Director of Forest Sarawak v Nicholas Mujah Anak Ason (01(f)-30-06/2017(Q))

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IN THE FEDERAL COURT OF MALAYSIA AT KUCHING, SARAWAK CIVIL APPEAL NO 01(f)-30-06/2017(Q)

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(ii) Whether the alleged practice of Iban to preserve an area of jungle or forest as "pulau" for access for food, wild life and forest produce, give rise to exclusive rights to the land in the "pulau".

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(iii) Whether the imposition of conditions within the Second Schedule of Gazette Notification no.760 entitles the state to retain control over areas other than cleared land or "temuda" within the Bukit Berdiri forest reserve.

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(iv) If the answer to question (iii) is in the affirmative, whether any NCR can be created within reserved land like forest reserve under the control of the state. This Appeal [19] We heard this appeal on 18 March 2019. During his oral submissions, the learned State Legal Officer ("the SLO"), representing the $ ^{3} $ $ ^{rd} $ to $ 5^{th} $ Defendants in this Appeal indicated to us that they were proceeding only on question of law captured as no. (iii) namely: "Whether the imposition of conditions within the Second Schedule of Gazette Notification No.760 entitles the State to retain control over areas other than cleared land or 'temuda' within Bukit Bediri Forest Reserve." [20] It would be pertinent to however remind ourselves, that the other allowed Questions have been, which had since been withdrawn by the $ 3^{rd} $ to $ 5^{th} $ Defendant at the eleventh hour. Of significance had been Question (i) which relates to the question pertaining to the claimed NCR of pulau galau and pemakai menoa. But it is quite apparent that the answer to that question had been provided by the Federal Court in the case of Director of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native customary rights (NCR) land situated at Rumah Sandah and Rumah Lanjang, Ulu Machan, Kanowit) and other appeals [2017] 2 MLJ 281 ("the TR Sandah case") which by majority had decided that the above-named practices among the Ibans, although admittedly customary, are nevertheless not recognised under the law of Sarawak. Only the customary practice of temuda, or clearing of virgin forest jungles for cultivation is recognised and that has a cut-off date of 1 January 1958. It must be on that consideration, we would gather, that the Questions that would have impact on that issue, had been withdrawn by the $ 3 ^{rd} $ to $ 5 ^{th} $ Defendants. There were no objections from the Plaintiffs. [21] As such, the net result of the decision of TR Sandah case [supra] on the claims of the Plaintiffs must be that their claims for NCR for those rights which are usufructuary in nature, would have to fail. Indeed, in light of the decision in the TR Sandah case [supra], albeit a split one, the position taken by the Plaintiffs to premise their claim for NCR could not stand, which decide that the practices of pulau galau and pemakai menoa, though customary, are not recognised under the law of Sarawak. [22] But, that would not completely dispose of this appeal for the simple reason that the rights of the Plaintiffs in this case were founded upon a conferment of statutory rights by the $ 3^{\mathrm{rd}} $ to $ 5^{\mathrm{th}} $ Defendants to the Plaintiffs by the former constituting a forest reserve over the Bukit Bediri forest area. The Second Schedule that comes along with the Gazette Notification No. 760 of the forest reserve at Bukit Bediri lists down the rights and privileges and the conditions imposed on their exercise within that forest reserve. It must be borne in mind that the conditions clearly and in no uncertain terms prohibited the creation of new temuda, even back in 1930's. No mention was made of pulau galau and pemakai menoa in the conditions. But the rights conferred to the Plaintiffs, who were descendants of permanent residents of the Bukit Bediri forest area, appeared to be quite similar to those practices of pulau galau and pemakai menoa, to forage for food from the forest produce, by way of hunting for wild animals and by way of fishing in the rivers or streams which run within the forest reserve of Bukit Bediri. In that sense, therefore, the rights of the Plaintiffs are statutorily created as distinguished from the claimed NCR practices which would emanate and be recognised, if at all, under the common law. [23] Hence, the concern on the part of the $ 3^{\mathrm{rd}} $ to $ 5^{\mathrm{th}} $ Defendants from the decisions of the courts below, the State authority would appear to have lost all manner of control over the forest reserve at Bukit Bediri by it imposing conditions upon the rights conferred upon the Plaintiffs, as appear in the Second Schedule. In other words, regardless of the true nature of the Plaintiffs' rights in the forest reserve, the extent of the State government's control in the forest reserve remains a live