LIM Keem Kok & Sons Realty Sdn. Bhd. v Tenaga Nasional Berhad (MA-12BNCvC-1-02/2026)

This is an appeal against the decision of the Sessions Court at Melaka delivered on 26.01.2026, by which judgment was entered in favour of the respondent against the appellant in the sum of RM440,857.90, together with costs of RM12,000.00 and interest at the rate specified in the judgment. The appeal is brought pursuant to the Notice of Appeal dated 30.01.2026, as refined by the Amended Memorandum of Appeal dated 29.04.2026.

The respondent is the holder of a licence issued under section 9 of the Electricity Supply Act 1990 ("the Act"), authorising it to generate, distribute and supply electricity in Peninsular Malaysia. The appellant is the registered proprietor of a two-storey shop-office held under PN 51294 (formerly HSD 67644), Lot 3126, Mukim Pringgit, Daerah Melaka Tengah, commonly known as 23-1, Jalan Lagenda 9, Taman 1 Lagenda, 75400 Melaka ("the Premises"). The respondent's claim arose from an alleged unlawful abstraction of electricity at the Premises, said to have been discovered during an inspection conducted on 25.10.2019.

The controversy lies within a narrow compass. It was not seriously in dispute that, on the date of inspection, the respondent's officers found physical installations at and about the Premises which, if unauthorised, were capable of conducting electricity into the Premises without metering. What divided the parties was whether those physical findings, taken together with the appellant's status as registered proprietor, were sufficient in law to fix the appellant with liability for the respondent's loss; and, if so, upon what cause of action and in what amount.

Three principal issues arise for determination in this appeal. The first is a threshold objection arising from the fact that the judgment under appeal was delivered by a learned Sessions Court Judge who did not preside over the trial, the trial Judge having been transferred to the Attorney General's Chambers before judgment was delivered, and whether that circumstance affected the validity of the proceedings or the judgment. The second concerns attribution, namely whether the evidence established anything beyond the appellant's ownership of the Premises and sufficiently connected it with the impugned electrical installation. The third concerns the legal sustainability of the respondent's causes of action in conversion and, alternatively, unjust enrichment, together with the assessment of the amount awarded.

The central questions are therefore whether the judgment below must be set aside on the threshold ground of want of coram; and, if not, whether the respondent established against the appellant, on the balance of probabilities, a sustainable cause of action and a loss proved according to law.

I heard the appeal upon the appeal records, the Notes of Proceedings, the documentary exhibits tendered at trial, the Grounds of Judgment of the learned Sessions Court Judge, and the arguments advanced for each side. The matter was fully argued, traversing the regularity of the inspection, the admissibility of the inspection photographs, the availability of conversion in respect of electricity, and the proof and quantification of the loss. These are my grounds.

The appellant purchased the property held under PN 51294 (formerly HSD 67644), Lot 3126, Mukim Pringgit, Daerah Melaka Tengah from Unggul Senja Sdn Bhd by a sale and purchase agreement dated 12.05.2010. Vacant possession was delivered in March 2013. The property is a two-storey shop office; the address 23 Jalan Lagenda 9 denotes the ground floor and 23-1 Jalan Lagenda 9 the first floor, the latter being the Premises in issue. The appellant's registered proprietorship at all material times was not in dispute and was among the facts recorded as agreed before the Sessions Court.

It is common ground that no electricity account was ever opened for the Premises. The Statement of Agreed Facts recorded that the appellant was the registered proprietor; that neither the appellant nor any other person had applied for electricity supply to the Premises; that there was no registered consumer; and that no electricity meter had been installed. The respondent's own records disclosed no application for supply.

The appellant's case, as pleaded in the Defence and advanced through the evidence of its director, Lim Teck Guan (DW1), was that although it owned the Premises, it never occupied them or conducted business there, having instead let them to tenants. The first tenancy was granted to Imax Renovation & Construction Sdn Bhd pursuant to a tenancy agreement dated 09.08.2016 for the period August 2016 to January 2017, which, according to DW1, used the Premises as accommodation for its construction workers. The second tenancy was granted to Fan Chong Siong under a tenancy agreement dated 14.03.2019 for the period April 2019 to May 2020, the Premises being used, according to DW1, as a storage facility. Both tenancy agreements formed part of the agreed documentary bundle, while DW1 also relied on the appellant's bank statements as evidence that rental was received during the relevant periods.

The respondent's claim rests upon an inspection conducted on 25.10.2019 by officers of its Special Engagement Against Losses ("SEAL") unit, directed at both the Premises and the feeder pillar serving the area. According to the police report lodged after the inspection, the operation was carried out between 12.01 a.m. and 1.00 a.m. The appellant's evidence was that it had no prior notice of the inspection and that neither it nor any representative was present. Five witnesses were called by the respondent. The inspection itself was spoken to by SP1, Mohamad Fazali bin Jamil, who photographed the inspection; SP2, Muhammad Aizuddin bin Aladin, who completed the inspection forms, notices and police report; and SP3, Mohamad Khairuddin bin Buniran, the team leader, who carried out the physical inspection and electrical testing. SP4, Anitah binti Haris, and SP5, Muhammad Aqil Darwisy bin Mohd Radzi, gave evidence principally on the computation of the alleged loss.

According to SP3, the inspection disclosed twelve black insulated cables connected directly from the incoming supply for the three phases and neutral to the Premises without passing through any electricity meter. He further testified that the inspection of the feeder pillar revealed three 400A fuses, one for each phase, which, according to him, were not components approved or used by the respondent. A current transformer ratio test recorded current readings at the busbar of 230.7A on the red phase, 197.8A on the yellow phase and 182.7A on the blue phase, giving an aggregate reading of 611.2A. SP3 subsequently removed the three fuses and the twelve cables as evidential materials, following which notices of the inspection and the taking of those materials were left at the Premises.

