Tenaga Nasional Berhad v Gan Kim Hue (BA-22NCvC-45-02/2024)

This judgment concerns the Plaintiff, Tenaga Nasional Berhad (“TNB”), Malaysia’s largest electricity utility company, duly established and vested with the responsibility for the transmission and distribution of electricity throughout Peninsular Malaysia. The Defendant is a registered consumer of electricity supply, occupying and operating from premises situated at Lot 407, Jalan Banting Klang Batu 15, 42600 Jenjarom, Selangor Darul Ehsan. 25/04/2026 23:53:04

On 8 October 2020, the Plaintiff, acting through its authorised employees, conducted an inspection of the meter installation at the Defendant’s premises. During the course of said inspection, multiple high-consumption devices, including Bitcoin mining machines, were observed to be in active operation within the premises. The presence and operation of these machines were duly documented by way of photographic evidence and corroborated through witness testimony.

Further examination revealed that the original TNB installation had been tampered with, and that direct wiring had been effected from the feeder pillar across all three phases, connecting directly to the Defendant’s Distribution Board (“DB”) without passing through the meter. Such findings establish not only the unlawful bypass of the metering system but also the active and unrecorded consumption of electricity within the premises, thereby substantiating the Plaintiff’s claim of unauthorised usage.

As a result of the interference, the meter failed to record actual electricity consumption, producing artificially low readings on the Defendant’s monthly bills and following the inspection, the Plaintiff applied the maximum-demand load methodology to quantify the unrecorded usage. This calculation established that, between 12 May 2018 and 8 October 2020, unrecorded electricity consumption amounted to RM1,317,365.80. The figure included operating costs and other recoverable items lawfully claimable. The methodology and resulting computation were presented in evidence, demonstrating a rational and transparent basis for the Claim Sum.

The Plaintiff issued a written statement to the Defendant dated 23.06.2021 pursuant to the provisions of section 38(4) of the Electricity Supply Act 1990 demanding that the Defendant pay the said amount and through their solicitor, sent a notice of demand dated 08.02.2022. However, the Defendant refused pay the said amount, hence this suit was filed in accordance with the provisions of Section 38(5) of the Electricity Supply Act 1990. Plaintiff’s pleaded position

TNB pleads that due to the tampering, the electricity bill was undercharged based on TNB record and investigation. TNB had to take measures by disconnecting the direct cable access and conduct testing for the unrecorded consumption used in the Premises. A back‑billing calculation method namely to back date usage for the Premises was applied.

Upon application of the maximum-demand methodology, namely the load-demand approach, the Plaintiff verified revenue losses amounting to RM1,317,365.80, together with interest and costs. In substantiating its claim, the Plaintiff relies upon its inspection records, the photographic evidence contained within the common bundle, and the testimony of its investigative and calculation witnesses, PW1 through PW4. PW2, an Executive of the Plaintiff, who bore responsibility for the recalculation and review of the back-billing assessment, provided testimony explaining the Guidelines for Revenue Loss Claim Procedure in relation to the undercharged amount attributable to the Defendant’s account. Defendant’s pleaded position

The Defendant totally denies liability and pleads that the meter at the Premises was not tampered with any direct connection. The tampering only occurred at or passing through the substation namely the feeder pillar which is beyond the Defendant’s control. The substation and the feeder pillar, has always been under the TNB’s control and access is only available by unlocking the padlocks. By that reason, TNB must bear all responsibility if tampering occurred and not the Defendant.

In addition, the Defendant claims that the TNB’s Notices of Demand and written statement issued in accordance with s. 38(4) of the Electricity Supply Act 1990 (ESA) was not served upon the Defendant prior to the commencement of the present suit by TNB. The Defendant further argues on the correctness of the calculations imposed by TNB technical and service team. FACTUAL ISSUES IN DISPUTE The factual issues which this Court is required to determine in deciding upon the Plaintiff’s claim are set out as follows: -

Whether there existed a direct bypass of the electricity supply, effected by way of an underground cable from the feeder pillar into the Distribution Board (“DB”) within the Defendant’s premises, thereby circumventing the registered meter?

What was the occupation or possession status of the Defendant’s premises during the relevant period of tenancies and in particular, who was present onsite at the time of inspection and who accepted the documents issued in the course of that inspection?