issue. Thus, through Question (iii), the $ 3^{\mathrm{rd}} $ to $ 5^{\mathrm{th}} $ Defendants were desirous of ascertaining whether the State still retained control over the forest reserve having imposed the conditions as it did. [24] The answer to Question (iii) will then be applied to the factual matrix as found by both the courts below to determine whether the Defendants were correctly found liable for the tort of trespass. As such, two issues were germane before us, namely, (1) whether the State retained control over the forest reserve ("the leave Question (iii) issue"), and (2) whether on the evidence as adduced before the HC, the finding by the HCJ, which was affirmed by the COA, that the Defendants were liable for trespass, was justified. [25] Reverting therefore to Question (iii), the learned SLO submitted before us that the decisions of the HC, as well as that of the COA in favor of the Plaintiffs, being the Respondents in this Appeal, having had acquired NCR over the entire Bukit Bediri Forest Reserve and Proposed Stika Communal Reserve, are in error. Such decisions were at odds with the provisions of the Sarawak Forest Ordinance 1953, Cap.126 ("SFO 1953"), namely Section 9. The effect of such decisions had taken away the controlling powers of the Conservator and had rendered the provisions of the SFO 1953, in relation to the Conservator's control over forest reserve, nugatory. That would, as further submitted by learned SLO, go against the presumption that the Legislature does nothing in vain. The case of Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 was cited in support thereof. [26] It was submitted before us that Section 9 of the SFO 1953 only grants limited rights or privileges over forest areas within the forest reserve. Activities such as foraging is still regulated and controlled by the Conservator. If the Plaintiffs had established customary rights over the entire forest reserve as decided by the COA, then this section would have the effect of impairing or abridging such powers of the State. [27] For ease of reference, we reproduce section 9 of SFO 1953, as below: "9(1) When a right is admitted or a privilege conceded in respect of forest produce within a forest proposed for reservation, the quantity and nature of such forest produce which may be taken or received shall be stated.

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(2) The exercise of any right or privilege shall be subject to the control of the Conservator and to such orders as he may make to regulate the local limits within which and the mode on which the right or privilege may be exercised." [28] Looking at the Gazette Notification No. 760, the Plaintiffs were entitled to forage or harvest the forest produce in those areas subject to the express conditions, but they are not entitled to create NCR over the land in the two areas. [29] So to answer Question (iii) we need to have a look at the Gazette Notification no. 760 for the Bukit Bediri Forest Reserve which was marked as Exh. D1 during the course of trial in the HC. We reproduce it below: "No. 760.- FORESTS ORDINANCE. Cap.31. In exercise of the powers conferred on him by section 12 of the Forests Ordinance, the Chief Secretary hereby constitutes, with effect from 1st June,1952, the land enclosed within the boundaries described in the First Schedule hereto a Forest Reserve subject to the rights conceded and special conditions attached specified in the Second Schedule hereto. FIRST SCHEDULE. Name: Bukit Bediri Forest Reserve. Division: First. District: Simunjan. Area: 2,458 acres approximately. Boundaries: Commencing from Land and Survey peg at the mouth of Sungei Ijok the boundaries follow cut lines bearing 77 and distance 8510 links, 120 and 4120 links, 100 and 910 links, 160 and 1600 links, 249 and 6620 links, 159 and 3220 links, 189 and 6420 links, 200 and 1350 links, 252 and 1440 links, 244 $ 15^{\prime} $ and 6680 links, 184 and 3740 links, 101 and 5400 links, 127 and 4020 links, 65 and 8470 links, 111 $ 15^{\prime} $ and 4200 links, 131 and 3210 links to the mouth of Sungei Entangor. The boundary then follows the true right bank of Sungei Sebangan for approximately 8 miles downstream to the mouth of Sungei Ijok the point of commencement. Bearings and distances are approximate and the demarcated boundaries shall be deemed to be correct. SECOND SCHEDULE The Forest Reserve is constituted for the benefit of the permanent inhabitants of the following long houses, who shall have the rights: -

Schedule

