TM Technology Services Sdn. Bhd. v JAKS SDN. BHD. (WA-12BNCvC-152-12/2025)

This is an appeal by the Appellant ("TM") against the decision of the Sessions Court dated 5.12.2025, which dismissed TM's negligence claim against the Respondent ("JAKS") and awarded costs of RM10,000 to the Respondent.

The Sessions Court found that TM failed to prove, on a balance of probabilities, that JAKS caused the alleged damage to TM's underground fibre optic cables at Jalan Padang Rengas, Taman Kok Lian, on or around 14 November 2017.

On 14.11.2017, TM received several customer complaints of service disruption in the Taman Kok Lian area. TM's officers inspected the site and discovered damage to its fibre optic cables and ducting.

TM alleged that JAKS, or its workers, were carrying out construction, sewerage, or excavation works in the vicinity and that such works caused the damage. TM claimed special damages of RM566,416.90 for repair works.

JAKS denied liability, asserting that it was not working at the location on the material date, that TM failed to prove causation, and that TM failed to prove the exact location or mechanism of the alleged damage.

The Court found that TM did not succeed in proving that JAKS was actually carrying out any works at the site on 14.11.2017. The evidence before the Court did not establish JAKS' presence on the material date and the documents relied upon by TM related to different years or different contractors. In the absence of contemporaneous proof, the Court was unable to link JAKS to the alleged works.

TM was also unable to demonstrate with certainty the precise location where the damage occurred. There were inconsistencies in the testimony and supporting documents regarding the coordinates, photographs and the exact stretch of road involved. This lack of clarity undermined TM's ability to connect the alleged damage to any activity by JAKS.

The Sessions Court held that TM failed to produce expert evidence explaining how the damage occurred. Given the technical nature of underground fibre infrastructure, the Court considered expert assistance necessary to establish the mechanism of damage. Without such evidence, TM could not show what caused the breakage or how it could be attributed to JAKS' works.

TM did not prove that JAKS was the only contractor operating in the area at the relevant time. The evidence suggested that other contractors, including those engaged by different agencies, were active in the vicinity. TM did not eliminate the possibility that the damage could have been caused by someone else.

The Sessions Court found no breach of duty of care on the part of JAKS. Since TM could not establish that JAKS was present or that JAKS' works caused the damage, the Court held that the element of breach was not made out. Without proof of JAKS' involvement, the duty of care analysis could not proceed.

Finally, the Court held that TM failed to strictly prove its claim for special damages. The supporting documents contained discrepancies, lacked independent verification and did not clearly tie the claimed amounts to the specific incident. As special damages must be proven with precision, the Court found the evidential basis insufficient. TM now appeals against all these findings.

The appeal raises the following issues:

Whether the Sessions Court erred in finding that TM failed to prove JAKS was working at the material location and time.

Whether expert evidence was required to establish causation.

Whether the Sessions Court misappreciated the evidence.

Whether TM proved special damages.

Before this Court turns to the issues and the merits of the appeal, I am mindful that it is trite that an appellate court will be slow to interfere with the exercise of a trial judge's discretion. Intervention is only justified where it is shown that the learned trial judge acted on a wrong principle of law, misapprehended the facts, took into account irrelevant considerations, failed to consider relevant matters, or otherwise reached a decision that results in injustice or a miscarriage of justice. In Ratnam v Cumarasamy [1965] 1 MLJ 228, the Court held at pg. 229 C-D:- "The principles upon which a court will act in reviewing the discretion exercised by a lower court are well settled. There is a presumption that the judge has rightly exercised his discretion (Charles Osenton & Co v Johnston [1942] AC 130 per Lord Wright at 148). The court will not interfere unless it is clearly satisfied that the discretion has been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice (Evans v Bartlam [1937] AC 473. Upon questions of procedure the Board is slow to interfere with the discretion exercised by a local court (Mayor of Montreal v Brown and Another (1876) 2 App Cas 168." In Cocoa Suchi Sdn Bhd v Pinebrook Holding Sdn Bhd [2016] 6 MLJ 381 the Court held at:- [21] The above are the learned JC's impression of the evidence that led His Lordship to reach the conclusion as to the facts. In our view His Lordship is entitled to do so. It is trite law that an appellate court is slow to intervene with those conclusion unless it can be shown that the trial court had committed a gross error on the inference or conclusion to be drawn from the evidence adduced."

