Tenaga Nasional Berhad v Choo Lee Chen (BL-A72NCvC-100-02/2024)

The present case concerns Magistrates’ Court Civil Suit No. BL-A72NCvC-100-02/2024.

2.

As the two suits arise from distinct factual matrices necessitating independent evaluation of the evidence, separate Grounds of Judgment are issued for clarity and coherence.

The Plaintiff commenced this action under s. 38(3) of the Electricity Supply Act 1990 (the ESA), claiming RM61,310.05 for undercharged electricity. The Defendant denied liability, contending that the Premises were rented out and disclaiming any responsibility.

This judgment relates to the inspection conducted on 8.7.2020 (“the Second Inspection”). The earlier inspection conducted on 10.12.2019 forms the subject matter of the Sessions Court Civil Suit No. BL-B52NCvC-8-02/2022 and is addressed in a separate Judgment.

The Second Inspection was undertaken in light of suspicions of irregular electricity usage linked to alleged bitcoin mining at the Premises. It revealed interference with the three-phase meter by way of direct bypass wiring from the TNB incoming isolator to the Distribution Box, thereby diverting electricity away from the meter. The consequence was material under-recording of consumption and corresponding loss of revenue to the Plaintiff.

On the totality of the evidence before me, I am satisfied on a balance of probabilities that the Plaintiff has established its claim against the Defendant. I allowed the Plaintiff’s claim with costs.

My reasons are set out below.

The parties relevant to this action are as follows.

The Plaintiff was at all material times a licensee under the Act, responsible for the management, administration, and supply of electricity in Malaysia.

The Defendant is the registered electricity consumer (the registered consumer) for Account No. 6143 210027678503 in respect of the Premises known as A-2-29, Jalan Bayu Laut 15B/KS09, Kota Bayu Emas Pendamar, 41200 Pelabuhan Klang, Selangor Darul Ehsan (the Premises), pursuant to a supply contract dated 27.2.2017 (the Supply Contract).

The brief facts, as gathered from the pleadings, the documentary and oral evidence, as well as the written submissions before me, are as follows.

13.

On 8.7.2020, representatives of the Plaintiff conducted an inspection of the meter installation at the Premises. During that inspection, it was discovered that the meter installation had been interfered with. The details of the interference discovered are as follows:

direct wiring for all three phases and the neutral had been taken from the TNB incoming supply isolator directly to the Distribution Box, bypassing the electricity meter; and

(ii) clamp meter testing revealed substantial current readings on the direct wiring cables, namely Red Phase = 109.9A, Yellow Phase = 87.5A, and Blue Phase = 67.0A.

In support of the findings made during the inspection, the following photographic evidence was tendered:

Photographs of the anomalies detected (Exhibit P17);

(ii) Photographs of the direct wiring at the incoming TNB isolator (Exhibit P18); and

(iii) Photographs of the notification document placed in the registered consumer’s letterbox (Exhibit P19)

The Plaintiff’s representatives recorded the irregularities observed at the Premises. The Plaintiff subsequently removed the direct wiring detected, resealed the meter installation, and lodged a police report on 8.7.2020, being Report No. KLANG/018517/20, in respect of the findings made during the inspection.

Following the inspection, the Plaintiff undertook a calculation of the undercharged electricity consumption, commonly referred to as “backbilling”, based on the Maximum Demand Load (BKM) calculation method. On that computation, the Plaintiff determined that the value of the unrecorded electricity consumption amounted to RM61,310.05 for the said premises.

The Plaintiff subsequently demanded payment of the said sum from the Defendant. The Defendant did not make payment of the amount claimed.

In the circumstances, the Plaintiff commenced the present action seeking to recover the sum of RM61,310.05 together with interest thereon until full settlement.

While issues were initially framed by the parties at Enclosure 8, a careful consideration of the pleadings, evidence adduced at trial, and written submissions reveals that eleven issues arise for determination, which I now set out in accordance with the thematic groupings below.

(A) PRELIMINARY STATUS AND INSPECTION FRAMEWORK

Whether the Defendant was, at the material time, the registered consumer for Account No. 6143 210027678503 in respect of the Premises

(ii) Whether the Plaintiff was under any legal obligation to give prior notice of the inspection conducted on 8.7.2020 or to ensure the Defendant’s presence at the Premises

(iii) Whether the Plaintiff was under any legal or regulatory obligation to furnish or otherwise communicate the results of the inspection to the Defendant after the inspection carried out on 8.7.2020

(B) ESTABLISHMENT OF METER INTERFERENCE AND ITS CONSEQUENCES

(iv) Whether interference with the electricity meter installation was established within the meaning of s. 37(1), (3) and (14) of the ESA

Whether such interference caused the meter to fail to duly record the electricity usage

(vi) Whether proof of tampering depended upon the physical production of the meter or meter installation in court

(C) LIABILITY OF THE REGISTERED CONSUMER

(vii) Whether the Defendant remains liable as the registered consumer notwithstanding that the Premises were rented out

(viii) Whether proof of personal involvement by the Defendant in the bitcoin activities or meter tampering is required for the Plaintiff to succeed in its claim

(ix) Whether the Defendant’s alleged lack of knowledge of the bitcoin activities at the Premises affects her liability as the registered consumer

(D) CAUSATION AND CONTRIBUTORY CONDUCT

Whether any act or omission of the Plaintiff caused or contributed to the loss of revenue arising from the meter interference

(E) ASSESSMENT OF QUANTUM

(xi) Whether the Plaintiff’s method of calculation of the undercharged bill was accurate, fair, reasonable, and in compliance with the applicable electricity supply laws and regulations

Before turning to the issues for determination, it is convenient to set out the settled principles governing the burden and standard of proof, which inform the evaluation of the pleadings, the evidence adduced at trial, and the parties’ submissions.

The burden and standard of proof in civil proceedings are governed by well-established statutory and judicial principles, to which I now turn. Statutory provisions Evidence Act 1950 (the Act). S. 101 of the Act reads: “101 Burden of proof “102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

And s. 103 of the Act reads: “103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

Guidelines have been developed over the years in precedents concerning the centrally relevant burden of proof. The Court of Appeal in Abu Bakar Pangis & Ors v Tung Cheong Sawmill Sdn Bhd & Ors And Another Appeal [2014] 5 MLJ 384; [2015] 5 CLJ 753 explained the concept of proving a civil claim on the balance of probability. In delivering judgment of the Court of Appeal, Abdul Wahab Patail JCA observed: “[22] Objectively speaking, the nature of proof of a claim is not about believing one party or witness and not the other. Otherwise, justice in civil litigation falls prey to the uncertainty of who and what is believed or not by whoever presides in the court. It is to avoid this and to put the matter of proof upon an objective basis that the two fundamental concepts of the burden of proof and proof upon a balance of probabilities were developed. … [24] To appreciate how burden of proof functions, it is necessary to bear in mind the process of determination of facts in civil litigation: facts in his pleadings, thereby giving the other party notice and an opportunity to check and verify that those facts are true and correctly stated, and the other party may, to enable him to do so, require further and better particulars.

if not disputed by the defence, it is deemed to have been accepted and it is not necessary to prove it;

(ii) if a fact in support is disputed and the plaintiff had disclosed the nature of the evidence relied upon, then if conceded by the defence it is deemed to have been proved, and no further proof is necessary;

(iii) if a fact in support is disputed and the plaintiff had disclosed the nature of the evidence relied upon, and it remained disputed by the defence, but if after discovery and or interrogatory it was conceded by the defence, it is deemed to have been proved, and no further proof is necessary.

If not conceded, a disputed fact in support proceeds to trial stage where:

(ii) if as to the disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence, and such evidence is not challenged in cross-examination, then it is held to have been proved;

(iii) if as to the disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence produced, and such evidence is not demolished during cross-examination, and no evidence to support the cross-examination is adduced, or if adduced failed to support the basis of cross-examination, then the evidence is held to remain unshaken and the disputed fact have been proved;

(iv) if as to the disputed fact evidence is produced in the form of oral testimony of a witness or documentary evidence, and cross-examination succeeds to demolish that evidence, then the disputed fact is held to be not proved; (See also: Wong Thin Yit v Mohamed Ali [1971] 1 LNS 151; [1971] 2 MLJ 175; Krishna Murthey & Anor. v Law Lye Chua [1992] 2 CLJ Rep 668; Jafri Elias v Khor Tang Seah [1992] 2 CLJ Rep 601; and MGI Securities Sdn Bhd v Teong Teck Leng & Ors [2000] 5 CLJ 163; [2000] 1 MLJ 354) FIRST ISSUE: WHETHER THE DEFENDANT WAS, AT THE MATERIAL TIME, THE REGISTERED CONSUMER FOR ACCOUNT NO. 6143 210027678503 IN RESPECT OF THE PREMISES Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the documentary evidence establishes that the Defendant applied for and was approved as the registered electricity meter user for the Premises under Account No. 6143 210027678503. According to him, the Billing and Customer Relationship Management (BCRM) records (Exhibit P4), the Supply Contract, and the testimony of PW1 demonstrate the existence of a valid contractual relationship between the parties, which was neither denied nor challenged.

Learned counsel for the Defendant made no substantive submission on the formation of the Supply Contract or the registration of the account. As appears from the Defendant’s Statement of Defence, she did not specifically deny the existence of the Supply Contract and, apart from denying that she was the electricity user, admitted the remaining contents of paragraphs 4 and 5 of the Statement of Claim (see: paragraph 4 of the Defendant’s Statement of Defence).

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiff.