The Borang Pemeriksaan dan Pengujian Pepasangan Meter - Alatubah Arus Voltan Rendah, completed by SP2 under SP3's direction, recorded those current readings and contained a handwritten note stating that twelve insulated cables had been connected directly from the feeder pillar to the Premises, with electricity entering the Premises without passing through any electricity meter. On the same day, SP2 lodged Police Report No. MTR/010479/19, recording the inspection and the respondent's belief that offences under section 37 of the Electricity Supply Act 1990 had been committed. The report, however, did not identify any person as being responsible for the alleged unlawful installation.

On the question of who had installed the cables and the fuses, SP1 and SP3 each accepted during cross-examination that they neither witnessed the installation nor knew who had carried it out. SP3's evidence was that while the inspection disclosed what he regarded as an unlawful installation, he was unable to identify the individual responsible. More generally, the respondent's evidence did not identify any representative of the appellant as having been present during, carried out, or authorised the impugned installation.

The respondent's quantification was prepared by SP4 under the direction and approval of SP5. Because no meter had ever been installed, the computation did not rest on historical meter readings but on the Beban Kehendak Maksima ("BKM") methodology, by reference to the Suruhanjaya Tenaga guideline, Panduan Prosedur Tuntutan Kerugian Hasil oleh Pemegang Lesen bagi Kes-Kes Penggunaan Elektrik dengan Curang. Using the busbar readings, a nominal voltage of 230 volts, a power factor of 0.85, a load factor of 0.44 and an assumed 720 hours per month, SP5 derived an estimated monthly consumption of approximately 37,854 kWh. The respondent's claim was then computed at RM440,857.90 for the period 01.01.2018 to 25.10.2019. SP5's evidence was that, for bitcoin mining cases, TNB's instruction or consensus was to calculate claims only from 01.01.2018, because TNB did not accept that bitcoin mining existed for these purposes before that date.

Two demands preceded the commencement of the present proceedings. The first, dated 28.09.2021, claimed RM1,175,408.95 in respect of the period 01.11.2014 to 25.10.2019. Upon receiving that demand, DW1 travelled to Melaka to inspect the Premises and lodged a police report on 13.10.2021 disputing the respondent's allegations. The appellant's solicitors replied by letter dated 01.12.2021, to which the respondent responded on 10.01.2022. The second demand, dated 22.03.2024, reduced the claim to RM440,857.90 and limited the assessment period to 01.01.2018 to 25.10.2019. The appellant's solicitors replied on 29.03.2024, the respondent answered on 02.05.2024, and the appellant's solicitors responded further on 08.05.2024, before the present action was commenced by writ on 04.06.2024.

At trial, the appellant called a single witness, Lim Teck Guan (DW1). His evidence was that the appellant never occupied the Premises, never applied for electricity supply, never installed or authorised the installation of the impugned electrical connection, never entered or tampered with the feeder pillar, and never authorised any third party to do so. He further maintained that the appellant derived no benefit from the alleged unlawful electricity connection. According to DW1, the appellant first became aware of the respondent's allegation only upon receipt of the first letter of demand dated 28.09.2021.

The trial occupied four hearing days, namely 22.04.2025, 29.05.2025, 13.10.2025 and 14.10.2025, before the learned Sessions Court Judge, Puan Haderiah binti Siri. Before judgment was delivered, the learned Judge was transferred to the Attorney General's Chambers. The decision was subsequently delivered on 26.01.2026 by another learned Sessions Court Judge, Puan Raja Noor Adilla binti Raja Mahyaldin, who recorded in the Grounds of Judgment that she had taken over the case following the transfer of the trial Judge and, before delivering her decision, had read the Notes of Proceedings together with the written submissions filed by both parties.

In allowing the claim, the learned Sessions Court accepted the respondent's evidence that an unauthorised direct electrical connection to the Premises had been established and held the appellant liable for the respondent's assessed loss. The learned Judge further held that, since neither the appellant nor any other person had ever applied for electricity supply to the Premises, the appellant did not fall within the statutory definition of a "consumer" under the Electricity Supply Act 1990. Accordingly, the respondent's claim was treated as proceeding not under sections 38(3) to (5) of the Act but on the pleaded common law causes of action in conversion and, alternatively, unjust enrichment. Those conclusions now form the subject of the present appeal.

Dissatisfied with that decision, the appellant brought this appeal. The grounds in the Amended Memorandum of Appeal reduce, in substance, to the following: the competency of the succeeding Sessions Court Judge to deliver judgment after not having presided at the trial; the absence of evidence connecting the appellant to the impugned installation; the availability and proof of the causes of action in conversion and unjust enrichment; the treatment of the notice of demand and section 38(4) of the Act; and the proof of quantum, including the contention that the alleged loss was self-induced or insufficiently mitigated. Related matters also arose in argument, including the regularity of an inspection conducted in the early hours and without notice, the admissibility of the inspection photographs and the sufficiency of the certification under section 90A of the Evidence Act 1950, and the proper measure of any recoverable loss, bearing in mind that the respondent's demand had earlier been reduced from RM1,175,408.95 to RM440,857.90. C. ISSUES FOR DETERMINATION

Having considered the pleadings, the Notes of Proceedings, the documentary exhibits, the Grounds of Judgment and the Amended Memorandum of Appeal, together with the arguments advanced on either side, I frame the issues for determination as follows:

whether the judgment delivered on 26.01.2026, by a Sessions Court Judge who did not preside at the trial, is a nullity for want of coram and must be set aside without regard to the merits (the threshold issue);

(ii) whether the respondent proved, on the balance of probabilities, that the appellant was legally responsible for the unlawful abstraction of electricity discovered on 25.10.2019 (the issue of attribution);

