Tenaga Nasional Berhad v Tee Ka Ho (JD-A72NCvC-61-11/2023)

This writ action, in essence relates to the Plaintiff's Claim against the Defendant under Sections 37, 38(3), (4) & (5) of the Electricity Supply Act 1990 (ESA 1990) for loss of revenue and expenses amounting to RM 24,578.60 together with interest and costs resulting from alleged tampering with the electricity meter at the Defendant's premises.

The Plaintiff is a limited liability company supplying electricity and is incorporated under the Companies Act 1965 and has its registered address at the Jabatan Setiausaha Syarikat, Tingkat 16, Tower A, TNB Platinum, No. 3, Jalan Bukit Pantai, Bangsar, 59100 Kuala Lumpur.

The Defendant, meanwhile, is a registered user through account no. 210008891209 for the premise located at 41, Rumah Teres 2 Tkt, Jalan Desa 2, Taman Desa Kampung Sedeng 2, 85000 Segamat, Johor (hereinafter referred to as “the Defendant’s premise”).

On 31st October 2022, the Plaintiff through their inspection team conducted an inspection of the meter/meter installation at the Defendant's premise and as a result of the inspection, the Plaintiff’s inspection team found that there was tampering with the meter/meter installation as follows:- i. The meter terminal seal is tampered with and missing; ii. The TNBM security sticker is tampered with; and 3 iii. It was found that the current circuit resistor R201 and R202 was changed, causing the meter to not be able to record the correct reading.

The inspection team also conducted an accuracy test and the test results showed that the meter failed to record the accurate reading with an average error of -65.401% (after deduction of -3.00% error).

The inspection team recorded all the irregularities that existed in the meter/meter installation during the inspection and the corrective actions were taken as per stated in the Inspection Form (page 22 of the Plaintiff’s Bundle of Documents (Bundle B)). The tampered meter was then replaced with a new meter and subsequently a police report was lodged (P10).

In accordance with Section 38(3) of the ESA 1990, the Plaintiff has calculated the loss of revenue and expenses based on an error of -65.401% (after deduction of -3.00% error) and found that the total loss of revenue and expenses and related charges incurred by the Plaintiff amounted to RM 24,578.60 for the period from 16th November 2017 until the date of inspection, which is 31st October 2022.

Through Notices of Demand dated 3rd February 2023 (via the Plaintiff’s earlier solicitor) and 2nd August 2023 (via current solicitor), the Plaintiff demanded the Defendant to pay the said amount to the Plaintiff. However, the Plaintiff claimed that no payment was received from the Defendant and hence the filing of this action in pursuant to Section 38(5) ESA 1990.

It is vital to note that the Defendant, via his solicitors, in fact replied to both these Notices of Demand, denying that he has tampered the electricity meter at any point in time as alleged by the Plaintiff (among others).

At trial, the following witnesses were called by the Plaintiffs and testified to give evidence:- a) Mohamad Fazali bin Jamil (PW1) : WSSP-1 b) Mohd Azral bin Isnin (PW2) : WSSP-2 c) Erni Arhayu bt Zairi (PW3) : WSSP-3 d) S Rabiatun binti Jaimon (PW4) : WSSP-4

As for the Defendant, the following witnesses testified:- a) Tee Ka Ho (DW1) : WSSD-1 (Defendant) b) Tey Yok Leng (DW2) : WSSD-2 (Defendant’s wife)

From their submissions, it can be seen that the Plaintiff places its reliance on Section 37 and 38 of the ESA 1990 and submitted that if there were any premises, (i.e. the Defendant's premises) which in its opinion proves that an offence under subsection 37(1), (3) or (14) has been committed by the Defendant (i.e. tampering with the installation of the Defendant's meter/meters), TNB may require the Defendant, as the ‘consumer’ within the ambit of Section 2 of the Act to pay any loss of revenue caused by the offence committed under subsection 37 of the Act.

The Plaintiff submits that, through the evidence of PW1 and PW2 as well as the documents submitted (mainly the photographs P1), it clearly showed that there had been tampering with the meter at the Defendant's premises which had resulted in the meter failing to record the actual electricity usage in the premise.

The Plaintiff too submits that, from the evidence of PW3 and PW4 and the documents exhibited, the calculation made by TNB is accurate, reasonable and should be accepted. The Plaintiff too submitted that the Defendant has failed to present evidence to support his claim that the Plaintiff's claim for the amount of RM 24,578.60 is wrong, unreasonable, inaccurate, made arbitrarily and the actual date of the tampering was made.

The Plaintiff further argued that no material evidence has been presented that the error obtained through the manual test conducted on 31st October 2022 was wrong and inaccurate. The Plaintiff also argued that at all material times, the Defendant has been unjustly enriched by the tampering at the Defendant’s premise.

On the calculation of the loss of revenue, it is the Plaintiff's submission that the calculations prepared and carried out by PW3 which was certified and verified by PW4 were made based on the Guidelines issued by the Energy Commission which allow the licensee (i.e. the Plaintiff) to calculate the loss of revenue and expenses for the past 5 years.

In short, the Plaintiff submitted that the tampering of the meter/meter installation in the Defendant’s premise has been 6 proven and that they too have successfully proven that the calculation method used was fair based on the provisions of the law and guidelines approved by the Energy Commission; and that the Defendant has failed to refute the findings of the inspection and/or the Plaintiff's calculation method in this case.

On the other hand, the Defendant, in his amended Statement of Defence, and throughout the proceeding, had admitted that there was indeed tampering with the meter at the premise, which was done by an electrician appointed by the Defendant’s wife, somewhere in January 2022. This was also supported by the wife’s testimony in Court during the trial.

However, it is the Defendant’s contention that due to this, the Defendant disputes the total amount claimed by the Plaintiff and further submitted that calculation of loss of revenue should only be done from the period of January/February 2022 until the date of inspection (31st October 2022).

On this issue, the Plaintiff submitted that this is rather an afterthought and an attempt by the Defendant to confuse the calculation period of loss of revenue.

Apart from many other issues raised by both the parties, the trial which took place for around 4 days was mainly to ventilate the following issues which are to be decided by this Court: i. Whether the Defendant, being the registered account holder 7 and/or consumer of the said premise is to be held liable/responsible for the tampering with the electricity meter at the Defendant’s premise and the period of calculation of loss of revenue thereof; ii. Whether the Plaintiff is entitled to claim the total loss of revenue amounting to RM 24,578.60 against the Defendant.

