PERMAS JAYA SDN BHD v Goh Hock Lai berniaga sebagai GHL Golf Academy (JA-12BNCvC-15-05/2021)

This was an appeal from the decision of the Sessions Court where Tenaga Nasional Bhd who was the plaintiff in the court below, sued the appellant/defendant as the owner of the premises for tampering with the electric meter. The appellant/defendant brought in the respondent as a third party in the suit since he was the tenant of the said premises at the time. The sessions court judge had dismissed Tenaga’s and the appellant’s claim. On appeal to the High Court, I allowed the claim by TNB and the appellant. There were two appeals filed in relation to this matter, the first was by the plaintiff TNB vide case no JA-12BNCvC-16-05/2021 and the second was by the appellant/defendant vide case no JA- 12BNCvC-15-05/2021. Both the appeals were heard together and the claim by TNB and the appellant were allowed with costs of RM 5000.00 and allocatur fees. The respondent now appeals further to the Court of Appeal. As of the date of this judgment, there was no appeal filed in case no JA-12BNCvC-16- 05/2021.

The facts of the case as can be gleaned from the submissions of the appellant/defendant is as follows: “A. SALIENT FACTS OF THE CASE i. At all material times, the Defendant is the registered proprietor of the lands bearing the title numbers Geran Mukim 1404 Lot 50727, HS(D) 260265 PTD 147017, Geran Mukim 1405 Lot 50729, HS(D) 260264 PTD 147016, HS(D) 260266 PTD 147018 (later known as HS(D) 530623 PTD 200073, HS(D) Page 3 of 26 530624 PTD 200074, and HS(D) 530626 PTD 200076), all of which are within Mukim of Plentong, District of Johor Bahru, State of Johor and bearing the postal address of Golf Course, Jalan Permas Selatan, Bandar Permas Jaya, 81750 Masai, Johor (“the said Premises”). ii. The Defendant owns an electricity supply user account with the number 03450061760501 (“the said Account”) for the said Premises. iii. From 1.7.2009 to 31.3.2016 (“the said Tenancy Period”), the Defendant had rented the said Premises to the Third Party via lease exempt from registration dated 24.8.2009 signed by the Defendant and the Third Party, letter dated 29.6.2011, lease exempt from registration dated 7.9.2012 signed by the Defendant and the Third Party, letter dated 2.5.2013 signed by the Defendant and the Third Party, lease exempt from registration dated 20.7.2014 signed by the Defendant and the Third Party and letter dated 4.6.2015 signed by the Defendant and the Third Party. iv. On 25.2.2016, the Defendant received “Surat Tuntutan Bagi Amaun Kerugian Hasil (Terkurang Caj) Dan Perbelanjaan Akibat Mengganggu / Mengubahpinda / Merosakkan Pepasangan Meter Tenaga Nasional Berhad” dated 24.2016 from the Plaintiff claiming that the Plaintiff had performed an inspection on the meter installation / meter in the said Premises on 14.10.2014 (“the Alleged Inspection”) (which is denied) and discovered elements of interference / alteration / damage on the meter installation / meter and that had caused failure to record the actual output or consumption of electricity by the meter installation / meter (which is denied) (“the Alleged Meter Tampering”) and thereafter claimed from the Defendant as the registered owner of the said Account a total sum of RM126,033.23 being the loss of revenue calculating Page 4 of 26 from 1.12.2011 to 14.10.2014 and the rectification costs (which is denied). v. Neither the Defendant nor the Defendant’s representative was notified to be present during the Alleged Inspection (which is denied). vi. After having received Exhibit P3, on 1.3.2016, the Defendant served a reply letter dated 1.3.2016 to the Plaintiff, wherein the Defendant informed the Plaintiff that the said Premises were rented to the Third Party and the Defendant was contacting the Third Party to get an explanation from him in regards to the Plaintiff’s claim. vii. On the same day i.e. 1.3.2016, the Defendant also served a notice of demand dated 1.3.2016 to the Third Party to inform the Third Party about the Plaintiff’s claim and to demand the Third Party to settle the Plaintiff’s