Forest Timber Enactment 2015

This Enactment may be cited as the Forest (Timber) Enactment 2015.

This Enactment comes into operation on a date to be appointed by the

Minister by notification in the Gazette.

Interpretation

to implement control and monitor export and import of timber;

to gather information on, and maintain records of all relevant matters relating to, the timber industry;

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to carry out research, review and investigation, that are beneficial or appropriate to the carrying out of his functions;

to issue licences, certificates and approvals in respect of the timber industry;

to keep and maintain the register;

to impose fees or charges; and

to do all things expedient and necessary for or incidental to the performance of his functions and powers under this Enactment.

Power to delegate

The Director may in writing delegate any of his functions or powers subject to such conditions, limitations or restrictions as he thinks fit, to any forest officer, and such person to whom the functions or powers is delegated shall perform the functions and powers in the same manner and with the same effect as if the functions or powers had been conferred on him under this Enactment.

A person purporting to act pursuant to a delegation made under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

A delegation made under this section may at any time be revoked by the

Director.

A delegation made under this section shall not preclude the Director himself from carrying out at any time the delegated functions or powers.

No person shall carry on any activity relating to timber industry as -

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Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Application for registration

An application for registration under this Enactment shall be made to the

Director in the prescribed manner.

Every application under subsection (1) shall be accompanied by the prescribed fee and such documents and information as maybe specified by the Director.

The Director may, in writing, at any time after the receipt of an application under subsection (1), request the applicant to give to the Director within the period specified in the request, additional information, particulars or document on the application.

If any additional information, particulars or document required under subsection (3) is not given by the applicant within the period specified in the request or any extension of time granted by the Director, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without affecting the right of the applicant to make a fresh application.

Registration and refusal of registration

Upon receipt of an application made under section 6 and after given due consideration, the Director may -

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The certificate of registration may be issued subject to such conditions as the Director thinks fit to impose.

Where the Director refuses the registration of application in pursuance of subsection (1), he shall inform the applicant by a written notice that the application has been refused and the reasons for the refusal.

Every registration under this section shall be valid for a period of one year, or for such longer period but not exceeding five years as the Director may determine, from the date of registration and may be renewable, unless sooner cancelled under section 10, at the discretion of the Director for such further period of not less than one year but not exceeding five years as the Director thinks fit.

No person who is not an incorporated person shall be registered under this section unless there is in respect of his business a valid certificate of registration of business issued under any written law in force in Malaysia relating to the registration of businesses.

Any person who carry on any activity relating to timber industry without registration in pursuance to paragraph (1) (a) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Power to impose additional conditions or to vary conditions

impose any additional condition on the registration of timber industry; or

vary any of the conditions imposed on the registration of timber industry.

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Renewal of registration

Any registered person may make an application for the renewal of a registration not later than sixty days before the expiry date of the registration in the manner and form as may be determined by the Director and the application shall be accompanied with the prescribed renewal fee and such documents as may be required by the Director, but no application for renewal shall be allowed where the application is made after the expiry date of the registration.

When renewing the registration, the Director may vary the conditions imposed upon the issuance of the certificate of registration or impose additional conditions.

The Director may refuse to renew a registration if the registered person -

Where the Director refuses to renew the registration in subsection (3), he shall inform the registered person by a written notice that the application for renewal has been refused and the reasons for the refusal.

Cancellation of registration

Subject to subsection (2), the Director may cancel the registration of a registered person who -

Before the cancellation of the registration under subsection (1), the Director may, by notice in writing, give the registered person an opportunity to show cause against the cancellation.

Where the registration of the registered person is cancelled, the Director shall issue a notice of cancellation of registration to the registered person.

A person whose registration is cancelled shall not be entitled to any compensation for any loss caused to him by the cancellation and shall not be entitled to any refund of the prescribed registration fee paid.

A person whose registration has been cancelled and who continues to carry on any timber industry activity thereafter commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Register

An exporter or importer shall make a declaration to the Director in respect of timber to be exported or imported, before the exportation or importation of such timber.

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Presumption as to export

a licence or certification for its exportation has been issued by the Director;

it has been cleared by a proper officer of customs at the last customs station on its route out of Sabah;

it has been loaded onto a vessel or aircraft which is about to depart from a port or jetty in Sabah; or

it has been cleared by a proper officer of customs at an inland clearance depot or at an inland customs station on its route out of Sabah through a port or airport.