What was the extent of accessibility to, and the degree of control exercised over, the feeder pillar and substation in relation to the Defendant’s premises? Whether there existed a direct bypass of the electricity supply, effected by way of an underground cable from the feeder pillar into the Distribution Board (“DB”) within the Defendant’s premises, thereby circumventing the registered meter.

The Defendant, in its defence, denied any responsibility for tampering with the meter installation at the premises. It was alleged that any such tampering occurred directly at the substation, which at all material times remained under the control and possession of the Plaintiff. The Defendant contended that the alleged tampering took place at the feeder pillar, and that it was impossible for the Defendant to have effected such tampering, as the keys to the feeder pillar were in the Plaintiff’s possession and the pillar remained locked. No police report was lodged alleging that the Defendant had unlawfully unlocked the feeder pillar, nor were any items of equipment seized by the Plaintiff during the inspection. Accordingly, the Defendant asserted that the purported tampering could only have been carried out by the Plaintiff.

Upon careful examination of all evidence adduced before this Court, I am satisfied that the Plaintiff has successfully established the existence of an underground direct connection from the feeder pillar, effected by way of wiring connected directly to the Defendant’s Distribution Board (“DB”) across all three phases and the neutral, as described by the Plaintiff’s technical witness. This connection supplied electricity to the DB box, which in turn powered the Bitcoin mining machines operating within the Defendant’s premises. The photographic evidence contained in Common Bundle B, at pages 20 to 46, clearly depicts the tampered underground cables, feeder pillar, and DB box. In particular, the coloured photographs at pages 30, and 36 to 44, illustrate three large cables running from the feeder pillar area into the Defendant’s premises and directly into the DB box.

The Defendant’s arguments, as set out above, are not persuasive. The material fact remains that, irrespective of whether the tampering was effected at the feeder pillar, the cable was drawn directly into the Distribution Board (“DB”) located within the Defendant’s premises. This fact was clearly demonstrated through the photographs taken by PW3, which were tendered and explained during his oral testimony in Court, thereby proving the existence of a direct underground connection from the feeder pillar into the Defendant’s premises.

In support of the Plaintiff’s case, both documentary and oral evidence was adduced from members of TNB’s inspection team, namely PW1 Faeez bin Abdul Razak, PW3 Na’zirul Azim bin Yazid, and PW4 Mohd Faizal bin Ali Umar. Their testimonies consistently described and identified the existence of direct cables and the physical bypass of the meter, which was clearly corroborated by the photographs taken by TNB’s team at the Defendant’s premises. In my view, the Plaintiff has convincingly established that the direct connection from the feeder pillar into an underground cable, leading directly to the Distribution Board (“DB”) inside the Defendant’s premises, constitutes credible evidence. This finding is consistent with both the oral testimony and the documentary evidence presented by the inspection witnesses.

The Plaintiff’s inspection and laboratory evidence demonstrate that the meter program had been altered such that it recorded only a single phase and thus under-represented consumption during the material period. The presence of high-current equipment namely the Bitcoin mining machines, within the premises, together with the mismatch between the meter’s rating (60A) and the measured or observed load (~160A), makes plain that significant consumption was not captured by the meter. The most probable explanation for the substantial unmetered consumption is that the equipment was fed via an unlawful connection or tapping at the feeder pillar and or a bypass that prevented accurate recording. What was the occupation or possession status of the Defendant’s premises during the relevant period of tenancies, and, in particular, who was present onsite at the time of inspection and who accepted the documents issued in the course of that inspection?

The Defendant further contends that the Plaintiff’s Notices of Demand and written statement, purportedly issued pursuant to section 38(4) of the Electricity Supply Act 1990 (“ESA”), were not duly served upon the Defendant prior to the commencement of the present proceedings. On this basis, the Defendant submits that the Plaintiff’s cause of action ought to be dismissed for non-compliance with the statutory requirements prescribed under the ESA. In essence, the Defendant argues that the statute confers upon the Plaintiff a statutory right to recover losses of revenue and certain expenses arising from tampering which results in unrecorded consumption, but that such right is conditional upon strict adherence to the procedural requirements of service.