My reasons are these. Billing and Customer Relationship Management records (Exhibit P4), which were generated at the time of the opening of the electricity account. These records were affirmed at trial through PW1’s testimony in her capacity as Customer Service Team Member. Her evidence was clear, coherent and consistent with the documentary trail, and remained unshaken in any material respect. In that evidential setting, I find no basis to question the authenticity or reliability of these records, which were generated in the ordinary course of business. procedural regularity lends further assurance to the integrity of the account registration. This further reinforces the conclusion that the Defendant was duly registered as the electricity consumer. Plaintiff’s case warrants consideration. Paragraphs 4 and 5 of the Plaintiff’s Statement of Claim read as follows: “4.Mengikut satu Kontrak Bekalan yang bertarikh 27/02/2017 (selepas ini dikenali sebagai “Kontrak Bekalan tersebut”), Defendan telah memohon kepada Plaintif untuk bekalan elektrik dan Plaintif telah bersetuju memberikan bekalan tersebut kepada Defendan sebagai pengguna berdaftar melalui akaun pengguna No. 6143 210027678503 bagi premis yang beralamat di A-2-29, Jalan Bayu Laut 15B/KS09, Kota Bayu Emas Pendamar, 41200 Pelabuhan Klang, Selangor Darul Ehsan (selepas ini dikenali sebagai “premis Defendan tersebut”) mengikut terma-terma yang terkandung di dalam Kontrak Bekalan tersebut. Defendan juga merupakan pengguna elektrik di premis Defendan tersebut.

5.

Berikut adalah inter alia terma-terma nyata Kontrak Bekalan tersebut:- 1 Kadar penggunaan elektrik adalah tertakluk kepada tarif yang telah ditentukan oleh Plaintif dari masa ke semasa dan dipersetujui oleh Defendan menurut peruntukan di bawah

5.2 Defendan bertanggungjawab untuk tidak mewujudkan apa-apa halangan dan/atau menjalankan apa-apa aktiviti berhampiran dengan mana-mana pepasangan elektrik Plaintif dan Plaintif berhak untuk mengambil tindakan yang munasabah untuk menghapuskan halangan yang diwujudkan oleh Defendan atau wakil yang berada di bawah jagaan/kawalan Defendan;

5.3 Segala bil yang dimajukan kepada Defendan mesti dibayar oleh Defendan dalam tempoh yang ditetapkan dalam bil-bil berkenaan dan sekiranya Defendan gagal menjelaskan pembayaran bil, Plaintif mempunyai hak untuk memotong bekalan tenaga elektrik kepada Defendan;

5.4 Defendan bertanggungjawab untuk tidak melakukan sebarang tindakan dan/atau kesalahan yang boleh menjejaskan kecekapan dan/atau keselamatan pepasangan meter; dan

5.5 Plaintif boleh menamatkan Kontrak Bekalan Elektrik tersebut sekiranya Defendan gagal mematuhi mana-mana peruntukan di bawah Kontrak Bekalan tersebut dan/atau Akta Bekalan.”

The Defendant’s defence in respect of the existence of the Supply Contract for the Premises reads as follows: “4. Selain menafikan Defendan adalah pengguna elektrik di premis tersebut, Kandungan lain di perenggan 4 dan 5 di dalam penyataan Tuntutan tersebut adalah diakui.”

A plain reading of the above pleading reveals that, apart from denying that she was the electricity user at the Premises, the Defendant admitted the remaining contents of paragraphs 4 and 5 of the Statement of Claim. The denial is therefore directed at the question of occupation or actual usage, rather than the formation of the Supply Contract or the registration of the electricity account in her name. There is no express traverse directed at the existence of the contract or the opening of the account. In the absence of a specific denial, those pleaded facts stand admitted, and no alternative factual narrative was advanced to explain how the account came to be registered under the Defendant’s particulars. The issue of who occupied or utilised the Premises is conceptually distinct from the question of account registration, which remained unchallenged on the pleadings and evidence. No positive case was advanced to dispute the authenticity, formation, or validity of the Supply Contract. The Plaintiff’s evidence therefore remains unrebutted and, in my judgment, leads plainly to the conclusion that the Defendant was the registered consumer at the material time.

On the balance of probabilities, I am satisfied that the Defendant was, at the material time, the registered electricity meter user for the Premises.

I, therefore, answer the First Issue in the affirmative. SECOND ISSUE: WHETHER THE PLAINTIFF WAS UNDER ANY LEGAL OBLIGATION TO GIVE PRIOR NOTICE TO THE DEFENDANT OF THE INSPECTION CARRIED OUT ON 8.7.2020 IN RESPECT OF THE METER INSTALLATION AT THE DEFENDANT’S PREMISES, OR TO ENSURE THE DEFENDANT’S PRESENCE DURING THAT INSPECTION Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the inspection on 8.7.2020 was conducted pursuant to a lawful enforcement operation under a valid search warrant (Exhibit P1). He argued that no law or guideline required prior notice to the Defendant or her presence during the inspection, particularly as the meter itself was located in a publicly accessible area, and that the Plaintiff acted within its lawful powers.

Learned counsel for the Defendant contended that the Plaintiff failed to notify the Defendant in advance of the inspection and merely left a notice at the Defendant’s premises. He argued that the absence of prior notification and the failure to ensure the Defendant’s presence rendered the inspection procedurally improper.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiff.

My reasons are these.

This conclusion finds authoritative support in the decision of the Court of Appeal in Tenaga Nasional Bhd v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400, where the Court observed: “[16] The High Court did not err in applying common sense to hold that giving notice before an inspection makes the inspection an act of futility.” Presence of the Defendant During Inspection Energy Commission’s Guidelines. However, on the evidence before me, I am satisfied that the Defendant’s presence and consent were not prerequisites in this case. This is particularly so given that the search warrant (Exhibit P1) had been obtained and the meter itself was located outside the Premises at an external position, and its examination did not involve entry into the Defendant’s private interior living or working space. As I see it, that factual context materially distinguishes this case from one involving entry into a private dwelling for the purpose of inspecting installations situated within the interior of the premises.

The procedures described by PW5 are consistent with the Procedural Guidelines for the Recovery of Loss of Revenue by a Licensee in Cases of Dishonest Use of Electricity issued by the Energy Commission (the Energy Commission’s Guidelines) which reads: “Prosedur Pelaksanaan Operasi

4.1 Memasuki Premis Pengguna …

4.2.1 Semasa pemeriksaan dan ujian dijalankan oleh pekerja pemegang lesen, pengguna/pemilik/wakil premis hendaklah hadir bersama. Walau bagaimanapun, bagi kes-kes tertentu di mana pepasangan dan/ atau meter ditempatkan di tempat-tempat awam seperti laluan kaki lima (five foot main), bilik salur penaik elektrik (electrical riser room), tiang lampu dan sekiranya pengguna/pemilik/wakil premis enggan memberi kerjasama dan seumpamanya, pemegang lesen boleh meneruskan pemeriksaan tanpa kehadiran mereka. …

4.2.4 Hasil pemeriksaan dan ujian hendaklah dimaklumkan secara lisan kepada pengguna/pemilik/wakil selepas pemeriksaan dan ujian dijalankan. Borang pemeriksaan dan pengujian pada perenggan 4.2.3 hendaklah ditandatangani oleh pengguna/pemilik/wakil dan jika enggan, catitan hendaklah dibuat di ruangan yang disediakan seperti “pengguna/ pemilik/wakil premis enggan menandatangani”. (Emphasis added)

Read in its proper context, paragraph 4.2.1 contemplates the presence of the user or representative during inspection. However, that requirement is immediately qualified by the express exception permitting the licensee to proceed without such presence where the meter is located in publicly accessible areas or where cooperation is not forthcoming. In my view, the two limbs must be read together. The language employed is permissive rather than mandatory. Properly construed, the guideline does not impose an absolute precondition that the consumer must be present before inspection may lawfully proceed.

In the present case, the meter was located outside the main interior area of the Premises and was examined pursuant to lawful entry effected under the search warrant. PW5 and PW6 attempted to locate the Defendant or a representative but were unsuccessful. The notation “Tiada wakil pengguna” was recorded contemporaneously in the Meter Inspection and Testing Form (Exhibit P10). On the evidence before me, these circumstances bring the inspection squarely within the recognised exception contemplated by the Guidelines. I therefore find that proceeding in the Defendant’s absence was consistent with the procedural framework and did not render the inspection irregular. In any event, the Guidelines are procedural in nature and do not confer substantive rights capable of invalidating an otherwise lawful inspection conducted pursuant to statutory authority.

For completeness, I add that the broader statutory framework governing inspections under the ESA supports the conclusion I have reached. The Federal Court in Tenaga Nasional Bhd v Evergrowth Aquaculture Sdn Bhd & Other Appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937 clarified that TNB’s inspection powers under Regulation 7 of the Licensee Supply Regulations 1990 are distinct from the investigative powers conferred upon the Commission under ss. 5 and 6 of the ESA, and that Energy Commission sanction is not required where inspection is undertaken for civil recovery under s. 38(3) of the ESA. This, in my view, reflects settled law and forms part of the legal landscape within which the present inspection must be assessed.

Here, entry into the Premises was effected pursuant to the search warrant. The meter installation, being located outside the principal private interior space, was examined within the scope of the Plaintiff’s lawful inspection powers. The inspection regime for loss-of-revenue claims remains distinct from the criminal enforcement framework under the Act.

On the balance of probabilities, I am satisfied that the Plaintiff was under no legal or regulatory obligation, in the circumstances, to give prior notice to the Defendant of the inspection conducted on 8.7.2020, nor to secure the Defendant’s presence. The inspection was conducted pursuant to lawful authority and in accordance with the governing statutory framework and applicable guidelines.

I therefore answer the Second Issue in the negative. THIRD ISSUE: WHETHER THE PLAINTIFF WAS UNDER ANY LEGAL OR REGULATORY OBLIGATION TO FURNISH OR OTHERWISE COMMUNICATE THE RESULTS OF THE INSPECTION TO THE DEFENDANT AFTER THE INSPECTION CARRIED OUT ON 8.7.2020 Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the applicable guidelines required only the completion of internal inspection and testing forms, and did not impose any legal or regulatory obligation to furnish the inspection results to the Defendant after the inspection. According to him, notification is required only where the registered consumer or representative is present at the time of inspection, which was not the case here, and therefore no further duty of notification arose.

Learned counsel for the Defendant contended that the Plaintiff did not inform the Defendant about the inspection and only left notices at the Defendant’s Premises. Arguing further, he submitted that the Plaintiff had the Defendant’s telephone number in its records but never contacted the Defendant to inform her of the activities said to have taken place at the Premises, despite having full knowledge that the Defendant was not present there. He therefore maintained that the Plaintiff failed to discharge its responsibility to properly notify the Defendant of the inspection and its results.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiff.

My reasons are these. (Exhibit P10). That obligation, however, was confined to internal documentation and procedural compliance. It was an obligation directed at ensuring proper record-keeping and regulatory accountability, not one framed as a duty of post-inspection disclosure.

Having reviewed the governing framework, I find no provision in law, nor any applicable guideline, including those issued by the Energy Commission, that mandates the Plaintiff to furnish the Meter Inspection and Testing Form or otherwise forward the completed inspection documentation to the Defendant or her representative after the inspection has been carried out. To my mind, the governing framework does not impose such a requirement. conditional and event-specific. It does not create a broader or continuing duty to notify in circumstances where no such person was present. I am therefore unable to read the Energy Commission’s Guidelines as imposing an obligation which its text does not express. The Defendant’s complaint, in my judgment, finds no support in the governing legal instruments.

For completeness, I note that the evidence further establishes that following the rectification works, the Plaintiff’s representative prepared and completed several documents, namely: (i) “Surat Pemberitahuan Pemeriksaan dan Pengujian Pepasangan Meter” [Exhibit P13]; (ii) “Surat Pemakluman Semakan Pepasangan Meter Elektrik oleh TNB” [Exhibit P14]; (iii) “Surat Pemberitahuan Pengambilan Bahan-Bahan Bukti” [Exhibit P15]; and (iv) “Notis Pemotongan Bekalan Elektrik di bawah Subseksyen 38(1) Akta Bekalan Elektrik 1990” [Exhibit P16], in which the proposed date of disconnection, namely 28.7.2020, was recorded. The evidence further shows that, as the inspection was conducted in the absence of the Defendant and/or her representative, copies of these documents were left in the letterbox of the Defendant’s Premises. While I have found that no legal obligation of post-inspection disclosure arose in the circumstances, these steps demonstrate that the Plaintiff nevertheless took measures to bring the inspection and its consequences to the Defendant’s attention.

In any event, I am unable to discern what prejudice could have arisen from the absence of notification of the inspection results. The subsequent Letters of Demand issued pursuant to s. 38(4) and s. 38(5) of the ESA set out the material particulars, including the inspection findings and the computation of the loss of revenue, which I shall address in a later segment of this judgment. On that footing, the requirements of procedural fairness are satisfied. The Defendant was afforded full opportunity at trial to challenge both the inspection findings and the quantum claimed.

On the balance of probabilities, I am satisfied that the Plaintiff was not required to furnish the inspection forms or otherwise provide post-inspection disclosure of the results of the inspection carried out on 8.7.2020 in respect of the meter installation at the Defendant’s Premises.

I, therefore, answer the Third Issue in the negative. FOURTH ISSUE: WHETHER INTERFERENCE WITH THE ELECTRICITY METER INSTALLATION WAS ESTABLISHED WITHIN THE MEANING OF S. 37(1), (3) AND (14) OF THE ESA FIFTH ISSUE: WHETHER SUCH INTERFERENCE CAUSED THE METER TO FAIL TO PROPERLY RECORD THE ELECTRICITY USAGE Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the inspection on 8.7.2020 revealed direct bypass wiring from the busbar to the distribution board, resulting in substantial current despite negligible meter readings. He contended that the technical findings, clamp meter readings, inspection forms and photographs established interference within the meaning of s. 37(1), (3) and (14) of the ESA, and showed that the meter failed to properly record actual consumption, thereby causing loss of revenue.

Learned counsel for the Defendant argued that the Plaintiff had failed to prove, on a balance of probabilities, any interference within the meaning of s. 37(1), (3) and (14) of the ESA at the Premises. He submitted that the Plaintiff’s case rested on assumptions and inconsistent testimony, including reliance on an alleged “sudden drop” in consumption, and that the evidence did not establish that the meter failed to properly record usage or that the claimed loss was attributable to the Defendant.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiff.

My reasons are these. Under the statutory framework, the Plaintiff is required only to prove, on a balance of probabilities, the existence of an offence under s. 37(1), (3) and (14) of the ESA in order to sustain a claim for loss of revenue. Thus, the central inquiry before me is whether the evidence establishes interference within the meaning of those provisions.

For clarity and consistency, I employ the term “interference” in these grounds as a convenient descriptor of conduct falling within s. 37(1),

So far as material, s.38(3) of the ESA states: ““38 Disconnection of supply of electricity … expenses incurred in respect of reconnection of electricity in the manner as have been directed by the Commission: Provided that and subject to subsection (4), if the licensee does not proceed with a claim for such loss of revenue and expenses in court, the licensee may only claim against the consumer for the said loss of revenue and expenses for a period not exceeding six months retrospectively from the date the offence was discovered under subsection (1).” (Emphasis added)

S. 37 of the ESA states: “37 Offences … …

Read together, these provisions establish that civil recovery under s. 38(3) is predicated upon proof of conduct falling within s. 37, particularly conduct which prevents a meter from duly recording electricity supplied. The statutory focus is therefore on whether the meter was caused not to record consumption properly, rather than on the identity of the person who effected the act. Objective Technical Evidence Establishing Interference and PW6 commenced with a physical examination of the meter installation area. The inspection revealed, among others, the following findings: (see: Exhibit P10);

no electricity consumption was recorded by the meter at the Defendant’s Premises (see: Exhibit P17); and Premises, bypassing the meter (see: Exhibit P17).

Assessed in totality, I consider the significance of these findings to lie in their combination of negligible meter readings together with a direct bypass connection capable of carrying load. Meter Inspection and Testing Form (Exhibit P10) for each phase.

To my mind, the disparity reflected in the foregoing table is not marginal but stark. While the meter display recorded virtually no consumption, the direct wiring connection carried a total load of 264.4 amps. I find that the only reasonable inference is that electricity was diverted through the bypass and not recorded by the meter.

I pause to address the Defendant’s contention that supply had been disconnected following the first inspection, rendering subsequent interference impossible. The evidence shows that supply was in fact disconnected on 13.1.2020 but reconnected on 10.4.2020 within the permitted period, such that electricity had lawfully resumed by the time of the second inspection on 8.7.2020. The clamp meter readings of 109.9A, 87.5A and 67.0A recorded on 8.7.2020 and documented in Exhibit P10 further demonstrate that live current was present at the Premises. In my view, those readings are consistent with a direct bypass arrangement capable of drawing electricity independently of the meter. I am therefore unable to accept the assertion of impossibility either on the chronology of supply or on the inspection data. PW5’s evidence shows that a terminal polarity test was conducted to verify wiring configuration. Although a current accuracy test would ordinarily determine whether the meter properly recorded usage, such testing could not be performed because of the bypass wiring itself. That inability is not neutral but forms part of the evidential picture, constituting further objective evidence of interference and cohering with the live current readings recorded during the inspection. with normal meter operation or lawful wiring configuration arises on the evidence, and none was advanced by the Defendant capable of displacing that inference. Evidential Position After Establishment of Interference MLJU 1507, it was stated as follows: “[19] Based on the above, there is no requirement under the ESA 1990 that the Plaintiff must first prove that it was the Defendant who tampered with the meter installation.” Nasional Bhd [2018] 5 MLJ 831; [2017] 4 CLJ 340; [2017] 6 MLRA 504, the Court stated: “[13] In any event, it was not TNB’s case that it was the appellant who tampered with the meter. Its cause of action was simply based on the fact that the tampering of the meter had caused it to lose revenue. The fact is, there is no requirement under the ESA that TNB must first prove that it was the registered consumer who damaged or tampered with the meter before it could succeed in its claim against the consumer under s 38(3)–(5). [14] To require TNB to prove that the offence of tampering was committed by the registered consumer before it could succeed in its claim for loss of revenue would lead to an absolute absurdity whereby the registered consumer will escape liability if he is ‘ingenious’ enough to engage a third party to damage or tamper with the meter in preparation for his refusal to pay for any loss of revenue suffered by TNB resulting from the tampered or damaged meter.” (Emphasis added) Plaintiff is not required to prove who physically effected the interference. In Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd & Other Appeals [2018] 3 MLJ 141; [2018] 3 CLJ 557, the Federal Court held that once interference under s. 37 is proven, the licensee may pursue civil recovery under s. 38 without establishing authorship.

For completeness, I note that the statutory scheme also contains s. 40 of the ESA, which provides an evidential mechanism in criminal prosecutions where artificial means capable of preventing proper recording are discovered. In Tenaga Nasional Bhd lwn Arkitek Urbanisma Sdn Bhd [2011] 10 CLJ 796; [2010] MLJU 2219, the High Court recognised that a combination of oral testimony, documentary records and photographic evidence may suffice to establish interference under s. 37(3). In that case, reference was made to s. 40 as part of the statutory context.

That provision, although framed in the context of criminal proceedings, reflects legislative recognition that the discovery of artificial means capable of preventing proper recording of electricity is evidentially significant. I emphasise, however, that my finding does not depend upon s. 40. In this civil claim under s. 38(3), I do not invoke any statutory presumption or evidential consequence arising therefrom, nor do I shift the burden of proof by reference to it. The finding of interference rests solely upon the objective technical evidence adduced at trial and assessed on a balance of probabilities.

