[2016] 1 LNS 862 Legal Network Series

IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR

(CIVIL DIVISION)
[CIVIL SUIT NO: WA-22NCVC-28-01/2016]

BETWEEN

TENAGA NASIONAL BERHAD … PLAINTIFF

AND

GREATPAC SDN BHD … DEFENDANT

JUDGMENT

INTRODUCTION

1. The Plaintiff is a licensee under the Electricity Supply Act 1990

(“the ESA”).

2. The Defendant is a company which, at the material time, was

operating a manufacturing business at a factory at Lot 6, Taman
Sains Selangor 1, Jalan Teknologi, Seksyen 2, Kota Damansara,
Sungai Buloh 47810 Petaling Jaya, Selangor (“Premises”).

3. The Plaintiff’s claim against the Defendant for loss of revenue

arose from the Plaintiff’s alleged discovery of tampering of the
Defendant’s electricity meter (“meter”) in the Defendant’s
Premises.

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BRIEF FACTS

4. Pursuant to the Power Supply Contract, the Defendant became a

registered consumer of the Plaintiff through the account no. 0121
613947 for the Premises.

5. The Defendant contends that it has been dutiful in paying for the
electricity supplied to its Premises based on the monthly bills
issued by the Plaintiff.

6. On 18.10.2011, a first inspection was carried out by the Plaintiff on

the meter housed in the Defendant’s Premises.

7. On 17.11.2011, a second inspection was carried out by the Plaintiff

on the same meter (“the Inspection”) (CBOD Pt C pg 193 - 217,
now exhs. P4A, P4B, and P1A to P1U).

8. The Plaintiff alleged that following the Inspection, the Plaintiffs

discovered that the Defendant’s meter at the Premises had been
tampered with by the use of a clamp on the Test Terminal Block
(“TTB”) of the meter (“the tampering”), causing the reading of the
electricity current recorded on the meter to be lesser than the
actual amount of electricity current supplied and consumed at the
Premises at all material times.

9. During the Inspection, the Plaintiff recorded all the alleged

abnormalities found on the meter in “Borang Siasatan
Penjangkaan LPC MV/HV”. The Plaintiff then replaced the
Defendant’s meter at the Premises with a new electricity meter.

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10. On the date of the Inspection on 17.11.2011, the Plaintiff issued a
letter “Pemakluman Semakan Meter Elektrik oleh TNB” (“Meter
Inspection Notice”) to the Defendant’s representative, Lai Chee
Cheng, who signed the Meter Inspection Notice and admitted that
the Inspection was carried out in the presence of the Defendant.

11. Subsequent to the Inspection and the finding of tampering on the

meter, the Plaintiff through its representatives lodged a Police
report vide report no. KOTADAMANSARA/008968/11 at Balai
Polis Seksyen 6, Shah Alam.

12. The Plaintiff contends that due to the tampering, the meter could
not function properly and thus it had failed to record the accurate
reading to correspond with the actual electricity power supplied
and consumed at the Premises. Based on the inspection of the
meter, the Plaintiff discovered that the meter had failed to record
an accurate reading of the electricity usage in the amount of
-63.319% as a result of the tampering.

13. Pursuant to the outcome of the Inspection, the Plaintiff carried out
a recalculation and ascertained that a total unrecorded sum of
electricity usage of RM2,181,971.65 from 1.12.2008 to 17.11.2011,
and inclusive of the operation costs of RM7,593.00, the total
amount of RM2,189,564.65 was due and owing by the Defendant
to the Plaintiff (“loss of revenue”).

14. The Plaintiff then issued a letter dated 8.7.2013 under s. 38(3),
38(4) and 38(5) of the ESA to the Defendant setting out the
amount of loss of revenue and expenses incurred by the Plaintiff

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from the tampering of the meter that was payable by the
Defendant (“Notice”). The Defendant failed to respond to the
Notice, or pay the amount demanded by the Plaintiff in the Notice.

15. On 7.7.2014, the Plaintiff’s previous Solicitors, Messrs Shukor

Baljit & Partners, issued a letter to the Defendant demanding for
payment of RM2,189,564.65 as back charges of unrecorded
electricity consumption (CBOD Pt B pg 173-174).

16. The Defendant vide its letter dated 29.8.2014 wrote to the Plaintiff
requesting for its basis and method of calculation of the sum
demanded (CBOD Pt B pg 175-179). The was no response by the
Plaintiff to the Defendant’s letter.

17. In 2014, the Defendant sold its entire manufacturing business to a

third party, namely, Facilipack Industries Sdn Bhd (“FISB”) and
thereafter rented out the Defendant’s Premises to FISB (CBOD Pt
A pg 13-152).

18. After the sale, the Defendant’s electricity account was terminated
in mid-January 2015 and the Defendant’s bank guarantee,
previously held by the Plaintiff, was cancelled in mid 2015 (CBOD
Pt B pg 181-190).

THE PLAINTIFF’S CLAIM

19. The Plaintiff’s claim against the Defendant as per paragraph 17 of

its Statement of Claim (“SOC”) is for the sum of RM2,189,564.65,

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interest at 5% per annum on the Judgment sum from the date of

Judgment until the date of full realization, and costs.

ISSUES

20. The issues are as follows:

(1) Whether the Plaintiff can found or premise its claim under
s. 38 of the ESA without specifically pleading it in the
pleadings;

(2) Whether the Plaintiff’s cause of action is time-barred under

s. 6(1) of the Limitation Act 1953;

(3) Whether the meter located at the Defendant’s Premises had

been tampered with resulting in the meter being unable to
record the actual amount of electricity which was used or
consumed by the Defendant;

(4) Whether there was an unrecorded amount of electricity in the

sum of RM2,181,971.65 incurred by the Plaintiff from
1.12.2008 to 17.11.2011 as a result of the tampering of the
Defendant’s meter;

(5) Whether the Defendant is responsible to pay the Plaintiff for

the usage of the unrecorded amount of electricity in the sum
of RM2,181,971.65 from 1.12.2008 to 17.11.2011, including
the cost of operation/inspection in the sum of RM7,593.00;

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(6) Whether the Plaintiff’s calculation of the sum of
RM2,181,971.65 is the actual usage of electricity for the
period of 1.12.2008 to 17.11.2011 that was unrecorded by
the Defendant’s meter.

ANALYSIS AND FINDINGS

(1) Whether the Plaintiff can found or premise its claim under
s. 38 of the ESA without specifically pleading it in the pleadings.

21. The applicable provisions of the ESA to this case are s. 38(3),
38(4), 38(5), and s. 37(1), 37(3) and 37(14) of the ESA which read
as follows:

“38. (3) 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 expenses incurred
by the licensee under this section including expenses
incurred in respect of the reconnection of electricity supply.

(4) A written statement by an employee of the licensee

duly certified by the licensee or any person authorized by the
licensee specifying:-

(a) the amount of loss of revenue or the expenses

incurred by the licensee; and

(b) 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).