SCHEDULE Name : Stika Communal Forest Division First District : Lower Sadong Area : 4188 acres approximately Boundaries: Commencing at Kuala Sungei Stika, the boundary follows the true right bank of Sungei Stika for approximately 7300 links, thence along od Sungei Stika for $ 2 5 6^{\circ} $ for 6500 links; thence along the eastern cut-line boundary of the Sedili Forest Reserve for 16500 links meeting Kuala Sungei Blanga, thence along the true right bank of Sungei Sebangan upstream until the boundary reaches the mouth of Sungei Entangor. The boundary then follows a series of cut-lines bearing $ 3 1 1^{\circ} $ for 3210 links; $ 2 9 1^{\circ} $ 15' for 4200 links; $ 2 4 5^{\circ} $ for 8470 links; $ 3 0 7^{\circ} $ for 4020 links; $ 2 8 1^{\circ} $ for 5400 links; $ 4^{\circ} $ for 3740 links; $ 6 4^{\circ} $ 15' for 6680 links; $ 7 2^{\circ} $ for 1440 links; $ 2 0^{\circ} $ for 1350 links; $ 9^{\circ} $ for 6420 links; $ 3 3 9^{\circ} $ for 3220 links; $ 3 0 0^{\circ} $ for 4120 links and $ 2 5 7^{\circ} $ for 8510 links meeting the mouth of Sungei Ijok; thence downstream along the true left bank of Sungei Sebangan back to the point (...) Note: Bearings and distance are approximately only and the demarcated boundaries shall be considered correct.

Schedule

SCHEDULE II The Communal Forest is constituted for the benefit of the permanent inhabitants of the Long House listed below, who shall have the rights- (a)to take forest produce for their own use, and not for sale or barter; (2) (b)to exercise rights in hunting and fishing over the area; (c)to continue to farm in old "temuda" and to maintain existing rubber and pepper gardens but no virgin forest shall be felled in the Communal Forest. 1. Rumah Penghulu Berong 2. Rumah Jenta 3. Rumah Ranggau 4. Rumah Anggat 5. Rumah Apau 6. Rumah Jap 7. Rumah Mail Date 17 MAY 1961 Resident, First Division" [31] The two Forest Reserves were created for the benefit of the permanent residents of the two affected areas. Both areas were carved out as such, subject to the express conditions as stipulated therein. It was not an outright grant without any conditions. In other words, granted that the Plaintiffs were lawfully in occupation in the respective Forest Reserves, they were there under licence with the State authority's permission to do things subject to conditions. In other words, they are persons in the contemplation of section 5 of the Sarawak Land Code ("SLC"). The Plaintiffs were recognised as licensees under clear provisions of the SLC, except of course, for the old temuda within the said two Forest Reserves. [32] As such, the net effect of the two documents are, according to the $ 3^{\mathrm{rd}} $ to $ 5^{\mathrm{th}} $ Defendants as follows: [1] that existing temuda is recognised and could be continuously worked on. There will be no creation of new temuda by felling trees in virgin forest within the demarcated areas; [2] the permanent inhabitants of listed long houses were allowed to forage for food within the demarcated forests; [3] there was no total abdication of control of the usage of other activities by other persons within the demarcated forest areas. In other words, learned SLO had urged this court to answer the leave Question (iii) in the affirmative, meaning, that the state retain control over Bukit Bediri Forest Reserve. [33] For the Plaintiffs, in respect of the issue that had pertained to Question no. (iii) it was submitted that [1] from the plain reading of the Gazette, the Second Schedule does not in any manner of form give control of the land to the State. In fact, the Second Schedule does not restrict or limit the existence of the Plaintiffs' rights, but only regulates how certain types of activities, which are being exercised over the acknowledged NCR are to be carried out. There is nothing according to learned counsel for the Plaintiffs, in the Second Schedule that warrants the State to limit or regulate the nature and extent of the Plaintiffs' rights. [2] that it would be paradoxical to conclude that the Second Schedule of the Gazette or the proposed Communal Forest Gazette would allow the nature and extent of the rights of the Plaintiffs be regulated and limited by the said Gazette and the Forests Ordinance when the Forests Reserve itself were 'constituted for the benefit of the permanent inhabitants' of the longhouses named therein. It is submitted that what the conditions only proposed to do is to ensure the manner the activities carried out by the inhabitants adhere to the laws of the State. [34] Based on the above submissions, learned counsel for the Plaintiffs had urged upon us to conclude that the Question no.(iii) be answered in the negative, namely that the State had not retained control or in other words, had lost control, and then to further rule that NCR of pulau and menoa can be created within a Forest Reserve. Our deliberations and findings [35] Before proceeding further, it must be stated here that the applicable law ought to be the Sarawak Forest Ordinance 1934 ("SFO 1934") (Cap. 31), not the SFO 1953. This is because the Bukit Bediri forest reserve was constituted in 1952 and the Gazette Notification no. 760 was issued under SFO 1934. The SFO 1934 was subsequently repealed and the SFO 1953 came into being. Despite such a situation, the applicable provisions must be those contained in the SFO 1934. Although SFO 1934 was repealed, the acquired rights are saved and preserved. Section 10 (c) of Interpretation Ordinance 1953 provides as follows: "The repeal of any written law shall not- (c) affect any right, power, obligation, restriction or liability