A revisit of Balachandran v PP

I have mentioned in my earlier blog that Balachandran v PP is a controversial judgment.

I found my support in PP v Sidek Abdullah (High Court of Shah Alam).

In the case of PP v Sidek Abdullah (judgment date: Jan 31st 2005), Justice Hishamuddin Yunus has provided an alternative view from the Federal Court judgment of Balachandran v PP (judgment date: Nov 23rd 2004).

For background information, Balachandran is the first Federal Court judicial pronouncement after the amendment to section 180 of the Criminal Procedure Codes (1997). Earlier, Court of Appeal also expressed the similar ratio decendi in the case of Looi Kow Chai

According to his Lordship, the case of Balachandran actually enunciates the following principles:
-- Twin principles of maximum evaluation. Maximum evaluation at both the prosecution case and defence case.
-- Principle of automatic conviction if there is a prima facie case and the defendant chose to remain silent.

Justice Hishamuddin found that the submission of the Deputy Public Prosecutor (DPP) was more persuasive. The DPP submitted the interpretation of S180 in Balachandran is contrary to the intention of Parliament. There should be two stages of evaluation: The first is the minimal evaluation (prima facie) at the end of the prosecution case. The second is the maximum evaluation (beyond reasonable doubt) at the end of the defence case. The DPP has drawn the attention of the Court to the Explanatory Statement to the Bill.

Having said that, Justice Hishamuddin noted that base on the principle of binding precedent, he has no choice but to follow Balachandran.

The implication of Balachandran are, inter alia,:
1. The prosecution has to overcome a higher hurdle in the prosecution case. If they failed to do so, the accused is entitled to acquittal.
2. It is a trite principle that an accused is entitled to remain silent as of right. That right has been vitiated by the judgment of Balachandran.

The submission of DPP has the following implication:
1. It will be easier for the prosecution to cross the first hurdle.
2. The right to remain silent will be kept intact.

As Justice Michael Kirby once said: "Judicial dissent is an appeal to the future". Sidek Abdullah perhaps is the starting point.