Innocent Until Found Guilty

Dato' Haji Akhtar bin Tahir · Retired Judge of the High Court of Malaya · Senior Partner · 11 September 2026

In Malaysia a conviction after full trial is routinely stayed pending appeal. A man convicted of rape walked his kampung for eight years while his appeal sat in an archive.

1. This oft-repeated adage is very much a part of the criminal justice system, not only in Malaysia but around the world. It is meant to safeguard the personal liberty of a person charged with a criminal offence, and it does serve a useful and beneficial purpose.
2. In the Malaysian context, however, the adage seems to have been extended beyond what it is meant to safeguard. This will become clear as I elaborate further.
3. Before elaborating, what needs to be understood is the judicial hierarchy in Malaysia. The courts are divided between the Subordinate Courts and the Superior Courts. The Subordinate Courts comprise the Magistrates' Court and the Sessions Court. The Superior Courts comprise the High Court, the Court of Appeal and the Federal Court.
4. For the purpose of this discussion, it is important to note that the Subordinate Courts are purely trial courts. The High Court is both a trial court and an appellate court. The Court of Appeal and the Federal Court are purely appellate courts.
5. In a trial court, an accused brought before it is given the option to plead guilty or to claim trial. Where he pleads guilty, he is convicted forthwith, without the necessity of witnesses being called, and is thereupon sentenced according to law. The general rule is that where an accused pleads guilty and is found guilty, his sentence is enforced immediately.
6. Where an accused claims trial, he can be found guilty and convicted only after witnesses are called and the court is satisfied that the charge against him is proven beyond reasonable doubt. It needs to be noted that the phrase “beyond reasonable doubt” connotes a high degree of certainty.
7. Once a person is convicted, it means he is no longer innocent. He is to be regarded as a convict. In the Malaysian context this does not seem to be the case, and, as I have said, the scope of the adage has been extended and diverted from its original purpose. Here it would seem that the accused remains innocent until his final appeal is heard and disposed of. That may take a few years.
8. In the meantime, the sentence is stayed upon the bail amount being doubled, and sometimes upon his reporting to a police station on a scheduled basis, the rationale being that he does not flee in the interim period. But he remains innocent in the eyes of society.
9. In other words, the convict is free as a bird until the final appeal is heard, which might take years. He can virtually slip into society unnoticed and go about his daily chores exactly as he did before he was convicted.
10. The rationale for a stay of sentence is often touted as a safeguard against an erroneous finding by the trial judge. Is that doubt about the judgment of the trial judge justified? To me, this niggling doubt about the capability of a trial judge questions his very integrity. Although a very high standard of proof is required to convict, the system seems not to be confident of the conviction it has entered. That is unfair not only to the trial judge, but also to the enforcement agencies who have worked tirelessly to bring the charge.
11. A more serious concern is that a convict roaming free in society may be a danger to it. The concern is real, and it came before me when I was posted as a High Court Judge in a certain state. A letter was delivered to me from the father of a daughter who had been raped. The offender had been convicted and sentenced to imprisonment, but had appealed against the conviction and, as normally happens, was granted a stay of both conviction and sentence. He had been moving freely in the kampung for eight years, and this prompted the father to write to me.
12. On receiving the letter and checking the records, I was shocked to find that the appeal had not moved beyond the Notice of Appeal, and that the appeal itself was lying in the archives of the Subordinate Courts. I immediately directed that a warrant of arrest be issued against the offender and that he be brought before the court.
13. This might have been an isolated incident, but it brings to the fore the need to look seriously at the issue of being found guilty after a full trial, and to take corrective measures, which I will elaborate on in Part 2.
14. At the other end of the spectrum are offenders charged with offences regarded as non-bailable. In these cases bail is not allowed, regardless of whether there is even prima facie evidence against the person charged. Regardless of the adage innocent until proven guilty, these offenders are incarcerated for a number of years before the trial finally proceeds.
15. I have tried a number of such offenders, and there have been many cases where the prosecution failed to prove even a prima facie case, or to adduce an iota of the evidence required under the law, leaving the court with no choice but to free the accused. By then the damage had been done: the accused had lost years of his life.
16. I will discuss my suggestion for such offences in Part 3.