Kota Kinabalu: Two farmers who entered the Sabah Park areas in Kota Belud without permits were released by entering into a bond of good behaviour for two years.
Sessions Court Judge Elsie Primus made the order for Tingkun Penimbol, 53, and Edwin Tumbai, 58, after finding them guilty of the charge against them separately, Thursday.
The court ruled that the prosecution had proven its case beyond reasonable doubt against Tingkun and Edwin who were convicted as per their respective charges.
Tingkun was convicted of entering the Taman Kinabalu area near Kg Sayap without written permission of the Board, or the Director, or any Park Officer at 11am on Nov 27, 2017.
Meanwhile, Edwin was found guilty of entering the forest area which is gazetted as a Park near Kg Lasau Mininsud, without written permission of the Board, or the Director, or any Park Officer, between 8am and 12.30pm in July 2017.
The duo was charged separately under Section 48(1)(p) of the Parks Enactment 1984 (Amended 2007) and punishable under Section 48(1)(2) of the same Enactment which provides for a jail term of up to a year, or a fine of up to RM50,000, or both, on conviction.
The order was from the date of their conviction and the respective bond shall be executed with two local sureties with bail sum of RM5,000 with RM2,500 deposited.
In handing down the sentence, the court emphasised that the court has strike a balance as far as possible between the interest of the public with the interest of the accused and believed such order will create positive attitude and foster deeper understanding on the part of the accused of the duties and responsibilities of the Sabah Parks to protect the environment and the natural heritage for the benefit not only for both the accused, but to all the people living surrounding that areas.
Under the order, both Tingkun and Edwin shall remain under the supervision of the Sabah Parks for the period of two years from the date of the order.
The conditions imposed on the duo will ensure that they practice good behaviour during the period of this bond. If they remained on good behaviour during the specified period, they will not be called back to the court and will be free once the bond period expires. The sum of RM2,500 deposited in court shall also be refunded to them.
In case of any breach of the bond of good behaviour, the court may issue a warrant for the apprehension of the accused. Once apprehended the duo is brought before the court which dealt with their original offence. If the court accepts their explanation or answer to their conduct relating to the alleged breach of the bond, the bond of good behaviour earlier executed continues. Where such a breach is clearly made, the bond of good behaviour is cancelled and the court can proceed to sentence the offender as it deems appropriate.
Earlier, in her ruling, Elsie was satisfied that both Edwin and Tingkun have entered the parks areas without written permission of the Board, or the Director, or any Park Officer authorised by the Director on that behalf.
The court also said throughout the trial, especially during the defence stage, suggestions were put and testified by the defence’s witnesses on the rights of the native, their right to livelihood and to remain in their ancestral lands.
She added that being a native herself, she perfectly understood the defence put forth by Tingkun and Edwin.
“However, this is not the right forum to determine whether Tingkun and Edwin have Native Customary Rights (NCR) in the parks area. They should follow the law, rules and procedures stipulated in the Sabah Land Ordinance. Enquiry as to native rights must be conducted.
“Unless and until there are findings in accordance with Sabah Land Ordinance affirming such rights, Edwin and Tingkun’s defence that they are natives and have rights over the said areas are devoid of merits in these two cases.
“Furthermore, this court is not empowered under the law to deal with the constitutionality of the Sabah Parks Enactment and any of its provisions. Application should be filed and heard by the High Court as premised in the Courts of Judicature Act 1964,” said Elsie in her ruling.
During mitigation, counsel Ram Singh who together with Kimberly Ye and Chen Wen Jye representing Tingkun and Edwin, asked for a bond of good behaviour to be imposed on their clients saying that both of them are first-time offenders.
Ram said both his clients are married. The duo had been cultivating, living and collecting forest produce for their livelihoods and to sustain their family’s needs.
Ram further submitted that the villagers including Tingkun and Edwin had believed that the lands they cultivated are ancestral land and acquired through “adat” (customs).
However, Deputy Public Prosecutor (DPP) Mohammed Ali Imran who together with DPP Rustam Sanip conducted the prosecution and assisted by the Sabah Parks team, urged the court to impose a deterrent sentence.
Mohammed said this was not a mere case of trespassing as the accused persons had admitted they burned down the forest and chopped down the trees.
He submitted that both accused cannot say they did now know what they did was wrong as the Sabah Parks authorities had at numerous times issued warnings and offered compounds to them but they refused to pay and this clearly showed they knew what they’ve been doing was wrong.
Mohamed further said a deterrent sentence must be considered.
During the proceedings, the villagers who were present to give support to Tingkun and Edwin were allowed to be inside the courtroom.
* Follow us on Instagram and join our Telegram and/or WhatsApp channel(s) for the latest news you don't want to miss.
* Do you have access to the Daily Express e-paper and online exclusive news? Check out subscription plans available.