Injunction against P’pang hill-cutting
Published on: Sunday, November 03, 2019
By: Oswald Supi
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KOTA KINABALU: In what is considered a first in the Environment Court of Kota Kinabalu, three people, representing themselves as well as residents living along the banks of Moyog River, won an injunction against five defendants over massive hill-cutting affecting the said river.

High Court Judge Azhahari Kamal Ramli granted all the applications by the plaintiffs against the first defendant, namely geese farmer/businessman Oii Say Tuan, ruling that Oii by himself or agents shall: 

l Cease all activities on three mentioned titles of land, including hill cutting and earthworks, in accordance with the first term of Consent Order signed between the plaintiffs and the first defendant on June 27, 2019;

l First defendant to comply with the terms of notice of abatement dated Nov 9, 2016 by the Environment Protection Department Sabah, which is also the fourth defendant;

l First defendant to pay cost of RM300,000 to the plaintiffs in accordance with the said consent order;

l Personal service of this order to the first defendant be dispensed with; and

l In the event the first defendant defaulted in complying, the plaintiffs are at liberty to apply for an order of committal, meaning sent to jail.

The counsel for the State Attorney, representing the second to fifth defendants, namely the District Officer of Penampang, Director of Lands and Surveys, Director of Environment Protection Department and the State Government of Sabah, did not contest the applications. 

However, they requested for an extension of time to execute the consent orders signed between the plaintiffs and them on Dec 7, 2018. This request was denied by the court. 

The plaintiffs are also at liberty to apply for an order of committal against the 2nd to 5th defendants if in default or failure to execute the said order.

The grounds of the application were simply the failure of all the defendants to comply with the Consent Orders they have previously agreed to. The original case was filed by the plaintiffs, including one Elios @ Randi Payu, in December 2017, but hearings were delayed by massive preparation of the case considered first of its kind. 

The Environment Department and the Government are supposed to take environment offenders to court, but instead they are the defendants. Initially the parties chose to conclude via the two separate Consent Orders.

After the first defendant signed his Consent Order, he was quoted in a Daily Express report in July as denying all the responsibility of the muddy water of the river with his big dreams of making the river a tourism spot.  He also showed reporters one worker planting grass at the edge of his earthworks.

He also blamed the surrounding villagers of carrying out illegal logging on his land which contradicts the fact that the trees are knocked down when the hills are levelled for his geese and vegetable farms.

During the first day of hearing, the first defendant applied for postponement to submit a written reply to the injunction claiming he has hearing difficulties, but the judge instead continued the hearing in his chambers. 

Afterwards in the open court, several recent videos taken by the plaintiffs from June 28 to July 2 via drone camera clearly showed continued hill cuttings and large areas of bare soils and steep slopes devoid of vegetation.

Prior to the court decision, the first defendant submitted an objection to the drone videos claiming they were illegally obtained evidence. However, the judge overruled, saying it was not illegal and, at the same time, even illegally obtained evidence can be admissible if relevant to the case and not prejudicial against any party.

Colin Lau and partners represented the plaintiffs. The first defendant chose to defend himself while the State Attorney represented the Government.


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