This approach is consistent with the principled reasoning of the Federal Court in Evergrowth Aquaculture. There, the discovery of artificial means affixed to a meter was held sufficient to justify the inference of meter interference for the purposes of s. 38 of the ESA. In the present case, the evidence is more compelling, comprising direct bypass wiring across all three phases together with substantial load disparity when compared against negligible meter readings.

On the balance of probabilities, I am satisfied that:

interference with the electricity meter installation at the Defendant’s Premises has been established within the meaning of s. 37(1), (3) and (14) of the ESA; and

(ii) such interference caused the meter to fail to duly and accurately record the electricity usage, resulting in under-recording. SIXTH ISSUE: WHETHER PROOF OF INTERFERENCE DEPENDED UPON THE PHYSICAL PRODUCTION OF THE METER OR METER INSTALLATION IN COURT Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the law does not require the physical production of the tampered meter or installation in court in order to establish interference. According to him, tampering may be proven on a balance of probabilities through credible witness testimony supported by photographs, inspection forms, contemporaneous records, and other documentary evidence. Analysis Tenaga Nasional Bhd v Asia Knight Bhd (Previously known as Perfect Scope Bhd) [2017] 3 MLJ 631; [2018] 5 CLJ 227 demonstrates that a plaintiff may discharge its burden on a balance of probabilities through witness testimony supported by photographs, investigation forms, correction letters, notification letters, and police reports: “[11] … We agree with the submission of learned counsel for the plaintiff that the evidence produced by the plaintiff's witnesses were consistent and credible. It was also corroborated by the production of the photographs, the 'borang siasatan perjangkaan LPC MV/HV', 'surat pemakluman semakan meter', 'surat pemberitahuan pengambilan barang kes' and police report. 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 (supra). 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.” (Emphasis added) They offered detailed explanations of the photographs taken during the inspection, and their testimony concerning the meter tampering withstood cross-examination. It was corroborated by documentary exhibits and not materially displaced. In my view, it carries significant probative force. production of the meter, and I am satisfied that the Plaintiff’s case stands established on the evidence adduced. Plaintiff’s evidence or the findings arising from the inspection at the Defendant’s premises. Notably, the occurrence of tampering was never specifically denied. Instead, the Defendant merely asserted that the Premises had been rented out. In my judgment, that bare assertion is insufficient to displace the technical and documentary evidence adduced by the Plaintiff. As is trite, a denial unaccompanied by rebuttal evidence does not undermine otherwise credible proof. Summing-up SEVENTH ISSUE: WHETHER THE DEFENDANT REMAINS LIABLE AS THE REGISTERED CONSUMER NOTWITHSTANDING THAT THE PREMISES WERE RENTED OUT Opposing Contentions in brief Premises several times and that it was used for training or courses. He maintained that it was impossible for any bitcoin mining activities to have taken place during the tenancy and suggested that such activities, if any, might have occurred only after vacant possession was delivered. Analysis Logistik Sdn. Bhd., commencing on 15.6.2016 for a term of two years until 14.6.2018 and subsequently extended until May 2019. The Defendant further testified that she was personally acquainted with a representative of the tenant company, Puan Norita. I record these aspects of the evidence. therefore took place at a time when no tenancy subsisted. Bhd. was called to give evidence, nor was any documentary material produced to substantiate the tenancy arrangement beyond the agreement itself. The facts relating to the alleged occupation and activities at the Premises were plainly within the knowledge of the Defendant and the tenant, but no independent evidence was adduced to support the narrative advanced. In circumstances where material facts lie peculiarly within the knowledge of a party, the court is entitled to consider the evidential consequences of the failure to call available witnesses. In any event, as the tenancy had already ended by May 2019, the explanation offered does not directly address the state of affairs as at the Second Inspection on 8.7.2020. Bhd v Abdul Aziz bin Zainal & Ors [2023] 12 MLJ 355, where the High Court stated: “[45] … … [5] … The other case is Crawford v Financial Institutions Services Ltd (Jamaica) [2005] UKPC 40, where Lord Walker of Gestingthorpe when delivering the Advice of the Privy Council said: It is well settled that in civil proceedings the court may draw adverse inferences from a defendant’s decision not to give or call evidence as to matters within the knowledge of himself or his employees. [6] Sarkar on Evidence (16th Ed) at p 1837 states: It is the bounden duty of a party personally knowing the whole circumstances to give evidence and to submit to cross-examination. Non-appearance as a witness would be the strongest possible circumstance to discredit the truth of his case Gurbakhsh v Gurdial, A [1927] PC 230.” (Emphasis added) Tan Keng Yong @ Tan Keng Hong & Anor v Tan Hwa Ling @ Tan Siew Leng & Ors [2022] 2 MLJ 805; [2022] 3 CLJ 274). And while I accept that the Defendant has the right not to lead evidence, such a right does not prevent the Plaintiff who has successfully established their case from invoking s.114(g) of the Evidence Act 1950 where material evidence is suppressed or withheld. The absence of testimony from the person who holds the facts gives rise to a presumption that the evidence, if adduced, would have been adverse (See: Krishnan Nambiar s/o Perabakaran & Ors v Dr P Mahendran & Anor [2009] 4 MLJ 267; [2008] 10 CLJ 215) [1987] 1 CLJ 250, in which an adverse inference may be drawn where “there is withholding or suppression of… important and material witness to the case.” As Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751; [2009] 5 CLJ 200 makes clear that when a person on one side fully conversant with the facts refrains from giving evidence, the evidence presented for the opposite side “ought to have been presumed to be true” and “the court ought to have drawn an adverse inference”. Inspection. Defendant admitted that she had visited the Premises on several occasions. In light of that admission, I infer that the Defendant had the opportunity to observe the condition and activities at the Premises. Such periodic access is inconsistent with a plea of complete ignorance. Defendant’s status as the registered consumer and the established interference with the meter installation. Even if the Premises were used as an office or training centre, that circumstance would not displace the Defendant’s contractual and statutory obligations. Summing-up EIGHTH ISSUE: WHETHER PROOF OF PERSONAL INVOLVEMENT BY THE DEFENDANT IN THE BITCOIN ACTIVITIES OR METER INTERFERENCE IS REQUIRED FOR THE PLAINTIFF TO SUCCEED IN ITS CLAIM Opposing Contentions in brief ESA. It suffices, on a balance of probabilities, to establish that interference occurred and that loss of revenue resulted. Liability, he contended, attaches to the registered consumer upon proof of interference, irrespective of who physically carried out the tampering. Defendant herself carried out the impugned acts. Analysis 38 is contingent upon proof of authorship. That premise, in my view, cannot be reconciled with the structure of the ESA. is triggered upon proof of interference under s. 37 and the resulting loss of revenue. The statutory language directs attention to the fact of interference and its financial consequence, not to the identity of the person who physically carried out the manipulation, and liability does not depend on identifying the individual responsible for the tampering. The cause of action is structured around objective circumstances, not personal culpability. Having considered the scheme as a whole, I regard this to be the clear thrust of the statutory scheme. Proof of personal participation is not required, and I am unable to read the ESA as imposing any additional burden on the Plaintiff. Summing-up NINTH ISSUE: WHETHER THE DEFENDANT’S ALLEGED LACK OF KNOWLEDGE OF THE BITCOIN ACTIVITIES AT THE PREMISES AFFECTS HER LIABILITY AS THE REGISTERED CONSUMER Opposing Contentions in brief s. 38. According to him, once interference and loss are established, the registered consumer remains liable irrespective of subjective awareness. Premises. He argued that it would be unjust to impose liability for losses arising from activities conducted without her knowledge, particularly if third parties were responsible. Analysis It does not concern who carried out the tampering, but whether the Defendant’s alleged lack of knowledge of the activities at the Premises operates, in law, as a defence to the statutory claim.

To my mind, that submission finds no support in the statutory language. S. 38 does not condition recovery upon proof of knowledge, intention, negligence, or any other mental element on the part of the registered consumer. The statutory trigger is the occurrence of interference under s. 37 and the resulting loss of revenue. The legislative focus is objective. In my view, the text admits of no alternative reading.

In my judgment, the statutory scheme is properly characterised as remedial and compensatory in nature. Its purpose is to enable the licensee to recover undercharged electricity where meter interference has resulted in financial loss. It is not structured as a fault-based regime in which liability turns upon subjective awareness or moral blameworthiness. The civil remedy operates upon established interference, not upon proof of a state of mind.

In the present case, the Defendant asserted that she was unaware of the bitcoin-related activities at the Premises. That assertion must be viewed against the established findings that direct bypass wiring existed, that substantial current was diverted, and that electricity supplied under the Defendant’s registered account was materially under-recorded.

Even if the assertion of ignorance were accepted at face value, it does not displace liability under the statutory framework. The Defendant remained, at all material times, the registered consumer under the Supply Contract. From where I stand, her liability under s. 38 of the ESA attaches by reason of that status and the proven interference, not by reason of subjective knowledge. In that context, the absence of awareness does not negate the fact of interference, nor does it interrupt the statutory consequence that follows from established loss of revenue.

Even assuming, for the sake of argument, that the Defendant lacked actual knowledge of the activities at the Premises, that circumstance does not operate as a defence. The statutory scheme does not render liability contingent upon awareness. The Defendant’s submission, properly analysed, seeks to graft a mental element onto a provision that is textually and structurally indifferent to subjective state of mind. With respect, I am unable to read into s. 38 of the ESA a requirement that is not expressed in its terms.

On the balance of probabilities, I am satisfied that the Defendant’s alleged lack of knowledge does not affect her liability as the registered consumer once interference and loss are established.

I therefore answer the Ninth Issue in the negative. TENTH ISSUE: WHETHER ANY ACT OR OMISSION OF THE PLAINTIFF CAUSED OR CONTRIBUTED TO THE LOSS OF REVENUE ARISING FROM THE METER INTERFERENCE Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the Plaintiff acted in accordance with the applicable statutory and regulatory framework. According to him, the disconnection and reconnection of supply were undertaken pursuant to the Energy Commission’s Guidelines and in compliance with legal requirements. He contended that the Plaintiff’s role was limited to the lawful supply and administration of electricity, and that no duty arose to police activities within the Premises. He concluded that the allegation of contributory negligence was unsupported by evidence and contrary to the governing framework.