The written statement prescribed under section 38(4) of the Electricity Supply Act 1990 (“ESA”) carries a specified evidential role when duly certified and notified. The effect of a properly issued written statement under section 38(4) is to establish a prima facie evidential foundation for recovery of losses. It provides, in substance, that a written statement prepared and certified in accordance with the statute shall be admissible as evidence of the matters stated therein, thereby facilitating the Plaintiff’s claim for recovery of revenue loss and associated expenses arising from tampering and unrecorded consumption as follows: - 38(4) of the Electricity Supply Act 1990 (“ESA”)

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 Defendant further argued that, for the Plaintiff’s cause of action to properly fall within the ambit of the ESA, the evidential advantage contemplated by the statute must be invoked, namely the presumption of a prima facie case through the issuance of a written statement by the Plaintiff in strict compliance with section 38(4). In support of this contention, the Defendant relied upon the authority of the Federal Court in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 MLJ 141, wherein the Court considered the evidential role and statutory requirements of such written statements as follows: - [62] For a written statement to have the effect of 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 reduce it into a document and written statement;

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

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

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

if a proper certified statement is issued, it needs to be served on the customer and if the customer does not pay, then civil action can be taken. Thus, it is a condition precedent for initiation of civil action in reliance of s 38 for Tenaga to issue a certified written statement according to law, before civil action can be commenced;

To substantiate his argument further, the Defendant relied on Tenaga Nasional Berhad v Kean Beng Lee Industries (M) Sdn Bhd [2018] 11 MLJ 53, where the issues in this case concerns the strict compliance of the Section 38(4) of the ESA Act, before TNB can commence a civil action against the consumer for the purported loss of revenue is mandatory. Defendant went on to argue that at the end of the written statement, PW2 had signed off the written statement by declaring the contents therein are true and accurate, however, PW2 had failed to confirm that the Notice of Demand with the written statement was properly issued to the Defendant.

In the course of trial, this Court observed the manner in which the witnesses for both parties presented their evidence, as well as the consistency of their testimonies with the documentary and photographic exhibits tendered. The Plaintiff’s inspection team provided detailed and corroborated accounts of the tampering and direct connection, supported by contemporaneous photographs and technical explanations. Their testimonies were delivered in a clear and credible manner, and were not materially shaken under cross-examination.

Conversely, the Defendant’s position rested largely on assertions of impossibility and denial, without producing independent technical evidence to rebut the Plaintiff’s findings. The Court noted that while the Defendant sought to attribute responsibility to the Plaintiff on the basis of control over the feeder pillar, such contention did not adequately address the undisputed fact that the underground cables were connected directly into the Defendant’s Distribution Board (“DB”) within the premises. Accordingly, the Court finds that the Plaintiff’s evidence was cogent, credible, and consistent, whereas the Defendant’s arguments were speculative and unsupported by substantive proof.

TNB did issue a written statement together with notification documents into its administrative record, however, service or receipt by, the registered Defendant remains disputed. In resolving this issue, the Court has considered the entirety of the evidence, namely the inspection records, photographic exhibits, witness testimony, and the computation evidence. Having weighed these materials, the Court is satisfied that the Plaintiff has established its claim on the balance of probabilities. Failure of the Defendant to be present as a witness

During the course of trial, SD1, in his statement, stated that the Defendant was illiterate, suffered from mental health problems in the form of depression and for those reasons, SD1, as the Defendant's older brother, appeared on behalf of the Defendant to give a statement.Therefore, SD1 is the material witness as he had taken over the control and possession of the premises from the Defendant through Tenancy Agreements and he had witnessed the inspection held by

However, during cross-examination, SD1 did admit, that the Defendant failed to produce any supporting documents, including medical reports or any written evidence, to prove the allegation that the Defendant was not capable of appearing and giving evidence in Court and that the Defendant was illiterate. SD1's admission was clear that no medical documents or official confirmation were produced to the Court.

In my view, where such a statement is absent, or its service or contents are genuinely disputed, TNB remains entitled to pursue recovery through a civil claim. However, it must establish its case on the ordinary civil standard of proof on the balance of probabilities, without reliance on the statutory presumption. As the Defendant continued to be the registered account holder for the Premises, his testimony remains a material component in advancing his legal defence.