(iii) whether the claim was sustainable in the tort of conversion or, alternatively, in unjust enrichment;

(iv) whether the Court below was entitled to treat the notice of demand as prima facie evidence under section 38(4) of the Act; and

whether the inspection of 25.10.2019 was vitiated by the hour at which it was conducted or by the absence of prior notice, and whether the inspection photographs were admissible in evidence; and

(vi) whether, and in what amount, the loss claimed was proved according to law, and whether the questions of mitigation and the proper measure of damages in conversion fall to be decided. [21] The order of analysis follows the logic of the dispute. The threshold objection is taken first, for if it succeeds the merits do not arise in this Court. If it fails, the question of attribution is logically anterior to the causes of action and to quantum: unless the appellant is shown to be responsible, no cause of action can succeed and no loss is recoverable against it. The challenges to the regularity of the inspection and to the admissibility of the photographs, though logically directed to whether any unlawful connection was proved at all, may conveniently be addressed after the dispositive question of attribution, since they do not alter the result. D. GOVERNING LAW AND FRAMEWORK [22] Two settled principles frame the exercise. The first concerns the function of this Court on an appeal after a full trial. An appellate court does not interfere with the findings of the court below merely because it might itself have reached a different conclusion. It interferes only where the decision is plainly wrong, in the sense that it cannot reasonably be explained or justified and is one that no reasonable court could have reached: Ng Hoo Kui v Wendy Tan Lee Peng [2020] 12 MLJ 67 (FC) at [76] and [78]. That standard has since been applied at first appellate level in Tan Sow Mooi v Rainbow Paradise Beach Resort Bhd [2026] 7 MLJ 475 (HC), where it was observed that a decision may be plainly wrong where it rests upon a critical finding of fact unsupported by the evidence, proceeds upon a demonstrable misunderstanding of relevant evidence, or reflects a demonstrable failure to consider relevant evidence. [23] The plainly wrong standard is ordinarily informed by the trial court's advantage of seeing and hearing the witnesses give evidence. That consideration carries less weight where the issues on appeal do not ultimately turn upon findings of credibility or demeanour, but upon the legal significance of largely undisputed primary facts and the inferences properly to be drawn from them. In the present appeal, the central question is whether the evidence, taken at its highest, was sufficient to justify the inference that the appellant was legally responsible for the impugned electrical installation. In those circumstances, this Court is in as good a position as the court below to evaluate the evidence and determine whether the inference drawn was justified. [24] The second principle concerns the burden of proof. The legal burden of proving its case rested throughout upon the respondent as plaintiff: section 101 of the Evidence Act 1950. A plaintiff must succeed on the strength of its own evidence and cannot remedy deficiencies in its case by pointing to weaknesses in the defence. That principle was reaffirmed by the Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 and Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 5 MLJ 398. In the specific context of claims by the respondent for alleged loss of revenue arising from unlawful abstraction of electricity, the burden of proof likewise rests upon the respondent, as recognised by the Court of Appeal in Sampo Materials (M) Sdn Bhd v Tenaga Nasional Bhd [2016] 1 MLJ 375. Only after the respondent has established a prima facie case on the balance of probabilities does any evidential burden shift to the appellant. [25] The statutory framework may first be outlined. Section 38(3) of the Electricity Supply Act 1990 confers upon a licensee a statutory right to recover from a consumer the amount of any loss of revenue occasioned by an offence under section 37(1), (3) or (14), together with the reasonable expenses incurred by the licensee. Section 38(4) provides that a written statement by a duly certified employee specifying the amount of the loss or expenses, the manner in which they are calculated, and the person liable constitutes prima facie evidence of the amount recoverable under section 38(3), provided the statement is served upon the consumer within fourteen working days after the disconnection or within such extended period as may be approved by the Commission. Under section 38(5), the amount so certified becomes due and payable and is recoverable by civil action. The statutory mechanism is, by its express terms, predicated upon the person liable being a "consumer" within the meaning of section 2 of the Act. [26] The principles governing the tort of conversion, the regularity of an inspection conducted under the Act and its subsidiary regulations, and the admissibility of the documentary and computer-produced evidence, are more conveniently addressed within the analysis of the issues to which they belong, and I turn to them there. E. ANALYSIS AND DETERMINATION The Threshold Objection — Coram [27] The first issue is whether the judgment of 26.01.2026 is a nullity because it was delivered by a Sessions Court Judge who did not preside at the trial. [28] The continuation of a part-heard civil proceeding is governed by Order 35 rule 11 of the Rules of Court 2012, which applies to proceedings in the Sessions Court. By rule 11(1), where a Judge who has commenced the hearing of a cause or matter is unable, by reason of death, illness or other cause, to conclude the hearing or trial, another Judge may be nominated to continue the proceeding. Under rule 11(2), the Judge so nominated may recall any witness or hear the witness afresh before proceeding to determine the matter. [29] The appellant relied upon Teh Wee Khiang v Teh Wee Chye [2010] 2 CLJ 916 (HC), in which the High Court considered the procedural mechanism governing the continuation of part-heard proceedings where the original judge was unable to complete the matter. Separate reliance was placed upon the decisions of the Federal Court in Chia Yan Tek v Ng Swee Kiat [2001] 4 MLJ 1 and Bellajade Sdn Bhd v CME Group Bhd [2019] 5 MLJ 141. Those authorities emphasise the distinct principle that a judgment must represent the decision of the court as lawfully constituted at the time judgment is pronounced. In Chia Yan Tek, the judgment was set aside because two members of the coram had retired before judgment was delivered. In Bellajade, the majority adopted the reasoning of a judge who had resigned before delivery of judgment, contrary to section 78 of the Courts of Judicature Act 1964. [30] Those authorities do not carry the matter as far as was contended. Chia Yan Tek and Bellajade address a distinct vice, namely a judgment which is not, in truth, the decision of the court lawfully constituted