In order therefore to adjudicate the matter, it is of utmost importance for this Court to determine the direction of which the balance of probabilities tilts. After presenting the facts and, if disputed, the evidence provided by each party, a plaintiff is deemed to have proven his case if the balance of probabilities leans in his favor. It is also trite that it is not the quantity of facts and evidence that matters, but rather the importance assigned to them when determining which direction, the balance of probabilities tilts.

The Plaintiff's cause of action against the Defendant is for loss of revenue under s.38(3), (4) & (5) of the ESA 1990 where the Plaintiff is entitled to claim loss of revenue suffered as a result of the tampering through civil proceedings in Court when it is found that there has been an offence of tampering with the installation of the meter under s.37(1), (3) and (14) of the Act.

For convenience, the relevant provisions are herein reproduced:

Offences

Any person who tampers with or adjusts any installation or part thereof or manufactures or imports or sells any equipment so as to cause or to be likely to cause danger to human life or limb or injury to any equipment or other property commits an offence and for each such offence shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

Any person who in any manner dishonestly—

abstracts electricity;

consumes electricity;

uses electricity;

alters the index of any meter or other instrument used on or in connection with any installation of any supply authority or any licensed installation for recording the output or consumption of electricity; or

prevents any such meter or instrument from duly recording the output or consumption of electricity, commits an offence and shall, on conviction—

(A) be liable:

in the case of a domestic consumer, to a fine of not less than one thousand ringgit and not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both; and

(ii) in the case of a non-domestic consumer, to a fine of not less than twenty thousand ringgit and not exceeding one million ringgit or to imprisonment for a term not exceeding five years or to both; and

(B) be liable for the second and subsequent offence:

in the case of a domestic consumer, to a fine of not less than five thousand ringgit, and not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both; and

(ii) in the case of a non-domestic consumer, to a fine of not less than one hundred thousand ringgit and not exceeding five million ringgit or to imprisonment for a term not exceeding ten years or to both.

Any person who damages or removes any meter or other instrument used on or in connection with any licensed installation, for recording the output or consumption of electricity commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Disconnection of supply of electricity

The licensee may require the consumer to pay him for the loss of revenue due to the offence committed under subsections 37(1), (3) and (14) and any reasonable expenses directly incurred by the licensee under this section including 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).

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. [25] Based on the facts adduced, it was undisputed that the Defendant is indeed the registered consumer in the said premise and thus, the Defendant undoubtedly falls within the definition of a “consumer” under s. 2 of ESA 1990 given the fact that there was a formal contract between the Plaintiff and the Defendant which was duly proven. [26] The position of law on the Plaintiff’s claim is settled in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 CLJ 557 that 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 s. 37(1), (3) or (14) of the Act and that a written statement by an employee duly certified by TNB or by person authorised by TNB stating the amount of loss of revenue or the expenses incurred by TNB and the person liable for the payment thereof shall be prima facie evidence of the payment that has to be made by the consumer under s. 38(3) of the Act. Whether the Defendant is to be held liable/responsible for the tampering with the electricity meter at the Defendant’s premise and the period of calculation of loss of revenue thereof Liability [27] In determining such, this Court bears in mind the judgment of Court of Appeal in Tenaga Nasional Berhad v. Asia Knight Bhd (previously known as Pahanco Corp Bhd) [2018] 5 CLJ 227; [2017] 5 MLJ 681 as such: [11] In our considered opinion, the central issue for determination relates to the question of whether the plaintiff had succeeded in proving that the meter installation was tampered. On a perusal of the appeal record, we are satisfied that there is uncontroverted evidence to show that the meter installation had been tampered. The discovery of the foreign copper object which was inserted in the meter is proof of the fact of tampering. 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. [12] Be that as it may, the learned judge also took the view that the defendant could not be liable for the loss of revenue as it was not proved that the defendant had access to the meter room or had tampered with the meter. In our considered view, sub-s. 38(3) of the EA 1990 does not require the plaintiff to prove that the perpetrator of the tampering was the defendant or that the defendant had access to the meter installation before a claim for loss of revenue can be made by the plaintiff. We agree with the argument of the plaintiff that the plaintiff's entitlement to claim for the loss of revenue is a statutory right conferred on the plaintiff under sub-s. 38(3) read together with sub-s. 38(1) of the EA 1990. We find support for our view in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd (Judicial Review Application No. R1-25-24-2010; Tenaga Nasional Bhd v. Dunia Raya Enterprise Sdn Bhd [2015] 6 CLJ 751 (CA); Tenaga Nasional Bhd v. Ternakan Air Wui Kyee Sdn Bhd & Another Appeal [2015] 5 CLJ 955 (CA); Tenaga Nasional Bhd v. Empayar Canggih Sdn Bhd [2013] CLJU 637; [2013] 1 LNS 637; [2014] 8 MLJ 280; Tenaga Nasional Bhd v. AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2015] 3 MLJ 268 (CA); Tenaga Nasional Bhd v. Perniagaan Heng Thye Sdn Bhd (Civil Appeal No. K-04(NCVC)(W)-59-02-2014). [28] Similar approach was applied by the Court of Appeal in Thomas Thomas V. Tenaga Nasional Bhd [2017] 4 CLJ 340; [2018] 5 MLJ 831 as such: [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) to (5). Section 38(1) speaks of "an offence has been committed" and not "an offence has been committed by the registered consumer". [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. [29] Hence, from the above-quoted passages, it should be distinguished that the issue should rightfully be whether there was any tampering done in the consumer’s premise and not whether the consumer or anybody else who caused the tampering in the consumer’s premise. The latter could be an issue in a criminal suit if pursued by TNB. [30] This position was also similarly observed in Oscar Canary Sdn Bhd v. Tenaga Nasional Berhad [2019] CLJU 811; [2019] 1 LNS 811; [2019] 5 MLJ 502 as Court of Appeal decides such: [22] On the factual matrix and authorities cited, the relationship between the plaintiff and defendant was contractual in nature. On top of that, the plaintiff 's entitlement to claim for loss of revenue is a statutory right conferred on the plaintiff under sub-s 38(3) of the Act. It has been held that there is no legal requirement to prosecute and convict the defendant before the plaintiff can make a claim for loss of revenue against the defendant. It is also not necessary for the plaintiff to prove that it was the defendant who had tampered the meter or that the defendant had no access to the meter installation. It is sufficient for the plaintiff to show that the meter has been tampered. It has been held that only a subjective finding of the plaintiff 's employee is required to prove the tampering: WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478; [2012] 4 MLJ 296; Tenaga Nasional Bhd v. Ichi-Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 CLJ 557; [2018] 3 MLJ 141. [emphasis added] [31] In that context, the burden of proving will be on the balance of probabilities as decided in Marwin Industries Sdn Bhd v. Tenaga Nasional Berhad [Civil Appeal No. J-02(NCVC)-3147-12/2011]. [32] Premised on that, this Court further analyses the evidences and testimonies of the witnesses in deciding whether there was tampering of meter/meter installation in the Defendant’s premise. [33] From the evidences adduced, it can be seen that as a matter of fact, on 31st October 2022, the Plaintiff (namely PW1 dan PW2) conducted an inspection of the meter/meter installation at the Defendant's premise and as a result of the inspection, PW1 and PW2 confirms the following: i. A physical test/observation was conducted on the meter/meter installation in the Defendant’s premise and found that the meter terminal seal was missing, while the security sticker was also tampered with; ii. They further found that the current circuit resistors R201 and R202 had been changed in the meter which caused an error. The said tampering and intrusion had caused the meter to not be able to record the actual reading and thus causes TNB to suffer revenue losses due to the reason that the actual electricity usage by the consumer (the Defendant) cannot be recorded; iii. Throughout the inspection, PW1 was documenting the evidences by way of photographs which can be seen in P1; iv. The meter installation was then replaced with a new meter which eventually showed normal voltage reading upon inspection. [34] These were corroborated by the following exhibits: i. Inspection Photographs – [Exhibit P1(1-17) in page 1-17 of Bundle B]; ii. Police report which was lodged by PW2 – [Exhibit P10 in page 25 of Bundle B]; iii. Inspection Forms [Page 18-24 of Bundle B]; iv. Notifications to the Defendant (forms and letters) [in page 38-54 of Bundle B]. [35] In that context, this Court finds that PW1 and PW2 are reliable witnesses and accordingly, this Court finds no reason to doubt their testimonies. This Court is also of the opinion that sufficient written statement was given to the Defendant as provided in Tenaga Nasional Bhd v Ichi-Ban Plastic (M) Sdn Bhd and other appeals [supra] wherein to this Court, the contents of the said documents were insufficiently rebutted by the Defendant. [36] Thus, to the Plaintiff’s contention that the Plaintiff had met the requirement of ‘prima facie evidence’ as provided under S.38(4) of the ESA 1990, this Court concurs. [37] Based on the above, it is clear to this Court that the meter installation at the Defendant’s premise has been tampered with. [38] As explained earlier in regard to the factual matrix of this case, upon issuance of the Notices of Demand dated 3rd February 2023 (via the Plaintiff’s earlier solicitor) and 2nd August 2023 (via current solicitor), the Defendant, via his solicitor, replied to both these Notices of Demand, denying that he has tampered the electricity meter at any point in time as alleged by the Plaintiff. [39] This too, was reiterated in his original Statement of Defence (SOD) dated 2nd January 2024. [40] However, interestingly, on 7th October 2024 (which is almost 9 months after the filing of the original SOD), the Defendant filed an application (which was allowed by this Court without objection from the Plaintiff) to amend his SOD, mainly to admit the fact that the Defendant was informed by his wife (DW2), that she purportedly appointed an electrician to tamper with the meter installation somewhere in January 2022 to reduce the monthly electricity charge at the Defendant’s premise. This was further confirmed in her Witness Statement (WSSD2). [41] This can be construed as an admission under s. 18 of the Evidence Act 1950 which provides as follows:

Admission by party to proceeding, his agent or person interested

Statements made by a party to the proceeding or by an agent to any such party whom the court regards under the circumstances of the case as expressly or impliedly authorized by him to make them are admissions.

Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character.

Statements made by—

persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in their character of persons so interested; or

persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions if they are made during the continuance of the interest of the persons making the statements. [42] This concession, be it made by the Defendant or his wife, amounts to an unconditional and unequivocal admission and hence, this Court finds that there is a clear and express admission of liability on the part of the Defendant to the fact that the meter in the Defendant’s premise was indeed tampered with. [43] The corollary to this concession on the part of the Defendant is that liability is of no issue to be further considered or adjudicated upon by this Court. On that note too, the Defendant’s solicitor moved on with the trial by focusing on quantum rather than liability. [44] Notwithstanding that, where the evidence of the witnesses is firm and consistent with the findings of tampering, this Court must accept the truth of the evidence given, and as such, for the first issue in question, this Court believes that there was indeed tampering of meter/meter installation in the Defendant’s premise and this was duly proven by the Plaintiff. The admission of the Defendant further bolsters this finding of this Court pertaining to this issue. Period of Calculation on Loss of Revenue [45] As the issue of liability has been put to bed without even disputed by the Defendant, the contention of the Defendant in this case solely appears on the issue of quantum, particularly on the period of calculation on loss of revenue claimed by the Plaintiff. [46] It is without doubt that the trial on the issue of quantum is prefaced by the testimony of PW2. This is essential as without the clear testimony of PW2, especially on the date of the said tampering, the court will be in a quandary as to the period of calculation of loss of revenue claimed by the Plaintiff in this case. [47] The Defendant’s version, put through his wife (PW2), notably, is that she purportedly appointed an electrician to tamper with the meter installation somewhere in January 2022 to reduce the monthly electricity charge at the Defendant’s premise. [48] Unfortunately for the Defendant’s case, neither the Defendant himself nor his wife (PW2) could remember the exact date the said tampering was done. The Defendant throughout the whole proceeding merely admitted that there was tampering to the meter at the premise done somewhere around January 2022.

PW2’s Witness Statement (WSSP2) S: Adakah kamu mempunyai pengetahuan tentang pengusikan ke atas pepasangan meter di Premis tersebut? J: Ya.

S: Bagaimana kamu tahu tentang pengusikan ke atas pepasangan meter di Premis tersebut? J: Saya telah meminta seorang juruelektrik unluk memeriksa pepasangan meter di Premis tersebut pada sekitar bulan Januari, 2022, untuk mengurangkan kadar bil elektrik bulanan.