claim as the Alleged Meter Tampering (which is denied) occurred during the said Tenancy Period. viii. On 16.3.2016, the Defendant’s security guard, Mr Azeman Bin Abdullah (“SD1”) lodged a police report to deny the Alleged Meter Tampering and stressed that the meter installation / meter was inside the Plaintiff’s meter room and the meter room was locked and the keys were in the Plaintiff’s possession, save for the Plaintiff, no one else was able to access the meter installation / meter. ix. On 17.3.2016, the Defendant served a letter dated 17.3.2016 to the Plaintiff to demand on explanation from the Plaintiff in regards to the location of the meter installation / meter which was said to be tampered with (which is denied), the reasons as to why the Defendant and/or the Defendant’s representative was not informed to be present during the Alleged Inspection (which is denied), evidences on the Alleged Meter Tampering Page 5 of 26 (which is denied), and the particulars in regards to the loss of revenue of RM126,033.23 (which is denied). x. On 24.3.2016, the Defendant served a letter of demand dated 24.3.2016 to the Third Party to inform him that the Defendant reserved its rights to hold the Third Party responsible for any and all demand by the Plaintiff in regards to the Alleged Meter Tampering (which is denied). xi. On 7.6.2016, the Plaintiff served a letter dated 7.6.2016 to invite the Defendant to its office at MIT – OSC Johor, Aras 12, Wisma TNB, Jalan Yahya Awal, Johor Bahru on 13.6.2016 at 10.30 am for a discussion on the loss of revenue (which is denied). xii. On 13.6.2016, a discussion was held between the Defendant’s representative namely Cheong Tuck Choy (Samuel) (“SD2”), the Third Party / SPK1, and 2 other Plaintiff’s representatives. On the same day, the Defendant served a letter dated 13.6.2016 to the Plaintiff to offer an explanation and to inform the Plaintiff that: a. the meter installation / meter which was alleged to have been tampered as shown in Exhibit P3 could not be traced by the Defendant’s mechanical and electrical consultant after an inspection had been conducted on the meter installation / meter in the said Premises; b. research was done on the electricity usage record on the said Premises from year 2009 to 2016, which was attached together with Exhibit D29 to show that the fluctuation in electricity consumption for the period concerned. Exhibit D24 showed that the reduction in the electricity consumption was normal; Page 6 of 26 c. Exhibit D24 also gave an explanation in regards to the reduction of the electricity consumption in December 2011 was due to the closure of Modjo Café and Bistro (JM0548152-X), a sub-tenant of the Third Party; d. neither the Defendant nor the Third Party was informed the Alleged Meter Tampering (which is denied) after the Alleged Inspection (which is denied) was performed, in order for them to verify it immediately; e. there was no acknowledge receipt of the Alleged Inspection (which is denied) by the Defendant; and f. after the Plaintiff had conducted the Alleged Inspection (which is denied), the electricity consumption rate in the said Premises did not show any drastic change as claimed by the Plaintiff, except for the increase in the tariff for electricity consumption. xiii. Since 13.6.2016, the Defendant did not receive any reply from the Plaintiff.”

Let me now examine and discuss some relevant case law on the issue of meter tampering.

The first case on point is the case of Tenaga Nasional Bhd v JCY HDD Technology Sdn Bhd [2018] MLJU 1301, where the High Court held: “[31] The fact in issue that must be proven by the Plaintiff is that the meters at the Defendant’s Premises had been tampered with and that the Plaintiff had suffered loss as a result. In the event the Plaintiff fails to prove these facts on a balance of probabilities, its case must necessarily fail.”

To those who want to read what happened earlier in the above case see Tenaga Nasional Bhd v JCY HDD Technology Sdn Bhd [2012] 3 MLJ 705; [2012] MLJU 217; [2012] 1 LNS 168; [2012] 3 AMR 576; [2013] 7 CLJ 799.