at the time of pronouncement, because a member of the coram had ceased to hold office yet nevertheless participated in the result, or because that member's reasoning was adopted. That is not the present case. The judgment delivered on 26.01.2026 is, on its face, the judgment of the very Judge who pronounced it, Puan Raja Noor Adilla binti Raja Mahyaldin, who was in office and who expressly recorded that she had read the notes of evidence and the parties' written submissions before arriving at her decision. The coram infirmity identified in Chia Yan Tek and Bellajade is therefore absent. [31] Teh Wee Khiang is likewise distinguishable. That case was concerned with the reassignment of a part-heard matter, under the guise of the distribution of business, away from a Judge who remained in office and was available to continue hearing it. The present case is materially different. Upon her transfer to the Attorney General's Chambers, the trial Judge ceased to hold office as a Sessions Court Judge and was no longer able to conclude the proceedings. In my judgment, such circumstances fall naturally within the expression "other cause" in Order 35 rule 11(1), the evident purpose of which is to provide for situations where the Judge who commenced the hearing is unable to complete it. To construe the expression "other cause" as excluding a Judge who has ceased to hold judicial office would substantially undermine the operation of the rule and frustrate its purpose. [32] Nor does the fact that no witness was recalled necessarily vitiate the judgment. Order 35 rule 11(2) is permissive. A Judge nominated under Order 35 rule 11 may recall any witness or hear the witness afresh; the rule does not make that course mandatory. Whether recall is required must depend upon the nature of the issues and the demands of fairness in the particular case. Where the determination turns materially upon credibility or demeanour, recall may well be necessary or desirable. Where, however, the decisive issue concerns the legal significance of established primary facts and the inferences properly to be drawn from them, the successor Judge may proceed upon the notes of evidence. In the present case, the critical question was not one of witness impression, but whether the facts disclosed by the inspection were legally sufficient to justify the inference that the appellant was responsible for the impugned electrical installation. [33] The appellant's complaint that it was not heard by the Judge who ultimately delivered judgment does not, without more, establish a denial of natural justice. The appellant was afforded a full trial before the original trial Judge, during which all witnesses were examined and cross-examined. The succeeding Judge expressly recorded that she had read the notes of evidence together with the parties' written submissions before delivering judgment. The fact that she did not personally observe the witnesses is a matter to be evaluated in light of the issues requiring determination. Where the outcome depends critically upon findings of credibility or demeanour, the absence of personal observation may assume greater significance. Where, however, the decisive issues concern the legal effect of substantially established facts and the inferences properly to be drawn from them, the significance of that consideration is correspondingly reduced. Whether any miscarriage of justice resulted must therefore be assessed in the context of the issues actually arising for determination in the present appeal. [34] For these reasons, the threshold objection fails. The judgment delivered on 26.01.2026 was not a nullity. I therefore turn to the substantive issues raised in the appeal. In doing so, this Court will evaluate the evidence as a whole, bearing in mind that the issues which ultimately arise for determination turn principally upon the inferences to be drawn from the established facts rather than upon findings dependent upon the demeanour of witnesses. Whether The Appellant Was Shown To Be Responsible For The Abstraction [35] The second, and dispositive, issue is whether the respondent proved that the appellant was legally responsible for the unlawful abstraction of electricity. [36] Liability in tort, whether framed as conversion or otherwise, is not established by proof of ownership of the premises at or into which the wrong was committed. It requires proof of a positive act, dealing, authorisation or adoption on the part of the defendant. The burden of that proof lay on the respondent. It could not be discharged by inviting the Court to infer responsibility from proprietary status alone, the more so where the proof of the surrounding circumstances told against the inference. [37] The respondent's case encounters a fundamental evidential difficulty. Its own witnesses accepted that they did not know who had carried out the impugned installation. SP1 accepted in cross-examination that he neither witnessed the installation of the cables nor knew who had installed them. SP3, the leader of the inspection team, likewise accepted that although the inspection disclosed what he regarded as unlawful tampering, he was unable to identify the individual responsible. More generally, the respondent's evidence did not identify any representative of the appellant as having been present during the installation or as having carried it out, authorised it or adopted it. Nor did the police report lodged on the day of the inspection identify any person as being responsible for the alleged unlawful installation. [38] Two competing principles therefore require consideration. The first concerns the drawing of inferences from circumstantial evidence. It is well established that where direct evidence is unavailable, a reasonable and definite inference drawn from proved facts forms part of the evidence itself and may suffice to establish the fact in issue: Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 (FC). The second is that, in a civil claim, the respondent was not required in every case to identify the individual who physically carried out the impugned installation if the proved circumstances otherwise supported a reasonable inference that the appellant was legally responsible. As the Court of Appeal observed in Thomas Thomas @ Mohan a/l K Thomas v Tenaga Nasional Bhd [2018] 5 MLJ 831 (CA), civil liability is not necessarily defeated merely because the person who physically effected the tampering cannot be identified. Against those principles stands the equally well-established rule that an inference cannot be drawn in the absence of proved facts capable of supporting it. As the Supreme Court held in Sundram a/l Ramasamy v Arujunan Arumugam [1994] 4 CLJ 300 at 310, an inference must rest upon objective facts proved in evidence; and, as Lord Wright observed in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169, where there are no positive proved facts from which the inference may reasonably be drawn, the process of inference fails and what remains is no more than speculation or conjecture. [39] Those principles, however, do not