(delivering the judgment of the Court): The appellant, Muharam bin Anson was convicted by the Kota Kinabalu High Court of the offence of mischief by fire, in that he set fire to a dwelling house belonging to Liaw Teck intending to cause the destruction of such building ordinarily used as a human dwelling contrary to section 436 of the Penal Code and was sentenced to six years' imprisonment as from November 29, 1978. He now appeals to the Federal Court against both conviction and sentence.

Originally the appellant was charged jointly with his son, Laiya bin Muharam under section 436 of the Penal Code read together with section 34 of the same Code. However, at the close of the prosecution case the learned trial judge ruled that a prima facie case had not been made out against the son which if unrebutted, would warrant his conviction and he was accordingly discharged and acquitted.

The short facts, so far as they are necessary for this appeal are that on the night of September 28, 1977 the dwelling house of Liaw Teck, a resident of Kampong Takuli, Beaufort, Sabah, was deliberately burnt down and it was the prosecution case that the appellant and his son wilfully set it on fire. There was apparently no dispute as to the main facts and the only issue in controversy related to the identity of the person or persons who intentionally set fire to the dwelling house.

At the trial Liaw Teck testified that he saw the face of the appellant by means of a torchlight and he thought the other person who was with the appellant was his son, Laiya. The testimony of Liaw Teck, the principal prosecution witness, was supported by his wife, Yuen Chew Lee. Both Liaw Teck and the appellant had had been neighbours for more than ten years albeit they did not appear to be on speaking terms at the material time.

In Arthurs v Attorney-General for Northern Ireland [1971] 55 Cr App R 161 the Court of Criminal Appeal in Northern Ireland formulated the following question involving a point of law of general public importance for the consideration of the House of Lords and the question reads:

"When, in the course of a trial on indictment, a conviction appears to depend wholly or substantially on the visual identification of the accused by one or more than one witness, is it in law the duty of the presiding judge to give a general warning to the jury of the dangers of acting on such evidence?"

Lord Morris of Borthy-Gest, who gave the leading opinion of the House, with which the other members also concurred, said at page 168:

"Where conviction will involve the acceptance of the challenged evidence of one or more witnesses in regard to identification, a summing-up would be deficient if it did not give suitable guidance in regard to identification. The circumstances of individual cases will, however, greatly differ. Thus there may be cases in which a witness can say that at a certain place and time he saw and clearly recognised the accused person. If the accused person was someone who was well known to him or at least was well known to him by sight and if the conditions at the relevant time were such that there was nothing to impede or to prevent recognition or to make recognition difficult, then a jury would mainly have to consider whether the witness was both truthful and dependable. In the present case the police constable knew the accused well. There was no dispute as to that. It was for the jury to decide not only whether the police constable was a truthful witness but also whether the conditions which existed at the time when the police constable claimed to have seen and recognised the accused were such that a mistake might have been made … There will, however, be some cases where the situation is very different. I refer to cases where a witness has seen someone whom he does not in any way know and has had over a period of time to carry in his mind's eye a recollection of the person and then is at some later date asked (either at an ident