The second case is the Federal Court case of Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 MLJ 141, [2018] 3 CLJ 557, where the facts were: “The common issues that arose for the court’s adjudication were:

whether a consumer must first be convicted for meter-tampering before Tenaga Nasional Bhd (‘TNB’) could recover the loss of revenue under s 38(3) and (4) of the Electricity

(ii) the legal effect of the written statement from TNB under s 38(4) of the Act for purposes of recovery of the loss of revenue;

(iii) whether an estimation or approximation of the loss of revenue suffered by TNB as a result of a tampered meter at the consumer’s premises is precluded under s 38 claim;

(iv) whether the rationale behind s 38 of the Act enabling TNB to recover the unrecorded consumption of electricity by the consumer due to a tampered meter is the unjust benefit enjoyed by the consumer; and

whether estoppel arising from delay applies to nullify a s 38 claim.” [7] The Federal Court speaking through Ahmad Maarop CJM, Hasan Lah, Abu Samah Nordin, Azahar Mohamed, Aziah Ali FCJJ held: Page 8 of 26 “[33] Now, we revert to the two questions of law posed to us. Both questions relate to the construction of s 38(3) and (4) of the Act. The first question itself is flawed. It refers to a wrong provision. TNB’s right to claim its loss of revenue is under s 38(3) and not s 38(4) of the Act as stated in the question. A wrong question does not require any answer. The second question concerns s 38(3) and 38(4) of the Act. Section 38(4) is a provision relating to the mode of proof where TNB makes a claim for loss of revenue under s 38(3) of the Act. A written statement by an employee duly certified by TNB or by person authorised by TNB stating:

the amount of loss of revenue or the expenses incurred by TNB; and

the person liable for the payment thereof, shall be prima facie evidence of the payment that has to be made by the consumer under s 38(3) of the Act. For reasons as stated earlier in this judgment a criminal conviction of an offence under s 37(1), (3) or (14) of the Act is not a precondition for TNB to pursue its claims for loss of revenue under s 38(3) of the Act. This right is a separate right independent of its right to disconnect the supply of electricity under s 38(1) of the Act. The answer to the second question must be in the negative. ……… [62] For a written statement to have the effect of a prima facie evidence it must be issued in compliance with the requirement of s 38(4) of the Act. In Tenaga Nasional Berhad v Dunia Raya Enterprise Sdn Bhd the Court of Appeal at p 757, held that for Page 9 of 26 TNB to rely on a written statement, the following must have taken place:

the appellant must have calculated the loss of revenue and reduce it into a document and written statement;

(ii) an employee and/or duly authorised person of the appellant must have perused the document as well as the written statement to certify the written statement;

(iii) the certified written statement must contain the particulars stated in s 38(4) of the ESA 1990;

(iv) for a valid certificate, the name of the employee or authorised person of the appellant must appear in the statement and duly signed;