S: Adakah kamu tahu apakah yang telah diusik oleh juruelektrik pada pepasangan meter di Premis tersebut pada Januari, 2022? J: Saya tidak tahu. [49] Except for this, there is nothing further from PW2 that confirms the date the said tampering was done. Further to that, as rightly pointed out by the Plaintiff in their submissions, no electricians were called to further corroborate the said contention. [50] It is consonant with the law of evidence that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This is provided under s. 101 and 102 of the Evidence Act 1950 as below:

Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

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. [51] The Defendant merely suggested to the Plaintiff’s witness (namely PW1 and PW2) to which even them could not provide answer to.

Cross Examination of PW1 on 21st March 2025 Peguam Defendan: Berapa lama tempoh pengusikan yang telah berlaku dalam pepasangan meter ini? SP1 : Saya tidak pasti

Peguam Defendan: Daripada pengalaman kamu sebagai juruteknik elektrik, adakah pengusikan ke atas pepasangan meter ini baru atau telah lama berlaku? SP1 : Saya tak pasti

Peguam Defendan: Kalau begitu kamu juga tak pasti samada pengusikan ini berlaku pada tahun 2017 atau tahun 2022? SP1 : Benar ….

Peguam Defendan: Kamu hanya dapat pastikan bahawa terdapat pengusikan ke atas pepasangan meter dalam kes ini? Tapi kamu tidak dapat pastikan tempoh pengusikan yang telah berlaku ke atas pepasangan meter ini?

Cross Examination of PW2 on 5th June 2025 Peguam Defendan: Rujuk semula gambar 11 dan 12, berdasarkan pengalaman kamu sebagai juruteknik, adakah pengguna secara peribadi boleh membuat pengusikan di litar arus dalam perintang arus R201 dan R202? Contoh saya, saya sendiri boleh buat ke?

Peguam Defendan: Dan hanya boleh dilakukan oleh seorang juruelektrik yang ada pengalaman? Setuju, pengusikan pada perintang arus R201 dan R202 hanya boleh dilakukan oleh juruelektrik yang ada pengalaman?

Peguam Defendan: Pemeriksaan pada kes ini dijalankan pada 31 Oktober 2022?

Peguam Defendan: Berdasarkan pengalaman kamu pada tarikh pemeriksaan, pengalaman selama 11 tahun sehingga sekarang, boleh kamu kenal pasti tempoh pengusikan yang berlaku?

Peguam Defendan: Siapakah yang boleh kenalpasti tempoh pengusikan yang berlaku dalam kes ini?

Peguam Defendan: Kamu setuju dengan saya, tempoh pengusikan hanya boleh disahkan oleh pengguna sahaja? Atau bila pengusikan dibuat hanya boleh disahkan oleh pengguna sahaja? SP2 : Tak pasti

Peguam Defendan: Jadi mengenai tempoh pengusikan ini, memang tiada siapa yang boleh pastikan bila pengusikan dilakukan? SP2 : Saya pun tak pasti [52] Premised on that, the Plaintiff, as well as this Court is left without an answer on the exact date the said tampering was done. The exact date remained ambiguous till the end. Hence, the period of calculation on loss of revenue as the Defendant’s contention remained uncertain. Whether the Plaintiff is entitled to claim the total loss of revenue amounting to RM 24,578.60 against the Defendant [53] In the absence of a clear guideline in the ESA 1990 pertaining to the calculation method of total loss of revenue claim by TNB generally, it is imperative to note that every case is different on its own and thus, the calculation method too is subjective and varies on case to case basis. [54] As such, considering the inherent difficulties which come with claims involving meter tampering, the Federal Court has recognised these and acknowledged that Parliament has left the process of ascertainment of loss of revenue calculation to TNB. This is observed in the case of Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937: [89] We agree with TNB that since the ESA 1990 is silent on the methodology to be used by TNB to calculate the loss of revenue it suffered due to meter tampering, Parliament has left the process of ascertainment to TNB because of the difficulties inherent in this type of claim. The same issue was raised in Ichi-Ban (supra) and this is what this court had to say: [71] According to the learned counsel, as the Act is silent on the methodology to be used by TNB to calculate the loss of revenue suffered due to meter tampering, Parliament has left the process of ascertainment to TNB because of the difficulties inherent in these types of claims. It is important to appreciate the reality of the situation under which the claim is made. In a meter tampering case, all the information is with the consumer because the incident takes place at his premises. In most cases, the consumer will be uncooperative. The High Court in the Ichi Ban case (supra) recognised this when it observed as follows: The Legislature has taken cognizance of the fact that in a claim under section (sic) 38(3) "the plaintiff has to work very much in the dark to figure out the loss as all particulars of the actual and real usage of the electricity is with the defendant. ... [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 section 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 section 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 tampering of electricity supply, naturally the Court expects to have it, but where it is not the Court must do the best it can. In other words, there could be other evidence in lieu of precise evidence. For example, approximation or estimation may be used provided it is reasonable and fair. This would depend on the quality of the evidence adduced in Court to support that approximation or estimation. In light of what we have said thus far, we find it unnecessary to answer the two questions posed. [55] This is crucial. Considering this, it can be observed that the Plaintiff or TNB in general have adopted the Energy Commission’s Guidelines (EC’s Guidelines) as the approach in calculation for the total loss of revenue in cases involving meter tampering. [56] In the present case, the calculation for the total loss of revenue by the Plaintiff can be seen in P12 & P13 (Page 32-37 in Bundle B). PW3 explained that the data entered in the P12 & P13 was based on data extracted from the TNB system and subsequently calculation were made. [57] Based on the error method (kaedah ralat kejanggalan), PW3 calculated the revenue loss based on the instructions of PW4 where the claim period was from 16th November 2017 until the inspection date on 31st October 2022 and found that the total revenue loss and expenses incurred by the Plaintiff was RM 24,578.60. [58] PW3 during her examination in chief, via her statement WSSP3 explained the process and formula used in order for her to obtain the total amount of loss of revenue as such:

PW3’s Witness Statement (WSSP3) S: Apakah kaedah dan cara pengiraan jumlah tenaga terkurang dan jumlah kerugian hasil yang kamu gunakan dalam kes ini? J: Arahan yang saya terima daripada pegawai saya ialah menggunakan kaedah ralat berdasarkan kesesuaian kes ini.