The Defendant elected not to present himself as a witness during the trial and in civil proceedings, while a Defendant is not compelled to testify, the failure to do so may give rise to an adverse inference where the Defendant is the party best placed to rebut the Plaintiff’s allegations. In the present case, the Defendant’s absence deprived the Court of any direct explanation or clarification regarding the alleged tampering and the presence of high-consumption devices within the premises. Accordingly, the Court considers the Defendant’s failure to testify as a factor that strengthens the credibility of the Plaintiff’s evidence, which remained unchallenged by any direct testimony from the Defendant. Seksyen 114(g) Akta Keterangan 1950 Kasai Reiko v Annie Lor Lee Fong & Ors (Public Bank Bhd, intervener) [2014] 7 MLJ 652

In the Federal Courts decision of Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, the courts held that “... The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. See Guthrie Sdn Bhd v Trans-Malaysian Leasing Corp Bhd [1991] 1 MLJ 33. See also Jaafar bin Shaari & Anor (suing as Administrators of the Estate of Shofiah bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 3 MLJ 693 where Peh Swee Chin FCJ said: The respondents had chosen to close the case at the end of the appellants’ case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it. (Emphasis added.)”

During the trial, SD1 admitted under cross-examination that he was the tenant of the Premises. This admission was corroborated by documentary evidence, specifically two tenancy agreements, which were produced, included in the common bundles, shown to witnesses, and formally admitted into evidence. The court also considered inspection records, including photographs that identified an individual present throughout the inspection. That individual was DW1, Gan Kim Choong, who testified under oath as SD1, thereby confirming his role as the occupier of the Premises.

The inspection team explained the results to the individual present and duly handed over the relevant forms and notifications. Given that the Defendant’s elder brother appeared on his behalf to provide evidence in court, it is highly improbable that there was no awareness of TNB’s investigation and inspection.

Furthermore, the Notice of Claim and Written Statement contained in the Common Bundles were expressly addressed to the Defendant at his Premises. This is the identical address used by the Plaintiff’s solicitor in serving the Notice of Claim dated 8 February 2022, as confirmed in the letter from Messrs. Yeoh Shim Shiow & Lay Kua. The consistency of addresses across these documents strongly reinforces the presumption of proper service. In light of this corroborated evidence, it is reasonable and indeed compelling to conclude that the Defendant received the Notice of Claim. What was the extent of accessibility to, and the degree of control exercised over, the feeder pillar and substation in relation to the Defendant’s premises?

The evidence concerning access and locking presents a combination of factual material. TNB witnesses testified that a feeder-pillar or substation is ordinarily secured with a padlock, the key typically retained by TNB supervisors. However, the inspection team’s testimony established that, at the time of inspection, the feeder pillar in question was not padlocked, and the local handle isolator arrangement could be operated without unlocking any padlock. This direct observation by the inspection team carries significant evidentiary weight, as it demonstrates the actual condition of the equipment at the relevant time, thereby challenging the general presumption of restricted access.

The feeders are equipped with local handles which, when operated, can isolate the feeders without requiring the opening of an inner substation padlock. The court notes the transcript references made by the technical witness during cross-examination, confirming that a feeder pillar can be opened and isolated simply by operating the handle. While substations are ordinarily secured, the inspection on the relevant day revealed that the specific feeder pillar was not padlocked. This condition rendered third-party physical access to the feeder route and the underground cable route practically possible. The inspection evidence, therefore, directly demonstrates that access was not restricted in the manner typically asserted, strengthening the inference of potential unauthorised interference.

In summary, TNB’s custody and control of the substation does not, in itself, preclude the possibility of third-party access to the feeder or the making of external direct connections. Notably, there is no evidence of any official, contemporaneous investigation or police report lodged by the Plaintiff to determine who removed, or otherwise permitted access to, the feeder pillar padlock. The Defendant does not dispute the presence and operation of the Bitcoin mining machines, nor does he provide credible evidence that these machines were not supplied through the feeder pillar connection.

His defence rests on the assertion that he did not personally tamper with the feeder pillar and on attributing responsibility to the Plaintiff’s management of the padlock and its failure to investigate. However, the absence of such investigative measures, coupled with the Defendant’s acknowledgment of the machines’ operation, significantly undermines his attempt to disclaim liability. Quantum on the method, periods and adjustments

In my opinion, TNB’s calculation methodology, employing a maximum-demand and load-demand approach, converted into kWh and applied retrospectively, was clearly and comprehensively explained in evidence by its calculation witness, PW2. The computation produced the Claim Sum of RM1,317,365.80, after appropriate adjustments for amounts already billed and for operating cost additions. PW2 provided a step-by-step explanation of the methodology and supported it with detailed calculation tables, which were included in the common bundle as computation exhibits. This structured and transparent presentation of the methodology lends substantial credibility to the Claim Sum and demonstrates that the figure was derived through a rational and verifiable process.