if a proper certified statement is issued, it needs to be served on the customer and if the customer does not pay, then civil action can be taken. Thus, it is a condition precedent for initiation of civil action in reliance of s 38 for Tenaga to issue a certified written statement according to law, before civil action can be commenced; ……….. [65] In addition, we agree with the decision of the Court of Appeal in Tenaga Nasional Berhad v Dunia Raya Enterprise Sdn Bhd 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 judgment) in order for it to be accepted as a prima facie evidence of the payment that has to be made by the consumer. [66] 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 Page 10 of 26 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. ……… [86] Reverting to the issues raised relating to the calculation point, due to the nature of the claim, we appreciate that there may be difficulty in obtaining the evidence for the claim under s 38 of the Act. Nevertheless, in our view, it would be unwise for us to use this occasion to say anything which might be taken as specifying or limiting the nature and extent of the evidence necessary to establish a claim for loss of revenue under s 38 of the Act. Where precise evidence is available, as for example if there is a special device to measure the loss of revenue due to the tampering 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 the evidence adduced in court to support that approximation or estimation. In light of what we have said thus far, we find it unnecessary to answer the two questions posed. ……….. [96] Coming back to the present appeals, as an alternative or in addition to the statutory cause of action under s 38(3) of the Act for recovery for loss of revenue, TNB is similarly entitled to legally pursue the claim based on a cause of action in unjust enrichment. If TNB elects to pursue relief for unjust enrichment then, as is a matter of settled law, there must be a proper and specific plea in the statement of claim that its cause of action is so founded. Further, material particulars that give rise to Page 11 of 26 unjust enrichment must be provided in the pleadings. In this regard, it is a well-settled legal principle that the court should not decide on an issue that was not pleaded by the parties. Parties are required to set out the factual bases of their respective cases in the pleadings. The most important purpose of pleadings is to plead reasonable cause of action, define the issues of fact and questions of law to be determined by the court (see Saiman bin Umar v Lembaga Pertubuhan Peladang and another appeal [2015] 6 MLJ 492). Pleadings enable both parties to know in advance the averments being made against them so that they will not be taken by surprise during the trial. Tellingly, in the present appeals TNB did not plead that its cause of action was founded on the law of unjust enrichment. Unjust benefit was not a pleaded issue. With respect, the submission on the benefit/unjust enrichment question by learned counsel for TNB is, therefore, misconceived.” Whether there was meter tampering [8] The sessions court judge in her grounds, which can be found in enclosure 12 supplementary record of appeal (4) at page 529 said: “Mahkamah dapati wujud pemeriksaan yang telah dijalankan oleh Plaintif melalui keterangan-keterangan SP1, SP4 dan SP5 di premis Defendan dan berlaku kejanggalan pada meter menyebabkan wujud usikan pada P2, panel CT iaitu pendawaian S1 bagi fasa biru di dalam terminal CT walaupun arus sebenar bagi fasa biru adalah 5.8 Amp tetapi meter merekodkan 0 Amp. Memandangkan wujud usikan maka sewajarnyalah Plaintif berhak menuntut kerugian ke atas usikan berdasarkan pernyataan bertulis pekerja Plaintif menurut syarat-syarat s.38(4) yang diterjemahkan di Page 12 of 26 dalam kes Tenaga Nasional Berhad v Dunia Raya Enterprise Sdn. Bhd. [2015] 4 MLRA 645.” [9] Therefore the principles culled from the case of Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd above applies in the case before me. [10] In Tenaga Nasional Bhd v Asia Knight Bhd (previously known as Pahanco Corp Bhd) [2017] 5 MLJ 681, the Court of Appeal speaking through Vernon Ong JCA (as he then was) said: “[11]…In this connection, we have perused the learned judge’s written judgment and note that the learned judge did not make any finding that there was no tampering of the meter. Instead, the learned judge took the position that there was no evidence to prove that the defendant had access to the meter installation or had tampered with the meter. In other words, there was a non-finding on the question of