Tenaga Nasional Berhad v GOLDEN WOLF SDN. BHD (JA-22NCvC-45-04/2021)

This is a suit by TNB claiming for RM1,134,196.28 being loss incurred arising from illegal connection of electricity to the buildings owned by the Defendant of No.18 and 20, Jalan Ekoperniagaan, Taman Ekoperniagaan, Johor Bahru. This building which is a 2- story semi-detached ‘factory’ purchased by the Defendant from Eco

1.

The premises were empty and unoccupied at the time the inspection on 2.8.2018 by TNB was carried. A TM letter was found at premise no. 20 attention to Yee Teck Wai. 06/08/2025 13:37:05

The Defendant did not deny that they have obtained vacant possession of these 2 factories together with another 2 lots in 2016. They were in custody of the keys to these premises but said premise number 18 and 20 were rented to a 3rd party “TW Cleaning” and “Shun Heng HS Enterprise”, respectively. Neither the Defendant nor the 3rd party had registered an account with the Plaintiff. Defendant contended that the 3rd party subsequently left the premise without giving notice.

The illegal connection was found by TNB on the inspection conducted for the first time on this factory on 2.8.2018. At the time the inspection was carried out by TNB, neither the Defendant nor the Defendant’s rep was present. Arising from the calculation made by TNB, a claim for total loss of RM1,134,196.28 for the period of 1.6.2016 to 2.8.2018 was made via Notice of Demand dated 27.1.2021 addressed to the Defendant.

The said inspection was to examine the panel meter installed, located at the front of the factory and feeder pillar at the TNB substation both within the premise compound. The entrance gate to TNB substation was found one locked and the other unlocked. The feeder pillar in the TNB substation was also found with one door locked with a padlock and the other door, with a padlock but lock not secured. The keys would be in TNB’s possession.

It is an agreed fact that there was no application made by the Defendant to TNB for the supply of electricity to the said factory. TNB found there was no electricity meters at the TNB meter panel in the substation to connect to both the factory and to measure the electricity consumption of both the factory. Yet, when inspection was done on the respective meter panel located at the front of both premise number 18 and 20, TNB found there was TNB incoming and outgoing cable at the bottom of the meter panel of premise number 18 and 20, that were connected to the busbar (see: enclosure 22 Common Bundles of Documents “CBODs” at pages 12 pdf. onwards).

On further scrutiny, TNB found the electricity current reading which shows supply of electricity to both the factory. As there was electricity reading but in absence of any meter to record its usage, TNB proceeded to inspect the feeder pillar at the substation for further examination. On opening the feeder pillar door, TNB discovered 3 foreign fuses inserted at the red, yellow and blue phase in the feeder pillar at the TNB substation.

Upon test conducted, TNB found there were supply of electricity to premise no. 18 and 20 without being recorded by the meter. These 3 foreign fuses were illegally assembled and the fuses did not originate from TNB. This moved TNB to conclude illegal connections of electricity.

Rectification work was done by TNB by removing these 3 fuses from the feeder pillar. The outgoing cable at the meter panel was also disconnected from the busbar to stop the illegal continuation of supply of the electricity. Photographs of the examination done were taken, with the inspection carried out and the findings were recorded by the TNB (see: enclosure 22 at page 18pdf. showing foreign fuses and page 24pdf. after the removal of these foreign fuses).

All the above documents are contained in Part B of the Common Bundles of Documents (“CBODs”). A police report in respect of the inspection and discovery by the Plaintiff was lodged the next day 3.8.2018. A Notice of Demand, however was only issued to the Defendant on 27.1.2021, seeking for loss of RM1,134,196.28.

The calculation based on the “Beban Kehendak Maksima” method was done by SP5 and SP6 reconfirmed the same. The period for the loss was from 1.6.2016 to 2.8.2018. This period was based on the fact finding that vacant possession of the said property to the Defendant was on 3.5.2016.

As to the Defendant’s case, the tenancy for No.20 was for the period of 2 years from 1.3.2018 to 28.2.2020 with monthly rental of RM5,700.00. For premise No.18, the tenancy agreement was executed on 29.4.2018 for 2 years commencing from 1.5.2018 to 30.4.2020. Findings by this Court

Both the tenancy agreements were produced by the Defendant with tenancy agreement premise no. 20 stated on the agreement as witnessed by SD3 Lim Sie Yan whilst no. 18 with no name stated although a signature present (see: enclosure 23 at page 13 pdf. and 29 pdf.). However, SD3 said he signed and witnessed the signing of both the tenancy agreements between the landlord and tenants.

On the other hand, no further oral testimony was forthcoming from SD4 (the Director of the Defendant) as can be seen from her WS (see: enclosure 41), either on her signing the said agreement or on ‘Ah Siang’ who signed on behalf of Shun Heng. The irony is that despite SD4 was in communication with Simon Lim who, based on SD4’s WS, was authorized to make all necessary arrangements including the preparation of the tenancy agreement, nothing further was said on the identity of ‘Ah Siang’.

SD3 too in his WS (see: enclosure 41 at Q&A 2) merely mentioned he witnessed the signing of the tenancy agreement by ‘Ah Siang’ with no further and better particulars of ‘Ah Siang’ was revealed by SD3 despite the importance of the tenant’s identity who was said to represent Shun Heng. The crucial details of ‘Ah Siang’ is apparent as the key to the said property number 20 was handed by SD3 to ‘Ah Siang’.

The knowledge on the part of the Defendant SD4 of the importance of this details, can be seen from the CCM search on Shun Heng that was only done on 5.5.2021 and not before. Yet, SD4 seemed to accept that payment originated from one ‘Chiam Hock Ling’ and ‘Ee Yong Soon’ whose name suddenly appeared in the Bank Current Account Statement, was said to have been made by Shun Heng and TW for rental up to September.

This Court observed that SD4, without any further elaboration in her WS, said the payment was intended for property number 18 and 20 when no such evidence was adduced as to who ‘Chiam Hock Ling’ or ‘Ee Yong Soon’ were. Thus, there is nothing in SD4’s evidence to link these 2 individuals with the said 2 property.

Furthermore, based on SD3’s WS, he had asked Simon Lim and not SD3 himself to obtain SD4’s signature to the said tenancy agreement. As earlier highlighted as deduced from SD4 (Director of the Defendant) WS, Simon Lim was a walk-in agent and not one appointed by the Defendant to handle the renting of both the factories. This is supported by the fact that SD3 was tasked to prepare the agreement based on SD3’s witness.

The usual terms and conditions of a tenancy as to who will make the following monthly rental and when, would need to be determined by SD3 as the Defendant was renting out 2 properties. More so, SD3 said his work as agent ended once the handing over of the key to the property was completed. Thus, it is important for SD4 to ascertain from SD3 (and vice versa) who SD4 should expect to make the subsequent payment of rental.

SD4 said in her WS that SD3 had forwarded cash as deposit and rental paid by Shun Heng and TW via Defendant’s account in Bank of China (see: enclosure 22 at page 111 pdf.). However, in absence of any further evidence coming from SD3 or Simon Lim, SD4 appears to be aware that subsequent payment by one ‘Chiam Hock Ling’ be treated as payment for rental.

Except for the referral to ‘Ah Siang’ being the representative of the tenant, SD3 at the first opportunity in his WS, was not suggested that the full identity of ‘Ah Siang’ was sought such as to his full name. It was also never explained why there was a change in the agent acting on behalf of the Defendant. As transpired, 3 different agents were involved in the management of these premises.

They were agents by the name of John (Khaw Chin Loon) SD1 who was authorized by SD4 to accept delivery of vacant possession of the 4 premises and who was also authorized to inspect property no. 18 and 20 in October or November 2018. There was Simon Lim (not call as witness) who first approached SD4 (director of the Defendant) on the proposed rental of premise no.20 and whom SD4 sought to prepare and forward SD4 with the tenancy agreement.

Next was SD3 Lim Sie Yan who said Robert approached him and introduced ‘Ah Siang’ a representative of Shun Heng SH Enterprise and the signatory to the tenancy agreement. Yet, it was not mooted that the name ‘Ah Siang’ was ever mentioned by Simon to SD4. There was a disparity between SD3 and SD4 WS when SD3 said in his WS that SD4 sought from SD3 on the preparation of the tenancy agreement. SD4 stated the request was made to Simon Lim.