(5) The amount stated in the written statement shall,

within the period specified in the statement, be due and

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payable to the licensee and in default of payment such
amount shall be recoverable by civil action in a court.”;
“Offences
37. (1) Any person who tampers with or adjust 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 ….. shall be guilty of an offence …..
(2) …………………
(3) Any person who in any manner dishonestly:-
(a) abstracts electricity;
(b) consumes electricity;
(c) uses electricity;
(d) 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
(e) prevents any such meter or instrument from
duly recording the output or consumption of
electricity,
shall be guilty of an offence and shall, on conviction, be liable
to a fine not exceeding one hundred thousand ringgit or to
imprisonment for a term not exceeding three years or to
both.
……………….
(14) Any person who damages any meter or other
instrument used on or in connection with any licensed
installation for recording the output or consumption of
electricity shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding five thousand

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ringgit or to imprisonment for a term not exceeding two years
or to both.” (emphasis added).

22. The Defendant contends that the Plaintiff’s claim is anchored on

contract. This is due to the undisputed fact that the Plaintiff had
omitted to plead specifically the circumstances under s. 38 of the
ESA, including:

(a) the claim is for loss of revenue (kehilangan hasil);

(b) made following the Plaintiff’s opinion of an offence committed

under the ESA;

(c) the offence committed is provided under s. 37(1), 37(3) or

37(14) of the ESA;

(d) the loss of revenue is due to such offence; and

(e) a written statement and other particulars pursuant to s. 38(4)

ESA.

23. The Defendant relied on TNB v. Karun Klasik [2016] 3 CLJ 312
where the High Court had ruled on the preliminary issue that there
must be a specific plea that the claim is for loss of revenue under
s. 38 of the ESA. Without a specific plea, a claim with a general
plea will be reduced to one based on contract. In that case, Mary
Lim J (as she then was) stated:

‘[32] In any case, the plaintiff’s plea does not make

reference to the fact that it is a claim that arises under the
circumstances mentioned in sub-s. 38(3); that its loss or (sic)
revenue is “due to the offence committed under sub-ss.
37(1), (3) and (14). ….

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[36] …. the lack of specific plea with no refence to any of
the circumstances under s. 37 or even a plea that the plaintiff
has suffered a loss revenue (kerugian hasil); this present
claim cannot be treated as one within the meaning, purpose
and intent of the ESA 1990. It is merely a claim for back
charges under contract.

[37] For a claim for loss of revenue under sub-s. 38(3)

which is a statutory cause of action, there must be a specific
plea with evidence to that effect; that there is a statement
issued under sub-s. 38(4) even if it was sent in the form of a
notice. There is none. ….’ (emphasis added).

24. I observe that nowhere in the SOC does the Plaintiff plead its
reliance on s. 38 of the ESA. There is no plea using the words that
the Plaintiff’s claim is for loss of revenue. However, in paragraphs
7, 8, 12, 13 and 14 of the SOC, the Plaintiff has pleaded as
follows:

“7. Pada 17.11.2011, Defendan dan/atau seorang wakil

Defendan bernama Lai Chee Cheong dan/atau
Rizaudin Ismail telah membenarkan agen dan/atau
pegawai Plaintif melakukan pemeriksaan ke
pepasangan meter Defendan di Premis tersebut.”;

“8. Hasil pemeriksaan tersebut, Plaintif telah mendapati

bahawa terdapat pengusikan pada meter elektrik yang
melibatkan penggunaan alat pintasan (clamp) di
sebelah atas TTB yang menyebabkan bacaan arus
yang direkodkan di meter kurang dari bacaan yang
sepatutnya.”;

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“12. Akibat pengusikan tersebut, meter Defendan tidak
dapat berfungsi dengan baik dan sempurna serta gagal
merekodkan bacaan yang tepat selaras dengan
bekalan elektrik yang dibekalkan pada setiap masa
yang material. Ini bermakna terdapat perbezaan
jumlah pada bil-bil serahan setiap bulan dan bil-bil
sebenar yang sepatutnya dikeluarkan oleh Plaintif.”;

“13. Hasil ujian lanjut yang dijalankan ke atas meter

Defendan, Plaintif mendapati bahawa meter tersebut
telah gagal merekodkan bacaan elektrik sebanyak
-63.319% akibat gangguan serta pengusikan
tersebut.”;

“14. Berdasarkan hasil pemeriksaan tersebut, Plaintif telah

membuat pengiraan dan mendapati bahawa terdapat
jumlah penggunaan tenaga elektrik yang tidak
direkodkan sebanyak RM2,181,971.65 untuk tempoh
dari 01.12.2008 hingga 17.11.2011. Kos operasi/
pemeriksaan tersebut yang kena dibayar oleh
Defendan adalah sebanyak RM7,593.00.” (emphasis
added).

25. With respect, notwithstanding the Defendant’s reliance on the

principles in Karan Klasik (supra), I agree with the submission of
learned Counsel for the Plaintiff that from the facts pleaded in the
above paragraphs of the SOC in the present case, even without a
specific plea on the Plaintiff’s reliance on s. 38 of the ESA and its
claim for loss of revenue, the Plaintiff’s pleadings are sufficient for

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the Plaintiff to found or premise its claim on one which is for loss of
revenue. Paragraphs 7, 8, 12, 13, and 14 of the SOC are wide
enough to cover the offences within s. 37(1), 37(3) and 37(14) of
the ESA.

26. O. 18 r. 7(1) and 7(3) of the Rules of Court 2012 (“ROC”) provide:

“7. (1) Subject to the provisions of this rule and rules 10,
11 and 12, every pleading shall contain, and contain only, a
statement in a summary form of the material facts on which
the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which those facts are to be
proved, and the statement shall be as brief as the nature of
the case admits.

………….

(3) A party need not plead any fact if it is presumed by

law to be true or the burden of disproving it lies on the other
party, unless the other party has specifically denied it in his
pleading.”.

27. From the above provisions of the ROC, it is clear that a pleading
should only contain a summary form of the material facts, but not
the evidence by which those facts are to be proved. Where there
is a presumption by law that any fact is true, the pleading need
plead that fact.

28. O. 18 r. 11 of the ROC, by the use of the word “may”, does not
make it mandatory to plead any point of law. It reads:

“Points of law may be pleaded (O. 18 r. 11)

11. A party may by his pleading raise any point of law.”

(emphasis added).

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29. In Ho Weng Leong v. Ng Kee Chin [1996] 5 MLJ 139 at pg 139
and 148 Abdul Malik Ishak J (as he then was) stated:

“From a plain reading of O. 18 r. 7(1) of the RHC it can be

said that a pleading must state the facts and not the law. In
fact, O. 18 r. 11 of the RHC makes it clearer that it is not
mandatory to raise a point of law when it employs these
words:

A party may by his pleading raise any point of law.”.