alter the conclusion to which the evidence in the present case leads. Thomas Thomas arose in a materially different statutory setting. It concerned a claim by the respondent against a registered consumer under section 38 of the Act in respect of a tampered meter supplying electricity to that consumer's registered account. While the Court of Appeal recognised that civil liability may be established by reasonable inference without identifying the individual who physically effected the tampering, the decision does not dispense with the need for proved facts from which such an inference may reasonably be drawn, nor does it establish that a registered proprietor, merely by virtue of ownership, is legally responsible for an unlawful abstraction of electricity carried out by unknown persons. Likewise, the principle in Woo Yew Chee presupposes the existence of proved primary facts capable of supporting a reasonable and definite inference. In the present case, the respondent relied principally upon the appellant's ownership of the Premises and the fact that the unlawful connection terminated there. Against those facts stood the evidence that the Premises had been let to third parties, that neither the appellant nor any other person had ever applied for electricity supply, that no representative of the appellant was identified as having carried out, authorised or adopted the impugned installation, and that the respondent's own witnesses were unable to identify the person responsible. In those circumstances, Sundram and Caswell become dispositive. The proved facts were insufficient to sustain the inference urged by the respondent. To infer the appellant's responsibility on those facts would be to cross the line between legitimate inference and impermissible conjecture. [40] Against that, DW1's evidence was that the appellant never occupied the Premises, never applied for electricity supply, never installed or authorised the impugned electrical connection, never entered the feeder pillar, and derived no benefit from any unlawful connection. That evidence was supported, at least in part, by the tenancy agreements and by bank statements relied upon as showing receipt of rent. It was not displaced by any evidence directly linking the appellant to the impugned installation. The Premises had been let to Imax Renovation & Construction Sdn Bhd until January 2017, and subsequently to Fan Chong Siong from April 2019. Since the respondent's claim period ran from 01.01.2018 to 25.10.2019, the second tenancy was the material tenancy overlapping the alleged period of abstraction. If any benefit was derived from the impugned connection, the evidence pointed to the occupier of the Premises rather than to the appellant as absentee proprietor. [41] The respondent's case proceeded upon the proposition that the discovery of an unauthorised electrical connection terminating at the appellant's Premises, coupled with the appellant's ownership of those Premises, entitled the Court to infer that the appellant was legally responsible for the unlawful abstraction of electricity. In my judgment, that inference cannot bear the weight placed upon it. Ownership of land establishes title; it does not, without more, establish legal responsibility for a wrongful act committed upon or within the land, particularly where the evidence shows that the Premises were occupied by persons other than the proprietor during the relevant period and the proprietor's denial of involvement was not displaced by any evidence adduced by the respondent. To hold otherwise would, in effect, render every registered proprietor an insurer against unlawful acts committed on the property by unknown persons, a proposition unsupported by any recognised principle of the law of tort. [42] The respondent nevertheless contended, and the learned Sessions Court accepted, that the proved facts were sufficient to justify the inference that the appellant was legally responsible for the unlawful abstraction of electricity. With respect, I am unable to agree. The fact that the appellant was the registered proprietor of the Premises did not, without more, establish that it had itself carried out, authorised, procured, adopted or was otherwise legally responsible for the impugned electrical installation. The respondent was still required to prove facts from which such responsibility could properly be inferred. In this regard, Kemajuan Kuari (M) Sdn Bhd v PTB Suramix Sdn Bhd & Ors [2015] 4 MLRA 525 (CA) does not assist the respondent. That decision affirms that liability in conversion attaches to a person who deals with another's property in a manner inconsistent with the owner's rights. It does not dispense with the anterior requirement that the defendant must first be shown, whether by direct or circumstantial evidence, to have committed, authorised, procured, ratified or adopted the impugned dealing. On the evidence before the Court, that anterior requirement was not established. Mere ownership of the Premises, without more, could not bridge that evidential gap nor justify the inference that the appellant was legally responsible for the unlawful abstraction of electricity. [43] The learned Sessions Court also regarded the appellant's failure to implead or call its tenants as a matter weighing against its defence. With respect, that approach reverses the burden of proof. It was for the respondent to establish, on a balance of probabilities, that the appellant was legally responsible for the impugned electrical installation. The appellant was under no legal obligation to disprove the respondent's case by joining third parties or calling them as witnesses. A plaintiff cannot remedy deficiencies in its own evidence by relying upon the defendant's failure to fill the evidential gap. That principle is firmly established by the Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan v Secure Plantation Sdn Bhd and Hong Yik Trading v Liziz Plantation Sdn Bhd. [44] It follows that the respondent failed to establish, on a balance of probabilities, that the appellant was legally responsible for the impugned electrical connection. In my respectful view, the inference drawn by the learned Sessions Court to the contrary was a critical finding of fact unsupported by the evidence and was therefore plainly wrong within the meaning of Ng Hoo Kui v Wendy Tan Lee Peng. That conclusion is, of itself, sufficient to dispose of the appeal. In the absence of proof that the appellant was legally responsible for the impugned connection, the respondent's pleaded causes of action cannot succeed on the facts of the present case. I nevertheless proceed to consider the remaining issues, both because they were fully argued before this Court and because they formed part of the reasoning adopted by the learned Sessions Court. The Causes Of Action — Conversion And Unjust Enrichment [45] The third issue is whether, assuming responsibility to have been established, the claim was sustainable in the tort of conversion or in unjust enrichment. [46] Conversion is an intentional tort. It consists in an intentional dealing