Pike CJ (Borneo):

[1] The appellant has appealed against his convictcion and sentence for murder.

[2] We are indebted to counsel for the appellant and to counsel for the prosecution for their assistance. It has seemed to us that there is really only one point in this case which deserves the careful consideration of the court, and that is the question of the evidence of identification of the accused as the person alleged to be at the bridge on the 28th of December.

[4] On the 28th of December when he is alleged to have seen the accused it was getting dusk, the identification was in poor light at best. The accused was some 160 feet away from him and was travelling on a bicycle, and according to the witness, Simon Liew, he could see the side of the face and head and forehead. Those are not circumstances most ideally suitable for clear and definite identification, and we feel that the fact that he was summoned to the police station may be indicative of some doubt in his own ability to identify the person whom he saw on the 28th. He has all along been sure that the accused was the person he saw on the 22nd, but on that day he was much nearer to the person whom he identified and had a much better opportunity of identifying. I do not think that the witness has been deliberately lying. He appeared to the learned judge to be an honest witness, and we have no reason to doubt that this is so, but there is the danger that he was uncertain as to his ability to identify and the fact that he was given the opportunity of seeing the witness at the police station may be some support for this, but more seriously it would tend to condition his mind to the belief that the person whom he was looking at was the person whom he had seen on the 28th of December. Having been invited to the police station to identify someone, even though he was not told what person he was to identify, the moment he saw the relatives of the deceased sitting there, he would clearly come to the conclusion that the person who had been arrested had been arrested in connection with the murder of the deceased.

[5] We therefore feel that the conviction cannot stand, and the conviction must be set aside and the accused must be discharged.

[6] What the police may choose to do with the accused in view of his illegal status in Sarawak is a matter entirely for them.

[7] The court also directs that a copy of the evidence of Mr Simon Liew should be sent to the commissioner of police so that suitable action may be taken against the police officer responsible for the scandalous behaviour in taking a witness to the police station so that he could identify an accused person before an identification parade was held.