SD3 in his WS said he “co-broke” with Simon Lim for the purpose of the dealings on rental. It is therefore apparent that SD3 and Simon Lim are two distinct individuals. The transfer of some cash by SD3 as advance rental and deposit for No. 20, to the Defendant via Bank of China appears to support this point on ‘co-broke’ as adduced by SD3. It would only mean the tenant had deposited the cash to SD3 who then transferred it to the Defendant (landlord).

On the rental of factory No. 18, SD2 (of Eco Business) said she was not aware as neither SD4 nor the Defendant had informed SD2. It could further mean that no agent was in communication with SD2. It transpired from SD3’s WS that Robert and/or ‘Ah Siang’ had introduced a representative of TW Cleaning Enterprise to SD3. TW representative was keen to rent premise no.18. SD3 then had the tenancy agreement ready for execution by TW and the Plaintiff.

However, despite the significant role of this rep from TW, SD3 had failed to disclose the rep’s name but instead had referred to this prospective tenant merely as ‘rep from TW’. Furthermore, this Court finds it bizarre that ‘Ah Siang’ who was the representative from Shun Heng, was present at the signing of the tenancy agreement by the Plaintiff with TW. This, as what was presented by SD3 in his WS.

SD2 manager of Eco Business Park1 said they received the notices of demand from TNB on 26.12.2018 but tendered an explanation to the Plaintiff notifying that the premises were sold to the Defendant with vacant possession handed on 3.5.2016. SD2 further said that Eco Business Park1 issued 2 letters on 7.8.2018 to the Defendant, enclosing the Notice & Inspection Report from TNB dated 2.8.2018.

This service of the notices possibly explains why SD1 or ‘John’ was at the premise on about October or November 2018 for inspection of the two premises. In short, it inevitably means that the said notices forwarded by Eco Business would have been received by the Defendant to cause the Defendant to examine the said premises on either the month of October or November 2018 and observed them to be empty and unoccupied. In fact, the Defendant did not deny receiving these notices.

There was a subsequent Notice of Demand by the Plaintiff dated 27.1.2021 served on the Defendant by TNB itself. It must have been this Notice of Demand that was contended by the Defendant to trigger the Defendant via SD4 to lodge a police report albeit a few months later on 7.4.2021 (see: enclosure 22 CBODs a page 120 pdf.). Yet, nothing was mentioned in the police report of the Defendant’s discovery of the unoccupied premises that were left empty when they did the inspection in October or November 2018.

SD4 in her WS said that she signed the application form made to Eco BP1, authorizing handing out the unit to another agent named ‘Robert’ on behalf of the tenant. This authorization letter dated 14.2.2018 notifying of renovation work that will be carried out on unit number 20.

An application form notifying registration of car plate numbers for the purpose of car stickers was also signed by SD4 (see: enclosure 23 at pages 35 and 36 pdf.). SD2 of Eco BP1 however, said no such application form was received by her.

What puzzles this Court is that the vacant possession of these properties was obtained by the Defendant on 3.5.2016 (see para 10 of this GOJ). Therefore, letter of authorization by SD4 to Eco BP1 in 2018 notifying authorization was given to Robert of the said unit is therefore misplaced and of no value. Determination and conclusion by this Court

It is crucial to determine if the tenancy of the 2 premises to “TW Cleaning” and “Shun Heng” by the Defendant are proven on a balance of probability. To this Court’s view, the answer is no. As can be seen, there were more than one individual suggested by the Defendant acting as agent who were involved in the dealings on rental. Yet, this did not raise an eyebrow on the part of SD4 owner.

The tenancy agreements produced and tendered in Court were not stamped hence it raises issue on compliance with section 52 of the Stamp Act 1949 on the admissibility of these documents as evidence. There was no explanation given on this absence of stamping by SD4.

The attempt to prove the referral to the individual named as ‘Ah Siang’ said to represent the Defendant by way of a search with CCM was only done later in 2021 hence did not explain why SD4 was not inquisitorial on this pertinent information.

Although a police report was lodged on 7.4.2021, SD4 failed to explain why there was a delay in doing so as the discovery of the premises left empty by the tenant was known on inspection done by John on or about October/November 2018. The notices from TNB of the inspection done, sent by Eco BP1 via Eco’s letter dated 7.8.2018 was admitted received by the Defendant, although no date mentioned.

The particulars of the TM letter found by the Plaintiff addressed to an unknown individual by the name of Yee Teck Wai, however was marked as “without prejudice”. It would have been the same letter SD4 referred to in her WS, a letter dated 14.2.2019 from TM legal department to Yee Teck Wai for outstanding payment. This must have been the same letter TNB had found on the premise number 20 on the date of the inspection 2.8.2018.

SD4 said she was notified by Simon Lim on 6.2.2018 to speed up the signing of the tenancy agreement as the tenant had already applied for the internet application line. This letter was in the knowledge of SD4 (Director of Defendant) as there was referral by SD4 to it in her WS. This Court also makes a further finding that it is this letter that was discovered by TNB at the time of inspection.

One look at the date of the letter and the date of recovery of it by TNB at the premise, would move this Court to a finding that it is clearly absurd to accept any explanation (none was offered by the Defendant) that the letter was dated way in advance by TM. The non-availability of Simon Lim further aggravated it as this letter was produced by the Defendant in Defendant’s Bundle of Documents (see: enclosure 19 at page 17 pdf.).

However, as neither Yee Teck Wai nor anyone from TM legal department was present to verify this document, the contents of it is inadmissible as it is subject to prove as it as good as in part C of the CBODs. Furthermore, their absence including Simon Lim, renders this letter in the category of documentary hearsay (see: Dato Sri Mohd Najib Hj Abd Razak v PP [2022]1CLJ 491 (COA))

On the totality of evidence, this Court ruled that the Defendant had failed to rebut the Plaintiff’s case on the balance of probabilities. As to the amount of damages Plaintiff is claiming and allowed by this Court, the Plaintiff through his witnesses SP5 and SP6 had testified on the method of calculation used “Beban Kehendak Maksima” with formula of “24hours x 30days”. It is an accepted method of practice as the illegal supply was obtained direct from the connection of the cables to the feeder pillar at the TNB substation.

The date 1.6.2016 taken as the starting point to initiate calculation of loss suffered by TNB up to the date of inspection 2.8.2018 is justifiable as it is the date after the delivery of vacant possession on 3.5.2016. The finding by the TNB inspection team that the 2 premises were empty and unoccupied but there was electricity flow, also justify the figures in the calculation method.

In short, unless there is a counter argument coming either from the “pemilik premis” or “nama pelanggan” (which SP6 said the Defendant is not TNB’s client), suggesting the peak hours for TNB’s further consideration, TNB would comply with and adopt this figure in its calculation.

Although the Defendant cross-examined SP5 and SP6 on this methodology that the peak period of usage should be taken into consideration and not a ‘24hour’ figure be used, SP6 maintained that but for any counter-proposal by the owner or customer, the ‘24hours x 30days’ would remain. In any event, the Defendant had not argued on any other available method accepted elsewhere by any other electricity company be it within the jurisdiction of Malaysia or beyond.

On this point, it is relevant to refer to an article by Mahadev Shankar J in “Putting and Suggesting in Cross-Examination” (January 1984 MLJ xi) where he ruled as follows: “it is well established that when matters are ‘put’ in cross-examination by defence counsel it is implied positive evidence will be called to prove matters put”.

Based on these reasons, this Court concluded that the Plaintiff had proven its case and the sum claim for total loss with interest as pleaded in the statement of claim allowed. Dated: 30 July 2025 (Nurulhuda Nur’aini Binti Mohamad Nor) Judge High Court Of Malaya Johor Bahru Johor Darul Ta’zim Solicitors For The Plaintiff : Izatunlina & Anis Natasha Messrs Othman Hashim & Co. LP Floor, Unit No. LP08-09 Menara TJB No. 9 Jalan Syed Mohd Mufti 80000 Johor Bahru Johor Solicitors For The Respondent : Selvi Sandrasegaran & Belinda Low Siet Yan Messrs Gooi & Azura No. 12-1 & 14-1 Jalan Serkut Taman Pertama 56100 Cheras