with a chattel in a manner inconsistent with the rights of the person entitled to its possession, thereby amounting to an exercise of dominion or control over the chattel adverse to those possessory rights. That remains the orthodox formulation adopted by the Federal Court in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 MLJ 799 at 824-825, following the classic decision in Fouldes v Willoughby (1841) 8 M&W 540. Two features of the tort are material for present purposes. First, liability depends upon an intentional dealing by the defendant, whether directly or through conduct amounting to authorisation, procurement, ratification or adoption. Secondly, the subject matter of conversion is a chattel. [47] The appellant further submitted that the respondent's claim in conversion encounters a separate conceptual difficulty because the property alleged to have been converted was electrical current rather than a corporeal chattel. Reliance was placed upon Malayan Banking Berhad v Charanjeet Kaur Kang Sukhbir Singh [2017] 6 CLJ 617 (CA), where the Court of Appeal, following the decision of the House of Lords in OBG Ltd v Allan [2007] UKHL 21, reaffirmed that the tort of conversion is confined to goods or chattels and does not extend to choses in action or other intangible property. The subject matter of that case was electronically transferred funds, and the Court held that a claim in conversion did not lie in respect of such intangible property. The respondent, for its part, relied upon Syarikat Bekalan Air Selangor Sdn Bhd v Liew Lai Yin [2010] 3 MLJ 76 (HC), where an unlawful abstraction of water was held capable of constituting conversion. [48] It was submitted on behalf of the appellant that electrical current, like electronically transferred funds, is an intangible asset and therefore falls outside the scope of the tort of conversion. The respondent, on the other hand, contended that the present case is distinguishable because the alleged abstraction was effected through physical apparatus, namely the cables and fuses discovered during the inspection. Those competing submissions raise a broader question as to whether electrical current is capable of constituting the subject matter of conversion. In view of my earlier conclusion that the respondent failed, in any event, to establish on a balance of probabilities that the appellant carried out, authorised, adopted or was otherwise legally responsible for the impugned electrical connection, it is unnecessary to determine that broader question in the present appeal. I therefore express no concluded view upon it. [49] A further matter concerning the measure of damages may briefly be noted. The ordinary remedy in conversion is the value of the goods at the date of conversion, together with any consequential loss proved to have flowed from the conversion. Where the value of the goods is not proved, only nominal damages will ordinarily be recoverable: OSK Trustees Bhd v Metroplex Holdings Sdn Bhd [2020] 3 MLJ 358 (CA), at [42] [43]; Mitsuho Elektronics Sdn Bhd v Allswell Packagings Sdn Bhd [2015] 1 MLJ 198 (CA), at 203; and, as to the assessment of nominal damages, Syarikat Kemajuan Kuari (M) Sdn Bhd v Su Bin Abdullah [2003] 1 MLJ 401. In the present case, the respondent did not seek to prove the value of the electrical current allegedly converted. Instead, its claim was quantified by applying the Maximum Demand methodology prescribed in the Energy Commission's Guidelines, which the respondent itself acknowledged had been adopted as a matter of practice following the abandonment of its statutory claim under section 38 of the Electricity Supply Act 1990. Whether such a methodology is capable of establishing damages recoverable in a common law claim for conversion, as distinct from a statutory claim under the Act, is unnecessary for present purposes. Since the respondent has failed to establish that the appellant was legally responsible for the impugned electrical connection, the conversion claim fails irrespective of the proper measure of damages. [50] In any event, liability in conversion requires proof that the defendant dealt with the property in a manner inconsistent with the claimant's possessory rights, whether directly or through conduct amounting to authorisation, procurement, ratification or adoption. For the reasons already given, the respondent failed to prove any such dealing on the part of the appellant. The claim in conversion therefore fails on the facts, irrespective of the broader question whether electrical current is capable of constituting the subject matter of that tort. [51] The respondent's alternative claim founded on unjust enrichment is likewise unsustainable. As explained by the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 and subsequently applied in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd [2018] 3 MLJ 141, the claimant must establish that the defendant was enriched, that the enrichment was gained at the claimant's expense, that the retention of the enrichment was unjust, and that no applicable defence bars restitution. On the evidence before the Court, the respondent failed at the first stage. There was no evidence that the appellant itself received, retained or benefited from the electrical current allegedly abstracted. On the contrary, the respondent's own witness, SP5, accepted in cross-examination that there was no evidence that the appellant had profited from the impugned connection. The respondent's case was, at its highest, that electricity had been consumed within the Premises. That did not, without more, establish that the appellant, as distinct from any occupier or other person, had been enriched. The alternative claim in unjust enrichment therefore fails at the threshold, making it unnecessary to consider the remaining elements in further detail. [52] Neither cause of action was sustainable on the evidence. The tort of conversion was, in addition, not available in respect of the abstraction of electricity. Section 38(4) Of The Act And The Notice Of Demand [53] The learned Sessions Court correctly recognised, consistently with the parties' common position at trial that the appellant was not a "consumer" within the meaning of section 2 of the Act, no application for electricity supply having ever been made for the Premises and no registered consumer or meter ever having existed. The respondent itself accepted that its claim was therefore not founded upon sections 38(3) to 38(5) of the Act but upon the common law causes of action in conversion and unjust enrichment. [54] Even if the appellant had been a "consumer" within the meaning of the Act, the respondent would still have been required to establish compliance with the conditions prescribed by section 38(4) before it could rely upon the statutory evidential presumption. As explained by the Federal Court in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 MLJ 141 at 164-165, the written statement attains the status of prima facie evidence only where the statutory requirements governing its issuance are satisfied. Failing such compliance, the