Learned counsel for the Defendant contended that the Premises were located on the second floor of a three-storey building in a secluded area. According to him, the Plaintiff ought to have utilised available technology to prevent illegal activities and avoid loss, rather than benefiting from such activities. Arguing further, he submitted that the Plaintiff had contributed to the alleged bitcoin activities at the Defendant’s Premises and thereby suffered the loss complained of.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiff.

My reasons are these.

The gravamen of the Defendant’s case is that the Plaintiff contributed to the alleged bitcoin-related activities at the Premises. It is said that during the first inspection on 10.12.2019 the Plaintiff’s officers left the door or grill unsecured, thereby enabling subsequent activities, and that the second inspection on 8.7.2020 was conducted with a view to claiming damages. Properly analysed, the issue is whether any act or omission on the part of the Plaintiff caused or contributed to the loss of revenue arising from the established meter interference, which I now consider.

The reasonable starting point is the pleading. The Defendant’s contention that the Plaintiff contributed to the loss of revenue arising from the meter tampering rests exclusively upon Paragraph 9 (d) and 9 (e) of the Defendant’s Statement of Defence, which state: “9. …

Jika terdapat apa-apa kejanggalan pada pepasangan meter, ia adalah tanggungjawab Plaintif semata-mata dan Plaintif tidak boleh menyalahkan pihak lain untuk menutup kesalahan diri sendiri. e) Kerugian yang dikatakan dialami oleh Plaintif, jika benar, adalah akibat tindakan dan/atau kegagalan bertindak Plaintif sendiri.”

In my judgment, these passages are statements of conclusion, not of material fact. They identify no irregularity, particularise no act or omission and articulate no mechanism of causation. I am unable to discern any pleaded linkage between the Plaintiff’s alleged conduct and the bypass wiring discovered, still less between such conduct and the quantified loss of revenue. To my mind, the absence of particularisation suggests that the allegation is no more than an afterthought, rather than a properly articulated causation defence grounded in material facts.

As is trite, a pleading must set out the material facts relied upon. An allegation that a claimant caused its own loss requires identification of the conduct said to have produced that loss and the causal pathway by which it did so. However, I find that Paragraphs 9(d) and 9(e) do neither. In my view, they amount to no more than a bare attribution of responsibility. I am therefore unable to accept that they constitute a properly pleaded case capable of displacing or reducing liability arising from the established tampering and the resulting loss of revenue.

That conclusion is consistent with authority. In Fanuc Sdn Bhd v Adenland (Cheras) Sdn Bhd & Anor [2021] MLJU 2309; [2021] 1 LNS 1904, it was made clear that a party is not entitled to advance affirmative cases and new factual assertions not pleaded in its Defence. By the force of that principle, the Defendant cannot belatedly advance affirmative cases which were never articulated in the pleadings. To do so would contravene the settled rule that confines parties to the four corners of their pleaded case.

The Federal Court in Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1; [2015] 8 CLJ 944 establishes that “It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded.” (see also: Big Man Management Sdn Bhd v Tenaga Nasional Berhad [2020] 11 MLJ 472; and Ab Latef & Associates (M) Sdn Bhd v Govindasamy Suppiah [2016] 10 CLJ 1)

In this light, I am unable to accept that the Defendant’s argument can be invoked to justify an attempt to ambush the Plaintiff with unpleaded allegations of negligence or contributory fault. She must be held to her pleadings. The belated assertions collapse both procedurally and substantively, being contrary to the well-established principles that confine parties to the four corners of their pleaded case, a conclusion I am satisfied to reach.

That position reflects the fundamental purpose of pleadings, namely to ensure fairness and avoid surprise. As HRH Raja Azlan Shah CJ (as HRH then was) observed in KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10; [1980] CLJU 169: “As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the Defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be a great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

For these reasons, I decline to entertain the Defendant’s attempt to advance allegations of negligence, technological omission, or contributory causation beyond what is properly disclosed in the pleadings. Although paragraphs 9(d) and 9(e) make a general attribution of responsibility to the Plaintiff, they are wholly unparticularised and do not disclose any material facts capable of sustaining a causation defence. The Defendant cannot rely on bare and conclusory averments as a platform to construct a substantive case at trial.

Be that as it may, and lest I may have fallen into error in my conclusion on the pleading point, I proceed to consider the Defendant’s contention on its substantive merits. Substantive Framework of Duty, Breach and Causation

At the outset, I find it important to identify the true character of the Plaintiff’s claim. Although the inspection was prompted by suspicion of illegal bitcoin mining at the Premises, the present proceedings are not concerned with policing cryptocurrency activities. They are concerned with the civil consequences that flow from established meter interference and the resulting under-recording of electricity supplied under the Defendant’s registered account.

Evaluated through that lens, I find that the Defendant’s argument rests on the proposition that the Plaintiff ought to have prevented or mitigated the loss. The present claim, however, arises from established meter interference and the resulting under-recording of electricity supplied under the Defendant’s registered account, not from negligence. Once interference within the meaning of s. 37 is proven, the statutory remedy under s. 38(3) is engaged. In any event, the Defendant bears the burden of establishing a legally recognised duty, breach, and a real causal link to the loss. In the absence of proof of those elements, I am unable to sustain the allegation.

On a proper reading of the Supply Contract, I am fortified in concluding that the Defendant remains bound by the contractual obligations governing the supply of electricity to the Premises and bears continuing responsibility to ensure that the meter installation remains in proper condition. In Thomas Thomas the Court of Appeal observed: “[21] As TNB’s registered consumer, it was the appellant’s responsibility to ensure that the meter at the premises was not damaged or tampered with. This responsibility remains with the appellant throughout the duration of the agreement unless by his tenancy agreement with the tenant, he had assigned such responsibility to the tenant. Even then such agreement would not bind TNB, not being a party to the tenancy agreement.” (Emphasis added)

Consistent with that position, I find that at all material times the Defendant was the registered consumer and remained responsible for matters relating to the electricity supply at the Premises. She did not arrange for the electricity account to be transferred to the tenant, nor did she seek termination of the Supply Contract. Responsibility for safeguarding the integrity of the meter installation and ensuring proper use of electricity therefore remained attached to her as the registered consumer. In the absence of proof of an independent breach causally linked to the loss, I am unable to accept that responsibility can be shifted onto the Plaintiff.

Pursuant to paragraph 6.3 of the Energy Commission’s Guidelines on Procedures for Claims for Loss of Revenue, the Plaintiff is not permitted to arbitrarily disconnect electricity supply. The relevant guideline provides as follows: “6.3 Jika pemegang lesen telah memotong bekalan elektrik di bawah perenggan 6.2 pemegang lesen hendaklah mempunyai suatu obligasi untuk menyambungkan semula bekalan elektrik. Dengan syarat tempoh pemotongan tidak melebihi tiga (3) bulan dari tarikh pemotongan dilakukan.”

S. 38(2) of the ESA provides: “38 Disconnection of supply of electricity

If the supply of electricity has been disconnected under subsection (1), it shall not be reconnected until the licensee at his discretion gives permission for reconnection. Provided that the period of disconnection shall not exceed three months.”

Read together, the Guidelines and s. 38(2) establish that disconnection is temporary and subject to a strict temporal limit. In the present case, I find that the reconnection of supply occurred within that prescribed period and in accordance with the governing framework. There is no evidence that the Plaintiff acted prematurely or in contravention of any statutory restriction. In my judgment, the reconnection constituted regulatory compliance rather than indulgence.

Moreover, paragraph 3(a) of the Defendant’s Statement of Defence expressly acknowledges that the Plaintiff bears responsibility to ensure the continuous supply of electricity to the Premises and the proper functioning of the relevant infrastructure. The reconnection effected within the prescribed statutory period was therefore consistent with that pleaded responsibility.

The evidence shows that following the disconnection effected on 13.1.2020 after the first inspection, supply was reconnected on 10.4.2020, well within the permitted three-month period. The second inspection on 8.7.2020 therefore took place at a time when electricity supply to the Premises had lawfully resumed. There is no evidence that the supply remained disconnected or that the reconnection was irregular. The Defendant’s premise of impossibility is accordingly unsupported on the evidence.

In my view, the statutory power of disconnection is regulatory rather than punitive. It operates as a protective mechanism pending inquiry into suspected irregularities, and its duration is expressly limited by statute. Reconnection within the permitted period therefore cannot constitute a causative act contributing to the loss. Responsibility for the loss remains grounded in the established meter interference, not in the regulatory reconnection of supply.

The Defendant contends that the Plaintiff’s representatives left the Premises unsecured after the first inspection, thereby contributing to subsequent events at the Premises. On the evidence before me, no contemporaneous complaint, documentary record, or independent corroboration was produced in support of that assertion.

In any event, the evidence shows that the Plaintiff took steps to rectify the irregularities detected. The Plaintiff’s representatives recorded the findings at the Premises, removed the direct bypass wiring, resealed the meter installation, and lodged a police report on 8.7.2020 (Report No. KLANG/018517/20). These measures were consistent with the Plaintiff’s responsibility to ensure the proper functioning of the meter installation, as acknowledged by the Defendant in paragraph 3(d) of the Statement of Defence.

There is no provision in the applicable guidelines requiring the Plaintiff’s officers to secure or assume control of premises belonging to a consumer after an inspection has been conducted. Nor is there any statutory, regulatory, or contractual basis for such an obligation. In the absence of a recognised legal foundation, no duty to secure or assume control of the Premises can arise. It would in fact have been improper for the Plaintiff to assume possession or control over premises it neither owns nor occupies.