whether the meter was tampered, which in our considered view is a serious misdirection on the facts and on the law. We also find support for our view in the Federal Court decision which held that only a subjective finding of the plaintiff’s employee is required to prove tampering WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd. On the totality of the evidence we are of the view that on a balance of probabilities the plaintiff had succeeded in proving that the meter was tampered.” [11] In Tenaga Nasional Bhd v. Evergrowth Aquaculture Sdn Bhd & Other Appeals [2021] 9 CLJ 179, the Federal Court speaking via Azahar Mohamed CJM (as he then was) opined: Page 13 of 26 “[60] In our view, the resolution of the question turns on the interpretation of sub-ss. 38(1) and (3) of the ESA 1990. If regard had to be given to the phrase "where any person employed by a licensee finds upon any premises evidence which gives reasonable grounds for him to believe that an offence has been committed under sub-s. 37(1), (3) or (14) " appearing in sub-s. 38(1) of the ESA 1990, it is clear that whether an offence has been committed under these subsections is based on TNB's employee "subjective finding". "Grounds to believe" is a common feature in criminal and civil statutes. It is made of two words "grounds" and "to believe". The word "grounds" means to accept as true or to have faith in it. Before TNB's employee has faith or accepts a fact to exist there must be a justification for it. The belief may not be open to scrutiny as it is final conclusion arrived at by TNB's employee concerned as result of mental exercise made by him or her as the result of an inspection carried out at the consumer's premises. [61] However, we take the stand that the reason due to which the conclusion and/or decision is reached can always be examined. When we said that the "grounds to believe" is not open to scrutiny by the court what we meant is that the finding and/or satisfaction arrived at by the employee concerned is immune from challenge but where the finding and/or conclusion is not based on any material or it cannot withstand the test of reason, which is an integral part of it, then it falls through and the court is empowered to reject such finding and/or satisfaction. Belief may be subjective but grounds are objective (see: Ganga Prasad Maheshwari v. CIT [1983] 139 ITR 1043; [1981] 21 CTR 83 (AID)). In other words, the "grounds to believe" must be good in faith and must have a Page 14 of 26 rational connection or relevant bearing to the formation of the belief. Belief must not be based on suspicions, speculation, surmise, conjecture, supposition or guesswork. Therefore, the existence of evidence is necessary. [62] As we have stated earlier, we are fully in agreement and endorse the decision in Ichi-Ban (supra) where this court held that the person who decides whether an offence has been committed under sub-ss. 38(1) and (3) of the ESA 1990 is the person "employed by a licensee (TNB)". And the finding whether an offence has been committed is based on the "subjective finding" of the TNB's employee (see: para [27] of the judgment).” Whether the Energy Commission’s Guidelines are binding [12] In Thong Foo Ching & Ors v Shigenori Ono [1998] 4 MLJ 585, the Court of Appeal via Siti Norma Yaakob JCA (as she then was) held: “A reading of the guidelines shows that there is no penalty imposed for non-compliance of any of their provisions. From the very nature of the document itself and its purpose to eradicate poverty by restructuring the Malaysian society so as to correct any racial economic imbalance, at most I would say the guidelines impose a moral obligation only on those affected to comply with their provisions. In this respect, I agree with Mr Wong that non-compliance or avoidance of the guidelines cannot render any agreement to be invalid or unenforceable. At most, non-compliance can be used as a means of refusing to exercise a discretion, a purely administrative act, as was done by the directors in David Hey's case. On the facts of the appeal before us, I consider that the learned trial judge was correct when she held that avoidance of the guidelines in the manner that Page 15 of 26 was done in this case cannot be held against the respondent as to render the two agreements invalid.” [13] In the case of Tenaga Nasional Berhad v Yu Woon Gin & Anor [2016] MLJU 1019, the High Court decided as below: “[9] I am in agreement with the submission of Miss Prithi that it is patently clear from paragraph 4 of the grounds of judgment that the claim was dismissed on account of TNB’s omission to comply