licensee loses the benefit of the statutory presumption and must prove its claim in the ordinary way. It is unnecessary, however, to examine whether those requirements were satisfied in the present case because, as already explained, the appellant was never a "consumer" for the purposes of sections 38(3) and 38(4). The statutory presumption was therefore unavailable from the outset, and the respondent was required to establish both liability and quantum on the ordinary civil standard. [55] That conclusion has a further consequence. Once it is accepted that the respondent's claim is not brought under sections 38(3) to (5) of the Act, neither the statement of loss contained in the notice of demand nor the calculation derived from the Energy Commission's Guidelines attracts the statutory evidential presumption created by section 38(4). As the Court of Appeal explained in Tenaga Nasional Berhad v Dunia Raya Enterprise Sdn Bhd [2015] 6 CLJ 751, subsequently approved by the Federal Court in Ichi-Ban, the statutory written statement constitutes prima facie evidence only within the statutory framework created by section 38. Outside that framework, the respondent must prove both liability and quantum in the ordinary way. The respondent's submission that the notice of demand and the Guidelines were adopted merely as a matter of "good practice" does not alter that position. At most, that explains the methodology employed. It cannot confer upon those documents the statutory evidential status which section 38(4) reserves for cases falling within its scope. The Regularity Of The Inspection And The Admissibility Of The Photographs [56] The fifth issue gathers two challenges to the proof of any unlawful connection: that the inspection was conducted at an unreasonable hour and without notice, and that the inspection photographs were inadmissible. Strictly, neither requires decision, the appeal succeeding on attribution. I address them shortly, since they were argued and since they would not, in any event, have availed the appellant. [57] As to the hour of the inspection, between approximately 12.01 a.m. and 1.00 a.m., and the absence of prior notice, the governing authority is Tenaga Nasional Berhad v Evergrowth Aquaculture Sdn Bhd and another appeals [2021] 5 MLJ 937 (FC). The Federal Court held that the phrase "at all reasonable times" in regulation 7 of the Licensee Supply Regulations 1990 is not confined to the operational or business hours of the consumer. What constitutes a reasonable time is a question of fact depending upon the circumstances of the particular case, consistently with the earlier decision in VSP Suppiah Chettier v KS Navaradnam [1972] 2 MLJ 60 at 61. Although Evergrowth concerned a registered consumer and the inspection of a meter, its reasoning on the meaning of "at all reasonable times" is equally applicable here. Given the allegation of a concealed unlawful abstraction of electricity, an inspection conducted during the early hours of the morning was not, without more, unreasonable. Nor does the absence of prior notice assist the appellant. Neither the Act nor the Regulations requires advance notice of an inspection, and a requirement of prior notification would substantially undermine the effectiveness of inspections directed at detecting concealed or readily removable tampering. In the circumstances of the present case, those matters do not invalidate the inspection or the evidence thereby obtained, although they remain matters capable of affecting the weight to be attached to the evidence. [58] As to the photographs marked ID1(1-47), it was objected that the certificate under section 90A(2) of the Evidence Act 1950 was signed by SP3, the leader of the inspection team, rather than SP1, who took the photographs, and that the original photographs were not produced as required by section 62. Neither objection is well founded. Section 90A establishes a special statutory mechanism governing the admissibility of computer-produced documents. As explained in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1 and reaffirmed in Gan Choo Yong v PP [2021] MLJU 1613 at [13] $ ^{14} $ , the requirements of section 90A may be satisfied either through the oral evidence of a competent witness or by the production of a certificate under section 90A(2), the latter not being mandatory where sufficient oral evidence is given. The same approach was adopted in Tenaga Nasional Bhd v Panareno Sdn Bhd [2019] 11 MLJ 755 at [44] $ ^{15} $ , following Ahmad Najib Aris v PP [2009] 2 CLJ 800 and Hanafi Mat Hassan v PP [2006] 3 CLJ 269, and is consistent with Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603. The section does not require the certificate to be signed by the person who physically operated the equipment or created the document. It is sufficient that it be signed by a person responsible for the management of the operation of the computer or of the activities for which it was used. Nor does the objection founded upon section 62 avail the appellant. Section 90A provides a specific statutory regime for the admissibility of computer-produced documents, and, in the circumstances of the present case, the respondent satisfied that regime. The photographs were therefore admissible in principle. [59] I add, for completeness, that the appellant's complaint regarding departures from the photographic checklist contained in the Energy Commission's Guidelines does not alter the outcome. As recognised in Tenaga Nasional Bhd v Syarikat Sim Quarry Sdn Bhd [2018] 1 LNS 294 at [27] and Tenaga Nasional Bhd v Lension (M) Sdn Bhd [2018] 1 LNS 42 at [19], the Guidelines do not have the force of law. They are followed by the licensee as a matter of good practice and prudence rather than because they are legally binding. It follows that any departure from the Guidelines does not, without more, invalidate the inspection or render the evidence thereby obtained inadmissible, although it may be relevant to the weight ultimately to be attached to that evidence. In the present case, however, none of those matters addresses the fundamental evidential deficiency in the respondent's case, namely its failure to establish that the appellant was legally responsible for the impugned electrical connection. Proof Of Loss, Mitigation And The Quantification Of The Claim [60] Given the conclusions already reached on attribution and on the causes of action, the quantification of the alleged loss does not arise for final determination, and I do not decide it. I record only that, had the question arisen, the computation was attended by evidential difficulties which would have required careful scrutiny. [61] The Maximum Demand computation depended upon the busbar current readings of 230.7A, 197.8A and 182.7A. SP1 accepted in cross-examination that the photographs did not show those ampere readings. SP3 likewise accepted that the printing of the photographs was unclear and that the red and yellow readings could not be seen. He further accepted that, for the yellow phase, the visible figure in the photograph was 171.3A, whereas the