30. In McCurry Restaurant (KL) Sdn Bhd v. McDonalds

Corporation [2009] 4 AMR 394, the Court of Appeal held:

“And, as for the pleading point, there is really nothing in it at

all. In the first place the plaintiff has in its statement of claim
pleaded all the facts that go to constitute the elements of the
tort. In the second place, whether the plaintiff may rely on
the so called extended form of the tort is a question of law
and it is well settled that you do not have to plead law.”.

31. It is observed that the English Courts in Independent Automatic

Sales Lts and Another v. Knowles & Foster [1962] 1 WLR 974
have also adopted a similar position and held that a party is not
bound or normally ought not to plead points of law, but to plead
facts upon which its relies.

32. I am therefore of the opinion that the Plaintiff has pleaded all the
necessary material facts in paragraphs 7, 8, 12, 13 and 14 of the
SOC to bring its cause of action for a claim for loss of revenue
resulting from tampering of the meter under s. 38(3) of the ESA.

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33. Even though the Plaintiff has the alternative to sue the Defendant
based on the cause of action of breach of contract, the Plaintiff is
not bound to do so. In this case, the Plaintiff is at liberty to found
its cause of action on the tampering of the meter and claim for loss
of revenue under s. 38 of the ESA.

(2) Whether the Plaintiff’s cause of action is time-barred under

s. 6(1) of the Limitation Act 1953

34. Under s. 6(1)(a) of the Limitation Act 1953, an action found on a

contract shall not be brought after the expiration of 6 years from
the date on which the cause of action accrued.

35. As stated earlier, the Plaintiff’s action is not founded on contract.

Therefore, the limitation of 6 years under s. 6(1)(a) of the Limitation
Act 1953 does not apply to the Plaintiff’s claim.

36. The Plaintiff’s claim against the Defendant is based on a statutory

cause of action for loss of revenue under s. 38(3) of the ESA
arising from the discovery of the tampering of the Defendant’s
meter during the Inspection on 17.11.2011.

37. In Pahlawan Sdn Bhd v. Tenaga Nasional Bhd (Civil Appeal No.
J-01 (IM)-455-2010), which is the leading authority on the
Limitation Act 1953 in respect of loss of revenue arising from the
tampering of an electricity meter under s. 38 of the ESA, the Court
of Appeal in its “Broad Grounds” dated 6.7.2011 stated:

“On 14.10.2003, the plaintiff conducted an inspection on the

electricity meter at the defendant’s premise. The inspection

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revealed that the meter was tampered with, thus causing it to
fail to record the correct usage of electricity. ……..

We held that the cause of action accrued on 14.10.2003 ie,

when the plaintiff found the meter was tampered with, and
not on 20.1.2010 when the defendant denied liability. In the
circumstances of the case, and since the plaintiff
commenced the action on 2.3.2010, that is after the 6 years
period, the plaintiff’s action therefore was barred by
limitation. Hence we allowed the appeal.”.

38. In Ong Cheng Kiong v. Tenaga Nasional Berhad [2013] 1 LNS

649, the High Court held “that material facts for the cause of action
only accrued at the date when the tampering was discovered by
TNB. Prior to that date the relevant material facts had yet to arise
….”.

39. Applying the same principles in the above 2 cases, I find that the
cause of action in the present case accrued on 17.11.2011 when
the Plaintiff found that the meter had been tampered with. The
Plaintiff’s Writ of Summons and SOC were filed on 18.1.2016,
which is within 6 years from 17.11.2011. Accordingly I hold that
the Plaintiff’s action is not time-barred by limitation under s. 6(1)(a)
of the Limitation Act 1953.

(3) Whether the meter located at the Defendant’s Premises had

been tampered with resulting in the meter being unable to record
the actual amount of electricity which was used or consumed by
the Defendant

40. PW2, Rizaudin Bin Ismail, a Senior executive with the

Enforcement Department in the Energy Commission of Malaysia

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(“Energy Commission”) accompanied the Plaintiff’s Inspection
team to inspect the meter at the Defendant’s Premises. PW2 is a
duly authorized officer under s. 2 of the ESA, being authorized by
the Minister under s. 4A of the ESA to exercise the powers of
enforcement under the Act.

41. PW2 had obtained the necessary search warrant from the
Magistrates’ Court, Kajang, Putrajaya (exh. P3A and P3B) to
search the Defendant’s Premises for evidences of tampering of
the meter.

42. At about 9.10 am on 17.11.2011, PW2 met the Defendant’s Legal

Manager, Ms Lu Kee Chee at the Defendant’s Premises and
served the Search Warrant on her.

43. According to PW2, the Plaintiff’s officers conducting the Inspection

of the Defendant’s meter found a clamp on the Test Terminal
Block (“TTB”) of the Defendant’s meter which caused the meter to
be unable or fail to record accurately the actual usage or
consumption of electricity by the Defendant at the Defendant’s
Premises (exh. P10, P1E and P1K in CBOD Pt C pg 207, 212 and
210). PW2 confirmed confiscating various items from the
Defendant’s Premises including the TNB Main Meter (exh. R1),
Test Meter (exh. R2), TTB (exh. P1E) together with the Red
Negative Screw Driver, Kiosk Seal, Left Seal of Main Meter, Right
and Left Seals of Main Meter, Green and Chocolate Log Books,
and a clamp (exh. R12) (PW2-WS, Q & A 18 pg 5). The “Senarai
Barang / Dokumen Yang Disita” was signed and confirmed by Ms

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Lu Kee Chee, and countersigned by PW2 (CBOD Pt B pg 165-
166).

44. PW2 was satisfied that the Defendant’s meter was tampered with
based on the results of the Inspection and the tests conducted on
the meter. PW2 then lodged a Police Report on 18.11.2011 on the
tampering of the meter at the Defendant’s Premises (CBOD Pt B
pg 167-168).

45. During cross-examination, PW2 confirmed that he had attended

training on electricity meter inspection and he was sure that the
clamp found in the TTB of the Defendant’s meter had disturbed or
affected the flow of current through the meter. PW2 stated that Ms
Lu Kee Chee was present during the Inspection of the meter at the
Defendant’s Premises.

46. PW2’s evidence of tampering of the Defendant’s meter is

corroborated by Asmizi Bin Ahmad Mohamed (PW3), a Technician
with the Plaintiff, who headed the Plaintiff’s Inspection team of 6
persons, including PW3, PW1 and PW4, which inspected the
meter at the Defendant’s Premises on 17.11.2011.

47. According to PW3, the physical Inspection of the Defendant’s

meter revealed a clamp (exh. R12) which had been inserted into
the TTB of the Defendant’s meter to prevent the meter from
recording the actual usage of electricity at the Defendant’s
Premises (exh. P10, P1E and P1K).

48. PW3 stated that 2 tests were carried out on the Defendant’s meter
during the Inspection to determine if the reading of the meter was

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abnormal. The 1 st test was a precision test (ujian kejituan) which
PW3 carried out on the meter using a calibrated portable test set
(“PTS”) to obtain the error recordings of the Defendant’s meter.
The PTS showed that the average percentage of error (ralat) on
the Defendant’s meter was -63.3% which was abnormal and way
off the normal reading of ± 0.5%.

