UPDATE Legal Case - TNB v Chew Thai Kay 2022

TNB cannot go after landlord. Must go after the registered meter owner.

ELECTRICITY SUPPLY

Federal Court (‘FC’): Tenaga Nasional Berhad (‘TNB’) has no power to disconnect electricity supply under section 38(1) of the Electricity Supply Act 1990 (‘ESA’) when there was no continuing offence under section 37 of the ESA

Section 38(1) of the ESA gives TNB, as licensee under the ESA, the power to disconnect electricity supply from premises if a person employed by TNB finds on the premises evidence which gives reasonable grounds for him to believe that an offence has been committed under sections 37(1), (3) or (14) of the ESA.



Issue

Does TNB have the power under section 38(1) of the ESA to disconnect electricity supply from premises when the meter alleged to have been tampered with has been rectified and replaced? This issue confronted the FC in Tenaga Nasional Berhad v Chew Thai Kay & Anor [2022] MLJU 5 (Judgment dated 4.1.2022).



Case summary and decision

TNB inspected its meter installation at premises operating a business of seafood processing on 7.6.2018 and found that there had been tampering of the meter. The meter was then rectified by TNB and replaced, after which TNB continued to supply electricity to the premises. TNB, thereafter, issued a Notice of Disconnection intending to disconnect supply of electricity to the premises on 3.7.2018. In response, the Respondents filed an action against TNB in the High Court (‘HC’) for orders, including that the Notice of Disconnection was unlawful. An application for an interim injunction (‘Interim Injunction’) was also made to prevent TNB from disconnecting the supply of electricity to the premises pending the disposal of the action against TNB. The HC granted the Interim Injunction, which was affirmed by the Court of Appeal. On appeal by TNB to the FC, in a unanimous decision delivered by Azahar Mohamed CJM (Mohd Zawawi, Vernon Ong, Zaleha Yusof and Rhodzariah Bujang FCJJ concurring), the appeal was dismissed. The learned CJM carried out a detailed discussion of the law pre and post the amendment of section 38(1) and came to the conclusion that the amended version under consideration did not alter the law — once a tampered meter had been rectified by TNB and the offence of meter tampering was no longer continuing, TNB had no power to issue the Notice of Disconnection under section 38(1) of the ESA.