inspection form recorded 197.8A. A computation resting upon readings which are not borne out by the contemporaneous photographic record stands on an insecure evidential foundation. The weight ordinarily attached to contemporaneous documents is well recognised: Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (FC) at 234; Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC) at 465. [62] The selection of 01.01.2018 as the commencement of the loss period rested, on SP5's own evidence, upon a belief as to when "bitcoin" activity began in Malaysia, there being no direct evidence that any such activity or, indeed, any consumption at all had occurred at the Premises from that date. A loss period fixed upon such a basis is conjectural rather than proved. [63] The reduction of the claim from RM1,175,408.95 to RM440,857.90, accompanied by a corresponding contraction of the assessment period, already raised questions as to the evidential foundation of the assessment. Those questions became more pronounced following the respondent's subsequent concession. After the decision of the Court of Appeal in Golden Wolf Sdn Bhd v Tenaga Nasional Berhad (Civil Appeal No. J-02(NCVC)(W)-288-02/2025) delivered on 04.05.2026, the respondent accepted that, if liability were established, the recoverable period should be confined to 01.04.2019 until 25.10.2019, with the claim correspondingly reduced to RM142,514.41. That concession demonstrates that the commencement date of 01.01.2018, and the substantially larger sum awarded below, could no longer be maintained on the respondent's own approach. The concession cannot, of course, remedy the anterior failure to establish the appellant's liability. It merely reinforces the conclusion that the assessment adopted by the Sessions Court did not rest upon a secure evidential foundation. [64] The appellant further contended that any loss suffered by the respondent was self-induced, or at least contributed to, by the respondent's alleged failure to conduct periodic inspections of the electrical installation and by its having left the feeder pillar unsecured before and after the inspection. The contention was advanced by reference to section 22 of the Act, but in light of my earlier conclusions it is unnecessary to decide whether that provision imposed any such duty on the facts of this case. Had it been necessary to decide the point, the applicable principles would be those governing mitigation. A claimant must take reasonable steps to mitigate its loss and cannot recover loss which could reasonably have been avoided: TTDI Jaya Sdn Bhd v Yew Hong Teng [2017] 1 MLJ 436 (CA) at 460, applying Malaysian Rubber Development Corporation Bhd v Glove Seal Sdn Bhd [1994] 4 CLJ 783 (SC); see also Cheng Hang Guan v Perumahan Farlim (Penang) Sdn Bhd [1993] 3 MLJ 352 (HC) at 412. Whether the respondent took reasonable steps to protect its installation and minimise any loss would ultimately be a question of fact. I express no concluded view on the point, the appeal being disposed of on the anterior ground that the respondent failed to establish the appellant's liability. [65] For the same reason, it is unnecessary to determine whether the inspection photographs, marked ID1(1-47), were ultimately admissible. I have already indicated why the appellant's objections under section 90A of the Evidence Act 1950 would not, in principle, have succeeded. I would add only that separate questions were raised concerning the production of the original images, the explanation being that the photographer's mobile telephone was no longer available. Those submissions invited consideration of the relationship between the ordinary rules governing primary and secondary evidence under the Evidence Act 1950, as discussed in Tan Sri Tan Hian Tsin v PP [1979] 1 MLJ 73 (FC) and Syarikat Jengka Sdn Bhd v Abdul Rashid bin Harun [1981] 1 MLJ 201 (FC), and the special statutory regime governing computer-produced documents under section 90A. Since the appeal succeeds on other grounds, it is unnecessary to resolve that broader evidential question, and I express no concluded view upon it. [66] A related question, which likewise does not require determination, concerned the integrity of the physical exhibits. The respondent's evidence was that twelve cables had been removed during the inspection, whereas only eleven were produced at trial. It was also suggested that the evidence bag was torn, unsealed and no longer bore the serial number recorded at the time of the inspection. Although the Federal Court's decision in Lew Wai Loon v PP [2014] 2 CLJ 649 arose in the criminal context, it illustrates the uncontroversial evidential proposition that deficiencies in the continuity or condition of physical exhibits may affect the weight ultimately to be attached to them. Since the appeal is disposed of on other grounds, it is unnecessary to express any concluded view on the significance of those matters in the present case. F. CONCLUSION [67] The threshold objection does not avail the appellant. The appeal succeeds on the merits. The controlling deficiency in the respondent's case is its failure to establish, on a balance of probabilities, that the appellant, although the registered proprietor of the Premises, was legally responsible for the unlawful abstraction of electricity. From that conclusion the remainder follows. The respondent failed to prove the dealing required to sustain its claim in conversion, failed to establish that the appellant itself was enriched for the purposes of its alternative claim in unjust enrichment, and could not invoke the statutory evidential presumption under section 38(4) of the Act against a person who was not a consumer. The remaining issues canvassed before this Court, including the regularity of the inspection, the admissibility of the photographs, the conceptual availability of conversion in respect of electrical current, and the quantification of the respondent's claim, do not affect that conclusion. The appeal is disposed of by the respondent's failure to establish the appellant's liability. The questions of quantification and mitigation, which would arise only if liability had first been established, therefore do not call for determination. G. ORDERS OF THE COURT [68] Accordingly, I make the following orders:

the appeal is allowed;

the judgment and order of the Sessions Court at Melaka dated 26.01.2026 are set aside;

in substitution therefor, the respondent's claim in Sessions Court Civil Suit No. MA-B52NCvC-17 06/2024 is dismissed in its entirety;

the respondent shall pay the appellant the costs of the appeal and of the proceedings in the Sessions Court, in the sum of Rm 15,000 subject to allocatur; and (MELAKA) Lawyer For Appellant : Puan Lua Ai Siew Tetuan Soo Thien Ming & Nashrah Peguambela dan Peguamcara Aras 9, Menara Bangkok Bank, No. 105, Jalan Ampang, 50450 Kuala Lumpur. Lawyer For Respondent : Puan Izzatunlina binti Jamaludin bersama Cik Anis Natasha binti Ahmad Ridwan Tetuan Othman Hashim & Co. Unit LP0-09, LP Floor. Menara TJB, No.9, Jalan Syed Mohd Mufti, 80000 Johor Bahru, Johor.