49. The 2 nd test conducted by PW3 on the Defendant’s meter was a

current comparison test (ujian perbandingan arus) which showed
that the value of the current in the Defendant’s meter stood at
2899.66/5 Amps which was abnormal and far off the normal
current (CT) ratio value of 200/5 Amps.

50. According to PW3, an additional Vector test (Ujian Vector)

conducted on the Defendant’s meter also indicated an abnormality
as the phasor imej (lakaran) line 1 on the Defendant’s meter was
found to be missing when it was compared to the new meter that
was installed to replace the Defendant’s meter (“tampering”).

51. PW3, stated that he had written down all the abnormalities found
on the Defendant’s meter arising from the precision test (ujian
kejituan), current comparison test (ujian perbandingan arus) and
the Vector test (Ujian Vector) carried out by the Plaintiff on the
Meter Investigation Form (Borang Siasatan Perjangkaan LPC
MV/HV) (exh. 4A and 4B). Based on the findings and
abnormalities recorded from the Defendant’s meter, PW3
concluded that the meter was tampered with.

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52. PW3 then explained the findings and abnormalities recorded from
the Defendant’s meter to the Defendant’s representative, Lai Chee
Cheong, who acknowledged the findings and signed the “Surat
Pemakluman Semakan Meter Elektrik oleh TNB” on behalf of the
Defendant (CBOD Pt B pg 164).

53. PW3 stated that he was instructed by Mohd Fauzi Bin Alias (PW4)
to replace both the Defendant’s meter and the TTB with a new
meter and a new TTB. Further, according to PW3, the new TTB
was moved to the back of the Defendant’s meter kiosk as the old
TTB which was placed at the front of the meter kiosk had been
tampered with (CBOD Pt B pg 164, and exh. P1U in CBOD Pt C
pg 217).

54. According to PW3, all the items that were seized and confiscated
from the Defendant’s Premises during the Inspection on
17.11.2011 were written down in the Energy Commission’s
“Senarai Borang/Dokumen yang Disita” which included the clamp
which was found inserted into the TTB (exh. R12). The items
written down in the “Senarai Borang/Dokumen yang Disita” were
then handed over by the Plaintiff’s Inspection team to PW2 for the
Energy Commission to keep the items for further investigation, and
as evidence for any legal action against the Defendant (CBOD Pt
B pg 165-166).

55. PW3 confirmed that the clamp (exh. R12) that was found inserted
in the TTB of the Defendant’s meter operates or functions as a
bypassing or circumventing tool to block or prevent the meter from

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reading or recording the actual usage or consumption of electricity
at the Defendant’s Premises.

56. According to PW3, the clamp that was found inserted into the TTB
of the Defendant’s meter is made of steel in the form of 3 fingers.
The clamp is not a permanent fixture or fitting, but is something
which can be easily removed and inserted again (note: this was
shown to the Court).

57. PW3 also lodged a Police Report on 21.11.2011 to report that the
Plaintiff had discovered evidence of tampering on the Defendant’s
meter at the Defendant’s Premises (CBOD Pt B pg 164, and exh.
P1U in CBOD Pt C pg 217).

58. The evidence of PW2 and PW3 on the Inspection and the
tampering found on the Defendant’s meter on 17.11.2011 was
corroborated by the evidence of Mohd Sharae Bin ismail (PW1),
the official photographer in the Plaintiff’s Inspection team who took
the photographs to show the tampering and the clamp inserted in
the TTB of the Defendant’s meter [exh. P1O in CBOD Pt C pg 212,
and exh. P1A to P1Z, except for the top photograph in CBOD Pt C
of 204).

59. The Defendant’s defence is one of denial, that the Defendant’s

meter was never tampered with.

60. The Defendant did not call Lai Chee Cheong Cheong and Ms Lu
Kee Chee as witnesses to rebut the evidence of PW2, PW3 and
PW1 on the tampering. Instead, the Defendant relied on the
evidence of its sole witness, Lim Siew Hoy (DW1), Group Financial

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Controller of Wawasan TKH Sdn Bhd and its Group of companies,
who was not even at the scene at the time of Inspection of the
Defendant’s meter on 17.11.2011. DW1 gave evidence based on
her reading of the Defendant’s file, and she could not rebut the
Plaintiff’s overwhelming evidence of the tampering of the meter.

61. In any case, DW1 only joined the Defendant’s employment in May
2011. She was not in a position to deny that the Defendant’s
meter had been tampered with for the period from 1.12.2008 until
17.11.2011.

62. The Defendant did not deny at all that the clamp was inserted into
the TTB of the meter at the time when the Plaintiff’s Inspection
team went to inspect the Defendant’s meter. In the absence of
any cogent evidence by the Defendant to rebut the Plaintiff’s
incontrovertible evidence, I am satisfied that the Plaintiff has
succeeded in proving through the testimony of PW1, PW2, PW3,
and PW4 that it is without doubt that there was tampering of the
Defendant’s meter as claimed by the Plaintiff.

(4) Whether there was an unrecorded amount of electricity in the

sum of RM2,181,971.65 incurred by the Plaintiff from 1.12.2008 to
17.11.2011 as a result of the tampering of the Defendant’s meter;

(5) Whether the Defendant is responsible to pay the Plaintiff for the
usage of the unrecorded amount of electricity in the sum of
RM2,181,971.65 from 1.12.2008 to 17.11.2011, including the cost of
operation / inspection in the sum of RM7,593.00;

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(6) Whether the Plaintiff’s calculation of the sum of
RM2,181,971.65 is the actual usage of electricity for the period of
1.12.2008 to 17.11.2011 that was recorded by the Defendant’s meter

63. Under s. 38(3) of the ESA, the licensee, ie, the Plaintiff, may
require the consumer, ie, the Defendant, to pay him the loss of
revenue due to the offence committed under s. 37(1), 37(3) and
37(14) of the same Act, and any expenses incurred by the licensee
under this section.

64. The crux of the Plaintiff’s case is dependent on the calculation of

the alleged unrecorded amount of electricity, as a result of the
tampering of the Defendant’s meter, that ought to be paid by the
Defendant. For this purpose, the Plaintiff relied solely on the
evidence of Muhammad Ismail Bin Abu Zarin (PW4), a Special
Engagement Against Losses (SEAL) Medium Voltage / High
Voltage (MV/HV) Engineer from the Plaintiff’s Revenue
Department. PW4 was part of the Plaintiff’s Inspection Team and
he supervised the inspection of the Defendant’s meter on
17.11.2011. He confirmed that he saw a clamp (exh. R12) had
been used on the TTB (exh. P1O and P1E) of the Defendant’s
meter causing the reading of the electricity supply recorded to be
less than the actual reading (exh. 4A, 4B and 4C in CBOD Pt C pg
193 and 194, and exh. P1O, P1E and P1K in CBOD Pt C pg 207,
212 and 210).

