Years in detention without bail, acquitted of drug charges: A gross injustice

Yusoff Rawther’s case highlights the draconian provision in the Dangerous Drugs Act 1952 (DDA), where the accused was denied bail by law.

Yusoff Rawther was arrested on 6 September 2024 after police said they found two pistols and 305g of cannabis in his car parked outside the Dang Wangi Police headquarters in Kuala Lumpur, according to the charge sheet.

He was charged a week later under Section 39B of the Dangerous Drugs Act 1952, and he was in detention for about nine months … because the law says there is no bail.

Section 41B(1) of the DDA now states:

Bail shall not be granted to an accused person charged with an offence under this Act – (a) where the offence is punishable with death; or…

The Section 39B drug trafficking offence carries a sentence of death or life imprisonment, and as such bail, by law, cannot be granted.

In Malaysia, even those charged with more serious offences like murder have been in some cases allowed bail.

But for drug trafficking, the law says “bail shall not be granted to an accused person”.

Parliament decided, not judges, that they will not be released on bail.

Judges must be trusted to consider all relevant factors in particular cases in making a decision to grant bail or not. Parliament should not enact laws that oust the jurisdiction of judges to decide on bail.

Hence, Parliament has wrongly encroached into the powers of judges, who ought to be the only people who decide whether an accused person is granted bail or not.

This is also consistent with the legal presumption of innocence until proven guilty in a fair trial. The presumption of innocence is a key component of fair trial rights, as outlined in Article 11 of the Universal Declaration of Human Rights.

Gross miscarriage of justice occurs when those accused of drug trafficking have to unjustly languish in prison as pre-conviction prisoners and when they are ultimately found not guilty by court, and acquitted. They end up wasting years of their life, sometimes even more than four years in pre-conviction detention before being acquitted. In Malaysia, there is still no compensation law for such unjust pre-conviction incarceration of those finally found not guilty by a court.

In 2025, it has been reported that many who were accused of drug trafficking have been found not guilty and acquitted.

…The trio, previously livestock breeders, had been charged with trafficking 6.2kg of methamphetamine and possessing 58.68 litres of liquid containing methamphetamine in 2019… the trial, which began in 2023. – New Straits Times, 6 March2025

This meant they suffered unjustly about six years of pre-conviction detention.

…two men who escaped the gallows after the Johor Baru High Court acquitted and discharged them of a drug trafficking charge… accused of committing the offence using a boat near a homestay at Telok Sengat, Kota Tinggi on May 22, 2020… “I hereby acquit and discharge both accused,” Kan [High Court Judge Kan Weng Hin] said at the High Court here on Friday (14 March)… – The Star, 14 March 2025

Here they suffered almost five years of unjust detention.

A security guard and his girlfriend was today acquitted by the High Court of three drug trafficking and possession charges four years ago. They had allegedly committed the offences at 10.30pm at an apartment in Petaling Jaya on March 22, 2021. – New Straits Times, 12 February 2025

Here, it was almost four years.

A man was acquitted and discharged by the Court of Appeal of a charge of trafficking in 151.60gm of methamphetamine… On May 10 last year, the Shah Alam High Court sentenced Wan Efizan, 37, to 30 years in prison and 12 strokes of the cane after finding him guilty of trafficking in methamphetamine… The offences were allegedly committed at a house in Taman Sri Bayu, Sungai Pelek, Sepang, Selangor, about 10.30am on May 2, 2020. – Free Malaysia Today, 21 May 2025

Malaysians Against Death Penalty and Torture (Madpet) is appalled that generally, the trials of those who are languishing in prison are not expedited.

In one of the above cases, it was shown that despite (the accused) being arrested and charged in 2019, the trial only began in 2023.

Madpet calls for the trial of all those in pre-conviction detention to be expedited. The trials should be finished fast, preferably in not more than three to six months, as it is a gross injustice for those presumed innocent to be denied a speedy trial, which will determine guilt or innocence.

We do not want any innocent person to suffer any prolonged pre-trial pre-conviction punishment.