acquired, accrued, imposed or incurred under any written law so repealed;" [36] Indeed, the conditions set out in (a) and (b) in the Bukit Bediri Forest Reserve clearly subject the use of the reserve forest to the SFO 1934 and the Mining Ordinance, among others. The conditions regulating the rights to forage and hunt in the two reserve forests are statutorily based. The Gazette remained in force, and was never degazetted. The State's control had remained intact and was never superseded by any acquisition or creation of NCR as claimed by the Plaintiff. The interplay between the exercise of the right and the control by the Director of Forestry ("DOF") was captured under section 12(2) of the SFO 1934. The control by the State via the DOF was clearly retained, as could be seen in the various indicia of such elements of control, albeit it being one which is not absolute. [37] By way of reiteration, suffice to state here that since the applicable law is the SFO 1934, the continued operation of the Bukit Bediri forest reserve must be governed by law as it then stood when it was constituted and the terms peculiar to its constitution in the Second Schedule. In that regards, therefore, section 12(2) of the SFO 1934 is relevant for our consideration. [38] Section 12(2) of the SFO 1934 provides as follows: "FORESTS 12. -(1) When the period fixed under section 5 (3) has elapsed and all objections and claims, if any, have been disposed of and all lands, if any, to be included in the forest proposed for reservation have been acquired by the Chief Secretary under section 10, the Chief Secretary shall publish in the Government Gazette a notification which shall- (i) specify the limits of the forest it is intended to reserve; (ii) declare the same to be reserved from the date fixed by such notification; (iii) state the rights admitted and privileges conceded in respect of the said forest; and (iv) state the special conditions, if any, governing the reservation thereof. (2) From the date so fixed, such forest shall be a forest reserve and shall, together with all the produce thereof and things found therein, be deemed to be the property of the Government, and shall be maintained and controlled by the Director of Forestry, subject to the rights, privileges, and conditions, if any, stated in such notification." [39] This would invariably include the land, the trees, the forest produce and the fishes in the swampy areas that may exist in such a forest. In that regard, the use of the word 'things' in that sub-section clearly serves its purpose. But what would follow is at the centre of our present discourse. It goes on to provide that such forest shall be controlled and maintained by the DOF, subject to the rights, privileges and conditions, if any, stated in such notification. [40] Nevertheless having said that, as alluded to by us earlier, the control of the State over the forest reserve may not be absolute. It would depend on how the conditions that are attached to the forest reserve are being couched. We think that the learned SLO realised this. Thus, the remaining question that is left for us to answer is the extent to which the State retained, if at all, control over the forest reserve at Bukit Bediri. [41] In this case, the Notification No. 760 as published in the Gazette, was never altered, modified or deleted by any subsequent valid notification in the Gazette. Hence, the Notification No. 760 remains as a valid document. Control and the meaning of the attached conditions [42] To recap, as stated in the Second Schedule in the Gazette Notification No. 760 the permanent inhabitants had the right to the use and taking of the forest produce as in paragraph (a), to hunt game and catch fish as in paragraph (b) and to temuda as in paragraph (c). Specific individuals were also acknowledged of the rights to retain possession of rubber and pepper gardens planted prior to the constitution of the forest reserve. [43] However, the exercise of the admitted rights within the Bukit Bediri Forest Reserve is tied with the following conditions: a. The prohibition of sale or barter in the taking and collection of natural resources which are for domestic use and for boat building only. Accordingly, the quantity, manner and place of collection be subject to the control of the Conservator of Forests; b. The hunting and fishing are subject to the laws relating to such activities; c. The prohibition of felling of new virgin forest; and d. The prohibition of planting of new rubber and pepper gardens. [44] Paragraph (a) concerns the exercise of rights in respect of forest produce within a forest reserve. This is governed specifically under section 9 of the SFO 1934 which states as follows: "Section 9- (1) When a right is admitted or a privilege conceded in respect of forest produce within a forest proposed for reservation of a forest reserve, the quantity and nature of such forest produce which may be taken or received shall be stated. (2) The exercise of such right or privilege shall be subject to the control of the Director