65. According to PW4, the clamp (exh. R12) that was found inserted
into the TTB of the Defendant’s meter on 17.11.2011 was not a

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permanent fixture or fitting, but something which can be easily
removed and re-inserted again.

66. PW4 testified that the Plaintiff had been conducting a remote
online observation of the Defendant’s load profile usage for a
period of 6 months from January 2011 before the Plaintiff decided
that an inspection of the Defendant’s meter at the Defendant’s
Premises was necessary.

67. According to PW4, the Plaintiff’s remote online observation of the

Defendant’s load profile usage showed that the Defendant’s usage
of electricity per kilowatt an hour (kWh) was not consistent and
was abnormal. PW4 stated that ordinarily it was not normal for a
factory’s usage of kWh to be inconsistent.

68. After observing the Defendant’s abnormal load profile, PW4 then
instructed PW3 to carry out the Inspection of the Defendant’s
meter at the Defendant’s Premises. PW4 also reported to the
Energy Commission about the abnormalities observed on the
Defendant’s load profile.

69. In order to arrive at the calculation of the underbilling or

unrecorded amount electricity in the sum of RM2,181,971.65 from
1.12.2008 to 17.11.2011, PW4 prepared, printed and relied on the
following documents:

(a) The adjustment calculation and damages cost suffered by

the Plaintiff between 1.12.2008 to 17.11.2011 known as
“Penyemakan Pengiraan Pelarasan Dan Kos Kerugian”

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(“Back Billing Report”) (exh. P5A, P5B and P5C in CBOD2 Pt
C pg 1-3);

(b) The comparison graph of the Defendant’s usage of electricity

(Peak and Off Peak) prior to and after the Inspection of the
Defendant’s meter known as “Graf Perbandingan
Penggunaan Sebelum dan Selepas Pembetulan (“Peak and
Off-Peak”) (“the Graph”) (exh. P6A, P6B and P6C in CBOD
Pt C pg 218-220);

(c) Display of the Defendant’s Re-Printed Bills from 1.11.2007 to

1.1.2015 known as “Paparan Bil Dicetak Semula”
(“Defendant’s Monthly Bills”) (exh. P7A, P7B and P7C in
CBOD Pt C pg 221-223);

(d) Register of the Defendant’s Consumption Reading History

known as “Sejarah Bacaan register” (“Usage Data”) (exh.
P8A, P8B and P8C in CBOD Pt C pg 224-225).

70. According to PW4, he chose 1.12.2008 as the starting date to

calculate the under billed / undercharged amount because there
was a significant drop or decline in the usage of electricity supply
by the Defendant for the said month (exh. P5A, P5B and P5C in
CBOD2 Pt C pg 1-3, and exh. P6A, P6B and P6C in CBOD Pt C
pg 218-220).

71. According to PW4, after determining the commencement date for

the decrease or reduction in the Defendant’s usage of kWh, the
difference in the billed sum to the Defendant and the actual bill
sum (Defendant’s actual usage) will then be determined.

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72. PW4 stated that the calculation of losses, ie, the difference in the
Defendant’s billed sum and the actual bill, for the undercharged
bill against the Defendant is determined by taking the average
calculation of the Defendant’s electricity usage for a period of 3
months after the date of the Inspection of the Defendant’s meter
on 17.11.2011, ie, from 17.11.2011 until 1.3.2012, and comparing
it with the Defendant’s electricity usage before the Inspection was
carried out on the Defendant’s meter, in order to obtain the
difference of the undercharged bill to the Defendant for the period
between 1.12.2008 to 17.11.2011. This difference shows the
amount outstanding or owing by the Defendant to the Plaintiff for
the amount of electricity supplied to the Defendant’s Premises.
Based on this calculation the difference between the Defendant’s
billed amount and the actual bill (Defendant’s actual usage) is
RM2,181,971.65, and added with the cost of the operation for the
Inspection ie, RM7,593.00, the amount due and payable by the
Defendant to the Plaintiff is RM2,189,564.65 (exh. P5A, P5B and
P5C in CBOD2 Pt C pg 1-3).

73. In calculating the back billing, PW4 did not take into account the
Defendant’s consumption, or calculate the back charges for the
period of 1.2.2009 until 1.7.2009 since the method of tampering
used in this case is by the usage of a clamp which is not a
permanent device and can be easily removed and re-inserted
again (exh. P5A, P5B and P5C in CBOD2 Pt C pg 1-3, and exh.
P6A, P6B and P6C in CBOD Pt C pg 218-220).

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74. The Plaintiff issued a letter of demand dated 8.7.2013 to the
Defendant (CBOD Pt B pg 17-172), annexing the Plaintiff’s written
statement under s. 38(4) of the ESA (CBOD Pt B pg 172) (“written
statement”) which shall be prima facie evidence of the payment,
ie, RM2,189,564.65 for loss of revenue (amount terkurang caj)
that has to be made by the consumer / Defendant under s. 38(3) of
the ESA. The Defendant failed to pay the sum within the 14 days
given by the Plaintiff. The Plaintiff then brought this civil action.

75. The question now is whether the Defendant is able to rebut the
prima facie evidence contained in the Plaintiff’s written statement
issued under s. 38(4) of the ESA.

76. Learned Counsel for the Defendant submits that the Plaintiff’s
claim is a non-starter as there was no evidence given by the
Plaintiff’s 4 witnesses that they form an opinion that an offence
has been committed by the Defendant under s. 37(1), 37(3) or
37(14) of the ESA. However, I am of the view that PW1, PW2,
PW3 and PW4 all corroborated each other’s evidence when they
confirmed that the Inspection revealed that there was tampering of
the Defendant’s meter which resulted in the meter not recording
the actual electricity usage. They then proceeded to seize the
Defendant’s meter, TTB, seals, log books etc, for further
investigation and action. 2 Police reports were lodged by PW2
and PW3 respectively regarding the offences committed by the
Defendant. There is therefore no necessity for the Plaintiff to
prove that the Defendant was charged in Court for the offences
under s. 37(1), 37(3) or 37(14) of the ESA before the Plaintiff can
institute this civil claim.

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Defendant’s evidence

77. DW1 gave the following evidence:

(a) The Defendant was, at the material time of the Plaintiff’s

complaint, manufacturing a wide range of disposable
foodware products including Polypropylene Injection or
Injection Production (“PPI”), Straw (“STW”), Polyethylene
Plastic (“PEP”), High Impact Polystyrene (“HIP”) and
Polystyrene Foaming.

(b) Electricity consumption at the Defendant’s Premises was

attributed to several factors including (i) its level of
production / output for that particular month, (ii) the type of
products manufactured, (iii) machines used for
manufacturing of different products and machine
specification and efficiency as well as (iv) factory operating
hours, all which varied from time to time based on the
Defendant’s commercial strategy and objectives;

DW1 explained that each of the Defendant’s products is

manufactured using different machines which consume
different quantities of electricity depending on the machine
efficacy, and not all machines of the Defendant run at the
same time;

(c) Monthly electricity consumption was also based on demands

of customers, which varies from month to month;

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(d) The decline in electricity consumption in December 2008
(compared to October 2008 and November 2008) is due to a
lesser amount of total output produced for December 2008
(exh. D2).

