Innocent Until Found Guilty: Bail

Dato' Haji Akhtar bin Tahir · Retired Judge of the High Court of Malaya · Senior Partner · 15 September 2026

Malaysian courts sort offences into bailable, non-bailable and unbailable, and the labels fetter their discretion. Bail should turn on the strength of the prosecution’s evidence, tested at an inquiry before trial.

1. For purposes of bail, the practice in Malaysian courts is to categorise the offences as bailable offences, non-bailable offences and unbailable offences.
2. In my view, this categorisation fetters the discretion of the courts in determining whether to grant bail or otherwise. For bailable offences, the courts are deemed to have no discretion but to allow bail. This might not reflect the actual gravity of the offence, or the propensity for witness tampering and the temptation to flee.
3. For unbailable offences, the courts are given no discretion but to deny bail. No doubt the offences for which bail is denied are usually capital punishment cases. To deny bail for such offences, to me, transgresses the principle of innocent until found guilty.
4. Only for non-bailable offences do the courts have a discretion to grant bail. The practice, however, is that in these cases only the amount of bail imposed becomes an issue. The prosecution will propose a certain sum while the accused will propose a lesser sum, and the court usually takes the middle ground.
5. In granting bail, the court fails to take into account a fundamental issue of whether the prosecution has sufficient evidence to prefer the charge against the offender. To me, the type and nature of the evidence of the prosecution should be the determinant factor in allowing or disallowing bail and the amount of bail.
6. There are countries where a proper inquiry is held to determine the nature of the evidence against the offender. It is not a full trial, but the prosecution has to call some material witnesses who are allowed to be cross-examined by the accused. What is important at this stage is the sufficiency of the evidence. Only then do the courts decide whether to grant bail or to place the offender in what is called judicial custody awaiting trial.
7. I propose that such a practice be adopted in this country, or at least that further discussions be held to decide how this can be achieved to safeguard the principle of being innocent until found guilty.