Tenaga Nasional Berhad v Quah Lian Wua (BA-12BNCvC-61-09/2024)

This is an appeal by the Appellant, Tenaga Nasional Berhad (TNB), against the decision of the learned Sessions Court Judge (SCJ) delivered on 13 September 2024. The SCJ dismissed TNB’s claim against the Respondent, Quah Lian Wua, for the sum of RM421,352.05, which was said to arise from alleged loss of revenue due to unauthorised tampering and electricity theft at the Respondent’s premises over a period of 59 months.

The learned SCJ, after hearing eight (8) witnesses for the Appellant and one (1) for the Respondent, and upon evaluating the totality of the evidence, held that the Appellant had failed to prove the alleged tampering or the claimed loss on a balance of probabilities. The Sessions Court further found that the electricity meter was intact and functioning properly, and that the tapping point was within the Appellant’s own infrastructure and management, not under the control of the Respondent.

Dissatisfied with the dismissal, the Appellant lodged the present appeal. S/N 8WVffitgq02PskQ5KakOuQ

TNB’s claim was for the sum of RM421,352.05, allegedly representing lost revenue due to tampering with the electricity meter installation at the Respondent’s premises located at No. 126-1, Jalan Lestari Perdana 7/4, Taman Lestari Perdana, Bandar Putra Permai, 43300 Seri Kembangan, Selangor. The Respondent was the registered consumer for electricity supply account number 6132 220145987708 for the said premises.

TNB's case was that, during an inspection carried out on 5 November 2020, its officers discovered a direct electrical connection from TNB’s incoming supply to the distribution board within the premises, bypassing the electricity meter. TNB argued that this caused the meter to fail to record the actual electricity consumption. Relying on this finding, TNB issued a statutory notice dated 15 June 2021 pursuant to section 38(4) of the Electricity Supply Act 1990 (ESA), followed by the initiation of legal proceedings to recover its alleged losses for a period of 59 months, from 13 November 2015 to 5 November 2020.

TNB’s claim was based on sections 37 and 38 of the ESA. To support their case, TNB called eight witnesses, including inspection officers (SP1 and SP2), technical staff (SP7 and SP8), and other personnel involved in meter reading and installation. They also produced various documents, including inspection forms, photographs, police reports, and loss computation reports.

The Respondent, in her defence, denied any involvement in or knowledge of the alleged tampering. She explained that after receiving vacant possession in December 2014, the premises remained vacant and unused until it was first rented out under a tenancy agreement dated 3 October 2018. The Respondent testified that the premises were difficult to rent due to their location in an underdeveloped area. In support of her defence, she produced tenancy agreements, utility bills showing little to no consumption, water disconnection and reconnection records, and a notice from TNB confirming the disconnection of the electricity supply in July 2017.

The Sessions Court, after examining the evidence in a full trial, concluded that TNB failed to substantiate its allegations of meter tampering. The Court further found that the alleged tapping took place outside the premises, in an area under TNB's care and control. Additionally, the Court held that TNB’s claim for the entire five-year period was unjustified, as the Respondent had proven that the premises were vacant for a significant part of the claim period. Consequently, the Sessions Court dismissed the claim.

The appellate jurisdiction of this Court is governed by well-established principles. An appellate court should be slow to disturb findings of fact made by a trial judge who had the benefit of observing witnesses' demeanour. Interventions are only justified if the decision is “plainly wrong” or demonstrates an “insufficient S/N 8WVffitgq02PskQ5KakOuQ judicial appreciation of the evidence” (see: Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395, Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67).

It is trite law that appellate intervention is warranted if the trial judge fails to evaluate the evidence and issue before him in its entirety and makes bare findings of fact with no justifiable reason to substantiate them (MMC Oil & Gas Engineering Sdn. Bhd. v Tan Bock Kwee & Sons Sdn. Bhd. [2016] 2 MLJ 428). Upon perusal of the Records of Appeal and having considered the written and oral submissions by the parties, I find an appellate intervention is not warranted. My reasons are stated below. TNB failed to prove the alleged tampering.

The Appellant’s claim was premised on an alleged offence under sections 37(1), (3), or (14) of the ESA, and a claim for loss of revenue resulting from it. However, it is trite that in a civil claim, the burden of proof rests on the Plaintiff. In this case, the Appellant must prove its pleaded case on a balance of probabilities. This includes establishing that an offence occurred and that the Respondent was responsible for it.

The learned SCJ correctly held that the Appellant had failed to discharge this burden. The alleged tampering, which TNB claimed was due to “foreign wiring” installed before the meter, was not proven to be attributable to the Respondent. Importantly, TNB’s own witnesses, particularly SP1 and SP4, confirmed that the meter at the Premises was not tampered with, remained sealed, and operated accurately during the inspection. These concessions significantly weakened the Appellant’s central allegation.