Thus, it is a well-established principle of appellate review that such findings of fact, made by a trial judge who had the distinct advantage of observing the witnesses' demeanour, will not be disturbed unless the Appellant can demonstrate that the learned SCJ committed a palpable or manifest error. ANALYSIS Issue 1: Whether JAKS was working at the location Contemporaneous Documents Show JAKS' Works Were Completed Before the Alleged Incident

The burden lies on the Appellant to prove, on a balance of probabilities, that the Respondent was carrying out works at the alleged location on 14.11.2017, the date on which the Appellant claims its underground cables were damaged. This is a foundational factual element; without proof of presence, the allegation of causation cannot arise.

Contemporaneous documents Show JAKS' Works Were Completed Before the Alleged Incident. The Respondent's documentary evidence demonstrates that its works at MH8 the only location where it had been engaged were completed well before the alleged incident. SD2's witness statement confirms: "Pembinaan 'caisson ring' juga telah siap dibina pada 13.09.2016..." (Enc. 16, p. 8)

Further, the BQ Sign-Off Form shows that all works inside the caisson ring were completed on 27.09.2017, more than six weeks before the alleged damage: “...kerja-kerja JAKS di lurang 8 (MH8) telah siap pada atau sekitar 27.9.2017...” (Enc.16,p.9)

These contemporaneous records were created before any dispute arose and are internally consistent. They strongly support the Sessions Court's finding that JAKS had no active works at the location on 14.11.2017. Therefore, it is chronologically impossible for the Defendant to have caused the alleged damage to the Plaintiff's underground cable.

The evidence is clear that the Defendant's activities at MH8 were carried out entirely within the confines of the caisson ring. As explained by SD1, a civil engineer, the caisson ring operates as a self-contained structural barrier: the concrete ring is first constructed, and excavation then proceeds strictly within its interior. The ring subsequently descends under its own weight without disturbing the surrounding soil, thereby shielding adjacent ground and structures from any external impact ( see: NOE p. 286).

In light of this construction method, the caisson ring functions precisely to protect the surrounding soil and utilities. On the technical evidence, it is not merely unlikely but physically impossible for works conducted wholly within the caisson ring to have caused any disturbance or damage to the Plaintiff's underground cables located outside its perimeter.

The Appellant's primary witness, SP1, conceded during cross-examination that he did not see any JAKS workers at the site on the material date: "Pada hari kejadian saya tidak nampak pekerja JAKS." (NOEs, p. 119; Enc. 16, p. 9) SP1 further admitted that there was no documentary evidence showing JAKS performing excavation works in 2017: "Boleh encik tunjukkan... bukti... yang tunjuk JAKS ada jalan kerja pengorekkan pada tahun 2017?" SP1: "Ha tiada dalam ni." (NOEs, p. 122; Enc. 16, p. 9)

The Plaintiff's own witness was unable to identify the precise location alleged to be involved and that the Defendant did not carry out any works at the Alleged Location on 14.11.2017 (in any event, any works undertaken by the Defendant, if at all, were confined solely within the caisson ring). Those admissions are fatal to the Appellant's case. The Sessions Court was entitled to treat them as highly probative.

The Appellant relied on several categories of documents, namely internal service logs, photographs of the alleged damage, a DBKL permit issued in 2020, and WhatsApp exchanges from 2022 to demonstrate that the Respondent had carried out works in the vicinity of the damaged cables. These materials were placed before the Sessions Court as circumstantial evidence of the Respondent's involvement.

However, when examined against the chronology of events, none of these documents establish that the Respondent was present at or undertaking any form of excavation or construction activity on 14.11.2017, which is the critical date on which the damage is said to have occurred. The evidential gap between the incident date and the documents relied upon is significant and cannot be bridged by inference alone.

The WhatsApp messages do not assist the Appellant. They refer to works carried out "last month" in 2022, some 5 years after the incident. The Sessions Court was entitled to treat these messages as irrelevant to the question of whether the Respondent was operating at the site in 2017. They cannot reasonably be construed as retrospective admissions of involvement in works undertaken half a decade earlier.

Similarly, the DBKL permit dated 13.1.2020 relates to resurfacing works by Pembinaan MNM Sdn Bhd, a contractor distinct from the Respondent. The permit concerns a different year, a different scope of work, and a different contractor. It therefore provides no probative value in establishing the Respondent's presence at the material time.

In light of these considerations, the Sessions Court's conclusion that the Appellant failed to prove the Respondent's presence at the site on 14.11.2017 was plainly open to it. The finding is supported by the evidential record and does not disclose any misdirection or error warranting appellate intervention.

The Sessions Court also found that the Appellant failed to prove the exact location of the alleged damage. This finding is supported by the record. SP1 admitted that some photographs relied upon by TM were taken at Jalan Selinsing, not Jalan Padang Rengas, the location pleaded in the Statement of Claim: "Apakah papan tanda...?" SP1: "Jalan Selinsing."(NOEs, pp. 174-175; Enc. 16, p. 18)

To determine which version is more probable, I am mindful that the court must consider the silent evidence available in the court's record.

In Ong Teik Seng v. Ho Swee Chee [1987] 2 MLJ 650, the word silent evidence would include the police reports and the sketch plan, photographs together with the condition of the road and the traffic signs.

Evidence obtained from a silent witness is crucial as it holds a greater value that cannot be displaced by oral evidence.

This position is consonance to the observation made by the learned High Court Judge in Oong Huat Trading & Transport Sdn Bhd v Sim Lim Mining Sdn Bhd [2020] AMEJ 0481, that: "Oral evidence cannot be led to contradict such a document as documents are sometimes referred to as "silent witness".

In our instant appeal, the inconsistency undermines the Appellant's ability to link the alleged damage to any works by the Respondent. The Sessions Court was entitled to treat this as a serious evidential defect.

The Appellant attempted to rely on photographs allegedly taken by Pembinaan Mohamed Nazir, but the Respondent demonstrated that Nazir was only appointed in 2019, not 2017. SP1 initially claimed Nazir was appointed in 2017, but later conceded: "Tiada dokumen... menunjukkan bahawa Pembinaan Mohamed Nazir telah dilantik pada tahun 2017." (NOEs, pp. 132-133; Enc. 16, p. 16) SP2 confirmed: "Dalam rekod ini 2019." (NOEs, p. 215; Enc. 16, p. 17)

SP1 is the Plaintiff's principal witness. He asserts that he conducted investigations at the Alleged Location immediately after receiving complaints from the Plaintiff's customers. Yet, even on his own version, he found no evidence connecting the Defendant to the Alleged Location. This is unsurprising, as the Defendant undertook no works on 14.11.2017.

SP1's credibility is materially undermined by significant inconsistencies in his testimony. He claimed that Pembinaan Mohammad Nazir ("Nazir") was appointed in 2017. However, contemporaneous documents and the evidence of SP2 the Plaintiff's own witness clearly establish that Nazir was only appointed in 2019.

During cross-examination, SP1 initially accepted that Nazir's appointment occurred in 2019. He later reversed his position and insisted that the appointment was in 2017. This shift was plainly calculated to support his narrative that the photographs at page 76 of Bundle B1 were taken by Nazir. That narrative cannot stand: Nazir could not have taken photographs at the Alleged Location in 2017 when he had not yet been appointed.

SP1's contradictory statements asserting both 2017 and 2019 as the year of Nazir's appointment directly conflict with SP2's evidence. The relevant portions of the Notes of Evidence reflect these inconsistencies: i. NOE, pp. 132-133 (Enclosure 4): SP1's initial claim that Nazir was appointed in 2017. ii. NOE, pp. 151 & 164 (Enclosure 4): SP1's subsequent admission that Nazir only carried out work in 2019. iii. NOE, p.129 & p.215 (Enclosure 4): SP2's clear and consistent evidence that Nazir was appointed in 2019.

