Ng Kee Wei v Tenaga Nasional Berhad (K-04(NCVC)(W)-534-10/2019)

THE RESPONDENT’S SUBMISSION [12] S.38(4) of the Act was amended in 2015 and came into force on 1.1.2016. The inspection based on which the written statement was issued in this case took place on 6.11.2012. The written statement was issued on 29.8.2013. It is the Respondent’s contention that the version of s.38(4) applicable in this case would be the one prior to the amendment. [13] The amended section requires the Respondent to state “the manner of calculation of the loss of revenue and items of expenses”. The Counsel for the Respondent submitted that the written statement issued by the Respondent also meets the said requirements of the amended section where the manner of calculation in the written statement based on average method which can be found at page 115 of the Appeal Record. OUR DECISION [14] In pursuing this appeal, the Appellant’s submission against the decision of the LHCJ was confined to the following 2 primary issues: 6

(i) Whether the presumption of prima facie evidence under s38(4) of the Electricity Supply Act 1990 [“the Act”] was available to the Respondent?

(a) the amount of loss of revenue or the expenses incurred by the licensee; and

(b) the person liable for the payment thereof, shall be prima facie evidence of the payment that has to be made by the consumer under subsection (3).” Post amendment “(4) A written statement by an employee of the licensee duly certified by the licensee or any person authorized by the licensee specifying –

(a) the amount of the loss of revenue or the reasonable expenses incurred by the licensee; (aa) the manner of calculation of the loss of revenue and items of expenses; and

