Thomson CJ:

The judgment of the Court was delivered by -

This appellant was tried by a Judge and jury at the Muar Assizes for the murder of a woman, Chua Ng Kiow, on 26 June 1957. He was convicted and sentenced to death. He appealed against his conviction and on 9 April 1958, we allowed his appeal and ordered a retrial.

At the close of the evidence in the case there was no room for doubt that the dead woman died as a result of receiving into her body pellets from a gun fired by the appellant. Apart, however, from a statement made by the appellant himself the prosecution evidence probably fell short of establishing that fact and did not throw a great deal of light on the surrounding circumstances.

Apart from the appellant's own statement the prosecution evidence was (and none of it was seriously denied) that the appellant had been supplanted in fairly profitable employment by the dead woman and a man named Loh Boon Teck. On the morning of the shooting, in a kampong near the rubber plantation where the dead woman met her death, he borrowed a shotgun and 14 cartridges on the pretext that he wished to shoot flying foxes. Some time afterwards at least two shots were heard in the rubber plantation and later the dead woman was found dead and Loh Boon Teck was found wounded, both of them having been injured by shotgun pellets. The following day in a kampong some distance away the appellant was found by his uncle with the gun and 14 cartridges, three of which were by this time expended.

The appellant was arrested that day and the following day he made a voluntary statement before a Magistrate, the admissibility of which was not challenged at the trial. That statement as recorded by the Magistrate was to the effect that he had been unemployed for some time, that his family was hungry and that "I lost the balance of my mind." On the morning of the killing he took a gun and cartridges and went to the scene of his former labours where he saw a Chinese woman tapping. "I was then not of clear mind and so I shot her once. Then I ran away......... and I saw a Chinese man tapping and I fired a shot at him."

At the trial the appellant elected to give evidence on his own behalf. He admitted that he had made a voluntary statement to the Magistrate but he denied having said the things which have been quoted and he gave a version of what happened which briefly was to the effect that he had been out shooting wild boar and had shot the dead woman and the witness Loh by accident.

The learned Judge summed up the case to the jury at considerable length and with very great care. In our opinion, however, he failed to deal correctly with the statement alleged to have been made by the appellant shortly after his arrest. What he said was this:

Accused denied making certain statements recorded in the confession. If you reject the evidence contained in the confession then you will have to be satisfied that the Magistrate was not telling the truth.

In our view this statement overlooks the fact that two entirely separate and distinct questions had to be considered in relation to the so-called confession. The first was whether in fact the appellant did say the things he was said to have said and the second was whether or not these things were true. On the first question there was probably little room for doubt, but it would be faulty ratiocination to come to the conclusion that because the appellant did in fact say these things these things were necessarily true, or to think that the statements made by the appellant in the so-called confession could only be disbelieved if the jury were satisfied that the Magistrate himself was not telling the truth as to what was said.

In our view the jury should have been told that if they were satisfied that the appellant did make the statement they should then consider whether it was true and that they should do so by considering it in the light of the rest of the prosecution evidence and in the light of the d