These contradictions are not minor or peripheral. They strike at the core of SP1's narrative and raise serious doubts about the reliability of his testimony. His attempt to retroactively place Nazir at the alleged location in 2017 in order to attribute the photographs at B1, p. 76 to Nazir is demonstrably impossible.

In the circumstances, SP1's evidence on this issue cannot be accepted as true or accurate. The inconsistencies, coupled with the clear contradiction with SP2's testimony and the documentary record, point to a deliberate reconstruction rather than a reliable recollection.

This contradiction severely undermines the credibility of the Appellant's evidence. It also confirms that the photographs relied upon could not have been taken in 2017 and therefore cannot support the allegation that JAKS was present on the material date. No Police Investigation, No Independent Verification

The Appellant sought to rely on a police report to support its allegation that the Respondent was present at the site. However, the evidential value of that report is minimal. As highlighted by the Respondent and confirmed by the record, the police did not initiate any investigation arising from the report, nor was any summons or enforcement action taken against the Respondent.

The report itself was made solely for the Appellant's internal documentation purposes and does not contain any independent verification of the Respondent's involvement.

In these circumstances, the police report does not advance the Appellant's case. If anything, the absence of investigative follow-up or corroborative findings further weakens the Appellant's attempt to establish that the Respondent was present or carrying out works at the alleged location on 14.11.2017.

Having considered the totality of the evidence, the conclusion is inescapable. The Respondent's contemporaneous records show that its works at MH8 were completed well before 14.11.2017.

The Appellant's own witness conceded that no JAKS personnel were seen at the site on the material date and further accepted that there was no documentary proof of the Respondent undertaking any excavation or construction activities in 2017.

The photographs relied upon by the Appellant were shown to originate from different years and, in some instances, from entirely different locations. The Appellant's witnesses also gave inconsistent and contradictory accounts, particularly regarding the identity and appointment dates of contractors and the precise location of the alleged damage.

Crucially, there was no independent or contemporaneous evidence whether from third-party contractors, DBKL, the police, or any technical expert linking the Respondent to the alleged incident. When viewed cumulatively, the evidential gaps are substantial and cannot be bridged by inference or assumption.

In these circumstances, the Sessions Court's finding that the Appellant failed to establish the Respondent's presence at the alleged location on 14.11.2017 was plainly open to the learned Sessions Court Judge. The conclusion reached was grounded in the evidential record, supported by the admissions of the Appellant's own witnesses, and consistent with the legal burden resting upon the Appellant. There is no basis for appellate intervention. Issue 2: Whether expert evidence was required

The Appellant submits that expert evidence was unnecessary and that the Sessions Court imposed an unduly rigid requirement by expecting technical testimony. Having examined the Grounds of Judgment, I do not accept that the learned Sessions Court Judge adopted such a blanket approach.

The learned Sessions Court Judge did not state that expert evidence is mandatory in every case involving underground cable damage. Rather, the learned Sessions Court Judge concluded that, on the facts of this case, the Appellant had simply failed to establish how the damage occurred.

The evidence of the Appellant's witnesses was, at its highest, inferential. None of them could describe the mechanism of damage with any degree of certainty. They were unable to identify the tool, method, or activity that caused the breakage, nor could they explain the nature of the impact or disturbance that would have produced the type of damage observed.

The Appellant has failed to prove how the alleged damage to its underground cables occurred or what caused it. The Sessions Court was entitled to reach this conclusion. The Appellant's case rested on assertions unsupported by technical or independent evidence.

It is fundamentally illogical to attribute liability to the Respondent without first establishing that the cables were in fact damaged, and if so, the mechanism by which such damage took place.

The learned Sessions Court Judge correctly observed that the allegation of "water ingress" was not proven to be linked to the Respondent's works. The Appellant produced no expert report or technical assessment explaining the cause of the alleged damage. This was confirmed by SP1, who accepted during cross-examination that there was no independent verification showing that the Respondent caused the supposed water ingress.

