Malaysia legislation
Section 38
Section 38
(2)
Where in a prosecution for a forest offence it is alleged that any royalty has not been paid or some payment due has not been made, the onus of proving the payment of such royalty or the making of such payment shall lie upon the accused.
(3)
Where in a prosecution for a forest offence, it is alleged that any forest produce was cut, collected, converted, fell or removed from a Forest Reserve or on any State land or removed beyond the boundaries of any alienated land, it shall be presumed to have been so cut, collected, converted, fell or removed, unless the contrary is proved.
(4)
Any livestock found in a Forest Reserve shall be deemed to have been caused or permitted to be in such Reserve by the owner of such livestock unless he proves the contrary.
(5)
When in any proceedings taken under this Enactment or the rules, or in consequence of anything done thereunder, any question arises as to whether any forest produce is the property of the
State, such produce shall be deemed to be the property of the State until the contrary is proved.
(6)
In any prosecution under paragraph (d) of section 30 of this Enactment, any licence or document which is proved to have been altered, defaced or counterfeited shall, until the contrary be proved, be presumed to have been so altered, defaced or counterfeited by the person in whose possession it was found or who has relied or attempted to rely thereon as authority for the doing of any act which would otherwise have been unlawful.
(7)
Where in a prosecution for a forest offence under paragraph (g) of section 30 against a licensee, it is alleged that such licensee has in his possession, custody or control forest produce in respect of which a forest offence has been committed, it shall be presumed until the contrary is proved, that such licensee has in his possession, custody or control forest produce in respect of which a forest offence has been committed if it is proved that the volume of timber produce purportedly under his licence exceeds the volume of timber produced from his licensed area.
(8)
Where in a prosecution for a forest offence under –
(a)
subsection (2) of section 20;
(b)
paragraph (b) of subsection (1) of section 23; or
(c)
subsection (2) of section 23, against the holder of a licence or licence agreement, his agents or servants, it is alleged that such person did cut, collect, convert, fell or remove any forest produce illegally, it shall be presumed until the contrary is proved that he did cut, collect, convert, fell or remove such forest produce illegally, if it is proved that timber extraction routes, paths or roads exist between the area under his licence or licence agreement and the area in which the illegal cutting, collection, conversion, felling or removal of the forest produce is alleged to have been committed.
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(8A)
Where in a prosecution for a forest offence under-
(a)
subsection (2) of section 20;
(b)
paragraph (b) of subsection (1) of section 23; or
(c)
subsection (2) of section 23, against any person, it is alleged that such person did cut, collect, convert, fell or remove any forest produce illegally, it shall be presumed until the contrary is proved that he did cut, collect, convert, fell or remove such forest produce illegally, if it is proved that timber extraction routes, paths or roads exist between the place where he is found and the area in which illegal cutting, collection, conversion, felling or removal of the forest produce is alleged to have been committed.
(9)
Where in a prosecution for a forest offence, in so far as it may be necessary to establish the offence charged, it shall be presumed until the contrary is proved –
(a)
that any map, plan or chart purporting to be made by the authority of the Chief Conservator is so made and accurate;
(b)
that any mark placed on any tree, timber or any boundary mark of an area under a licence within a Forest Reserve or State Land placed by or under the authority of a forest officer has been so placed and is accurate;
(c)
that any person found within a Forest Reserve or State Land in possession of any forest produce has taken or removed such forest produce without a licence issued under this
Enactment; and
(d)
that any person found within a Forest Reserve or State Land in possession of any machine, equipment or conveyance as specified in the First Schedule intends to cut, collect, convert, fell, take or remove any forest produce.
(10)
In any prosecution for a forest offence, it shall be presumed until the contrary is proved that any timber found within the boundaries of the State shall be “forest produce” within the meaning as defined in section 2 of this Enactment.
(11)
Any machine, equipment or conveyance as specified in the First Schedule found in a Forest
Reserve or State land shall be presumed to have been used or intended to be used to cut, collect, convert, fell, take or remove any forest produce without authorisation of the Chief Conservator unless the contrary is proved.
(12)
If any forest produce is found in an alienated land, which land is adjacent to a Forest Reserve or State land and where timber extraction routes, paths or roads exist between such alienated land and
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the Forest Reserve or State land, the owner or occupier of such alienated land is presumed to have cut, collected, converted, fell, taken or removed such forest produce from the Forest Reserve or State land without any lawful authority or legal right unless the contrary is proved.
(13)
Any person who, without lawful authority or legal right keeps or has in his possession, custody or control of any form of gaharu is presumed to have in his possession, custody or control of a forest produce of which, is involved in a forest offence or presumed to have collected it from a Forest Reserve,
State land or alienated land until the contrary is proved.
Civil remedies preserved.