S: Jika kamu boleh ringkaskan, bagaimana kaedah pengiraan ralat bagi kes ini dikira? J: Kaedah pengiraan kerugian hasil dibuat untuk tempoh 16/11/2017 hingga 31/10/2022 berdasarkan ralat pengujian meter sebanyak -65.401% (setelah ditolak ralat -3.00%) semasa kes dijumpai di premis pengguna semasa pemeriksaan dan pengujian meter dijalankan. Amaun kerugian hasil yang dituntut adalah jumlah pengiraan seperti di atas untuk tempoh 16/11/2017 hingga 31/10/2022 dan ditolak dengan bil-bil yang telah diserahkan untuk tempoh yang sama.

S: Dari pengiraan yang dihasilkan (generated) oleh sistem komputer TNB kamu, berapa jumlah kerugian hasil dan kos yang ditanggung oleh Plaintif akibat pengusikan meter di premis tersebut? J: Akibat pengusikan tersebut, Plaintif telah di antara lain, menanggung jumlah kerugian hasil sebanyak RM24,578.60. Saya mohon rujuk dokumen di mukasurat 34 IDP.

Cross Examination of PW3 Peguam Defendan: Daripada pemeriksaan dokumen-dokumen yang diserahkan kepada Puan, adakah dalam kes ini terdapat sudden drop?

Peguam Defendan: Rujuk soalan 10, kenapa tempoh pengiraan ke belakang bermula daripada 16 November 2017 hingga 31 Oktober 2022? SP3 : Mengikut guideline ST, pihak TNB boleh membuat pelarasan maksimum 5 tahun

Peguam Defendan: Garis panduan kata maksimum? SP3 : 5 tahun

Peguam Defendan: Jadi pengiraan kes ini juga dibuat untuk tempoh 5 tahun?

Peguam Defendan: Kenapa dipilih maksimum? Kenapa tidak dipilih satu tahun, 2 tahun, 3 tahun? Kenapa perlu pilih maksimum? SP3 : Merujuk graf mukasurat 36, didapati tiada sudden drop yang kelihatan di graf itu

Peguam Defendan: Dalam kes ini memang tiada sudden drop. Soalan saya kenapa tempoh pengiraan ke belakang perlu dianjakkan sehingga 5 tahun. Kenapa tidak diambil 2 atau 3 tahun? Maksimum boleh 5 tahun. Kenapa perlu diambil maksimum 5 tahun? SP3 : Sebab tiada sudden drop dan kita tidak tahu kejanggalan ini berlaku pada masa bila

Peguam Defendan: Apa perkataan yang tepat digunakan oleh garis panduan suruhanjaya untuk pengiraan 5 tahun ini? Adakah hendaklah dibuat untuk tempoh 5 tahun? Atau boleh dikira sehingga 5 tahun? SP3 : Mengikut guideline ST, jika tiada sudden drop berlaku, pihak Tenaga boleh membuat pelarasan selama 5 tahun [59] On further clarification by the Defendant’s solicitor on why back-billing was done for the period of 5 years to PW4, PW4 clarified such: Cross Examination of PW4 on 14th August 2025 Peguam Defendan : Jadi untuk soalan 8, dinyatakan pengiraan kerugian hasil dibuat untuk tempoh 16 November 2017 hingga 31 Oktober 2022? SP4 : Ya benar Peguam Defendan : Siapa yang letakkan tempoh masa tersebut? SP4 : Tempoh masa ditetapkan di garis panduan ST Peguam Defendan : Garis panduan yang ditetapkan oleh ST ialah tuntutan tidak melebihi 5 tahun? SP4 : Ya benar Peguam Defendan : Jadi Puan memilih berapa tahun? SP4 : 5 tahun [60] As this was brought up by the Plaintiff’s witnesses as well as the Defendant’s solicitor, this Court further takes cognizance on the said EC’s Guidelines. This EC’s Guidelines is a public document which can be accessed from Energy Commission (EC)’s official website itself under the title “Garis Panduan Prosedur Tuntutan Kerugian Hasil Oleh Pemegang Lesen Bagi Kes-Kes Penggunaan Elektrik Dengan Curang”. The application of this guideline is approved by a plethora of higher and superior courts’ cases; and never disputed by the Defendant in this case as well. [61] Moving forward, to clarify, this method mentioned by PW3 and PW4 is stipulated in para 5.2.2 of the EC’s Guidelines. Applying this formula, PW3 and PW4 have made and approved the calculation respectively month by month from the period of 16th November 2017 – 31st October 2022 (the date of inspection) which indicates 5 years of back-billing as provided in para 5.3.2 of EC’s Guidelines. [62] The relevant paragraphs from EC’s Guidelines is herein reproduced for completion and ease of reference:

5.2.2 Kaedah Ralat Kejanggalan I. Sekiranya tiada sudden drop, pengiraan berdasarkan ralat meter boleh dibuat sekiranya ralat meter diperolehi semasa pengujian meter dijalankan. Peratusan ralat menunjukkan meter tidak merekodkan bacaan penggunaan elektrik sebenar. II. Bagi memastikan tuntutan kerugian hasil bagi kaedah ralat kejanggalan boleh digunakan, pemegang lesen hendaklah memastikan alat pengujian yang digunakan telah ditentukur dan memiliki sijil ujian terkini yang sah tempoh. III. Walau bagaimanapun, ralat meter yang diperolehi semasa pengujian meter perlu ditolak dengan ralat maksimum yang dibenarkan, iaitu sebanyak 3.00%. (Sebagai contoh, jika ralat meter didapati -66.00%, tuntutan kerugian hasil hanya boleh dibuat sebanyak -63.00% sahaja) IV. Bacaan hendaklah diambil bagi semua fasa sebanyak tiga kali. Ralat meter ditentukan berdasarkan kepada purata ketiga-tiga bacaan tersebut. Sekiranya ralat kejanggalan tidak dapat diperolehi menggunakan set pengujian meter, pengiraan secara manual hendaklah dilakukan berdasarkan kaedah pengiraan seperti di Lampiran 15. Kaedah pengiraan secara manual hendaklah disahkan oleh Jurutera/Eksekutif Teknikal yang bertanggungjawab.

