CHOONG SOON FOO v TENAGA NASIONAL BERHAD

Case Significance

Illustrates that fresh evidence may be admitted on appeal under Order 55 rule 7, and that an electricity supplier's loss-of-revenue claim for meter tampering fails where there is a genuine doubt whether the defendant was the person actually registered as the consumer.

This High Court decision, delivered in Bahasa Malaysia and sitting in its appellate jurisdiction, concerns an electricity consumer's appeal against a judgment for loss of revenue arising from alleged meter tampering, and an application to adduce fresh evidence on appeal. The electricity supplier had sued the appellant in the Magistrate's Court, alleging that an inspection of the meter installation at the premises had revealed signs of tampering and unrecorded consumption over a period, for which it claimed a sum in loss of revenue under the loss-of-revenue provisions of the Electricity Supply Act 1990. On appeal, the appellant applied under Order 55 rule 7(1) of the Rules of Court 2012 to adduce fresh evidence, exhibited to a supporting affidavit, for the purposes of the appeal. The court allowed the application to adduce the fresh evidence. Turning to the merits, it found a live doubt as to whether the appellant was in fact the person registered as the consumer for the account: the evidence indicated that the supplier had allowed a new account to be opened merely on the strength of someone presenting a copy of the appellant's identity card, which was sufficient to raise an issue as to the identity of the person who had actually opened and was registered on the account. Distinguishing earlier authority on the position of a registered consumer, the court considered that the circumstances here pointed the other way. Having admitted the fresh evidence and being satisfied that the case against the appellant was not made out, the court allowed the appeal in its entirety. The judgment illustrates that fresh evidence may be admitted on appeal in the interests of justice, and that a supplier's loss-of-revenue claim may fail where the identity of the registered consumer is genuinely in doubt. The court's approach shows that the discretion to receive fresh evidence on appeal is exercised where that evidence bears materially on the justice of the case, and that a supplier cannot recover for unrecorded consumption from a person whose registration as the consumer is not reliably established.