On the balance of probabilities, this court is satisfied that TNB’s computation methodology is rational and appropriate for estimating unrecorded consumption resulting from a bypass that rendered the meter non-recording. The Claim Sum was proved, subject only to minor reconciliation and adjustment to prevent double counting where actual bills had already been paid for specific months. Given the detailed explanation, supporting exhibits, and the transparent methodology presented, this court accepts the claimed amount as substantively proven and regards it as a reliable measure of the Defendant’s liability.

This judgment addresses whether the Plaintiff is entitled to recover sums for unlawful electricity consumption allegedly drawn from a feeder pillar supply connected to the Defendant’s premises. The central issues for determination is whether, on the balance of probabilities, the Defendant or persons acting with his authority or for his benefit, received and used electricity unlawfully supplied from the feeder pillar to the Defendant’s distribution box. In addition, whether the Plaintiff has discharged its burden of proof in establishing the factual basis of its claim and whether any of the Defendant’s defences or factual assertions are sufficient to negate liability.

TNB possesses a statutory entitlement to recover loss of revenue and reasonable expenses where unrecorded consumption arises from tampering or diversion from lawful metering. A properly certified written statement under section 38(4) of the ESA, carries prima facie evidential effect. However, where the service or receipt of such a statement is genuinely disputed, the court will adjudicate the claim on the balance of probabilities, drawing upon the entirety of the evidential record. This foundation ensures that TNB’s statutory rights are preserved while also safeguarding the Defendant’s ability to contest liability through full evidentiary scrutiny.

On the balance of probabilities, the evidence establishes that, irrespective of whether the section 38(4) document was properly served, TNB has proved that a bypass or direct connection existed, that the meter failed to register consumption as a result of that bypass, and that TNB suffered quantifiable loss. The Defendant’s defences, such as, the tenant occupation, alleged substation control, and issues concerning padlocks or keys, do not, on the evidence, negate his liability as the registered account holder and owner of the Premises. The evidential record demonstrates that these arguments are insufficient to displace the Defendant’s responsibility for the unrecorded consumption.

Once the Plaintiff establishes a credible and probative case as to these elements, the evidential burden may shift to the Defendant to provide a plausible alternative explanation or evidence that negates the inferences of benefit and use. Effect of operational failures by the Plaintiff, for example failure to secure premises, to investigate, or to seize equipment, are relevant but do not automatically negate a properly proved claim where the Plaintiff otherwise proves the essential facts. Such shortcomings may affect findings on causation, mitigation and contributory responsibility, but do not relieve a recipient of unlawfully supplied electricity of liability where evidence shows they benefited from the supply

In my opinion, the Defendant has failed to establish, on the balance of probabilities, that TNB’s conduct was the sole cause of the loss or that any alleged negligence displaces the statutory or civil responsibility borne by the registered consumer. No credible evidence has been produced to show that the Bitcoin mining machines were exclusively owned or operated by a third party beyond the Defendant’s authority, control, or ability to prevent their installation and use. On the evidence, the electricity consumed at the Premises conferred a benefit upon the Defendant, whether directly or indirectly, by virtue of his tenancy arrangements and his control over the Premises. Accordingly, the Defendant remains liable for the unrecorded consumption.

This court has carefully considered all the inspection records, contemporaneous photographs contained in the common bundle, (colour images), the written inspection forms, the sworn testimony of TNB’s inspection and calculation witnesses (PW1–PW4), and the Defendant’s on-site witness (DW1), together with the parties’ written submissions. Where contradictions arose between documentary and oral evidence, the court has preferred the consistent documentary material and corroborated oral testimony, resolving conflicts on the basis of credibility and consistency with co-existing records. Therefore, this court orders Judgment for the Plaintiff against the Defendant for RM1,317,365.80, with interest and costs to the Plaintiff Date: 24 April 2026 SGD SHOBA DORAI RAJAH JUDICAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: Mohd Wafiy Azman with Marina Tiwol [MESSRS AZMI & ASSOCIATES (KUALA LUMPUR)] Solicitor for the Defendants: Tay Shieh Chin with Liao Jia wen [MESSRS CHERYL TAY & PARTNERS (KUALA LUMPUR)]