Even if the Appellant had succeeded in proving that water ingress occurred (which is not shown/proven), the underlying question of how such ingress happened remained unanswered. No evidence was adduced to exclude alternative causes or to demonstrate a causal connection to the Respondent's activities. The allegation therefore remained speculative.

The Court adopt the Respondent's submission that viewed cumulatively, the Appellant's approach amounted to a "scatter-gun" allegation of negligence, asserting fault in every conceivable aspect of the Respondent's works without first establishing the essential factual foundation of HOW and WHAT caused the alleged cable damage. Thus, the Sessions Court was correct in holding that these matters were crucial and had to be proven before any question of breach of duty could arise.

With respect to the Appellant's position, the learned Sessions Court Judge found that the Appellant had not established the mechanism of damage and had proceeded on the assumption that the Respondent's works must have been responsible. This Court agrees with that finding.

As the Court of Appeal observed in Telekom Malaysia Bhd. v CWT Construction Sdn. Bhd. [2013] MLRHU 479, it was held: - "Burden of proof for negligence [6]In order to make out a case against the Defendant for negligence, the burden of proof is on the Plaintiff to prove that-the Defendant owes the Plaintiff a duty of care i.e. to take reasonable care in carrying out the works; the Defendant has breached that duty of care; such negligence or omission was the effective cause of, damage to the Plaintiff; and the Plaintiff suffered damage that is foreseeable, and not too remote."

In this case, the Appellant did not call any expert to explain the mechanism of damage or to exclude alternative causes. Without such evidence, the learned Sessions Court Judge was entitled to conclude that the Appellant had not discharged the burden of proof under ss. 101-103 of the Evidence Act 1950.

In the circumstances, I find no error in the Sessions Court's conclusion that the Appellant failed to establish causation. The Judge applied the correct legal principles to the evidential shortcomings before her, and there is no basis for appellate intervention.

The Appellant submits that the Sessions Court failed to evaluate the circumstantial evidence in its entirety and instead focused selectively on perceived weaknesses in the Appellant's case.

Having reviewed the Record of Appeal and the Grounds of Judgment, I am unable to accept this submission. The learned Sessions Court Judge engaged with all material evidence placed before her, including the Appellant's photographs, internal logs, police reports, and the testimony of both parties' witnesses.

The learned Sessions Court Judge's analysis demonstrates that she did not disregard the circumstantial evidence; rather, she found that the evidence, even when taken cumulatively, did not establish the Respondent's liability.

The learned Judge identified several inconsistencies in the Appellant's case which went to the core of the factual matrix. These included discrepancies regarding the precise location of the alleged damage, the identity of contractors operating in the vicinity, the timeline of works, and the internal contradictions within the Appellant's own documentary records.

The Appellant's witnesses were unable to reconcile these inconsistencies during cross-examination. The Sessions Court was entitled to treat these matters as undermining the reliability and coherence of the Appellant's narrative.

These findings were quintessentially factual in nature and were made after the learned Sessions Court Judge had the benefit of observing the demeanour, consistency, and credibility of the witnesses. It is trite that an appellate court will not interfere with such findings unless they are plainly wrong, perverse, or unsupported by the evidence.

In UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 2 MLRA 668, it was emphasised that appellate courts must accord due deference to the trial court's assessment of factual matters unless a clear misdirection is shown. In the said case the court held: " [26] Thus, the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence."

In the present case, the Appellant has not demonstrated that the Sessions Court ignored material evidence, relied on irrelevant considerations, or misdirected itself in law. The learned Sessions Court Judge's reasoning was grounded in the evidential record and reflected a careful and structured evaluation of the competing versions.

The inconsistencies identified were not peripheral; they struck at the foundation of the Appellant's case. In these circumstances, I find no basis to disturb the factual findings made at first instance. Issue 4: Whether special damages were proven

The Appellant argues that the learned Sessions Court Judge erred in concluding that the alleged cable damage was not proven. Having reviewed the Record of Appeal, the Grounds of Judgment, and the testimony of the Appellant's own witnesses, I find no basis for this complaint. The learned Sessions Court Judge did not impose an unduly onerous standard; rather, she found that the Appellant had failed to establish the fact of damage and the cause of that damage with the degree of clarity required by law.