of Forestry, and to such orders as he may make to regulate the local limits within which, and the mode in which, such forest produce may be taken within the forest reserve." [45] Clearly, section 9 of the Ordinance mandated not only the statement of quantity and nature of forest produce that may be taken but also confined the exercise of such rights to the control of the DOF who shall regulate the local limits and the mode of taking the forest produce within the forest reserve. [46] In this respect, it is pertinent to state here that any failure of the right holder to submit to such control or to abide by any order made under this provision may result in the annulment of any such right either permanently or for a stated period. This may be undertaken by the Chief Secretary after such inquiry as may be deemed necessary through a notification in the Government Gazette (section 15 (b)). [47] By comparison, we must also state that even in Cap.126, section 16 provides that the exercise of the subsisting rights shall be subject to the control of the Conservator. The Conservator may make order or direction in regulating the limit or area within a forest reserve for the exercise of such rights including the mode of exercising thereof. [48] Upon a close scrutiny and analysis of the Second Schedule, we find that except for the mode of taking the forest produce, the local limits within which the forest produce may be taken is absent. This is rather significant and has consequences in the context of the circumstances pertaining to the facts surrounding this case. [49] What we can gather from the Second Schedule is that 'The Forest Reserve is constituted for the benefit of the permanent inhabitants' and the said Forest Reserve as defined in the First Schedule covers an area of 2458 acres approximately at Bukit Bediri. There is nothing in the Second Schedule that defines the local limits within the 2,458 acres whereby the exercise of such rights are limited. Neither was there any order made by the DOF that was brought to the Court's attention which regulates any local limit in respect to the exercise of such rights. [50] This aspect is important because the question for the Federal Court's determination concerns areas other than the cleared land or temuda. It is within these primary uncleared forests that the exercise of rights for taking the forest produce as at paragraph (a) and to hunt game and catch fish at paragraph (b) are admitted. [51] Hence, we are of the view that in the absence of any such limitation or order specifying a particular local limit within the Bukit Bediri Forest Reserve that the rights under paragraph (a) and (b) are exercisable by the Plaintiffs over the entire Bukit Bediri Forest Reserve. [52] In respect of other conditions subjecting the exercise of right to hunt game and catch fish to the laws on fishing and hunting, the prohibition of felling of new virgin forest and of planting of new rubber and pepper gardens, we are of the view that such conditions are crucial in achieving the object and purpose of the enactment of the Forests Ordinance 'to provide for the protection and management of the forests of the Colony, and to regulate the taking of forest produce'. [53] It is only if the right holder fails for a continuous period exceeding three years to exercise any such right that the latter (the right) may be annulled permanently (section 15 (c)). [54] Otherwise, in the absence of any breach of the conditions attached to the admitted rights by the right holder, he is entitled to quiet and peaceful enjoyment of the rights as stipulated in the Second Schedule. [55] Taken as a whole, the two forests were created for the benefit of the permanent residents of the longhouses in those two forest reserves. The fact that the two forests have conditions attached to their use for the benefit of the said permanent residents was a clear indicator, as provided by the State legislature to the effect that they be controlled and maintained by the DOF, that the creation of a reserve forest did not result in the Government losing all manner of control over the forest reserves. [56] It is with that in the background that the issue of trespass ought to be viewed and appreciated. Trespass [57] We now proceed to consider the issue of whether the court below were justified in coming to the conclusion and findings that the $ 3^{\mathrm{rd}} $ to $ 5^{\mathrm{th}} $ Defendants were liable jointly and severally for the commission of the actionable tort of trespass against the Plaintiffs. The tortious act in which the Plaintiffs are claiming compensation for is the tort of trespass, an action which is actionable per se based on interference with the possession of land, not necessarily with the ownership of it (see generally the Halsbury Law of Malaysia; Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan [2005] 1 MLJ 515). [58] This court has, in the case of Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 MLJ 1 defined trespass in the following terms: "Put simply, trespass onto land is the