with para 5.2.2 of Guideline. The Sessions Judge was wrong in doing so as the Guideline is purely an administrative guideline and not legally binding on TNB. Section 38 of the ESA permits TNB to rely on the findings of a person employed by it prove meter tampering. The evidence of SP1 and SP2 was sufficient to prove there was meter tampering.” [14] In the case of Tenaga Nasional Berhad v. Lension (M) Sdn Bhd [2018] 1 LNS 42, it was stated: “[18] There was no evidence to suggest that the plaintiff was bound to follow the guidelines set by Energy Commission. The plaintiff could have elected to claim back-billing of more than five years. However, the plaintiff took heed of the advice found in the Energy Commission's guidelines to claim the maximum back-billing for five years. [19] Following the advice in the guidelines set by a regulatory body is different from saying the guidelines are binding. In this instant case, the plaintiff followed the guidelines with good faith and accepted it as good practice in exercising its right to formulate the back-billing claims. The plaintiff followed the Page 16 of 26 guidelines not because they were binding on the plaintiff or because they have force of law, but merely as good practice.” Calculation of Losses by Tenaga Nasional [15] In the next case of Tenaga Nasional Bhd v. Bright Rims Manufacturing Sdn Bhd [2015] 1 CLJ 521, it was held as follows: “[14] An objective appreciation of the amount claimed based upon an estimate necessarily requires consideration from the correct perspective. That parliament provided by legislation for claims arising from tampered meters means that parliament reflects the public concern that the selfish acts of those who tamper with the meters inevitably makes the cost of electricity supply more expensive to the public. It is also obvious where a meter is tampered with, there is left no accurate metering of the electricity consumed. To require of the estimate to prove the amount claimed upon a balance of probabilities defeats the acceptance that it may be proved by an estimate. Herein lies the sting: to require too high a standard of proof defeats the estimate and rewards the consumer who tampered with the meter. The wisdom of doing so is so questionable that justice cannot possibly require such a standard. The inequity is equally obvious, for such consumer comes not with clean hands. Justice must necessarily hold that in the balance of justice, it must be the consumer who tampered with the meter who must bear the risk of having to pay more rather than the licensee to take a loss not because it was unable to prove the tampering but because it could not meet the high standard required from the estimate. [15] The reasoning that the respondent had proved a manifest error upon a balance of probabilities is equally flawed. It is the Page 17 of 26 amount claimed that has to be proved upon a balance of probabilities. A claim for backbilled sums due to meter tampering is necessarily based upon an estimate. That estimate is accepted unless it is demonstrated that there is manifest error. It is a question of whether there is or there is not a manifest error. That there is upon a balance of probabilities a manifest error is insufficient to elevate conjecture to a demonstration of manifest error.” [16] Referring again to the case of Tenaga Nasional Bhd v. Evergrowth Aquaculture Sdn Bhd & Other Appeals [2021] 9 CLJ 179, supra it was decided by Azahar Mohamed CJM (as he then was) that: “[86] The determination of this issue begins with the similar reference to the decision in Ichi-Ban (supra) where it was accepted that loss of revenue due to meter tampering may be difficult to assess due to evidential difficulties, but damages may still be awarded. It was held that in the absence of precise evidence, approximation or estimation may be used to prove the loss, provided that it is reasonable and fair. It was made clear that "The court must determine the damages as best as it could" and that evidential difficulties in the assessment of damages is not a bar to the court awarding damages.” [17] Finally in Tenaga Nasional Bhd v. Dunia Raya Enterprise Sdn Bhd [2015] 6 CLJ 751, it was held: “[6] However, if Tenaga relies on s. 38, they need not prove that the customer tampered with the meter. It is sufficient if they can show that the meter has been tampered. In terms of quantum Page 18 of 26 they can rely on certified written statement to establish their case. That does not mean the respondent cannot challenge the quantum. For the appellant to rely on a written statement, the following must have taken place:

the appellant must have calculated the loss of revenue and reduce it into a document and written statement;

(ii) an employee and/or duly authorised person of the appellant must have perused the document as well as the written statement to certify the written statement;

(iii) the certified written statement must contain the particulars stated in s. 38(4) of ESA 1990;

(iv) for a valid certificate, the name of the employee or authorised person of the appellant must appear in the statement and duly signed;

if a proper certified statement is issued, it needs to be served on the customer and if the customer does not pay, then civil action can be taken. Thus, it is a condition precedent for initiation of civil action in reliance of s. 38 for Tenaga to issue a certified written statement according to law, before civil action can be commenced;” Appellant/Defendant’s claim against the Respondent/Third Party [18] The appellant submitted that the sessions judge erred in her reasoning to disallow the claim against the respondent third party as follows: “The learned Sessions Court Judge had erred in law and/or in fact in dismissing the Defendant’s claim against the Third Party with scale cost. Page 19 of 26 i. The Defendant refers to paragraphs 1 to 11, Memorandum of Appeal 15 and submits that the learned Sessions Court Judge had erred in law and/or in fact in dismissing the Defendant’s claim against the Third Party with scale cost. ii. It is submitted that in the grounds of judgment, the learned Sessions Court Judge did not state the reasons of her decision in dismissing the Defendant’s claim against the Third Party with scale cost. iii. In accordance to Exhibits D17, D19 and D21 which was signed by the Defendant and Third Party, the parties had, inter alia, agreed: a. Clause 6.01(i), Exhibit D17; Clause 4.01(i), Exhibit D19; Clause 4.01(i), Exhibit D21. “To obey and comply with and to INDEMNIFY THE OWNER against the breach of all Acts regulations bye-laws rules and requirements of any Governmental or other competent authority relating to the conduct and carrying on of the business of the Club or to any act deed matter or thing done permitted suffered or omitted thereon by the Lessee or by any servant agent or licensee of the Lessee.” b. Clause 6.01(i), Exhibit D17; Clause 4.01(i), Exhibit D19; Clause 4.01(i), Exhibit D21. “To comply with the terms of any Act of Parliament, order, regulation, bye-law, rule, license and registration authorizing or regulating how the Golf Course and Buildings are used.” c. Clause 6.01 (j), Exhibit D17; Clause 4.01(j), Exhibit D19; Clause 4.01(j), Exhibit D21. Page 20 of 26 “Not to conduct the operation of the Club in such a way as to prejudice the goodwill and reputation of the Owner as the registered owner of the Golf Course and Buildings.” d. Proviso clause 6.01(j), Exhibit D17; Proviso clause 4.01(j), Exhibit D19; Proviso clause 4.01(j), Exhibit D21. “AND PROVIDED ALSO THAT the Lessee shall at all times, INDEMNIFY AND KEEP INDEMNIFIED THE OWNER from and against any and all loss damage or liability (whether criminal or civil) suffered by the Owner as a result of the breach of Lessee of this provision, or any other wrong doings on the part of the Lessee in relation thereto.” e. Clause 6.03(e), Exhibit D17; Clause 4.03(e), Exhibit D19; Clause 4.03(e), Exhibit D21. “To repair replace or install if so required by the Owner or the appropriate authority the electric meter, wiring installation and equipment as well as water meter, piping installation and equipment within the Golf Course and Buildings in respect of any damage, caused to the same by the Lessee, and for such purposes to use only the contractors approved by the Owner to carry out any electrical or plumbing works within the Golf Course and Buildings.” f. Clause 6.03(h), Exhibit D17; Clause 4.03(h), Exhibit D19; Clause 4.03(h), Exhibit D21. “Not to install or use in the Golf Course and Buildings any plant apparatus machinery or equipment which consumes electricity not metered through the meters Page 21 of 26 from which the Lessee’s consumption of electricity is calculated.” g. Clause 6.03(k), Exhibit D17; Clause 4.03(k), Exhibit D19; Clause 4.03(k), Exhibit D21. “At all times hereafter to INDEMNIFY AND KEEP INDEMNIFIED THE OWNER against all actions proceedings claims demands costs damages and expenses which may be levied brought or made against the Owner by reason of any act default or omission of the Lessee its servants agents or licensees whatsoever.” iv. Since the Third Party had signed and agreed to Exhibits D17, D19 and D21 which containing the above clauses, the Third Party was bound by the said clauses which the Third Party ought to indemnify and/or keep indemnified the Defendant from the Plaintiff’s