The Defendant’s own evidence further undermines that contention, as she acknowledged that she retained access to and periodically visited the Premises: “PP1 : So maksudnya setiap bulan pergi sana ambil Bil lah? : Bukan setiap bulan. : So? : Kadang-kadang satu tahun, setengah tahun, tiga bulan, tak pasti.”

The Defendant further testified that she remained in communication with the tenant: “PP1 : Ok. Tahu siapa pengarah syarikat dia? : Ya, saya kenal. Norita. : Norita, dia seorang saja pengarah? : Saya tak pasti, tapi saya always deal with her. : Ok. So yang Pn Ain ni related to Ms Chan tak? Kawan kah, saudarakah? : Mula-mula, tak kenal. Dalam jangka masa dia sewa kedai saya, sudah jadi kenallah.”

This evidence demonstrates that the Defendant retained access to and oversight of the Premises during the material period. In those circumstances, the suggestion that the Plaintiff bore responsibility for securing the Premises is inconsistent with the Defendant’s own continued control and access. I am therefore unable to accept that any conduct on the part of the Plaintiff contributed to the loss of revenue resulting from the established meter interference.

Drawing the threads together, I find that the Defendant has failed to establish any breach of statutory, regulatory, or contractual duty on the part of the Plaintiff, or any causal nexus between the Plaintiff’s conduct and the undercharged electricity forming the subject of this claim. The allegation remains speculative and legally unsustainable.

On the balance of probabilities, I am satisfied that no act or omission on the part of the Plaintiff caused or contributed to the loss of revenue arising from the established meter interference, and that the Defendant has failed to demonstrate any breach of duty or causative nexus capable of reducing or displacing the Plaintiff’s entitlement under s. 38 of the ESA.

I therefore answer the Tenth Issue in the negative. ELEVENTH ISSUE: WHETHER THE PLAINTIFF’S METHOD OF CALCULATION OF THE UNDERCHARGED BILL WAS ACCURATE, FAIR, REASONABLE, AND IN COMPLIANCE WITH THE APPLICABLE ELECTRICITY SUPPLY LAWS AND REGULATIONS Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the loss of revenue was calculated pursuant to s. 38(3) of the ESA and in accordance with the Energy Commission’s Guidelines and internal procedures. According to him, the Maximum Demand Load (BKM) method was properly selected following the discovery of direct bypass wiring and applied through a system-generated computation based on recorded technical data. He concluded that the methodology was fair and reasonable.

Learned counsel for the Defendant contended that the Plaintiff’s computation was speculative and inadequately supported, arguing that the Maximum Demand Load (BKM) method relied on disputed inputs, produced inconsistent figures, and lacked a clear evidential basis for the backbilling period. He further maintained that no proper notice of demand was received and that the quantum was unproven on a balance of probabilities.

Having considered the opposing contentions, I am persuaded by the submissions advanced by learned counsel for the Plaintiff.

My reasons are these.

The issue, in substance, concerns the statutory permissibility, fairness, and reasonableness of the Plaintiff’s method of calculating the undercharged sum of RM61,310.05, and its compliance with the applicable statutory and regulatory framework. The Court’s task is not to undertake a fresh computation, but to determine whether the methodology adopted is legally sustainable and evidentially justified. For clarity and for the orderly disposition of this issue, I shall address the analysis under the following headings.

As alluded earlier, s. 38 of the ESA creates a specific statutory entitlement in favour of the licensee to recover loss of revenue arising from offences under s. 37 of the ESA, together with reasonable expenses directly incurred. It confers a substantive right of recovery, subject to the statutory limits prescribed. I therefore regard it as the substantive legal foundation of the present claim.

In Ichi-Ban Plastic, the Federal Court held as follows: “[32] TNB’s statutory right to recover its loss of revenue under s 38(3) of the Act is not dependent on the consumer’s conviction of an offence under ss 37(1), (3) or (14) of the Act. … [90] Section 38(3) has created an entirely new statutory cause of action for TNB for recovery of loss of revenue in cases of meter tampering. It is a specific right explicitly given under statute to claim from the consumer the loss of revenue it has suffered due to the meter tampering. [91] … so long as TNB can prove there are acts of tampering under sub-ss 37(1), (3) and (14), TNB may pursue a civil action to recover the losses.” (Emphasis added)

To my mind, the significance of those passages lies in this. The statutory right of recovery under s. 38(3) is independent of any criminal conviction and constitutes a distinct civil cause of action. What must be established is interference within s. 37 and resulting loss. The inquiry is restorative and compensatory, not penal.

It follows that once interference is established, the focus shifts to the assessment of loss. Electricity usage cannot always be determined with mathematical precision, particularly where meter interference has distorted the recorded data. The law recognises that perfect reconstruction of consumption is often impossible in such circumstances. The Court must therefore determine whether the method adopted was fair, reasonable, and supported by credible evidence. The standard is reasonableness supported by evidence, not mathematical exactitude.

In Tenaga Nasional Bhd v AWP Enterprise (M) Sdn Bhd [2015] 3 MLJ 268; [2015] 1 CLJ 400, the Court stated: “[16] …The germane question is how to determine the amount of electricity consumed when a meter has been tampered not to read it or to read it correctly. [17] For the electricity supplier, it is impossible to turn back the clock and re-meter the consumption. The determination is necessarily by an estimate. … [22] On perusal, we find that PW2's testimony explained lucidly how the estimates were arrived at. He was clearly a person with the necessary knowledge of how the estimates are calculated. Whether the data in the computer is correct is another matter. It is possible that data had not been correctly read and collected, or that the data had been wrongly keyed in. … [24] The germane consideration, in our view, is that the document demonstrates how an estimate is arrived at in calculating back charges to be imposed. An estimate, compared to actual evidence will appear as sketchy, hazy and confusing. Statistical mathematics and analysis is not a subject within the expertise of lawyers and judges. If the estimate results in imposing an additional charge of 27% to what had been billed and paid, it is not so necessarily beyond the bounds of reasonability that it must be rejected. In our view, if it is established that a meter had been tampered with and its readings does not reflect the actual consumption of electricity, and the additional charge or back charge imposed upon the consumer is not demonstrated to be manifestly unreasonable, excessive or wrong, the amount due is proved upon a balance of probabilities. [25] In the final analysis:

A consumer must pay for the electricity he consumes.

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

Since the clock cannot be turned back to re-measure the consumption, only estimates can be made, and if such estimate is not shown to be manifestly unreasonable, excessive or wrong, it may be accepted as proof upon a balance of probabilities of the amount estimated and claimed.” (Emphasis added)

And a little further, the Federal Court observed: “[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 approximation or estimation. In light of what we have said thus far, we find it unnecessary to answer the two questions posed.” (Emphasis added)

Read cumulatively, these authorities establish a coherent principle. Where meter tampering renders precise re-measurement impossible, approximation or estimation is legally permissible, provided the method adopted is fair and reasonable, supported by credible evidence, and not shown to be manifestly unreasonable, excessive, or wrong. In my view, the Court’s role is supervisory, not computational. I must be satisfied that the estimation rests on a rational methodology grounded in evidence and falls within acceptable bounds of reasonableness, which I now consider.

The Plaintiff’s case, as anchored in the Energy Commission’s Guidelines and its Internal Guidelines, demonstrates that several recognised methods exist for calculating claims for loss of revenue. These include:

“Kaedah Purata”

(ii) “Kaedah Ralat”

(iii) “Kaedah Beban Kehendak Maksima”

(iv) “Kaedah Penggunaan Profil Beban”

Against that regulatory framework, I turn to the evidential foundation for the calculation adopted in the present case. So far as material, the Plaintiff relied particularly on the evidence of the following officers who were at the material time holding the respective positions within the Plaintiff’s organisation:

PW3, who had been with the Plaintiff since 2007 and testified in his capacity as Administrative Assistant in the Revenue Management Unit, whose responsibilities included preparing the calculation of Amount of Undercharged Sum for Cases Involving Interference with Meter Installations.

(ii) PW4, who had been with the Plaintiff since 2017 and testified in his capacity as Team Member (Analytic & Performance Management), Eksekutif Back Billing Management, whose responsibilities included reviewing, verifying and approving the calculation of loss of revenue and related costs.

(iii) PW5, who had been with the Plaintiff since 2010 and testified in his capacity as a Technician attached to the Unit Special Engagement Against Losses (“SEAL”) Detection Selangor, whose duties included conducting meter inspections to ensure that the meter and its installation were in proper condition.

Assessing their evidence, I am satisfied that they were not merely formal witnesses but individuals possessing the requisite technical knowledge and familiarity with the estimation process. Their testimony was grounded in operational responsibility rather than abstract explanation.

In light of their respective roles and experience, I accept the evidence of PW3, as reviewed and approved by PW4, that the Maximum Demand Load (BKM) method was selected because it was appropriate in circumstances where electricity was taken through a direct connection bypassing the meter. That selection is consistent with the express terms of the Energy Commission’s Guidelines, which provide as follows: “5.2.3 Kaedah Beban Kehendak Maksima (MD) Sekiranya bekalan diambil dengan membuat sambungan secara terus tanpa melalui meter atau pengujian kejituan tidak dapat dilaksanakan, pengiraan kehilangan unit boleh dibuat dengan menggunakan Beban Kehendak Maksima yang hendaklah dirujuk semasa permohonan bekalan elektrik dibuat oleh pengguna dengan menggunakan beban terpasang atau beban yang digunakan di premis semasa pemeriksaan dan pengujian meter dijalankan.”

In light of this provision, I find that the selection of the Maximum Demand Load (BKM) method was not arbitrary but squarely contemplated by the governing Guidelines in cases of direct bypass wiring. The choice of method therefore flowed logically from the nature of the interference detected.