5.3 Tempoh Pengiraan Tuntutan Amaun Kerugian Hasil Amaun kerugian hasil hendaklah dikira dari tarikh kesalahan ditemui ke belakang dan tidak melebihi lima (5) tahun bagi kes berhubung dengan keskes penggunaan elektrik dengan curang di bawah subseksyen 37(1), 37(3) dan 37(14) Akta 447 berpandukan kepada kriteria-kriteria berikut:

5.3.1 Bagi kes yang terdapat sudden drop corak penggunaan bulanan, maka tempoh kiraan kehilangan unit bermula dari sudden drop sehinggalah ke tarikh tindakan pembetulan dibuat. Walau bagaimanapun, pemegang lesen hendaklah mematuhi syarat-syarat berikut: I. tempoh sudden drop hendaklah berterusan sekurang-kurangnya tiga (3) bulan berturut-turut; dan II. bagi pengguna yang mempunyai kemudahan profil beban (load profile), kiraan kehilangan unit bermula dari tempoh sudden drop mengikut profil beban yang dikenalpasti berlaku penggunaan elektrik secara curang.

5.3.2 Bagi kes yang tiada sudden drop: I. di mana kesalahan disyaki telah dilakukan dari tarikh bekalan dimulakan, kiraan tempoh kehilangan unit bermula dari tarikh bekalan diberikan sehingga tidak melebihi lima (5) tahun; atau II. di dalam kes-kes lain, kiraan tempoh kehilangan unit dikira daripada tarikh kesalahan ditemui ke belakang tidak melebihi lima (5) tahun. [63] Further to that, the summary of the calculation as to how PW3 and PW4 arrived at the amount of RM 24,578.60 as the total revenue loss and expenses incurred by the Plaintiff can be seen specifically from page 32-37 of Bundle B (P12 & P13). The Issue of Sudden Drop, Back-Billing Calculation Formula and the Method Used to Calculate the Total Loss of Revenue and Expenses [64] It is argued by the Defendant that there was no sudden drop on the Defendant’s monthly electricity consumption. On the whole of that argument by the Defendant, indeed, there was no sudden drop in the trend of electricity consumption by the Defendant. [65] It is imperative to note that generally, a sudden drop is used to determine the starting date for calculating the amount of loss of revenue which is also presumed as the date on which the tampering allegedly began. However, in the present case, since there was no sudden drop in electricity consumption at the Defendant’s premise, tampering was estimated to begin as early as the meter was installed at the said premise and as EC’s Guidelines suggests, the back-billing period will be of 5 years. [66] This was appropriately done in the present case by the Plaintiff, where the error method (Kaedah Ralat Kejanggalan) was applied. In that pretext, this Court finds that explanation by PW3 & PW4 to be both reasonable and justified in light of the circumstances. [67] This point can be related to the case of Siah Fishery Seafood Sdn Bhd V. Tenaga Nasional Berhad [2025] CLJU 700 wherein YA Jamhirah Ali J explained the suitability and the relevance behind the application of the error method (Kaedah Ralat Kejanggalan); and the decision thereby is taken into guidance by this Court.

The Plaintiff further argued that TNB's back-billing calculation was excessive and unfair, claiming that TNB should have used Kaedah Purata (the average consumption method) instead of Kaedah Ralat Kejanggalan. The Plaintiff contended that because its electricity bills remained stable before and after rectification, this proved that no significant revenue loss occurred.

However, this Court finds that this argument is flawed. TNB's use of Kaedah Ralat Kejanggalan was justified because it is based on an actual accuracy test rather than assumptions about past electricity usage. This method directly measures the error rate (-92.84%) and applies it to the back-billing period, ensuring that TNB only claims for electricity that was used but not recorded. By contrast, Kaedah Purata relies on estimates of past usage and requires three months of post-rectification data, which was not available when the back-billing calculation was made. The Garis Panduan ST (ST Guidelines) confirmed that Kaedah Ralat Kejanggalan is the appropriate method in such cases.

The Plaintiff's reliance on post-rectification electricity bills was also misplaced. The Federal Court in Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937 ruled that "since the ESA 1990 is silent on the methodology to be used by TNB to calculate the loss of revenue it suffered due to meter tampering, Parliament has left the process of ascertainment to TNB because of the difficulties inherent in this type of claim'.

In this case, TNB explained why it chose to apply Kaedah Ralat Kejanggalan instead of Kaedah Purata, and I find that explanation to be both reasonable and justified in light of the circumstances.

To begin with, Kaedah Ralat Kejanggalan is a method that relies on actual data specifically, the results of an accuracy test carried out during the inspection. That test revealed a significant under-recording; the meter only registered 7.16% of the actual electricity consumed, with a negative error margin of 92.84%. Rather than estimating usage, TNB applied this measured error rate to the billing period in question. This method is recognised in the Garis Panduan ST, and this Court accepts that relying on a methodology grounded in real technical findings was appropriate. ……

In the present case, TNB provided a clear and reasoned explanation for its use of Kaedah Ralat Kejanggalan over Kaedah Purata, which the learned SCJ accepted after considering the factual matrix. As the utility provider, TNB is best placed to determine the most appropriate and accurate method to calculate a fair and reasonable back-billing amount. The learned SCJ was correct to accept TNB's reasoning, and I see no reason to interfere with that finding. On the contrary, I agree that the use of Kaedah Ralat Kejanggalan was fair and appropriate in this case. [68] The application and approval of this error method (Kaedah Ralat Kejanggalan) and the calculation by way of back-billing can be observed in a plethora of cases. To name a few, the above-quoted Siah Fishery Seafood Sdn Bhd V. TNB [supra], TNB v. Syarikat Sim Quarry Sdn Bhd [2018] 1 LNS 294, TNB v. Lension (M) Sdn Bhd [2018] 1 LNS 42, TNB v. Yu Woon Gin & Anor [2016] 1 LNS 1292 and Tenaga Nasional Bhd v Arkitek Urbanisma Sdn Bhd [2011] 10 CLJ 79. Calculation Based on Estimation [69] As explained by the Court of Appeal in the case of Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2015] 3 MLJ 268, the determination of loss of revenue should be based on the presumption or estimation that it is impossible for the Plaintiff to turn back time to record actual consumption in cases involving tampering with the meter/meter installation. [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. ........... [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; and

