A utility provider cannot disconnect electricity if the initial grounds for disconnection no longer exist after remedial actions have been taken.

[1] Tenaga Nasional Berhad ("TNB") is the sole provider of electricity in Peninsular Malaysia and is a licensee under the Electricity Supply Act 1990 ("the Act") with vast powers as prescribed under the Act. The Act criminalizes theft or pilferage of electricity and any form of interference with TNB's installations or meters and upon discovery of such nefarious acts or offences under the Act, TNB can disconnect the supply of electricity to the consumer's premises upon giving the requisite statutory notice. The matter that is before me is an application for an injunction to restrain TNB from disconnecting the supply of electricity to the premises of its consumer.

TNB's Power To Disconnect

[2] This case raises an issue of importance in relation to the exercise of statutory power by TNB under s 38(1) of the Act to disconnect the supply of electricity to the premises of its consumers on account of tampering of meters or pilferage of electricity which are offences under s 37(1), (3) and (14) of the Act.

Section 38 (1) of the Act reads as follows:

"(1) Where any person employed by a licensee finds upon any premises evidence which in his opinion proves that an offence has been committed under subsection 37(1), (3) or (14), the licensee or any person duly authorized by the licensee may, upon giving not less than twenty-four hours' notice, in such form as may be prescribed, cause the supply of electricity to be disconnected from the said."

Section 37 (1), (3) and/or (14) of the Act read as follows:

(1) 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 shall be guilty of an offence and for each such offence shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

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(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.

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(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 ringgit or to imprisonment for a term not exceeding two years or to both.

The Issue: Whether TNB Can Lawfully Disconnect When The Offence Is No Longer Continuing

[3] The specific issue that arises in this case is whether TNB can exercise the statutory power under s 38(1) of the Act to disconnect electricity to the premises of its consumer although the offence is no longer continuing or being perpetuated due to TNB's act of remedying the situation and replacing the tampered meter with a new meter. For convenience, the Defendant shall be referred to as TNB.

The Facts

[4] The Plaintiff owns property known as No 1109, Jalan Bagan Lallang, 13400 Butterworth, Pulau Pinang (hereinafter referred to as "the said premise"). The Plaintiff runs the business of "injection moulding" at the said premises. The Plaintiff is a customer of TNB. On 6 June 2014 TNB