(e) The decline in electricity consumption in December 2008 is

also consistent with the decline in the machine running hours
for that particular month based on reports of the Defendant
(exh. D3A and D3B).

78. The Defendant submits that based on DW1’s evidence, the total
output records of the Defendant (exh. D2 in CBOD pg 228)
showed a trend which correlates with the total electricity
consumption at the Defendant’s Premises during the material
period (exh. D2 in CBOD pg 229).

79. The question is whether the Defendant’s documentary evidence

can be accepted by this Court.

80. DW1 stated that the Defendant had sold its Foodwares
Manufacturing Business (“Business”) to FISB to via a Sale Of
Business Agreement dated 26.11.2014. The sale was completed
in mid 2015. After the sale of the Defendant’s Business to FISB,
FISB still operates the Business from the Defendant’s Premises.

81. Following the disposal of the Defendant’s Business, the Defendant

disposed off most of its physical records and documents as they
were considered obsolete. As an alternative to the physical
records and documents that were disposed off by the Defendant,
DW1 tendered various computer printouts documents (exh. D2,

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[2016] 1 LNS 862 Legal Network Series
D3A and D3B in CBOD Pt C pg 228 - 246 and 248 - 289) (“the
computer printouts”) which, according to DW1, were a summary
information or data that were extracted from the Defendant’s
individual employee’s computer that is stored inside the
Defendant’s main server.

82. DW1 produced a certificate under s. 90A of the Evidence Act 1950
(exh. D1) to admit those computer printouts.

83. According to DW1, the summary information or data (“information

or data”) found in the Defendant’s main server was not keyed in by
DW1 herself, but was keyed in by an employee named Suzie who
has resigned from the Defendant’s employment. DW1 was unable
to remember the full name of Suzie and only assumed that the
information or data were keyed in by Suzie because the file name
stated “Suzie”.

84. Under cross-examination, DW1 stated that the information or data

inside the Defendant’s main server is kept by the IT Department,
and the documents can be made available to or accessed anytime
by her employers, the Directors of the Defendant, or the successor
at the IT Department.

85. DW1 also admitted that the information or data inside the
Defendant’s main server can be opened for tampering or
fabrication by anyone having access to it.

86. DW1 stated that the computer printouts in exhibits D2, D3A and
D3B (CBOD Pt C pg 228-246 and 248-289) were only prepared in
2016 during discussions with the Defendant’s Solicitor. They

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contain only summary information or data that were extracted from
individual employee’s computer that is stored inside the
Defendant’s main server.

87. According to DW1, the Defendant does not have the daily
consumption or recording output as they were disposed off by the
Defendant.

88. DW1 admitted that the computer printouts do not make any
references to a particular machine, model or serial number of a
machine used by the Defendant.

89. During cross-examination, DW1 agreed that the computer

printouts cannot be cross-referred with the audited accounts of the
Defendant for the years 2008, 2009, 2010 and 2011 because the
Defendant had did produce the said audited accounts for those
years as evidence during the trial.

90. DW1 also agreed during cross-examination that the Defendant

does not have any supporting documents to verify the veracity and
accuracy of the summary information and data contained in the
computer printouts. DW1 stated that her purpose for attending
Court as a witness for the Defendant was simply to give an
explanation on the computer printouts in exhibits D2, D3A and
D3B.

91. According to DW1, the Defendant’s exhibits D2, D3A and D3B
showed an increase in the Defendant’s monthly electricity
consumption and that was reflective of the monthly level of output
of the Defendant during that period.

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92. The Defendant submits as follows:

“(a) The decline in electricity consumption in December 2008

(compared to October 2008 and November 2008) is due to a
lesser amount of total output produced for December 2008.
This is recorded in the yearly production reports (Exhibit D-
2/CBOD/Pg 228 - 246) which shows a decline from 73,186
cartons of total output in November 2008 to 69,208 cartons
of total output in December 2008 (CBOD/Pg 228) and
machine running hours (Exhibit D-3A & D3B/CBOD/Pg 228-
289) (Q&A17/Pg 10 DW1-WS); and

(b) The monthly electricity billings by the Plaintiff for electricity

consumption at the said factory premises recorded its
highest during the period of claim in the months of May 2009
and June 2009, when total output of the Defendant’s
manufacturing business also peaked in those months as
recorded in the Defendant’s yearly production reports
(Exhibit D-2/CBOD/Pg 228) with 102,728 cartons of product
in May 2009 and 92,475 cartons of product in June 2009
(Q&A20/Pg 11-12 DW1-WS);”.

93. On the whole, I believe in DW1’s testimony that the Defendant’s

use of electricity was dependent on the level of production, the
fluctuating consumers’ demands for the Defendant’s goods, and
the type of machine used and its machine efficacy. However, even
though the computer printouts, ie, exhibits D2, D3A and D3B,
were admitted as exhibits pursuant to the certificate issued under

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s. 90A of the Evidence Act 1950, after weighing those exhibits with
the evidence of DW1, I am of the opinion that the contents of the
computer printouts cannot be accepted by this Court as true.
This is because the computer printouts are a mere summary of
whatever was retrieved from the Defendant’s individual employees’
computer which are now in the Defendant’s main server. Suzie,
who could be the person who keyed in the original information and
data into the individual computer was not called as a witness. In
fact, DW1 just assumed that Suzie keyed in the information and
data because the name, Suzie, was on the file. However, DW1
was not sure if in actual fact Suzie did key in the information and
data. Furthermore, DW1 admitted that anyone from the Defendant
can access the information and data stored in the main server,
including the Defendant’s Directors and its IT Department
personnel. There is no explanation by DW1 or the Defendant as to
how the summary of the information and data was done, and who
did the summary.

94. Another flaw in the Defendant’s evidence is that DW1 was unable
to show the type of machine used for each type of goods
manufactured at the material time, and how much electricity usage
it would be when different types of machines were used for
different goods in each month. Without such evidence, there is no
way that this Court can determine what would be the correct
electricity usage per month for the Defendant’s Business, and why
for the material period there was a sudden drop in usage prior to
the Plaintiff’s Inspection on 17.11.2011, and why after the Plaintiff
had changed the meter, the Defendant’s electricity consumption
went up.

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95. The Defendant challenged the Plaintiff’s method of determining the
quantum of loss of revenue as follows:

‘(a) Determination of the starting period of loss of revenue

based on a “sudden drop” in consumption is not
acceptable;

(b) Calculation of loss of revenue based on estimates or

an averaging method does not reflect the actual loss of
revenue and is not acceptable;

(c) The prima facie evidence under a Section 38(4) ESA

written statement may be easily rebutted or displaced -
there is no need to show manifest error on the face of
the said written statement.’.