Furthermore, the so-called "foreign wiring" was located outside the building and before the meter. The area where the tapping was found fell within the Appellant’s own infrastructure and control. The Respondent had no access or control over that part of the installation. The Appellant therefore failed to prove a connection between the alleged tapping and the Respondent.

However, the Appellant failed to rebut the Respondent’s clear position that the alleged tampering took place outside the meter, in an area controlled by TNB. This fact was admitted by their own witnesses, SP1, SP3, and SP4, during cross-examination, as the Respondent argued. This silence or omission weakens the Appellant’s case, especially given the Sessions Court’s finding that liability was not proven.

Furthermore, the photographs provided by the Appellant to demonstrate a direct connection bypassing the meter from TNB’s incoming supply to the user’s distribution board were unclear and S/N 8WVffitgq02PskQ5KakOuQ did not clearly show that the area in question fell within the Respondent’s control.

The Appellant’s reliance on the Federal Court decision in Tenaga Nasional Berhad v Ichi-Ban Plastic (M) Sdn Bhd [2018] 3 MLJ 141 is misplaced. That case concerned the statutory power of immediate disconnection under section 38(1) of the ESA, where a subjective opinion of tampering by TNB's personnel was sufficient to justify disconnection. It did not absolve TNB of the need to prove its claim for a loss of revenue resulting from an alleged offence under section 37(1), (3), or (14) of the ESA. Whether the Respondent admitted to the alleged tampering

The Appellant also attempted to rely on what it described as an "admission" by the Respondent during trial. Upon review, this Court agrees with the Respondent’s submission that no such admission occurred. At most, the Respondent acknowledged that the Appellant’s inspection team had reported the presence of wiring outside the building, a factual matter that, without more, does not amount to an admission of liability or wrongdoing.

Indeed, the testimony of the Appellant’s own witnesses negates any reasonable inference of tampering by the Respondent. Notably, SP1 admitted under cross-examination that the safety seals were intact, and the meter’s internal components remained undisturbed. SP4 confirmed that the meter was not interfered with and that usage S/N 8WVffitgq02PskQ5KakOuQ was recorded accurately. The Sessions Court was entitled to accept this evidence, especially in light of the witnesses' demeanour.

It is also undisputed that the Respondent had not personally occupied the Premise but had leased it out under a tenancy agreement. The alleged tampering, even if proven, must therefore be directly linked to the Respondent. No such evidence was presented.

The Appellant’s claim covered a five-year period (13 November 2015 – 5 November 2020), relying on the Energy Commission’s guideline allowing retrospective claims of up to five years.

The Respondent, however, presented credible documentary and oral evidence demonstrating that the premises were vacant, disconnected, and unoccupied from 2015 until October 2018, including electricity bills indicating zero consumption, water disconnection notices, and tenancy records.

The learned SCJ accepted this evidence, finding that no electricity could have been consumed during the unoccupied period. That finding of fact was unchallenged during cross-examination and therefore must stand.

The inclusion of the unoccupied period in TNB’s calculation rendered the claim excessive and unsubstantiated. The Court finds no error in the Sessions Court’s rejection of the claim for the five-year period.

Furthermore, during cross-examination, the Appellant’s witnesses failed to present a credible basis for the loss calculation. No comparison was made with actual consumption data before or after the alleged tampering. These significant evidentiary gaps justified the Sessions Court’s rejection of the quantum claim.

This appeal rests largely on the factual findings and the assessment of witness credibility. It is well-established that an appellate court should be slow to interfere with such findings, especially when the trial judge had the advantage of hearing and observing witnesses (see: Sornaratnam & Anor v Ramalingam [1981] 1 MLJ 24; Privy Council case of Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49; China Airlines Ltd. v Maltran Air Corp Sdn. Bhd. (formerly known as Maltran Air Services Corp Sdn. Bhd.) and another appeal [1996] 2 MLJ 517; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209 at 211).

Based on the evidence presented, there is no compelling reason for this Court to disturb the learned SCJ’s decision. The trial judge carefully evaluated the evidence, correctly applied the law, and S/N 8WVffitgq02PskQ5KakOuQ made findings that are supported by the record. Therefore, I find that the appeal is, in fact, entirely without merit.

For the reasons stated above, I ordered that the Appellant’s appeal be dismissed with costs of RM10,000.00. The Sessions Court's decision is upheld. Dated 27 OCTOBER 2025 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Appellant : Mohd. Amran bin Kamaruddin (Messrs Hashim Amran Tabian Ahmad) For the Respondent: Lai Chee Meng (Messrs C.M. Lai & Partners)