claim; v. SECONDLY, the Alleged Meter Tampering (which is denied) happened from 1.12.2011 until 14.10.2014. During that time, the Third Party was the tenant of the said Premises which the said Premises was under the possession and control of the Third Party; vi. It is submitted that it is unlikely the Defendant tampered the meter as this did not benefit the Defendant. On the contrary, the Third Party would be getting benefit from tampering the meter since the said Premises was under the possession and control of the Third Party. Thus, it is submitted that the Third Party is the party who is tampered with the meter installation/meter at the said Premises, not the Defendant; Page 22 of 26 vii. Moreover, if the witness statements given by SP1, SP4 and SP5 are acceptable by this Honourable Court, it is submitted that SP1, SP4 and SP5 had testified that when they conducted the Alleged Inspection (which is denied), the alleged worker opened the meter room door for them and affixed the business stamp of “Permas Jaya Golf Club (managed by GHL Golf Academy)” on Exhibit P9. SPK1 had admitted that the business stamp of “Permas Jaya Golf Club (managed by GHL Golf Academy)”, appeared on Exhibit P9 belonged to him.” [19] Section 29 of the Courts of Judicature Act 1964 and O.55 r.2 ROC states that all appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from. Based on the record of appeal filed and the written and oral submissions by the appellant and respondent, I found that the sessions court judge had erred in her findings and had failed to appreciate the facts and law properly. [20] In the Court of Appeal case of UMW Toyota Motor Sdn Bhd & Anor v Allan Chong Teck Khin & Anor [2021] 3 MLJ 107, Supang Lian JCA opined as follows: “PRINCIPLES OF APPELLATE INTERVENTION [28] Foremost on our minds are the two tests, namely, ‘plainly wrong’ test and ‘insufficient judicial appreciation of evidence’ test for appellate interference in a subordinate court’s finding. In respect of the two tests, the Court of Appeal held as follows in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 at pp 98–99: Page 23 of 26 “(2) Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against these. He must also test the evidence of a witness against the probabilities of the case. The principle central. to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal.” [29] The Court of Appeal has reiterated in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors and another appeal [2019] MLJU 38; [2019] 3 MLRA 322 at p 329 that: “[25] We are mindful of the limited role of the appellate court in relation to the findings of facts made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the Page 24 of 26 witness before him or her. Generally, such finding ought not be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant an appellate interference merely because the appellate court entertains doubt whether such finding is right (see: Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97; [2003] 1 MLRA 95; Gan Yook Chin & Anor v Lee Ing Chin & Ors [2001] MLJU 21; [2004] 2 MLRA 1). [30] In Mohamed bin Abdullah v Chah Hea Seng [1980] 2 MLJ 282; [1980] 1 LNS 48, the Federal Court held: “The decision of the learned judge was clearly not a specific finding of fact but a finding of facts which are really inferences drawn from facts specifically found, and on the principles enunciated in Benmax v Austin Motor Co Ltd [1955] AC 370, we feel more at liberty to form an independent opinion on the conclusion which should reasonably be drawn.” [21] Last but not least in Paya Terubong Estates Sdn Bhd v Pusaka Warisan Sdn Bhd [1998] 2 MLJ 463, the learned Gopal Sri Ram JCA (as he then was) was of the view: “One can, of course, quite well appreciate an appellate court's reluctance to disturb the primary exercise of discretion. This is because a court of appeal in a matter such as the present does not possess an original discretion, its initial function being one of review only. However, where, as in the present instance, it is amply demonstrated that the judge in whom the primary discretion is vested Page 25 of 26 has failed to take into account relevant considerations, it is the duty of this court to say so and to intervene and set matters right by an exercise of its own discretion.” [22] Ergo the appellant’s appeal was allowed with costs. Dated: 21st December 2023 Signed (ASLAM BIN ZAINUDDIN) Judge High Court in Malaya Johor Bahru Note: This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any Page 26 of 26 COUNSEL For the Appellant: W. H. Chew Messrs. K H Loo & Co Advocates & Solicitors No. 16-01, Jln Bestari 2/2 Taman Nusa Bestari 81300 Skudai Johor For the Respondent: C K Yap Messrs. C. K. Yap & Partnes Advocates & Solicitors No. 21A, Jln. Sutera Tanjung 8/2