Whether “sudden drop” method is acceptable

96. The Defendant relied on the decision in Sumbang Projeks Sdn

Bhd v. TNB [2014] 4 CLJ 323 where the Court of Appeal held that
the methodology used by the TNB to calculate the back billing of
loss of revenue based on a “sudden drop” in consumption is
“arbitrary, random and speculative”, and is no more than
assumptions. Lim Yee Lan JCA at pg 342-344 of the Report
stated:

“[17] SP3 told the court she picked 28 February 2008 as the
starting date for calculating the back-billing because from the
graph in P25B she noticed a significant and sharp drop in
electricity consumption at the defendant’s premises on that
date.

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……

[51] Firstly, we note that the plaintiff called only one

witness, SP3, to testify on quantum. We also observed that
SP3’s position and qualification was that of a clerk
(pembantu tadbir) in the plaintiff’s organisation with only nine
years experience in calculating, inter alia, back-billings to be
charged to customers. SP3 in her testimony had purported
to describe the technical details of how she worked out the
calculations for the back-billing. She had also purported to
base the calculation on some comparative graphs drawn by
herself and had selected 28 February 2008 as the most likely
date of the commencement of the tampering because, to her,
there was a sudden and sharp drop in electricity
consumption.

[53] We further agree with learned counsel for the

defendant that the selection of 28 February 2008 as the date
from which the plaintiff calculated the back-billing for its loss
of revenue appeared to be an arbitrary, random and
speculative way of doing so. We agree with learned counsel
that SP3’s assumption that a drastic and sudden fall in the
graph drawn by her on the electricity flow signified the
commencement of tampering was a mere conjecture on her
part. There could be a number of reasons why there was
sudden drop in the reading of electricity flow in the graph and
in the absence of any statutory presumption, it is the
plaintiff’s duty to adduce positive evidence to prove its
assertion that tampering did commence on that date.

[55] Considering that the plaintiff was claiming such a huge

amount of money as back-charges, it was incumbent on the
plaintiff to adduce a more tangible, reliable and scientific
method of calculation than a mere assumption based on
some comparative graphs drawn by SP3 and one sudden
drop in electricity usage/consumption on a particular date.

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[56] In the circumstances, we found the learned High Court
Judge erred in her findings that the method used by the
plaintiff in calculating the back-billing was a reasonable
method and that SP3’s evidence was more than sufficient to
prove the actual quantum of the plaintiff’s claim on a balance
of probabilities.” (emphasis added).

97. The Plaintiff further cited the Court of Appeal decision in Taiwan
Chief Precision Technology Sdn Bhd (formerly known as Li
Yo Electronics Sdn Bhd) v. TNB [2013] 4 MLJ 625 where in
dismissing TNB’s claim, the Court held that TNB’s basis of
calculation using a “sudden drop” approach in determining the
starting period of its calculation is without basis. Zaharah Ibrahim
JCA (as she then was) at pg 633-634 of the Report made the
following observations:

“[36] DW3’s evidence that the basis for choosing to

backdate the computation from February 2010 was solely the
drop in consumption in the reading for that month from that
of the previous month was accepted by the learned High
Court judge without evaluating the rest of the evidence,
despite taking note of DW3’s admission that it was not
known when the CTT was tampered with and that his
computation was based on as assumption. ….

[42] He also explained that usage of electricity would

depend on orders received. While it was true that the
plaintiff did not produce any document to show increase or
reduction of orders for the material period, PW1’s evidence is
not inherently improbable as after all the plaintiff was
operating a factory supplying manufactured good which must
be dependent upon orders placed.

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[43] We are unanimous in our view that there was in fact
sufficient evidence to show the absence of any basis for the
amount in the s. 38 statement of the defendant to be
calculated from February 2010. There was sufficient
evidence which ‘balanced or outweighted’ the prima facie
evidence of the s. 38 statement.” (emphasis added).

98. The Defendant submits, inter alia, the following for the Court’s
consideration:

‘There was a greater drop in consumption of electricity in

billing month of 1.7.2009 to 1.8.2009 - but this was ignored
by TNB;

TNB proffered no credible evidence as to why that the billing

period of 1.7.2009 to 1.8.2009 was not used as the starting
period despite it having a greater drop than the billing period
of “1.12.2008”’.

99. PW4 explained that the Plaintiff had been continuously monitoring
the Defendant’s account using its advanced Remote Meter reading
since January 2011. He detected the significant drop or decline in
the Defendant’s usage starting from 1.12.2008.

100. It is true, as contended by the Defendant that the Plaintiff made no

complaints or found any evidence of tampering or under-recording
of electricity consumption occurring from 1.12.2008 onwards. It
appears to be that there was nothing conclusive about the
Plaintiff’s inspection on 18.10.2011. However, by the fact that the
Plaintiff came back again for the 2 nd inspection on 17.11.2011, it
shows that after monitoring the Defendant’s account for several

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months by remote means, the Plaintiff did have suspicions that the
Defendant’s meter was tampered with.

101. It was on 17.11.2011 that the Plaintiff’s Inspection team discovered

the tampering by the Defendant’s use of the clamp on the TTB of
the meter. All the Plaintiff’s 4 witnesses testified that they saw the
clamp inserted in the TTB of the Defendant’s meter. Thus, it is
not wrong, and therefore it is highly probable, for the Plaintiff to
conclude that starting from 1.12.2008, the sudden drop in
electricity was as a result of the Defendant using the clamp to
block the meter from recording the actual usage of electricity.

102. There was no explanation from the Plaintiff as to why the Plaintiff
did not use the billing month for 1.7.2009 to 1.8.2009, but I do not
think that it is incumbent upon the Plaintiff to use that as the
starting point for the Plaintiff’s calculation considering that the
claim for loss of revenue is from 1.12.2008 to 17.11.2011.
Therefore, the period from 1.7.2009 to 1.8.2009 is already taken
into account by the Plaintiff in its calculation for back billing in this
case.

“Averaging” Method

103. The Defendant contends that based on Sumbang Projeks (supra)

the Plaintiff bears the burden to prove its actual losses. However,
PW4 only gave evidence of estimated losses calculated using an
“Averaging” method. The Defendant submits that the Plaintiff’s
use of the “Averaging” method is a departure from the Plaintiff’s
pleaded case that the error of reading of -63.319% formed the

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basis of its calculations. Therefore, the “Averaging” method shown
in exhibits P5A and P5B is an afterthought raised by the Plaintiff
for the first time at the trial.

104. According to PW4, he had used the average consumption method,

and not the error (ralat) method, in his calculation to determine the
back billing since the nature of the tampering was not permanent,
ie, the clamp used by the Defendant is something which can be
easily removed and re-inserted again. PW4 stated that the error
method would have returned a higher consumption amount by the
Defendant, and would be irrelevant to the Plaintiff’s claim. The
Plaintiff was only interested in claiming for the actual amount that
was consumed by the Defendant, and not for periods when the
clamp was not used. PW4 further stated that the average
consumption method used by the Plaintiff to determine the back
billing is accurate and correct as it had relied on the Defendant’s
electricity bill.