An enforcement officer may investigate the commission of any offence under this Enactment.

For the avoidance of doubt, it is declared that for the purposes of this

Enactment, the enforcement officer shall have all or any of the powers of a police officer of whatever rank in relation to police investigations in seizable cases as provided under the

Criminal Procedure Code [Act 593], and such powers shall be in addition to the powers provided for under this Enactment and not in derogation thereof.

Authority card

The Director shall issue to each enforcement officer appointed under section 14 an authority card which shall be signed by the Director.

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Whenever an enforcement officer exercises any of the power of enforcement under this Enactment, he shall, on demand, produce to the person against whom the power is being exercised the authority card issued to him under subsection (1).

Power of arrest

An enforcement officer or police officer may arrest without warrant any person whom he reasonably believes has committed or is attempting to commit an offence under this Enactment.

An enforcement officer making an arrest under subsection (1) shall without unnecessary delay make over the person so arrested to the nearest police officer or, in the absence of the police officer, take such person to the nearest police station, and thereafter the person shall be dealt with as provided for by the law relating to criminal procedure for the time being in force as if he had been arrested by a police officer.

Search and seizure with warrant

If it appears to the court, upon written information on oath from the enforcement officer and after such enquiry as the court considers necessary, that there is a reasonable cause to believe that -

Without affecting the generality of subsection (1), the warrant issued by court may authorize the enforcement officer to -

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An enforcement officer entering any premises or conveyance under this section may take with him such other persons and equipments as may appear to him to be necessary.

An enforcement officer conducting a search under subsection (1) may, for the purpose of investigating into the offence, search any person who is in or on the premises or conveyance.

No person shall be searched except by another person of the same gender, and such search shall be conducted with strict regard to decency.

An enforcement officer may, in the exercise of his powers under this section, if it is necessary so to do -

If, by the reason of its nature, size or amount, it is not practicable to remove any timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized under this section, the enforcement officer shall, by any means, seal such timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing in the premises or conveyance in which it is found.

A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (7) or removes any timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing under seal or attempts to do so commits of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Search and seizure without warrant

inspecting any timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing as he considers necessary;

verifying the accuracy of records or statements or any information given to an enforcement officer; or

collecting samples of any timber.

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Access to computerized data

An enforcement officer conducting a search under this Enactment shall be given access to computerized data whether stored in a computer or otherwise.

For the purpose of this section, "access" includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable the comprehension of computerized data.

Power to stop, examine and seize conveyances

If an enforcement officer has reasonable cause to suspect that any conveyance is carrying any timber, machinery, contrivance, equipment, book, record, document, computerized data or any other thing in respect of which an offence under this

Enactment is being or has been committed, he may stop and examine the conveyance and may, if on examination he has reasonable cause to believe that such conveyance is or has been used for the commission of such offence, seize such conveyance and any timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing found in the conveyance that is reasonably believed to furnish evidence of the commission of such offence.

The person in control or in charge of the conveyance shall, if required to do so by the enforcement officer -

Any person who contravenes subsection (2) commits of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

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List of timber, machinery, contrivance, etc., seized

Except as provided in subsection (2), where any timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing is seized pursuant to this Enactment, the enforcement officer making the seizure -

The written notice of the seizure shall not be required to be served in pursuance of paragraph (1) (b) where the seizure is made in the presence of the person against whom proceedings under this Enactment are intended to be taken, or in the presence of the owner of such property, as the case may be.

If the premises is unoccupied, the enforcement officer shall post a copy of the list of the timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized conspicuously on the premises.

Where the seizure is made by an enforcement officer and the owner of the timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized is unknown, the Director may publish the list of timber, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized in any manner as he thinks fit.

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Temporary return of conveyance, etc., seized

Where any conveyance, machinery, contrivance or equipment is seized under this Enactment, the Director may temporarily return the conveyance, machinery, contrivance or equipment to the owner of the conveyance, machinery, contrivance or equipment or the person from whose possession, custody or control it was seized, subject to such terms and conditions as the Director may impose, and subject in any case, to sufficient security being furnished to the satisfaction of the Director that the conveyance, machinery, contrivance or equipment shall be surrendered to the Director on demand and that such terms and conditions, if any, shall be complied with.