unlawful direct and immediate interference with the possession of land which is in the possession of another person, or which another person is entitled to possession of ..." [59] It must be stated at the outset that the Plaintiffs were in physical possession of the forest reserve where they have been living even before the constitution of the forest reserve by the state authority pursuant to SFO 1934. Their right to sue for trespass therefore could not be denied. The defence erected by the Defendants was not so much that the Plaintiffs had no locus standi to sue, but rather that they were constructing the rail line pursuant to a written permission issued to them by the purported relevant state authority. The tortious act in which the Plaintiffs are claiming compensation for is the tort of trespass. The act of trespass is a prohibition under Section 21 of the SFO 1934, which is a provision that criminalises several acts, including trespass, from being conducted within the boundaries of a forest reserve. [60] An act of trespass within a forest reserve is made an offence which is punishable under section 62 of the SFO 1934. The saving clause however is provided under section 23 of the SFO 1934 which does not prohibit or render punishable the acts done in any of the following: a. The taking of forest produce in accordance with section 9 of the admitted rights (this covers those permanent inhabitants named in the Second Schedule); or b. The exercise of any right created by grant or contract in writing under section 18 (the contract in writing under section 18 must be made by the Governor and not the Director of Forestry); or c. Any act done with the permission in writing of the Director of Forestry; or d. The taking of forest produce according to Part IV of the Ordinance. [61] Taking into account the above provisions in its entirety, we found that the language employed under section 23, read together with sections 21 and 62 define the 'criminal' aspect dealt with under the SFO 1934. [62] Having said that however, we are of the considered view that, even if there was such a permission in writing by the DOF, such permission would only be a legitimate defence if it is pertaining to a criminal prosecution for trespass. As provided above, the exceptions under Section 23 of the SFO 1934 could well be used to exonerate one from criminal liability. [63] As such, taken alone, without a corresponding change in the conditions pertaining to the rights of the Plaintiffs to forage which covers the entire forest reserve at Bukit Bediri, that written permission could not, with respect, afford a ready defence against a claim for trespass in a civil action, such as the Plaintiffs' present civil claim for trespass. [64] Even if we consider that a contract in writing may be entered into with any company with respect to any act in the forest reserve under section 18 of Cap. 31, that contract in writing must be made by the Governor, or, in the word of Cap. 126, 'contract made by the Government.' The word used in both legislations is the 'Governor' and 'Government' and not by the 'Director'. There was nothing of that sort of evidence led before the HC in this case. [65] The question posed for our determination in this appeal involves those primary uncleared forest within which rights are exercisable under paragraphs (a) and (b) of the Second Schedule. From our reading of those paragraphs, these rights are of usufructuary and communal in nature. The right to forage is akin to a usufructuary right, a right under the Civil Law system where a person may benefit from the use of another's property for as long such use does not damage or change the character of the said property that is being used. An example would be to use another's river water to generate energy but the ownership of the water itself is not impacted. The Merriam Webster Dictionary defines the term 'usufructuary right' as the legal right of using and enjoying the fruits or profits of something belonging to another. In this case, there was no dispute that the Plaintiffs were in occupation of the forest reserve with certain rights to forage the forest produce within the entire area of the said Bukit Bediri Forest Reserve. The Plaintiffs were at all material times, in legal occupation of the forest reserve. Vide the Second Schedule, among others, they were allowed subject to conditions, to forage even in the primary or virgin area of the forest reserve as long as they did not fell trees to create new temuda. [66] Premised upon the above, as there was no condition imposed on the exercise of those rights of the Plaintiffs as to local limits within which confines inside the forest reserve of Bukit Bediri, when the Second Schedule was published in the Gazette Notification No. 760, the only reasonable inference to be gathered from such deliberate omission must be that the Plaintiffs were uninhibited to exercise their rights anywhere within the demarcated area of the forest reserve. That inference becomes the more irresistible given the fact that when permission was