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. [70] Evidently, it is the Defendant’s contention that since tampering was admitted to have been done somewhere in January 2022, the calculation on loss of revenue should be done from the period of January/February 2022 – 31st October 2022 (date of inspection). [71] Principally, this admission by the Defendant should not be taken at face value and ought to be treated cautiously by this Court. This is due to the circumstances which took place around the whole proceeding, completely from the date of inspection at the Defendant’s premise and the incidents that took place afterwards. It is worthy to note that during the earlier stages, the Defendant replied to the Plaintiff’s Notices of Demand, denying that he has tampered the electricity meter at any point in time as alleged by the Plaintiff. [72] This was further recapitulated in his original Statement of Defence. Only after around 9 months after the filing of the SOD did the Defendant amended his Statement of Defence admitting that the tampering to the meter was made on the instructions of his wife. This, to this Court, bears the risk of being an afterthought on the Defendant’s part. [73] This is due to the probability that being the registered owner of the premise especially at the time inspection was done by the Plaintiff’s team, the Defendant is presumed to have control over the premise (including the meter). Besides, even if it his wife who tampered with the meter, it is unreasonable to contend that the tampering was done without his knowledge or connivance. [74] Thus, this argument of the Defendant should not hold water. [75] With that said, throughout the whole proceeding, the Defendant did not adduce any expert evidence or analysis to demonstrate that the Plaintiff’s back-billing calculation was excessive or inaccurate. The Defendant too, did not suggest any alternative method of calculation by calling any other expert to testify pertaining to this. [76] All in all, the Defendant has failed to prove any qualified calculation methods; or any quantums in regard to the Defendant’s contention. By merely placing a defence that the calculation should be made from January 2022, this Court is deprived of the opportunity to conclude what the exact amount would be if the calculation period is between January-October 2022. [77] During trial, the Defendant did suggest to PW3 and PW4 to re-calculate the loss of revenue based on the period from January/February – October 2022 which was refused by them due to the reason that there was no specific instructions from their higher authority and it was purportedly irrelevant. [78] Upon clarification and directions from this Court on 16th December 2025, only then did the Defendant at least came up with an amount on the quantum which should be awarded by this Court to the Plaintiff. However so, the calculation or the method used in the Defendant’s additional submission was unverified and unqualified. [79] Nevertheless, it is vital to note that the burden is on the Defendant to prove a qualified method of calculation as contended by them and not to be put on the Plaintiff or their witnesses to prove the said contention. In this context, the Defendant had failed to call any expert witnesses to clarify this, and this failure is apparently fatal to the Defendant’s case. [80] In that context, this Court finds guidance in Tenaga Nasional Bhd v. AWP Enterprise (M) Sdn Bhd [supra] wherein the Court of Appeal held: "[29] The appellant, upon whom the burden of proof lay to prove its case upon a balance of probabilities, having adduced evidence of the estimate and how it is arrived at, the burden shifts to the respondent to show that the estimate is in fact manifestly unreasonable, excessive or wrong." [81] Based on the above-quoted passage, it can be seen that the Court of Appeal affirmed that the initial burden lies with the Plaintiff in this case to establish its claim on a balance of probabilities, including evidence of how the estimate was derived. Once that burden is discharged, the evidential burden shifts to the Defendant to show that the estimate is manifestly unreasonable, excessive, or incorrect. In the present case, the Defendant failed to discharge that burden. [82] In addition to that, it is also settled law that where a party contends for specific damages or quantum, he must prove/quantify it. Before he can recover, he has to discharge the burden of proving both as to the fact of damage and as to the amount. This can be found in the Federal Court case of Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99 where Ong Hock Thye FJ, delivering the judgment, said: “The respondent, as plaintiff, of course had to discharge the burden of proving both the fact and the amount of damages before he could recover. Where he succeeded in proving neither fact nor amount of damage he must lose the action or, if a right was infringed, he would recover only nominal damages. Where he succeeded in proving the fact of damage, but not its amount, he would again be entitled to an award of nominal damages only. This statement of the law is concisely stated in Mayne & McGregor on Damages (12th Ed) para 174. For its practical application, I would quote Lord Goodard CJ in Bonham-Carter v Hyde Park Hotel Ltd [1948] WN 89: ‘… plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars and so to speak, throw them at the head of the court, saying, “This is what I have lost; I ask you to give me these damages.” They have to prove it.’ ” [83] This applies to the Defendant as well especially when they are contending a specific quantification. Reference was also made to the case of Kokomewah Sdn Bhd v Desa Hatchery Sdn Bhd [1995] 1 MLJ 214. [84] Hence, undeniably, the Defendant must substantiate his claim with clear and convincing evidence which to this Court, he failed to do so. Therefore, there is no reason for this Court to reject the calculations made by PW3 which was subsequently approved by PW4. [85] Nonetheless, as explained earlier, the burden on the Plaintiff in this case is to prove that tampering was found on meter/meter installation at the Defendant’s premise regardless of whoever the perpetrator is. If this can be evinced (which this Court opines that the Plaintiff have), then it can be deduced that the Defendant, being the registered consumer have in fact benefitted from the electricity consumption at a lower price at the expense of the Plaintiff. [86] To put it simple, a consumer must pay for even the slightest of benefit he has received if the tampering is proven in his premise. This was encapsulated in Thomas Thomas V. Tenaga Nasional Bhd [supra] as such: [16] Meter tampering, causing damage to meter or dishonest consumption of electricity are strictly criminal matters which do not and cannot affect TNB's right to recover loss of revenue by way of civil proceedings pursuant to s. 38(3) to (5). No registered consumer can walk away without paying anything to TNB on the ground that the meter had been damaged or tampered with without his knowledge. [17] In our view, in an action by TNB to recover loss of revenue resulting from meter tampering, a registered consumer cannot avail himself of such defence for the simple reason that it will result in unjust enrichment to the consumer. He can only be absolved of liability if he can show that no electricity was consumed at the premises during the period that the meter was tampered with. [18] It is not open to the appellant to say that he did not "benefit" from the consumption of the electricity on the ground that the premises had been "continuously occupied by an unbroken chain of tenants". The simple truth is, the premises belonged to him and he was the registered consumer under account No. 012364675401. Section 71 of the Contracts Act 1950 therefore comes into play. ……. [20] Therefore, as far as consumption of electricity in the premises is concerned, it was the appellant's sole responsibility, being the "consumer" under the agreement, to pay all outstanding charges due to TNB. On the evidence as found by the learned Sessions Court Judge and as affirmed by the learned High Court Judge on appeal, electricity had in fact been consumed during the period from 22 September 2004 to 21 December 2007. It is irrelevant who actually consumed the electricity. [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. [22] Thus, where the meter was damaged or tampered with by the tenant or the occupier with or without the appellant's permission or by anyone else during the agreement period, the appellant must pay for the resulting loss of revenue suffered by TNB, not because he had anything to do with the tampering or damage caused to the meter but because he was bound by agreement to pay for the electricity charges. The loss of revenue under such circumstances cannot fall on TNB's head. That will be grossly unfair to TNB. [87] Other than that, the Defendant’s defence and rebuttal to the Plaintiff’s claim was nothing more than an admission which bears the risk of being an afterthought. Without any convincing or corroborative evidences produced, this Court believes that the object of this defence cannot be achieved. [88] By tampering with the meter and causing it to record less than the units actually passing through it, the consumer, in this case, the Defendant, may take the unrecorded energy without paying for it. The tampering of the meter and the taking of the unrecorded energy are unauthorised by the contract with the Plaintiff (TNB), and this obstructs the Plaintiff’s statutory right. [89] Overall, this Court believes that the Defendant have indeed benefitted from the tampering at the meter/meter installation at his premise. Thus, denying the Plaintiff’s right (or in specific, statutory right) under the ESA 1990 would mean that the Defendant will not be required to pay for the energy consumed by him and that could not be tolerated by this Court. [90] Furthermore, this Court reckon that the Plaintiff’s total loss of revenue was properly quantified. Additionally, the evidence given by the Plaintiff's witnesses is consistent and reliable and has been satisfactorily corroborated by contemporary documents that have been included in the Bundle of Documents. [91] Therefore, given that the Plaintiff’s calculation followed a legally accepted method, and the Defendant failed to provide any alternative calculation, this Court finds no reason not to accept the amount arrived at by the Plaintiff in full. CONCLUSION [92] To conclude, it is worthy to reproduce the wise words of the panel of honorable judges in Federal Court case of Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [supra] as such: [110] It is axiomatic that a consumer must pay for the electricity it consumes (see: Tenaga Nasional Bhd v. AWP Enterprise