Where any seized conveyance, machinery, contrivance or equipment is temporarily returned under subsection (1), a person who -

The Director may at any time direct that any timber seized under this

Enactment be sold and the proceeds of the sale be held while waiting for the result of any prosecution under this Enactment where -

The Director may, in his discretion -

Notwithstanding subsection (1), where an analyst appointed under section 39 certifies, or if the results of such tests as certified by the analyst proved, that the timber tested by him deteriorates in quality, the Director may keep it in custody, or if no prosecution is instituted in respect of the timber, cause it to be disposed of in the manner determined by the Director.

Release of timber, etc., seized

If any timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing has been seized under this Enactment, the enforcement officer who effected the

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seizure, may at any time after that release the timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing to the person as he determines to be lawfully entitled to it, if the timber or the proceeds of sale of the timber, conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing is not liable to forfeiture under this Enactment, and is not otherwise required for the purpose of any proceedings under this Enactment or any regulations made under this Enactment, or for the purpose of any prosecution under any other written law, and in such event neither the enforcement officer effecting the seizure, nor the Government shall be liable to any proceedings by any person if the seizure and the release of timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing had been effected in good faith.

A record in writing shall be made by the enforcement officer effecting the release of the timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing released under subsection (1) specifying in detail the circumstances of and the reason for the release.

No costs or damages arising from seizure to be recoverable

refuses any enforcement officer access to any premises or conveyance which the enforcement officer is entitled to have access to under this

Enactment or in the execution of any duty imposed or power conferred by this Enactment;

assaults, obstructs, hinders, prevents or delays any enforcement officer in effecting any entry which the enforcement officer entitled to effect under this

Enactment, or in the execution of any duty imposed or power conferred by this Enactment; or

refuses any enforcement officer any information relating to an offence or suspected offence under this Enactment or any other information which may be reasonably required of him and which he has in his knowledge or power to give, commits of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Power to require attendance of persons acquainted with case

An enforcement officer making an investigation under this Enactment may, by order in writing, require the attendance before himself of any person who appears to the enforcement officer to be acquainted with the facts and circumstances of the case, and such person shall attend as so required.

If any person refuses or fails to attend as so required, the enforcement officer may report such refusal or failure to a court who shall issue a summons to secure the attendance of such person as may be required by the order made under subsection (1).

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Examination of persons acquainted with case

An enforcement officer making an investigation under this Enactment may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

Such person shall be bound to answer all questions relating to the case put to him by the enforcement officer, but he may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

A person making a statement under this section shall be legally bound to state the truth, whether or not such a statement is made wholly or partly in answer to questions.

The enforcement officer examining a person under subsection (1) shall first inform that person of the provisions of subsections (2) and (3).

A statement made by any person under this section shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish.

Admissibility of statements in evidence

Except as provided in this section, no statement made by any person to an enforcement officer in the course of an investigation made under this Enactment shall be used in evidence.

When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by that witness to the enforcement officer in the course of the investigation under this Enactment and may then, if the courts thinks fit in the interest of justice, direct the accused to be furnished with a copy of it and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act 1950 [Act 56].

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Where the accused had made a statement during the course of an investigation, such statement may be admitted in evidence in support of his defence during the course of the trial.

Nothing in this section shall be deemed to apply to any statement made in the course of an identification parade or falling within section 27 or paragraphs 32 (1) (a) (i)

and (j) of the Evidence Act 1950.

When any person is charged with any offence in relation to the making or the contents of any statement made by him to the enforcement officer in the course of an investigation made under this Enactment, that statement may be used as evidence in the prosecution’s case.

Forfeiture of timber, etc. seized

Any timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized in exercise of any power conferred under this Enactment shall be liable to forfeiture.

An order for the forfeiture of the timber or the proceeds of sale of the timber, or the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing shall be made if it is proved to the satisfaction of the court that an offence under this Enactment has been committed and that the timber or the proceeds of sale of the timber, or the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing was the subject matter of or was used in the commission of the offence, even though no person has been convicted of such offence.