Having accepted the appropriateness of the Maximum Demand Load (BKM) method, I turn to examine its computational application to the data obtained during inspection. The inquiry thus moves from selection of method to execution of method. In that regard, I accept the evidence of PW3 and PW4 concerning the procedure used to derive the Defendant’s average daily usage under the method. The following emerges clearly from the evidence:

Based on the Meter Inspection and Testing Form (Exhibit P10) and details from the BCRM records (Exhibit P4), PW5 will enter data such as the customer account number, inspection date, rectification date, usage information, and information at the time the inspection was carried out.

(ii) The information entered will thereafter be automatically generated by the said system, whereby the method for selecting the most appropriate calculation method for the amount undercharged is determined. Here, the Maximum Demand Load (BKM) method was identified as the appropriate method based on the load used at the Defendant’s Premises during the inspection and testing of the meter.

(iii) To obtain the Defendant’s average daily usage, PW5 entered the Load Factor for the commercial user category, namely 0.44, together with the current readings taken from the busbar for all three phases as recorded in item 4.0 of the Form for the Inspection and Testing of Meter Installation - Exhibit P10

(iv) PW5 then applied a voltage of 230 and a power factor of 0.85. The multiplication of the actual current reading, voltage, and power factor produced the total electricity usage in Watts for the three phases, automatically generated within the Maximum Load (BKM) method calculation template.

The total electricity used at the Defendant’s premises during the inspection was 51,690W (51.69KW).

(vi) The actual monthly usage of 16,375 KWH was deducted from the monthly billed usage to obtain the loss unit (KWH), and the resulting difference was multiplied by the applicable tariff rate.

On the evidence before me, the resulting figure was therefore derived from identifiable variables applied within a defined computational structure. The process was system-generated and formula-based, not manually improvised. The explanations given by PW3, PW4 and PW5 were technical, coherent, and remained unshaken under cross-examination. In my assessment, the methodology reflects an objective, data-driven computation grounded in measurable inspection findings rather than speculation.

Considered in light of the Energy Commission’s Guidelines, I am satisfied that the Maximum Demand Load (BKM) method was properly invoked and reasonably applied in the circumstances of established bypass interference. The computation accords with recognised regulatory methods and the governing authorities. In my judgment, it cannot properly be characterised as manifestly unreasonable, excessive or wrong.

As regards the Defendant’s challenge to the Plaintiff’s calculation, the central inquiry is whether any cogent or evidentially sustainable challenge was mounted against the computation.

Upon a careful evaluation of the entirety of the evidence, I discern no substantive basis upon which the calculation may properly be impugned. The evidence may be summarised as follows:

the calculation was expressly grounded in the Energy Commission’s Guidelines, the Plaintiff’s Internal Guidelines, and the statutory entitlement under s. 38(3) of the ESA following proof of interference under s. 37;

(ii) the selection of the Maximum Demand Load (BKM) method was consistent with paragraph 5.2.3 of the Guidelines and was appropriate in circumstances involving direct bypass wiring;

(iii) the computation was derived from recorded inspection data, including current readings, load factor, voltage and power factor, applied within a defined system-generated template;

(iv) the methodology was explained by PW3, PW4 and PW5 in technical and coherent terms, and their evidence remained unshaken under cross-examination; and

the Defendant failed to mount any meaningful challenge to either the methodology adopted or the quantum as calculated by the Plaintiff.

In light of the foregoing, and having earlier found that interference with the meter installation was established on a balance of probabilities, I conclude that the calculation of the undercharged sum was not speculative but was grounded upon recognised guidelines, structured methodology, and measurable inspection data.

On closer scrutiny, it is clear to me that the Defendant has not demonstrated that the resulting figure was manifestly unreasonable, excessive, or erroneous. The challenge never rose beyond assertion. In the absence of credible rebuttal evidence, I am satisfied that the methodology stands, subject only to the correction addressed below.

During clarification proceedings, it emerged while addressing the Defendant’s challenge to the pleaded sum that the original sum of RM61,310.05 pleaded in the Statement of Claim did not accurately reflect the computation ultimately relied upon at trial. Upon being queried by the Court, learned counsel for the Plaintiff candidly acknowledged that the discrepancy arose from the commencement date adopted for the computation period.

In order to clarify the position, I directed the Plaintiff to produce the precise and corrected calculation supported by the relevant system-generated data. The Plaintiff clarified that the initial computation had proceeded from 12.12.2019, whereas the correct operative period should commence from 10.4.2020, being the date of reconnection of electricity supply following disconnection on 13.1.2020 after the first inspection. The recalculated sum was confirmed to be RM26,146.70 (see: the Plaintiff’s Submission in Reply [Enclosure 56]).

It follows from that clarification that the recalculated sum reflects the period during which electricity supply had lawfully resumed, namely from 10.4.2020 until the second inspection on 8.7.2020, and does not proceed on the originally pleaded commencement date. The award therefore corresponds only to the period properly supported by the corrected system-generated data.

In my view, that direction was both proper and necessary to ensure that the quantum awarded reflects the evidence rather than an admitted computational inaccuracy. Where a computational error is acknowledged, the Court is not bound by the erroneous figure but must determine the sum properly supported by the evidence. In this context, the recalculated figure does not introduce a new claim but merely aligns the recoverable period with the chronology of electricity supply and the established interference. Importantly, I am satisfied that nothing in this computational correction disturbs the earlier finding of interference, which remains supported by the physical inspection, contemporaneous documentation, and objective technical evidence.

In that regard, I have well in mind that the Federal Court in Evergrowth Aquaculture established the principle that where significant errors are identified in TNB’s calculation for loss of revenue, the Court should not dismiss the action outright but must instead order that the damages suffered be assessed. On the factual backdrop before me, however, no separate order for assessment was necessary, as upon the Court’s query, learned counsel clarified the computational inconsistency and produced the corrected system-generated calculation, thereby enabling me to determine the proper quantum directly on the evidence. As the correction reduced the claim and confined it to the operative supply period, no prejudice was occasioned to the Defendant, and the matter was resolved expeditiously and consistently with the just disposal of the case. In my judgment, the course taken accords with the substance of that principle.

In addition, I observe that the Defendant was afforded full opportunity to challenge the revised computation but did not adduce any credible alternative calculation or expert rebuttal. I therefore accept RM26,146.70 as the correct and recoverable quantum. Compliance with s. 38(4) of the ESA and Evidential Effect of Written

The Defendant advanced the argument that no notice of demand was received. I am unable to accept that contention. In order to properly address that submission, it is first necessary to consider the statutory framework governing the issuance and evidential effect of such notices.

Ss. 38(4) and 38(5) of the ESA provide as follows: “38 Disconnection of supply of electricity …

A written statement by an employee of the licensee duly certified by the licensee or any person authorized by the licensee specifying-

the amount of 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

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) 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.

The amount stated in the written statement under subsection (4) shall, within the period specified in the statement, be due and payable to the licensee and in default of payment such amount shall be recoverable by civil action in a court.” (Emphasis added)

In Ichi-Ban Plastic, the Federal Court referred to Tenaga Nasional Berhad v Dunia Raya Enterprise Sdn Bhd, which stated: “[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 TNB to rely on a written statement, the following must have taken place:

the appellant must have calculated the loss of revenue and reduced 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 be duly signed;

if a properly 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 the initiation of civil action in reliance on s 38 for Tenaga to issue a certified written statement according to law, before civil action can be commenced.” (Emphasis added)

Upon a careful examination of the Plaintiff’s letter of demand dated 28.7.2020 (Exhibits P8(a)), the Plaintiff’s letter of demand dated 2.7.2021 (Exhibit P8(b)) and the Plaintiff’s Solicitors’ Notice of Demand dated 13.12.2023 (Exhibit P9), I am satisfied that the Plaintiff has complied with each of the statutory requirements stipulated under s. 38(4) of the ESA. The written statements clearly specify the quantified amount of loss of revenue, delineate the manner of calculation and the relevant claim period, identify the method adopted, and bear the name and signature of the duly authorised personnel who certified the computation. They therefore contain all particulars mandated by the subsection.

As regards service, I accept the evidence of PW4 that, following verification and approval of the computation of loss of revenue, the Plaintiff duly issued the requisite Letters of Demand to the Defendant, and that such notices were served in the ordinary course of enforcement and legal process.

So far as material, PW4’s evidence runs: “S : Selepas perakuan dan pengesahan Penyata Pengiraan Amaun Kerugian Hasil dan Perbelanjaan tersebut dan Graf seperti yang dirujuk dan dinyatakan di atas, apakah tindakan selanjutnya yang biasa diambil oleh Plaintif? J : Berdasarkan pengiraan yang telah diperakukan oleh saya, Plaintif akan mengisukan dan mengeluarkan Surat Tuntutan Amaun Kerugian Hasil (Letter of Demand) kepada pengguna dan bagi kes ini Plaintif telahpun mengisukan Surat Tuntutan masing-masing bertarikh 28.7.2020 dan 2.7.2021 kepada Defendan. Surat Tuntutan Plaintif bertarikh 28.7.2020 telah diserahkan semasa pemotongan bekalan elektrik dibuat pada 28.7.2020 berdasarkan Notis Pemotongan bertarikh 8.7.2020. Q : Adakah Peguamcara Plaintif mengisukan Surat Tuntutan tersebut kepada Defendan? A : Ya, peguamcara Plaintif juga telah mengisukan Surat Tuntutan kepada Defendan pada 13.12.2023 melalui surat bertarikh 13.12.2023.” (Emphasis added)

On the strength of that testimony, I find that this evidence demonstrates a coherent and documented sequence of compliance. Suffice it to state that the computation was verified and certified, letters of demand were issued on multiple occasions, service was effected contemporaneously with enforcement action and the Plaintiff’s solicitors subsequently issued a further demand. I am satisfied that the documentary exhibits corroborate PW4’s testimony. Evaluated against that setting, I am unable to accept the Defendant’s bare assertion of non-receipt as sufficient to displace the affirmative evidence of issuance and service.

