LEIKA SDN BHD v TM TECHNOLOGY SERVICES SDN BHD (yang telah mengambilalih hak-hak, aset-aset dan liabiliti-liabiliti Telekom Malaysia Berhad melalui Perintah Mahkamah bertarikh 21.2.2023) (BA-12BNCvC-34-06/2025)

This is an appeal by the Appellant against the whole of the decision of the learned Sessions Court Judge at Kajang dated 19 May 2025, wherein judgment was entered in favour of the Respondent for the sum of RM567,968.35, together with costs and interest.

The appeal arises from damage to an underground telecommunication cable allegedly caused by excavation works carried out by the Appellant at the material time and location. 10/03/2026 11:30:32

The Appellant challenges the Sessions Court’s findings on liability, admissibility and evaluation of evidence, the application of the doctrine of res ipsa loquitur, the drawing of adverse inference, and the quantum of damages awarded.

This Court has carefully examined the Record of Appeal, the grounds of judgment of the Sessions Court, and the written and oral submissions of both parties, including the respective authorities cited.

Having done so, this Court finds no merit in the appeal. The decision of the Sessions Court discloses no misdirection in law nor any error of fact warranting appellate interference.

The Respondent is responsible for the maintenance and repair of telecommunication infrastructure, having taken over the rights, assets and liabilities of Telekom Malaysia Berhad pursuant to a court order dated 21 February 2023.

The Appellant was engaged to carry out excavation and related works at a site in Kajang.

On 26 January 2018, telecommunication services in the area were disrupted. Subsequent inspections revealed damage to an underground cable belonging to the Respondent at or near the Appellant’s excavation site.

The Respondent’s case was that:

the Appellant was the only party carrying out excavation works at the material time;

the damage occurred contemporaneously with those works; and

the Appellant failed to take reasonable precautions to identify and protect underground utilities.

The Appellant denied liability, contending that:

there was no direct proof that its works caused the damage;

the Respondent’s evidence was hearsay and inadmissible;

res ipsa loquitur was wrongly applied; and

the quantum awarded included upgrading works.

The learned Sessions Court Judge found that:

damage to the cable had occurred;

the damage occurred within the Appellant’s excavation area and during its works;

the Appellant failed to take adequate precautions expected of a reasonable contractor;

the doctrine of res ipsa loquitur applied;

the Appellant failed to rebut the inference of negligence; and

the Respondent had proven its loss on a balance of probabilities.

Judgment was accordingly entered for the Respondent.

The issues before this Court are: i. Whether the Sessions Court erred in finding that the Appellant caused the damage to the cable; ii. Whether the Sessions Court wrongly relied on hearsay evidence; iii. Whether the doctrine of res ipsa loquitur was correctly applied; iv. Whether the adverse inference drawn against the Appellant was justified; and v. Whether the quantum of damages was wrongly assessed.

It is settled law that an appellate court should be slow to interfere with findings of fact made by a trial court, particularly where such findings are based on the evaluation of evidence and credibility of witnesses.

In Tan Sri Khoo Teck Puat & Anor v Wendy Tan Lee Peng & Ors [2020] 12 MLJ 67, the Federal Court reaffirmed that appellate intervention is warranted only where findings are plainly wrong or unsupported by evidence.

Similarly, in Tengku Dato’ Ibrahim Petra v Petra Perdana Bhd [2017] 1 MLJ 197, it was held that disagreement with factual conclusions is insufficient to justify appellate interference.

The Appellant argued that the Respondent failed to adduce direct evidence proving that the Appellant’s works caused the damage.

This Court disagrees.

The Sessions Court relied on a combination of undisputed facts and circumstantial evidence, including:

the Appellant’s admission that it was excavating at the location on 26 January 2018;

the discovery of damage contemporaneous with those works;

the absence of evidence of any other excavation works in the vicinity.

In Tenaga Nasional Bhd v Panareno Sdn Bhd [2019] 11 MLJ 795, relied upon by the Respondent, the Court held that damage to underground utilities occurring during excavation works may give rise to an inference of negligence where no other plausible cause is shown.

The Appellant offered no credible alternative explanation.

The Sessions Court’s finding on causation was therefore supported by the evidence and consistent with the authorities cited.

The Appellant submitted that the Respondent’s case was entirely dependent on hearsay evidence, particularly reports and photographs prepared by technicians who were not called to testify.

The Sessions Court rejected this submission.

The Respondent relied on operational records and contemporaneous documents generated in the ordinary course of business, explained through the testimony of SP1.

In Recaliva Design Steel (M) Sdn Bhd v Vista Access Sdn Bhd [2008] 6 MLJ 604, cited by both parties, the Court recognised that documentary evidence forming part of business records may be admissible and accorded weight, subject to evaluation.

The Sessions Court did not treat the impugned documents in isolation. They were considered alongside other evidence, including admissions and undisputed facts.

The Sessions Court was therefore entitled to accept and rely upon such evidence. No miscarriage of justice has been demonstrated.

The Appellant contended that the Sessions Court wrongly applied res ipsa loquitur without proof of damage.

The doctrine was considered by the Sessions Court after finding that damage had occurred.

In Teoh Guat Looi v Ng Hong Guan [1998] 4 MLJ 525, relied upon by the Respondent, the Court explained that res ipsa loquitur applies where the occurrence is such that it would not ordinarily happen without negligence.

The Sessions Court found that:

underground cable damage does not ordinarily occur absent external interference;

the excavation site was under the Appellant’s control;

the Appellant failed to show reasonable care.

This approach is consistent with Lloyde v West Midlands Gas Board [1971] 1 WLR 749, cited in the Sessions Court judgment and not disputed by the parties.

Once the inference arose, the evidential burden shifted to the Appellant, who failed to rebut it.

This Court finds no error in the Sessions Court’s application of the doctrine.

The Sessions Court drew an adverse inference against the Appellant for failing to call material witnesses, including site supervisors and persons responsible for utility verification.

In Munusamy v Public Prosecutor [1987] 1 MLJ 492, relied upon by the Respondent, the Court held that an adverse inference may be drawn where a party withholds evidence within its control.

The Appellant was best placed to adduce evidence of:

precautionary measures taken;

site supervision; and

verification of underground utilities.

Its failure to do so justified the Sessions Court’s inference.

The exercise of such discretion discloses no error.

The Appellant argued that the awarded sum included upgrading works.

The Sessions Court carefully examined the Respondent’s documentary evidence and witness testimony.

In Mestika Bistari Sdn Bhd v Telekom Malaysia Bhd [2018] MLRHU 1933, cited by both parties, the Court held that unverified allegations of upgrading cannot defeat a properly proven claim for repair costs.

The Sessions Court found the quantum supported by invoices, work orders and witness testimony.

Assessment of damages is a factual exercise. No basis has been shown for interference.

The Sessions Court:

correctly directed itself on the law;

made findings of fact supported by evidence;

properly applied res ipsa loquitur; and

assessed damages on proper principles.

The appeal is an invitation to re-argue facts, which this Court declines.

The appeal is dismissed.

The decision of the Sessions Court dated 19th May 2025 is affirmed in its entirety, with costs. Dated this 3rd March 2026 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Appellant : Mr. Owee Chia Ming (Mr. Lim Jia Xian with him) Messrs. Owee & Co Counsel for Respondent : Mr. Lim Kim Lai Messrs. Othman Hashim & Co.