(b) the person liable for the payment thereof, 8 shall be prima facie evidence of the payment that has to be made by the consumer under subsection (3) and such written statement shall be notified to the consumer within fourteen working days or any period as extended with the written approval of the Commission after the disconnection.” [16] It was not disputed that upon being served with the s 38(4) written statement by the Respondent (‘TNB’) the Appellant personally approached the Respondent at the latter’s office seeking details of how the sum demanded (‘back billing’) was arrived at but TNB, through its staff, declined to provide the details and instead, merely demanded that the sum billed be paid. [17] Thereafter, the Appellant’s solicitor followed suit vide letter dated 22.05.2015 requesting the same before trial but the Respondent did not respond. This is pleaded in the Appellant’s pleadings (See p.28, Appeal Record). [18] The Appellant made her position clear inter alia, in the above letter that she was disputing and/or denying the sum stated in the statement and requested for supporting documents and full details of the calculation in respect of the amount claimed. [19] Heavy reliance was placed by the Appellant on the leading Federal Court case on this area of the law, Tenaga National Bhd v Ichi-Ban Plastic(M) Sdn Bhd v Other Appeals [2018] 3 CLJ, 557. It would be instructive to refer to the relevant passage from the Federal Court Judgment at page 577 as follows: 9 “Question (c) F Whether for the purposes of section 38(4) of the Act, TNB is obliged to provide the details of the written statement upon request to the Respondent prior to the trial of the matter failing which the statement is rendered inadmissible. G Yes, However, there was no question of the statement being rendered inadmissible in the present case, for there was at the first instance, no section 38(4) statement issued by the Appellant. What was issued were solicitors’ letter of demand, upon instructions from TNB. Further section 38(5) specifies that the section 38(4) statement must be first issued, and a time given for the Respondent to make payment before a civil action may be instituted.” [20] It is noteworthy that in Tenaga Nasional Bhd v Evergrowth Aquaculture Sdn Bhd [2017] 5 CLJ 691, the Court of Appeal held, inter alia, that when the business activity of a consumer involves possibilities of different levels of electricity usage at different periods of time, it would be gross injustice to automatically assume that any drop in electricity usage was the result of electricity ‘theft’. [21] As can be seen from Exhibits P6 & P7 tendered by the Respondent that there was no sudden or sharp drop in the recorded usage at any time until the inspection on 06.11.2012. There were only slight fluctuations in the usage over the period claimed. 10 [22] Arising from the Appellant’s contention on this crucial point, the determinant question in the present appeal is whether the LHCJ was wrong in affirming the Sessions Court’s decision based on prima facie evidence when the presumption of prima facie evidence under s.38(4) of the Act was no longer available to the Respondent as held by the Federal Court in the said case of Tenaga National Bhd v Ichi-Ban Plastic (W) Sdn Bhd & Other Appeals (supra), inter alia, as follows : “In addition, we agree with the decision of the Court of Appeal in Tenaga Nasional Bhd v Dunia Raya Enterprise Sdn Bhd (supra) that the written statement issued pursuant to s 38(4) of the Act by TNB must satisfy the first five conditions mentioned in that case (which are reproduced in para. 62 of this judgement) in order for it to be accepted as a prima facie evidence of the payment that has to be made by the consumer. In cases where the written statement was not issued in compliance with s 38(4) of the Act. TNB loses the advantage of the presumption of a prima facie evidence but it does not lose the right of recovery given statutorily under s 38(3) of the Act. TNB however, has to prove its claim based on the civil burden and the standard of proof of balance of probabilities.” [23] We are of the considered view that the Appellant correctly stated the position in law to be that, in the absence of the presumption of prima facie evidence under s 38(4) of the Act, the Respondent had to prove its claim on a balance of probabilities. 11 [24] This proposition of law finds ample support in the case of Taiwan Chief Precision Technology Sdn Bhd (formerly known as Li Yo Electronics Sdn Bhd) v Tenaga Nasional Bhd [2013] 4 MLJ 625 at page 626, where the Court of Appeal, inter alia, held as follows: “(4) As the Defendant’s counterclaim was based upon the prima facie evidence of the s 38 statement, when that prima facie evidence was no longer capable of proving the amount claimed in the counterclaim on the balance of probabilities, the counterclaim must be dismissed by High Court and consequently the plaintiff’s claim must be allowed …” [25] Where the purported statement under s 38(4) of the Act fails to satisfy the mandatory requirements of the law, the consequence would be for the Respondent in this case to independently prove liability as well as quantum according to law. (See Tenaga Nasional Bhd v Dunia Raya Enterprise Sdn Bhd [2015] 6 CLJ 751). We would, first and foremost, answer the principal question as to whether the Respondent in relying on its purported statement under s 38(4), of the Act had strictly complied with the mandatory requirement of the law. [26] Now, it is abundantly clear under s 38(4) as amended that the Licensee/TNB (Respondent) is expressly required to provide details of the unpaid areas of electricity consumption for purposes of back billing and expenses incurred in the statutory written statement itself. In this instance, the written statement in the relevant column merely contains the word ‘Average’ without condescending to any details or particulars whatsoever. 12 [27] Giving a literal interpretation to the clear and unambiguous words of s 38(4), we are of the considered view that by no stretch of language could the said entry in the s 38(4) written statement be regarded as having satisfied the mandatory requirement of the law to state the manner of calculation by providing details upon request by the Licensor (Appellant). It would, otherwise render the statutory obligation placed on the Licensee vide the Amended s 38(4) redundant. Likewise, to sustain a claim for back billing on a prima facie basis by merely relying on the word ‘Average’ would defeat the purpose of the Amendment which was intended to protect electricity consumers from exorbitant and unsubstantiated claims where meter tampering is alleged. [28] From the LHCJ’s Grounds of Judgment, it would appear that apart from reliance on the written statement (Ex. P9), the only other evidence referred to by Her Ladyship was the evidence of PW2 & Ex. P8. [29] It is, thus, important, to examine carefully what PW2 had testified as to how she had calculated loss of revenue, which was the foundation of the Plaintiff’s claim. The material part of her evidence was that she had firstly calculated the daily average usage of 351 kwh for the 92 days from the date of inspection on 06.11.2012. [30] PW2 further said that to calculate the loss of revenue she entered the recorded usage that was billed for every month from 11.09.2008 to 06.11.2012 and the estimated daily average of 351 kwh into the computerised system which then computed the amount for back billing or loss of revenue. Exhibit P8 tendered by PW2 is the computer printout of the amount to be claimed for loss of revenue based on PW2’s estimate of 13 the daily average of 351 kwh for the period claimed (see pages 107 to 111 of the Appeal Record). [31] In view of our finding on the s 38(4) statement in this case we are in the agreement with the Appellant’s contention that there has in fact been cause in this case for the Respondent to have lost the evidentiary advantage wherein the amount stated in the written statement is prima facie evidence of the amount the Appellant has to pay. [32] In this regard, it is crucial to note the pronouncement of the Federal Court in Ichi-Ban (supra), as follows:

(i) “In addition, we agree with the decision of the Court of Appeal in Tenaga Nasional Bhd v Dunia Raya Enterprise Sdn Bhd (supra) that the written statement issued pursuant to s 38(4) of the Act by TNB must satisfy the first five conditions mentioned in that case (which are reproduced in para. 62 of this judgement) in order for it to be accepted as a prima facie evidence of the payment that has to be made by the consumer.”