purportedly given to the timber companies to construct a rail line traversing the forest reserve of Bukit Bediri and the Stika forest, no corresponding action was taken to notify the Plaintiffs of the same, by way of amending the conditions as to the exercise of their rights in the Bukit Bediri Forest Reserve. In the absence of the above, the undisputed act of encroachment by the Defendants was indeed a trespass upon the forest reserve, which was actionable at the instance of the Plaintiffs. At this juncture, suffice it is for us to state there exists ample evidence upon which both the courts below had found as established, that the virgin jungle where the rail line was constructed had forest produce such as 'asam payak' and fish resources like catfish, which the Plaintiffs could potentially forage in exercise of their rights as enumerated under the Second Schedule. Again, by way of reiteration, as long as the Plaintiffs did nothing to not comply with the conditions on the exercise of their rights as enumerated in the Second Schedule, they were entitled to the quiet and peaceful enjoyment of their rights in the forest reserve of Bukit Bediri. The unsolicited encroachment by the Defendants' construction of the rail line was clearly an act of trespass, for which the Plaintiffs were entitled to damages as compensation, from the Defendants. Conclusion [67] The State's entitlement to retain control over the forest reserve and its produce and things found therein is not to be determined by the existence or non-existence of the 'imposition of conditions' attached to the admitted rights in the Second Schedule of the Gazette Notification No. 760. Such determination is to be assessed according to the provisions under section 12 of the SFO 1934 where the said Notification no. 760 was made under. [68] In so much as the State retains control, the nature and extent of such control relates only in so far as the protection and management of the forests and the regulation of the taking of forest produce is concerned and not to the infringement of the admitted rights, communal and/or usufructuary rights exercisable within the areas of the forest reserve as provided for in the Second Schedule. Hence, the nature of control retained by the State is circumscribed in light of the rights admitted and conditions attached as enumerated in the Second Schedule of Notification No. 760. [69] In the absence of any local limits specified for the exercise of those admitted rights within the forest reserve, and as long as the Plaintiffs do not breach any conditions attached, they are entitled to the quiet and peaceful enjoyment of their admitted rights within the entire forest reserve. Therefore, the construction of a rail line within the forest reserve by the timber company, without any valid corresponding steps taken by the State by way of altering the conditions as appear in the Second Schedule or limiting the exercise of the admitted rights, had amounted to a trespass. [70] In essence therefore, this has been a case where the State having retained control over the forest reserve, had however failed to exercise such control within the scheme as stipulated under section 12(2) of the Forests Ordinance 1934. We think that the COA was it right when it stated as follows: [50] Further, apart from the fact that approval was given for the construction of the rail line, there is no other evidence adduced to show that pursuant to the approval, the Director of Forests had issued any direction or order that the exercise of the plaintiffs' subsisting rights be limited. In other words, there is no evidence to show that upon the issuance of the timber licence and/or the approval of the rail line, the rights of the seven longhouses and the 20 persons are subject to any other conditions imposed by the Director of Forests apart from the conditions already expressed in the Second Schedule of Gazette Notification No. 760." [Per Tengku Maimun JCA (as she then was)]. [71] Premised upon the above, we are of the unanimous and respectful view, that although the answer to the sole remaining Question (iii) pertaining to the retention of control by the State is answered in the affirmative, meaning to say that the State did retain control despite attaching the conditions, nevertheless the facts, as established in this appeal, as they related to the issue of trespass, had shown clearly that the Defendants had encroached upon the Bukit Bediri Forest reserve by constructing the rail line, albeit in the virgin jungle within the forest reserve, without the permission of the Plaintiffs, expressly or otherwise. That had amounted to the actionable tort of trespass. The findings of the HC on this issue, and which were subsequently affirmed by the COA, had been findings which were supported by the evidence as adduced before it. [72] We could not find any cogent reason as to why such concurrent findings of facts on trespass by both courts below ought to be disturbed by us. We agreed with the findings of facts made by the HCJ. She was entitled to come to her