If there is no prosecution with regard to any timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized under this Enactment, such timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing shall be taken and deemed to be forfeited at the expiration of a period of one calendar month from the date of service of the notice to the last-known address of the person from whom the timber or the proceeds of sale of the timber, or any conveyance,

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machinery, contrivance, equipment, book, record, document, computerized data or other thing was seized indicating that there is no prosecution in respect of such timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing unless before the expiration of that period a claim to it is made in the manner set out in subsections (4), (5), (6) and (7).

Any person asserting that he is the owner of the timber or the proceeds of sale of the timber, or of the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing referred to in subsection (3) and that it is not liable to forfeiture may personally or by his agent authorized in writing, give written notice to the enforcement officer in whose possession such timber or the proceeds of sale of the timber, or the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing is held that he claims the timber or the proceeds of sale of the timber, or the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing.

On receipt of the notice referred to in subsection (4), the enforcement officer shall refer the matter to the Director who may direct that the timber or the proceeds of sale of the timber, or the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing be released or may direct the enforcement officer to refer the matter to a court.

The court to whom a matter is referred under subsection (5) shall issue a summons requiring the person asserting that he is the owner of the timber or the proceeds of sale of the timber, or of the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing and the person from whom it was seized to appear before the court, and when the owner of the timber appears or fails to appear, due service of the summons having been proved, the court shall proceed to the examination of the matter.

If it is proved that an offence under this Enactment has been committed and that the timber or the proceeds of sale of the timber, or the conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing referred to in subsection (6) was the subject matter of or was used in the commission of such offence, the court shall order the timber or the proceeds of sale of the timber, or the

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conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing to be forfeited, and shall, in the absence of such proof, order its release.

Any timber or the proceeds of sale of the timber, or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing forfeited or deemed to be forfeited shall be disposed of in such manner as the Director thinks fit.

The Director shall not be liable to any person for any deterioration, no matter how arising, in the quality of any timber seized under this Enactment.

Property right in forfeited timber, etc.

An enforcement officer may demand, select, take or obtain samples of any timber for the purposes of analysis without payment from any person planting, producing, selling or having possession of such timber or his agent or servant from whom the samples is procured.

The procedure for taking in dealing with the samples shall be as prescribed.

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Power of the Director to require information on timber, etc.

The Director may by notice in writing require any person undertaking any activity involving timber to furnish to the Director, within the time specified in the notice, information relating to timber.

Any person who fails to furnish any information relating to timber as required under subsection (1) commits of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Additional powers

An enforcement officer shall, for the purposes of the implementation of this

Enactment, have power to do all or any of the following acts:

Any person who fails to comply with the request made under subsection (1)

commits of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Appointment of analyst

A certificate of analysis signed by an analyst shall, on production by the

Director in any trial under this Enactment, be sufficient evidence of the facts stated in the certificate unless the accused requires that the analyst be called as a witness, in which case he shall give a written notice to the Director not less than three working days before the commencement of the trial.

Where the Director intends to give in evidence any certificate referred to in subsection (1), he shall deliver a copy of such certificate to the accused not less than ten working days before the commencement of the trial.

If a body corporate commits an offence under this Enactment or any regulations made under this Enactment, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management –

If any person would be liable under this Enactment or any regulations made under this Enactment to any punishment or penalty for his act, omission, neglect or default, he shall be liable to the same punishment or penalty for every such act, omission, neglect or default of any employee or agent of his, or of the employee of the agent, if the act, omission, neglect or default was committed –

The Director may compound any offence committed by any person under this Enactment or any regulations made under this Enactment and prescribed to be a compoundable offence by making a written offer to such person to compound the offence upon payment to the Director of such amount not exceeding fifty per centum of the amount of the maximum fine for that offence within such time as may be specified in the offer.

An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted.

If the amount specified in the offer made under subsection (1) is not paid within the time specified in the offer or within such extended period as the Director may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.

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Where an offence has been compounded under subsection (1), no prosecution shall be instituted in respect of such offence against the person to whom the offer to compound was made and any timber or any conveyance, machinery, contrivance, equipment, book, record, document, computerized data or other thing seized under this

Enactment or any regulations made under this Enactment in connection with the offence may be released or forfeited by the Director, subject to such terms and conditions as the

Director thinks fit to impose in accordance with the conditions of the compound.

Prosecution

the Director, forest officers or enforcement officers; and

any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of the

Director, forest officers or enforcement officers, if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it and for the carrying into effect the provision of this

Enactment.

Public Authorities Protection Act 1948