I therefore find that the written statement was prepared, certified, and served in accordance with the mandatory requirements of s. 38(4). The statutory condition precedent to the commencement of civil proceedings has therefore been fulfilled. In consequence, the written statement constitutes prima facie evidence of the amount payable.

The preceding statutory evidential effect does not displace the Plaintiff’s legal burden of proof but operates to shift the evidential burden to the Defendant to rebut the quantified loss once a prima facie case has been established. Upon such establishment, the Defendant must adduce credible and cogent evidence to challenge the computation. The Federal Court in Ichi-Ban Plastic held: “[59] The intention of the Parliament in enacting this provision is to give an evidential advantage to TNB. The amount stated in the s 38(4) written statement becomes the prima facie evidence of the amount that the consumer has to pay for the loss of revenue. An observation was made by the Court of Appeal in respect of s 38(4) written statement in Tenaga Nasional Berhad v Dunia Raya Enterprise Sdn Bhd [2015] MLJU 2140; [2015] 6 CLJ 751 at p 756 as follows:

(iii) section 38(3)-(5) only gives some evidential advantage to Tenaga and does not discharge the legal burden to prove its claim when quantum as well as liability is challenged. Once challenged by way of credible evidence, then the trial court is obliged to do a balancing act to see whether Tenaga has discharged the legal burden. … [61] As rightly observed by the Court of Appeal, the fact that the written statement is prima facie evidence does not make it conclusive against both parties. The burden shifts to the consumer to present the rebuttal evidence. The consumer is free to rebut the evidence in the forms of evidence adduced by the consumer or even evidence adduced by TNB itself.” (Emphasis added)

Returning to the present case, I find that no such rebuttal evidence was forthcoming. The Defendant did not produce any alternative computation, did not identify any arithmetical or methodological defect, and did not adduce expert or technical evidence to challenge the calculation. In my assessment, the challenge remained purely assertive and evidentially unsupported. In the absence of any credible rebuttal before me, I am satisfied that the prima facie evidential status of the written statement remains undisturbed. Alternative basis in unjust enrichment

Having determined that the Plaintiff has established entitlement under the statutory framework and that the recoverable quantum is RM26,146.70, I turn, for completeness, to the alternative restitutionary basis pleaded. Although the primary claim succeeds under s. 38(3) of the ESA, the Plaintiff expressly pleaded unjust enrichment as an alternative cause of action (see paragraphs 13 and 14 of the Statement of Claim), thereby satisfying the requirement of a proper and specific plea as emphasised by the Federal Court in Ichi-Ban Plastic.

The Federal Court in Ichi-Ban Plastic stated: “[95] In another part of the judgment in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd, this court discussed the requirements that must be fulfilled to make out a cause of action in unjust enrichment as follows: The principle underlying the cases of Banque Financiere de la Cite v Parc (Battersea) Ltd and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v IRC is that, in the context of the present case, a cause of action in unjust enrichment can give rise to a right to restitution where it can be established that:

the plaintiff must have been enriched;

the enrichment must be gained at the defendant’s expense;

that the retention of the benefit by the plaintiff was unjust; and

there must be no defence available to extinguish or reduce the plaintiff’s liability to make restitution. [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 of 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 this cause of action is so founded. Further, material particulars that give rise to unjust enrichment must be provided in the pleadings.” (Emphasis added)

Applying the preceding principles to the facts of the present case, I find that electricity was supplied to the Premises under the Defendant’s registered account and was not fully paid for due to the under-recording of usage, resulting in a measurable benefit retained at the Plaintiff’s expense. In those circumstances, all elements of unjust enrichment are satisfied:

the Defendant was enriched through the receipt and consumption of electricity beyond that which was accurately recorded and billed;

(ii) the enrichment was gained at the Plaintiff’s expense, as the Plaintiff supplied electricity for which it did not receive full payment;

(iii) the retention of that benefit is unjust, there being no reason or lawful basis entitling the Defendant to retain the value of electricity supplied but unpaid. The under-recording arose from meter interference, and no legal justification has been demonstrated for the Defendant to benefit from that circumstance; and

(iv) no defence has been advanced that would extinguish or reduce the obligation to make restitution.

In this context, I note that the Defendant remained the registered consumer for the Premises and did not rebut the Plaintiff’s records of consumption. The Defendant neither disputed the fact of electricity supply nor provided any alternative explanation for the under-recorded usage. In the absence of credible rebuttal evidence, I am satisfied that the enrichment was obtained at the Plaintiff’s expense and retained without legal justification.

It follows that, even absent reliance on s. 38(3), I am satisfied that the Plaintiff is entitled to recovery on the alternative basis of unjust enrichment. This does not enlarge the Defendant’s liability but affirms that the quantum already found payable is independently supported by restitutionary principle.

On the balance of probabilities, I am satisfied that the Plaintiff’s method of calculation was fair, reasonable and compliant with the applicable statutory and regulatory framework, and the recoverable sum has been confined to the corrected computation period. The Defendant had not shown the sum to be manifestly unreasonable, excessive, or wrong. Accordingly, I find that the corrected sum of RM26,146.70 properly reflects that methodology.

I therefore answer the Eleventh Issue in the affirmative.

Insofar as the Defendant relied on the Federal Court decisions in Ichi-Ban Plastic and Evergrowth Aquaculture to challenge the sufficiency of the Plaintiff’s proof of interference, inspection and quantum, nothing arising from those decisions leads me to depart from the conclusions reached on the facts of the present case. The Defendant also relied on Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd and another appeal [2018] 5 MLJ 561 in support of its contributory negligence argument. That decision, concerned with negligence liability arising from power disruption and the apportionment of fault, does not engage the statutory recovery framework under s. 38 of the ESA. And the remaining authorities cited by the Defendant have likewise been considered but add nothing material beyond the reasons already given.

With the authorities and issues now addressed, I turn to draw the threads together:

the Defendant was, at all material times, the registered consumer for the Premises;

(ii) the Plaintiff was under no legal obligation to give prior notice of the inspection or to secure the Defendant’s presence;

(iii) the Plaintiff was not required to furnish the inspection forms or otherwise provide post-inspection disclosure of the results of the inspection carried out on 8.7.2020 in respect of the meter installation at the Defendant’s Premises.

(iv) interference with the electricity meter installation was established within the meaning of s. 37 of the ESA, the objective inspection findings, including live current readings and bypass wiring, negate the Defendant’s contention that interference was impossible;

such interference caused the meter to fail to duly record electricity consumption supplied under the Defendant’s account;

(vi) proof of tampering did not depend upon the physical production of the meter or meter installation in court;

(vii) the Defendant remained liable as the registered consumer notwithstanding the tenancy arrangement;

(viii) proof of personal involvement by the Defendant in the tampering or bitcoin-related activities was not required;

(ix) the Defendant’s alleged lack of knowledge of the activities at the Premises did not affect liability once interference and loss were established;

no act or omission on the part of the Plaintiff caused or materially contributed to the loss of revenue; and

(xi) the Plaintiff’s method of calculation was fair, reasonable and compliant with the applicable statutory and regulatory framework, and the recoverable sum has been confined to the corrected computation period.

Against that evidential background, I observed all witnesses who testified before me and considered their demeanour and evidence as a whole (see: Ah Mee v Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3). I am mindful, however, that credibility findings must not rest on demeanour alone and that undue emphasis on demeanour is to be avoided. While I had the advantage of observing them, my assessment of credibility rests primarily on the consistency of their testimony with the contemporaneous documentation and the objective technical findings arising from the inspection. On that basis, I accept the Plaintiff’s evidence in its material aspects.

The Defendant relied on asserted inconsistencies in the Plaintiff’s witnesses’ narrative, namely: (i) the uncertainty as to prior tampering; (ii) the explanation regarding the commencement date of computation; and (iii) the account of attempts to locate the Defendant during inspection. In my judgment, these matters relate to narrative detail rather than the substance of the technical findings and do not detract from the central, objectively recorded findings of direct bypass wiring and abnormal load disparity giving rise to the under-recorded consumption. The witnesses’ evidence on those core findings remained coherent, mutually corroborative and unshaken under cross-examination. Any discrepancies were minor and did not diminish the probative force of the Plaintiff’s evidence (see: PP v Datuk Hj Harun Bin Hj Idris (No. 2) [1977] 1 LNS 92; [1977] 1 MLJ 105). Considered in the context of the evidence as a whole, they do not displace the objective technical evidence establishing interference and loss. Against that evidential backdrop, I am satisfied that the Plaintiff has discharged its burden on a balance of probabilities.

For the reasons set out above, I find that the Plaintiff has established its claim against the Defendant on a balance of probabilities. I therefore allow the Plaintiff’s claim as prayed in paragraph 18 of the Statement of Claim, subject to the variation stated below.

In respect of prayer 18(a), although the Statement of Claim pleaded the sum of RM61,310.05, the amount recoverable on the evidence is RM26,146.70, following clarification during the course of proceedings as to the computational discrepancy and the production of the corrected calculation. Judgment is accordingly entered in the sum of RM26,146.70.

I award global costs in the sum of RM15,000.00 in favour of the Plaintiff for the present case and the Sessions Court Civil Suit No. BL-B52NCvC-8-02/2022.

And the judgment sum shall bear interest at the rate of 5% per annum from 8.7.2020 until full settlement. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court 3 March 2026 PARTIES Counsel for the Plaintiff : Kathiravan a/l Raveenthran Jessica Dass Kannathasan Siti Nurailesa Izura Binti Mohd Jefri Solicitors for the Plaintiff : Tetuan Che Mokhtar & Ling Peguambela & Peguamcara Level 21, Main Block, Menara Takaful Malaysia, No. 4, Jalan Sultan Sulaiman, 50000 Kuala Lumpur. Counsel for the Defendant : Raguraman a/l Shanmugam @ Mannaroo Solicitors for the Defendant : Tetuan Raman & Co. Peguambela & Peguamcara No 13A, Jalan Meru, 41050 Klang, Selangor Darul Ehsan.