105. I am of the view that the Plaintiff is not limited to using the error
method for calculation of the back charges even though the error
of reading of -63.319% was pleaded in the Plaintiff’s Statement of
Claim. On the whole, the Plaintiff’s pleading is regarding its claim
for loss of revenue due to the tampering. In my view the Plaintiff’s
pleading on its discovery of the error in the reading by the meter
does not preclude the Plaintiff from using the “Averaging” method
of calculation.

106. PW4’s basis for using the “Averaging” method is because the
tampering in this case is usually not permanent. The Defendant

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can remove or re-insert the clamp off and on. He said in fact, by
using the “Averaging” method of calculation, it is to the
Defendant’s advantage because the Defendant had to pay less
back charges. Had the Plaintiff used the error method for its
calculation, the Plaintiff would end up paying higher or more back
charges.

107. The Court finds it acceptable for the Plaintiff to use the
Defendant’s average daily usage amount of 30,473.8 kWh for peak
and off peak hours respectively [(18,351.5kWh+12,122.3kWh)]
from 1.12.2008 to 17.11.2011 which was obtained by using the
Defendant’s usage for a period of 3 months after the Inspection of
the Defendant’s meter. This shows an increase of about 6kWh per
day, when compared to the Defendant’s average daily usage prior
to the Inspection of the Defendant’s meter. The Plaintiff had
calculated the difference between the billed amount and actual
amount used by Defendant’s meter starting from 1.12.2008 until
17.11.2011. The Plaintiff had excluded the period of 1.2.2009 until
1.7.2009 from its calculation since the method of tampering used
in this case, ie, the usage of a clamp is not a permanent device
and can be easily removed and re-inserted again. Even though
the Defendant objected to the exclusion of such period from PW4’s
calculations, I do not think that such objection is justified since the
exclusion of those 5 months from the Plaintiff’s calculation had in
fact benefitted the Defendant ie, the Defendant had to pay less in
back charges to the Plaintiff.

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108. The differences between the billed amount and the actual amount
used by Defendant’s meter starting from 1.12.2008 until
17.11.2011 have been set out in the Penyemakan Pengiraan
Pelarasan Dan Kos Kerugian (“Back Billing Report” in exh. P5A,
P5B and P5C in CBOD2 Pt C pg 1-3). The total billed amount for
the period of 1.12.2008 until 17.11.2011 was RM13,186,415.05,
and the actual amount used by Defendant’s meter starting
1.12.2008 until 17.11.2011 was RM15,368,386.70. This shows a
difference of RM2,181,971.65 which is the under billed or
unrecorded usage amount. When this amount is added to the
Plaintiff’s operational Inspection cost of RM7,593.00, the amount
of losses suffered by the Plaintiff due to the tampering of the
meter at the Defendant’s Premises amounts to RM2,189,564.65,
as follows:

“1. Actual amount used after average taken

after Inspection of Meter on 17.11.2011: RM15,368,386.70

2. Amount billed For 01.12.2008 to

17.11.2011: RM13,186,415.05
Total (Difference Unbilled Amount) RM2,181,971.65

3. Inspection Operations Cost (Add) RM 7,593.00

Grand Total RM2,189,564.65.”.

109. Based on the totality of the evidence adduced, the Court, on a

balance of probabilities, finds that the Defendant had failed to
rebut the prima facie evidence of the written statement issued by
the Plaintiff under s. 38(3) of the ESA. The written statement is
therefore accepted by this Court as the amount of the loss of

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revenue which is recoverable from the Defendant (see Chin Hong
Trading & Packaging Sdn Bhd v. Tenaga Nasional [2011] 1
LNS 1431, and Taiwan Chief Precision Technology Sdn Bhd v.
Tenaga Nasional Berhad [2013] 1 LNS 278; [2011] MLJU 975).

110. Regarding the issue whether the Defendant is responsible to pay

the Plaintiff the sum of RM2,181,971.65 for the unrecorded usage
of electricity from 1.12.2008 to 17.11.2011, including the costs of
operation / inspection of RM7,593.00, it is an undisputed fact that
the Defendant is a registered consumer of the Plaintiff having the
electricity account no. 0121 613947 registered under the name of
the Defendant for the supply of electricity to the Defendant’s
Premises.

111. DW1 had confirmed that the Defendant only completed the sale of
its Business in 2015. The Plaintiff’s claim against the Defendant
for loss of revenue in the sum of RM2,181,971.65 is for the
unrecorded amount of electricity from 1.12.2008 to 17.11.2011
while the Defendant was still operating its Business from the
Defendant’s Premises. Accordingly, the Defendant is liable to the
Plaintiff for the sum claimed for loss of revenue under s. 38(3) to
38(5) of the ESA.

112. Based on the totality of the evidence adduced, I find that the
Defendant is liable to the Plaintiff in its claim for the loss of
revenue under s. 38(3) to (5) of the ESA as the Defendant was, at
all material times, the registered consumer of the Plaintiff.

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DECISION

113. Going by the above considerations, on a balance of probabilities,

the Court allows the Plaintiff’s claim as prayed:

(a) RM2,189,564.65 to be paid by the Defendant to the

Plaintiff;

(b) Interest at the rate of 5% per annum on the Judgment

sum from the date of Judgment until the date of full

realization;

(c) Costs of RM15,000.00 are to be paid by the Defendant,

subject to payment of the allocatur fee of 4% of the

costs.

Dated: 15 AUGUST 2016

(YEOH WEE SIAM)

Judge
Civil Division
High Court, Malaya, Kuala Lumpur

Counsels:

For the plaintiff - T Prem Anand & Nicole Chee; M/s Deol & Gill

For the defendant - SH Leong; M/s Leong & Partners

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Case(s) referred to:

TNB v. Karun Klasik [2016] 3 CLJ 312

Ho Weng Leong v. Ng Kee Chin [1996] 5 MLJ 139

McCurry Restaurant (KL) Sdn Bhd v. McDonalds Corporation [2009]
4 AMR 394

Independent Automatic Sales Lts and Another v. Knowles & Foster

[1962] 1 WLR 974

Ong Cheng Kiong v. Tenaga Nasional Berhad [2013] 1 LNS 649

Sumbang Projeks Sdn Bhd v. TNB [2014] 4 CLJ 323

Taiwan Chief Precision Technology Sdn Bhd (formerly known as Li

Yo Electronics Sdn Bhd) v. TNB [2013] 4 MLJ 625
Chin Hong Trading & Packaging Sdn Bhd v. Tenaga Nasional [2011]
1 LNS 1431
Taiwan Chief Precision Technology Sdn Bhd v. Tenaga Nasional
Berhad [2013] 1 LNS 278; [2011] MLJU 975

Legislation referred to:

Electricity Supply Act 1990, ss. 2, 4A, 37(1), (3), (14), 38(3), (4),
(5)
Evidence Act 1950, s. 90A
Limitation Act 1953, s. 6(1)(a)
Rules of Court 2012, O. 18 r. 7(1), 7(3)

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