The Appellant's case rested on the assertion that its underground copper cables had been damaged as a result of the Respondent's works. However, the evidence adduced at trial did not substantiate this assertion.

SP1 accepted during cross-examination that there was no independent report, no technical assessment, and no third-party verification confirming that the cables were damaged, let alone that the Respondent caused such damage.

When asked whether there was any document stating that "cable TM memang dah rosak... diakibatkan kerja JAKS," SP1 candidly replied, "Tiada dalam ni." This admission significantly undermined the Appellant's case.

The Appellant further relied on the theory that the cables were damaged due to "kemasukan air." Yet SP1 also conceded that there was no evidence whatsoever linking the Respondent to this alleged water ingress. When pressed, he confirmed that there were no photographs, documents, or observations showing that the Respondent's activities had caused water to enter the cable ducts. The Sessions Court was entitled to treat this as a critical evidential gap.

The Appellant's difficulties were compounded by inconsistencies in its own evidence. SP1 gave conflicting accounts regarding the contractors involved, the dates of their appointment, and the provenance of the photographs relied upon.

Some photographs were taken by a contractor who, on the Appellant's own documents, was only appointed in 2019, two years after the alleged incident. Others were taken at Jalan Selinsing, not Jalan Padang Rengas, the location pleaded in the Statement of Claim. These inconsistencies were not minor; they struck at the reliability of the Appellant's narrative and the integrity of its evidential foundation.

The learned Sessions Court Judge also noted that the Appellant did not produce any contemporaneous investigative report confirming the existence of cable damage or explaining the mechanism by which such damage occurred.

This omission is material. As the Sessions Court observed, without proof of what was damaged and how it was damaged, the Appellant could not establish negligence. The burden of proof under ss. 101- 103 of the Evidence Act 1950 remained with the Appellant throughout, and it was not discharged.

Considering these evidential shortcomings, the Sessions Court's conclusion was plainly open to the learned Sessions Court Judge. The conclusion that the Appellant failed to prove the existence of any cable damage let alone that the Respondent caused it is firmly supported by the evidence and by the admissions of the Appellant's own witnesses.

There was no misdirection of law, no failure to consider material evidence, and nothing in the Sessions Court's reasoning that could be described as perverse. There is therefore no basis for this Court to intervene. I therefore find no error in the Sessions Court's conclusion that the Appellant failed to strictly prove its claim for special damages.

The Sessions Court applied the correct legal principles, evaluated the evidence comprehensively, and reached findings that were open to it on the evidence. TM failed to prove, on a balance of probabilities, that JAKS caused the alleged damage. The Sessions Court's decision is sound and does not warrant appellate intervention. Dispositive Orders For the reasons set out above, the appeal is dismissed.

The judgment of the Sessions Court dated 5.12.2025 is accordingly affirmed in its entirety. The findings of fact made by the learned Sessions Court Judge were firmly grounded in the evidential record, and no misdirection of law or perversity has been demonstrated that would justify appellate intervention. The decision below therefore stands undisturbed.

As for costs, this Court is of the view that the Respondent is entitled to be compensated for having successfully resisted the appeal. A sum of RM8,000.00 is awarded to the Respondent as costs of this appeal, subject to 4% allocator. This quantum reflects the nature of the appeal, the issues raised, and the level of preparation reasonably required. I hereby order so. Date: 15.6.2026 NIXON ANAK KENNEDY KUMBONG Judicial Commissioner High Court of Malaya Kuala Lumpur PARTIES For the Appellant: Solicitor: Siti Solehah Binti Hairolzaman Messrs Harmy Yusoff & Azli Pekeliling Business Centre No.18, Jalan 65C Off Jalan Pahang Barat 53000 Kuala Lumpur For the Respondent: Solicitor: Alvin Kua Tze Min Messrs Azim, Tunku Farik & Wong Unit 5-03, 5th Floor Wisma Badan Peguam Malaysia 2 Lebuh Pasar Besar 50050, Kuala Lumpur