Thomson CJ:

[1] This appellant was convicted for murder in contravention of s 302 of the Penal Code. He appealed against his conviction and on 21 December we set his conviction aside and ordered a re-trial. We said that at a later stage we would state our reasons for quashing the conviction.

[2] It was the case for the prosecution that on the evening of 6 December 1959, one Tan Hock Choon accompanied by two other men, Tan Twa Tin and Tan Oon Cheok, were going from Kuala Kurau to Kuala Gula. They went part of the way in a motor-car but by reason of a damaged bridge they had to leave their car at a neighbouring house and they then proceeded on foot. After they had gone some distance five people rushed at them, one of whom was the appellant. One of these five men, not appellant, caught hold of Tan Hock Choon and shots were fired. Two days later the dead body of Tan Hock Choon was found about two hundred yards from the road concealed in a drain. There was at least one shot wound and there were a number of incised wounds which could have been caused by an instrument of the nature of a "parang". The cause of death was shock and haemorrhage from the gun-shot wound.

[3] The appellant's defence was one of alibi. He denied all knowledge of the affair. He said that on the evening in question he had been engaged with his elder brother in mending fishing nets and his evidence to this effect was corroborated by his brother.

[4] The case was summed up to the jury at considerable length and with commendable care by the learned trial Judge. That summing-up was attacked before us on a very great number of grounds, most of which were without merit and amounted to no more than the usual complaint that the summing-up was not as favourable to the prisoner as the defence would have liked it to be.

[5] There was, however, one error in the summing-up which in our view was so serious as to compel us to say that the conviction could not stand.

[6] We do not think it is necessary to discuss the evidence beyond observing that the case for the prosecution stood or fell according to the view that was taken of the evidence of the witness Tan Twa Tin.

[7] It was never suggested that in identifying the appellant this witness was not speaking what he believed to be the truth nor was it suggested that he had any motive for not speaking the truth. It was, however, the case for the defence that he was mistaken in his identification of the appellant and this, of course, required that the jury should not only consider his capacity for observation and his opportunities for observation having regard to all the surrounding circumstances including the amount of light available but should also in assessing these matters consider the evidence of the appellant and his brother to the effect that at the material time they were both engaged in mending fishing nets.

[8] Unfortunately from the point of view of the defence on one or two points the story told by the appellant and that told by his brother did not coincide. Moreover, on at least one point, regarding the ownership of the nets that were being mended, the brother in cross-examination contradicted his own evidence in chief.

I must, however, in connection with the brother's evidence point out to you that if a witness makes contradictory statements either in one lot of evidence or on two separate occasions on matters upon which his testimony is liable to contradiction then his credit is impeached and the whole of his evidence must be rejected. There can be no doubt that on at least two occasions that witness did contradict himself... If, Gentlemen, you consider that they were two deliberate contradictions, then you reject the whole of the evidence of that witness. On the other hand