inferences and the fact that we may come to our own different inferences from her, is not in itself, a good and valid ground for us to disturb her various findings, which to our minds, were supported by the evidence. Of course there is a big caveat there, in that such an inference so reached must not be so perverse, that no reasonable person so circumstanced would have come to such conclusion in making such inference. Suffice for us to say here that we did not find the HCJ's findings to be perverse. Absent that perverse finding by the learned HCJ, her decision is entitled to its due deference from the appellate court. [See generally Onnasis & anor v. Vergottis] [1968] 2 Lloyds Rep 403]. [73] Only in a case where it has been shown to the satisfaction of the appeal tribunal that the impugned decision has been one that is plainly wrong, would the appeal tribunal weigh in and invoke its appellate power in order to right a wrong decision in plain sight. The well entrenched principle on appellate intervention of a trial court's decision has been consistently applied by the appellate courts and was reiterated by the apex Court in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. In citing Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1, the apex Court also adverted to the case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785, where it was stated that "a plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence." The English House of Lords' decision in the case of Watt v Thomas [1947] AC 484 was cited, inter alia, in support thereof. In fact, as relatively recently as in 2014, the English Supreme Court in Henderson v Foxworth Investments Ltd and Another [2014] 1 WLR 2600 ("the Henderson's case") considered and explained the 'plainly wrong' test as follows: "62. Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb "plainly" does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty that the appellate court considered that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached." [Bold provided by us for emphasis]. [74] At the risk of being repetitive, we were not convinced that the courts below had been plainly wrong in coming to their decision on these issues of control and trespass. [75] In the upshot therefore, upon considering the submission and evidence on the narrow and limited latitude provided, pertaining to Question (iii) only, we are of the considered view that the answer to that leave Question (iii) must be in the affirmative. In other words, the state retained control in the Bukit Bediri Forest Reserve. [76] We therefore allow this appeal in part. In light of the TR Sandah decision [supra], the Plaintiffs did not acquire any NCR in respect of the practices of pulau galau and the pemakai menoa in both forests. That part of the decision of the courts below is set aside. [77] However, we dismiss the appeal of the $ 3^{\mathrm{rd}} $ to $ 5^{\mathrm{th}} $ Defendants in respect of the part of the decisions of the courts below that had entered judgment against them, jointly and severally, for having committed the tort of trespass. We hereby affirm that part of the decision of the COA which had affirmed the same order by the HCJ. The assessment of damages shall be heard before another HCJ of the High Court of Sabah and Sarawak sitting at Kuching. [78] As to costs, each party to bear own costs. Order accordingly. [79] Mention date to fix the hearing date for the assessment of damages shall be within 14 days from today. Dated: 18 October 2019. Sgd. ABANG ISKANDAR BIN ABANG HASHIM Judge Federal Court of Malaysia Putrajaya Parties appearing: For the Appellant: Mr. Mohd Adzrul bin Adzlan (together with Miss Emma binti Mohd Yusri); State Attorney-General's Chambers Sarawak. For the Respondent: Mr. Joshua P. Baru (together with Miss Clarice Chan); Messrs Baru Bian. Cases referred to: 1. Boustead Pelita Tinjar Sdn Bhd (Formerly known as Boustead Pelita Plantation Sdn Bhd) v Niga Ak Ngayong & Ors and another suit [2016] 12 MLJ 406 2. Director of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors, occupiers, holders and claimants of native Customary rights (NCR) land situated at Rumah Sandah and Rumah Lanjang, Ulu Machan Kanowit) and other appeals [2017] 2 MLJ 281. 3. Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 4. Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1 5. Henderson v Foxworth Investments Ltd and Another [2014] 1 WLR 2600 6. Nor anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors [2001] 2 CLJ 769 (High Court) 7. Onnasis & Anor v. Vergottis [1968] 2 Lloyds Rep 403 8. Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan [2005] 1 MLJ 515 9. Superintendent of Lands & Surveys, Bintulu Division & Ors v Nor ak Nyawai & Ors (2005) 3 CLJ 555 (Court of Appeal) 10. Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 MLJ 1 11. Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200 12. UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 13. Watt v Thomas [1947] AC 484 Note: This copy of the Court's Grounds of Judgment is subject to formal revision.