TENOM VILLAGERS WIN APPEAL AGAINST CONVICTION OVER FOREST RESERVE

Tenom villagers win appeal against conviction over forest reserve

March 5, 2011, KOTA KINABALU: Six local farmers from Kampung Imahit in Tenom who were convicted of trespassing and cultivating in a forest reserve without permission won their appeal against the Magistrates Court’s decision in the High Court here yesterday.

Andawan (fifth right) and fellow villagers celebrate the High Court ruling with their counsels Ram (sixth right) and Mark (seventh right).

Justice Datuk David Wong Dak Wah allowed the appeal by Andawan Ansapi, 47, Barani Ambisi, 41, Ansanam @ Azman Yapau, 52, Johndy Kawar, 25, Stanley Boyor, 33, and Sarim Arus, 53, and set aside their conviction on the two charges by the lower court two years ago.

In his reserved ruling, David held that since the prosecution carried the burden of proving the case in a criminal matter, the appellants could not be found to be without authority to remain on the land unless the prosecution had succeeded in proving that they did not possess Native Customary Rights (NCR).

He said the basic ingredient of ‘authority’ in the context of this offence is intertwined with NCR of the appellants, hence the prosecution had a duty to investigate the claim of NCR of the six men.

“Unfortunately because of the understanding of the law, it is clear from the evidence led by the prosecution that they did not even attempt to prove that the appellants do not have any authority to remain on the land by virtue of the NCR claimed,” David said.

“That being the case, the consequence was simply that the appellants should have been discharged and acquitted at the end of the prosecution case,” he added.

“Even if I am wrong in my view as to what should happen at the end of the prosecution case, it does not aid the prosecution and my reasons are these; I have read the evidence given by the appellants with care on their claim for NCR and since their evidence was not rebutted in any way, I have no doubt in my mind that at the end of the trial, the appellants have raised reasonable doubt on the prosecution case relating to the non-existence of authority to be on the land and should have been discharged and acquitted.”

David further held that for completeness, such evidence was this; burial grounds found in the vicinity of the land and the appellants had shown that the burial grounds belonged to their ancestors and were in existence even before the forest reserve was gazetted.

He said there was also evidence of the existence of crops cultivated by the appellants’ ancestors on the land, and the appellants had continued the practice initiated by their ancestors before the gazette came in 1984.

“Accordingly, I allow this appeal and set aside the order of the magistrate. I also order that the fine imposed by the magistrate be returned to the appellants,” he ruled.

On Nov 12, 2009, magistrate Intan Nurul Farena fined the six men RM1,000 each after finding them guilty on both charges.

For the first charge, the appellants were fined RM500 each, in default, 90 days in jail for trespassing on the Kuala Tomani forest reserve without permission at 4pm on Oct 30, 2009.

The charge under Section 20 (1) (b) (i) of the Forest Enactment 1968 carries a fine not exceeding RM50,000 or a jail term of up to three years, or both.

For the second charge of cultivating in the forest reserve without permission, they received another RM500 fine each, in default, 90 days’ imprisonment.

Meanwhile, outside the court, the six appellants and fellow villagers clad in traditional costumes from Kampung Imahit celebrated their victory with dances.

Andawan, one of the appellants, said they were very satisfied with the High Court’s decision.

“We lost in the Magistrates Court in Tenom, but here we are satisfied, we are not against the Government but this is our customary land,” he said, adding that they just want the matter to be settled amicably.

Andawan said they were not intruders as the land was their rights and their ancestors had been there before the Japanese occupation.

“I thank PACOS Trust for educating us about our own land and also thank our lawyers,” he said.

The six appellants were represented by counsels Ram Singh and Mark Furton, while Deputy Public Prosecutor (DPP) Joyce Blasius stood in for DPP Mohamed Zairi Zainal Abidin.