In mid-2024, remand, pre-trial and pre-conviction prisoners made up 33.6% of the total prison population, according to the World Prison Brief.

This figure highlights the considerable number of people in Malaysian prisons who are awaiting trial, which is about 30,000 or more.

Imprisonment should be just for those who are guilty of crimes, and have been sentenced by court – certainly not for those who have yet to be tried and convicted.

Some are imprisoned because they cannot afford to post bail, and this is because of poverty. Some are there because their application for bail was denied by the judges or courts. But at least they had the right to apply for bail, and the courts have considered their applications and rejected them.

Some, again the poor, may have never even applied because they ‘believed’ that even if they got bail, they would not be able to raise the bail amount.

What is most unacceptable and unjust is when Parliament passes laws that deny accused people the right to bail, and oust the jurisdiction of the courts to consider and determine bail applications for certain offences.

Laws like Section 41B of the DDA must be repealed, and the right to bail and the court’s jurisdiction to determine bail must be restored.

Whether bail is granted depends on the particular accused and the circumstances of the case. Only the judge or the court will be able to consider all relevant factors in coming to a just decision on bail applications in any particular case.

In granting bail, the courts can also impose various conditions including the prevention of travel overseas, regular reporting at the nearest police station, and even possibly the use of electronic monitoring devices – thus making bail just.

In the case of Yusoff Rawther, doubts arise whether this drug trafficking charge could be some sort of ‘retaliation’ against his pending civil suit against Prime Minister Anwar Ibrahim for alleged sexual harassment.

Is there even any actual evidence to reasonably say that he committed the crime – noting that the finding of drugs even in his car may no longer be sufficient. Any third party could have placed the drugs in your place or car and reported it to put you in trouble.

In a recent court decision that led to an acquittal, “the discovery of drugs at the premises is not sufficient to link the first accused to control or possession of the illegal substances. There is also no evidence proving who placed the drugs there or when” (New Straits Times, 6 March 2025).

A pre-conviction detention because of denial of bail can result in loss of employment or income-generating activities. It will also have an impact on the family, children and dependents. It does not just cause injustice to the accused, but many others. The situation is worse when they are ultimately found not guilty and acquitted by the court.

Madpet calls for draconian provisions in the DDA and other laws, including the Security Offences (Special Measures) Act) (Sosma), to be repealed and the right to apply for bail be restored for all. We also call for the judges’ or the courts’ right to hear and determine bail application be to restored.

Pre-conviction detentions without the right to apply or afford bail, followed by delayed trials, have possibly resulted in many innocent persons pleading guilty to crimes they did not commit simply to have the certainty that they will be free to continue with life after serving whatever sentence. This creates an injustice that Malaysia needs to eradicate.

The trials of any accused people in detention because they did not get bail or could not afford bail must be prioritised and expedited to end as fast as possible, within a few months. This is possible, because in law, the prosecution will only charge someone when they believe they already have sufficient evidence to convince the court that the accused is guilty beyond reasonable doubt – hence there is no reason to delay trials. No one wants anyone to suffer pre-trial pre-conviction punishment.

If the prosecution or the courts need more time to start and end the trials, all accused people ought to be [granted a] discharge not amounting to an acquittal – for they call always be recharged later when the prosecution team is ready to start and speedily end the trials. This was done in the case of Deputy PM Zahid Hamidi, and it is a viable solution to reduce the number of pre-trial detainees in Malaysian prisons.

Only those who have been proven guilty, convicted and sentenced should suffer imprisonment or punishment. This was also the sentiment expressed by Prime Minister Anwar Ibrahim in his speech during the 25th Suhakam anniversary, when he said:

“Before a sentence is passed, suspects should not be punished beforehand”… – Bernama, 9 September 2024.

As such, Malaysia must strive to end pre-trial pre-conviction detention. One of the first things that must be restored is the right to apply for bail for all crimes, which the judges will consider and decide based on each case, taking into consideration all relevant factors, and appreciating that the accused ought to be presumed innocent until the court hears and finds them guilty as charged.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet).