Provision for a road is particularly important in Sabah where the only access to much of the State is by logging road. The Chief Conservator of Forests or a licensee that he has so authorized may exercise a right of way over alienated land for the purpose of extracting produce from a forest reserve. The right of way is subject to payment for "actual damage done to property but not in respect of the actual land concerned" (Section 18).
Offences and Enforcement
Violations of the protective provisions (damage of forest reserve through fire, prohibited acts in a forest reserve, illegal logging and removal from other areas, cutting of undersized trees) are punished by fine and imprisonment in the case of unauthorized entry for interference with fences or notice boards, by a fine alone [id. Section 20(1)(C) and 33(1)]. Various offences of fraud, concealment of evidence and receiving forest produce are also punished by fine and imprisonment (id. Section 30).
In addition to fines and imprisonment, the Forest Enactment authorizes the court to order the cancellation of licences, the payment of any fees that would have been payable in the case of unlicensed acts that could have been licensed, and compensation of ten times the value of forest produce removed or damaged (Enactment No. 2 of 1968, Section 34). There is also provision for compounding of certain offences [entering closed area, practising shifting cultivation (id. Section 20(C)], subject to the payment of an amount based on the fine provided for the offence (Section 35).
The Forest Enactment contains a number of presumptions that shift the burden of proof to the defendant charged with a forest offence. In prosecutions against licensees, if there is an extraction route from an area of alleged illegal removal to the licensed area, or if the volume of timber claimed to be covered by a licence exceeds the production of the licensed area, the elements of illegal removal or of possession of produce in respect of which an offence has been committed are presumed. In any case in which the existence of a licence, payment of any royalty, ownership of livestock or forest produce, or the provenance of forest produce is in issue, the burden of proof lies on the accused (id. Section 38) .
Power of Officers
The Forest Enactment empowers forest and police officers to conduct searches without warrant (except in dwellings), seize forest produce, and equipment and arrest suspected offenders where they are unlikely to appear on summons or refuse to identify themselves correctly (Section 36). Forest officers do not have the powers of ranking police officers to testify to statements made by an accused (cf. Malaysia Crim. Pro. Code, F,M,S. Cap. 6), although some seizures might have the same effect.
Section 36(2A) of the Forest Enactment 1968 outlines the general powers of the forest officer in relation to any investigation in respect of any forest offences. All investigation paper (I.P.) shall be submitted to the Deputy Public Prosecutor (DPP) for further scrutiny and his learned advice before any action may be taken or legal proceedings to be instituted against the offender.
Efforts have also been initiated to train forests officers (Ranger and above) from time to time in conducting investigation as well as in the preparation of investigation paper (I.P.).