A licensee's claim for loss of revenue due to meter tampering requires a prior conviction under the applicable sections of the Electricity Supply Act, establishing separate processes for criminal and civil actions.

[1] After a full trial of the matter, I had on 20 December 2012 dismissed the plaintiff's suit with costs. I now set out the complete grounds for my decision.

Background

[2] The plaintiff was a supplier of electric power as a licensee under the Electricity Supply Act 1990 ( ESA ).

[3] The defendant was a consumer of electricity that was supplied by the plaintiff under an Account No. 0231-00280097-09 at the defendant's industrial premises located at Plot 137 @ Lorong Perindustrian Bukit Minyak 11, Bukit Minyak Industrial Park, 1400 Bukit Mertajam, Pulau Pinang (defendant's premises).

[4] In this action, the plaintiff sought to recover from the defendant the sum of RM1,027,888.76 described at para 12 of the statement of claim as "... jumlah penggunaan tenaga elektrik yang tidak direkodkan untuk tempoh dari bulan Julai 2006 hingga Ogos 2010 termasuk kos operasi dan kos jangka yang dihutangi."

[5] The plaintiff alleged that there was a "... pemeriksaan ke atas pepasangan meter/meter" carried out on 19 August 2010 at the defendant's premises where it was discovered that there was a "... pengusikkan pada pepasangan meter/meter seperti berikut:

(i) berlaku sambungan switch timer box dari armor kabel meter;

(ii) terdapat emergency stop button yang mengawal arus S1 and S2 pada fasa kuning dan fasa biru;

(iii) nilai paparan meter tidak menunjukkan nilai sebenar berbanding arus masuk kabel; dan

(iv) meter tidak merekodkan penggunaan arus fasa kuning dan biru.

(see para 7 of the statement of claim).

[6] It was only in the opening statement and later in the submission of plaintiff's counsel, that the plaintiff's claim in this suit was expressly put forward as one brought pursuant to or premised upon s 38(3), (4) and (5) of ESA to recover 'loss of revenue' occasioned to the plaintiff allegedly as a result of the 'pengusikkan' (tampering) of the meter or meter-installation.

[7] It needs to be pointed out too, the neither in (a) the letter of demand dated 6 October 2010 (P15), nor in (b) the bil elektrik (tambahan) (P15A), both issued by the plaintiff to the defendant, was there any reference made to s 38(3) of the ESA as the basis of the plaintiff's demand for the settlement of the said sum of RM1,027,888.76.

[8] It was the plaintiff's case that on 19 August 2012 an investigation or inspection had been carried out at the defendant's premises by employees of the plaintiff attached to the plaintiff's special investigation unit (SEAL-Special Engagement Against Losses). It was there at found that the meter and/or meter-installation at the defendant's premises to record the consumption or usage of electricity by the defendant, had been 'tampered' with and was not recording the actual usage of power. It was alleged that the defendant had interfered with the meter or metering installation and prevent edit from recording the proper or actual consumption of electricity at the defendant's premises.

[9] According to the plaintiff, the key evidence which proved that there was 'tampering' as alleged and which the plaintiff's personnel had found at the defendant's premises were:

(a) the existence of a 'bypass' installed in respect two of the three phase connections (namely to S1 (Phase-2/Kuning) and S2 (Phase-3/Biru)) to the current transformer, discovered when the floor below which the armor cable laid was hacked open by the investigators, and

(b) the discovery of a timer-box and an emergency stop button, whi