84] The Sessions Court after hearing the witnesses in particular SP1 to 8 and SD1, and seeing the pictures and evidence produced in court believe the plaintiff. [See Ground of Judgment paragraph 48 - 72]. [85] The finding of the Sessions Court is a question of fact. The principle in appellate intervention on such finding of fact is well settled, that an Appellate Court will be slow to interfere with such finding unless it can be shown that no reasonable tribunal properly appraised of the facts and the law would have arrived at such conclusion. [See Thomas Thomas at [27 - 28]]. [86] In conclusion, I dismiss the appeal of the defendant against the dismissal of its Counterclaim. S/N JageYhKYkyVxieare8Daw

[87] I dismiss the appeal of the defendant with costs of RM 20,000 subject to allocatur. …………(signed)….…...... Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 10th November 2023 COUNSEL: 1) Subramaniam A/L Paramasivam for appellant. (Adliza Subra Siti & Partners (Kuala Lumpur)) 2) Zati Farahiyah and Haziq Adil for respondent. (Nik Saghir & Ismail (Kuala Lumpur)) CASES REFERRED TO: 1) Abdul Kadir Mohamad v Kamarulzaman Mohd Zin & Anor [2000] 4 MLRH 239; [2001] 5 CLJ 249; [2001] 1 AMR 599. S/N JageYhKYkyVxieare8Daw 2) Bank of Tokyo-Mitsubishi (Malaysia) Bhd v Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474 HC. 3) International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86. 4) Kubota Agricultural Machinery Sdn Bhd v Sharizan Sdn Bhd & Anor; Sharizan Sdn Bhd & Ors (Third Parties) [2001] 6 CLJ 104 HC. 5) MBf Finance Bhd, supra, and Tenaga Nasional Berhad (Formerly Lembaga Letrik Negara Tanah Melayu) v Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn. Bhd.) [1995] 4 CLJ 670 HC. 6) Mohd Tajuddin Salleh v Mokhari Murgis & Anor [1993] 2 MLRH 172 [1993] 3 CLJ 42. 7) Nuri Asia Sdn Bhd v Fosis Corporation Sdn Bhd [2006] 5 CLJ 307 & [2006] 2 MLRH 166 HC. 8) Tenaga Nasional Berhad v Api-Api Aquaculture Sdn Bhd [2015] 1 LNS

9) Tenaga Nasional Bhd v Asia Knight Bhd [2018] 5 CLJ 227 CA. 10) Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd [2015] 3 MLJ 268 & [2015] 1 CLJ 400 CA. 11) Tenaga Nasional Bhd v Evergrowth Aquaculture Sdn Bhd & Other Appeals [2021] 9 CLJ 179 FC. 12) Tenaga Nasional Bhd v Ichi-Ban Plastic(M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557 FC. 13) Thomas Thomas @ Mohan A/L K Thomas v Tenaga Nasional Berhad [2018] 5 MLJ 831 CA. 14) YYT Import & Export Sdn Bhd v Lo Swee Ling [2023] 5 MLRH 622 HC. LEGISLATION REFERRED TO: 1) Section 2 of the Electricity Supply Act 1990 (Act 447). 2) Section 37 (3) of the Electricity Supply Act 1990 (Act 447). S/N JageYhKYkyVxieare8Daw 3) Section 37 (14) of the Electricity Supply Act 1990 (Act 447). 4) Section 37(1) of the Electricity Supply Act 1990 (Act 447). 5) Section 38(1) of the Electricity Supply Act 1990 (Act 447). 6) Section 38 (3) of the Electricity Supply Act 1990 (Act 447). 7) Section 38 (4) of the Electricity Supply Act 1990 (Act 447). 8) Section 38 (5) of the Electricity Supply Act 1990 (Act 447). 9) Section 73A (2) of the Evidence Act 1950. 10) Section 114(g) Evidence Act 1950. 11) Section 101 Evidence Act 1950. 12) Section 102 Evidence Act 1950. S/N JageYhKYkyVxieare8Daw