An electricity provider cannot disconnect services under s 38(1) if meter tampering offense has ceased.

S Nantha Balan JC:

Introduction

[1] Tenaga Nasional Berhad ("TNB") is the defendant in this action. They are the sole provider of electricity in Peninsular Malaysia. I shall hereafter refer to the defendant as TNB. TNB is a licensee under the Electricity Supply Act 1990 ("the Act") and they have vast powers under the Act to take action in the event of offences committed under the Act. The Act criminalises theft or pilferage of electricity and any form of interference with TNB's installations or meters and these are provided for under s 37(1), (3) and (14) of the Act.

[2] Under the Act, upon inspection and discovery of such nefarious acts or offences under the Act, TNB has power to disconnect the supply of electricity to the consumer's premises upon giving the requisite statutory notice.

[3] This case concerns the scope and limitations of TNB's statutory power under the Act in circumstances where there has been a determination by TNB that the meter installed at the consumer's premises has been tampered with resulting in the device recording a lesser amount of electricity than that which has been actually consumed by the consumer and thereby leading to loss in revenue for TNB.

[4] The first issue that will be examined in this case is whether TNB can lawfully terminate the supply of electricity to the plaintiffs' premises pursuant to s 38(1) of the Act after discovery of a tampered meter at the plaintiffs' premises ("the impugned meter") and after the impugned meter has been replaced with a new meter.

[5] The second issue is whether TNB can lawfully invoke s 38 (3) of the Act and issue a notice of demand stating that unless the amount, which has been calculated as loss of revenue (due to the impugned meter) is paid within 24 hours, the supply of electricity would be disconnected.

Statutory Provisions Under The Act

[6] The relevant statutory provisions for present purposes are s 37(1), (3) and (14) and s 38(1), (3), (4) and (5) of the Act. They provide as follows:

" Section 37 (1), (3) and (14)

37(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 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.

...

(3) Any person who in any manner dishonestly:

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

Section 38 (1), (3), (4) and (5)

38(1). Where any person employed by a licence finds upon any premises evidence which in his opinion proves that an offence has been committed under subsection 37(1), (3) or (14), the licence or any person authorised by the licence may, upon g