Six natives convicted and fined by the Tenom magistrate's court for trespassing on the Kuala Tomani Forest Reserve and cultivating hill padi, won their appeal at the Kota Kinabalu High Court yesterday.

The six - Andawan Ansapi, Barani Ambisi, Ansanam @ Azman Yapau, Johndy Kawar, Stanley Boyor and Sarim Bin Arus, were charged under Section 20(1)(c)(i) of the Forestry Enactment for encroachment and under Section 20(1)(b)(iii) of the Forestry Enactment for cultivation of crops in the forest reserve.

The Forestry Department enforcement officers arrest them on Oct 29, 2009 and remanded for three days at the Tenom police station lockup under the Forestry Enactment 1968 for trespassing on a forest reserve and for cultivating crops there.

NONEOn Nov 12, 2010, the Tenom magistrate's court found them guilty and fined them a total of RM6,000 or 90 days imprisonment in default. They paid the fine.

The appellants had cultivated a parcel of land within the Kuala Tomani Forest Reserve without permission under the Forest Enactment.

In their defence, the appellants had contended that they had native customary rights to be on the KT Forest Reserve, submitting historical evidence to back their claim.

The magistrate's court had ruled that the natives could not claim customary rights pertaining to land gazetted as forest reserve.

Dissatisfied with the verdict, they filed an appeal to the High Court at Kota Kinabalu.

Kota Kinabalu High Court judge Justice David Wong Dak Wah, in allowing the appeal, said the magistrate, by that ruling, did not address her mind on whether the appellants could have authority to be on the land by virtue of their native customary rights.

He said the magistrate also failed to determine whether the appellants did in fact possess native customary rights for the land.

"But I fully understand the manner in which the magistrate came to her conclusion as the sections which the appellants were charged with specifically speak of ‘express authority given by and under the provisions of the Forest Enactment'.

However, he pointed out that notice should have been taken of appellants' claim of native customary rights when it was flagged before both the prosecution and defence.

Native rights legally well established

"The legal status of native customary rights in this country in my view is well established.

"The well-known case of Nor Anak Nyawai & Ors v. Borneo Pulp
Plantation s/b & Ors [2001] 2 CLJ 769 had held that customary law is a practice by the habit of the people and not the dictate of the written law; and legislation has neither abolished nor extinguished native customary rights.

"It has also been said ‘native customary rights' equates ‘right to life' under Article 5 of the Federal Constitution.

"In the circumstance, I hold that the magistrate was wrong in saying native customary rights cannot be established in a forest reserve," Wong said.

He said had the magistrate recognised the fact that the appellants could lay claim to native customary rights in a forest reserve, then the trial would have taken a different but correct course.

"The Federal Court decision in Madeli dictates that one must read section 20(1)(b)(iii) and 20(1)(c)(i)of the Forest Enactment subject to the rights of the appellants to claim native customary rights.

"What that entails is simply that the word ‘authority' in those sections of the Forest Enactment 1968 cannot be limited to authority under the provisions of the Forest Enactment.

"In short, if the appellants possess native customary rights to the land, they have the authority to be on the land to cultivate and do other things which their ‘adat' allows them.

"At this juncture, we must be reminded that this is a criminal matter which requires the prosecution to bear the burden throughout the whole trial to prove every ingredient of the offence beyond reasonable doubt.

"What that means is this - at the end of the prosecution case, a prima facie case must be established before defence is called."

He asked what were the ingredients in the offence which the appellants were charged with, and as far as this appeal was concerned, the presence of the appellants in the KT Forest Reserve was not disputed.

"What is strongly disputed by the appellants is the prosecution's allegation that they do not possess any form of authority to remain on the land.

"Since the prosecution carries the burden of proving the case in a criminal matter, the appellants cannot be found to be without authority to remain on the land unless the prosecution has successfully proved that they do not possess native customary rights.

"The basic ingredient of ‘authority' in the context of this offence is intertwined with native customary rights. Hence the prosecution has a duty to investigate the claim of native customary rights of the appellants.

"Unfortunately because of their 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 did not have any authority to remain on the land by virtue of the native customary rights claimed.

"That being the case, the consequence is simply that the appellants should have been acquitted at the end of the prosecution case," he said.

The judge said after having read he appellants' evidence with care on their claim for native customary rights and since their evidence had not been rebutted in any way, he had no doubt that the appellants had raised reasonable doubt over the prosecution's case relating to the non-existence of authority to be on the land and hence should also been acquitted at the end of the defence case.

He said the evidence presented were of the burial grounds found in the vicinity of the land, fruit trees and crops cultivated by their ancestors on the land.

The appellants have continued the practice initiated by their ancestors before the gazette came in 1984 as could be seen from the evidence of witnesses during the trial.

"Accordingly, I allow this appeal and set aside the order of the magistrate. I also order that the fine imposed by the magistrate returned to the appellants," Wong said.

The six natives were represented by Ram Singh with Fulton Mark Sitiwin while the respondent was represented by deputy public prosecutor Zairi Zainal Abidin.