(M) Sdn Bhd [2015] 1 CLJ 400; CA and Rehanah Mahmood v. TNB [2016] CLJU 580; [2016] 1 LNS 580; HC). Once meter tampering is proved, the court must determine the loss of revenue suffered by TNB and recoverable against the consumer. This has to be so as the principle is that TNB's consumer must pay for the electricity consumed and not be allowed to benefit from the tampering of meters to pay less (see: Tenaga Nasional Bhd v. Ternakan Air Wui Kyee Sdn Bhd & Another Appeal [2015] 5 CLJ 955; CA). [111] If, despite proof of meter tampering, TNB's claim is to be completely dismissed, it would result in TNB having to unnecessarily and unfairly suffer from the mischief that Parliament had intended to protect it from. The remedy expressly provided by s. 38 of the ESA 1990 to protect TNB's interests against meter tampering would thus be rendered nugatory. [93] Ultimately, despite the absence of a clear guideline provided in ESA 1990 pertaining to inspection and calculation of total loss of revenue, weighing up the facts and evidences adduced before this Court, it can be observed that the Plaintiff have given a valiant effort in acting according to the guidelines provided by the Energy Commission by way of the EC’s Guidelines, be it during the inspection, or the calculation methods applied in the present case. [94] Thus, after having evaluated the totality of the evidence, this Court finds that the Plaintiff has successfully proven their case on the balance of probabilities. Accordingly, the Court allows the Plaintiff's claims against the Defendant amounting to RM 24,578.60 with costs as per scale and interest as pleaded. Dated 24th February 2026 (DHILIP NAIR A/L R.N. ATCHUTHAN) MAJISTRET MAHKAMAH MAJISTRET SEGAMAT, JOHOR Counsel/Solicitor: For the Plaintiff: Mr. Lokman bin Yusof Messrs Halina Nordin & Co No. 25-02 & 27-02, Jalan Aliff 4, Taman Damansara Aliff, Johor Bahru, 81200, Johor For the Defendant: Mr. Lawrnee Gnanapragasam & Ms. Zueidriena Hasanein binti Hazni Messrs Rahim & Lawrnee No. 124 & 125, Tingkat 1, Jalan Sia Her Yam, 85000 Segamat, Johor Cases referred to:

Tenaga Nasional Berhad v Ichi-Ban Plastic (M) Sdn Bhd & Other

Tenaga Nasional Berhad v. Asia Knight Bhd (previously known as

Thomas Thomas V. Tenaga Nasional Bhd [2017] 4 CLJ 340; [2018]

Oscar Canary Sdn Bhd v. Tenaga Nasional Berhad [2019] CLJU 811; [2019] 1 LNS 811; [2019] 5 MLJ 502

Marwin Industries Sdn Bhd v. Tenaga Nasional Berhad [Civil Appeal

Tenaga Nasional Bhd (TNB) v. Evergrowth Aquaculture Sdn Bhd and other appeals [2021] 9 CLJ 179; [2021] 5 MLJ 937

Siah Fishery Seafood Sdn Bhd V. Tenaga Nasional Berhad [2025]

TNB v. Syarikat Sim Quarry Sdn Bhd [2018] 1 LNS 294

TNB v. Lension (M) Sdn Bhd [2018] 1 LNS 42

TNB v. Yu Woon Gin & Anor [2016] 1 LNS 1292

Tenaga Nasional Bhd v Arkitek Urbanisma Sdn Bhd [2011] 10 CLJ

79.

Tenaga Nasional Berhad v AWP Enterprise (M) Sdn Bhd [2015] 1 CLJ 400; [2015] 3 MLJ 268

Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99

Kokomewah Sdn Bhd v Desa Hatchery Sdn Bhd [1995] 1 MLJ 214 Legislation referred to:

Electricity Supply Act 1990 [Act 447]

Companies Act 2016 [Act 777]

Evidence Act 1950 [Act 56] Date of Decision: 30th December 2025