Insufficient evidence of intention to kill and identity led to a conviction for culpable homicide, not murder.

[1] This is an appeal by the appellant against the decision of the Court of Appeal in dismissing the appellant's appeal against his conviction by the High Court for an offence of murder under s 302 of the Penal Code .

[2] The charge framed against the appellant as amended at the close of the prosecution case reads as follows:

"Bahawa kamu di antara 22 Februari 2005 jam 11.00 malam hingga 23 Februari 2005 jam 7.00 pagi, di bilik No 3022 Hotel Fujisan, No 45, Jalan Barat, Off Jalan Imbi di dalam Daerah Dang Wangi di dalam Wilayah Persekutuan Kuala Lumpur dengan niat telah melakukan bunuh sehingga menyebabkan kematian seorang perempuan Cina nama Liew Pai Sea KPT: 821011-08-5934 oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan".

The Case For The Prosecution

[3] The relevant facts in support of the case for the prosecution are as follows:

(i) The appellant and the deceased occupied Room No 3022 of Hotel Fujisan, Kuala Lumpur. The room was registered under the appellant's name since 12 September 2004.

(ii) On 23 February 2005 at about 6.55am, SP2, an employee of the hotel together with another employee by the name of Tan noticed a puddle of red water outside of room 3022.

(iii) SP2 knocked on the door and asked about the puddle of red water but the appellant refused to open the door. Instead the appellant told SP2 to be quiet and not to disturb him.

(iv) After being informed by SP2, SP3 the hotel manager went up to the said room and knocked on the door asking the appellant to open it but the appellant replied aggressively "jika kamu membuka pintu seseorang akan memukul saya" and that "lebih baik kamu panggil polis".

(v) The police were immediately called. SP5 and SP11 were the first to arrive at the scene. They had asked the appellant to open the door but the appellant replied "kalau you masuk saya akan bunuh ini orang" and "lu balik, jangan kacau saya".

(vi) SP4 who arrived later instructed SP5 and SP11 to break the door. The half broken door however could not be opened as it was blocked by a bed and the TV rack. SP4 managed to see through the broken door that the room was in a total mess and the appellant standing naked holding a VCD player in one hand and holding the deceased by the hair with the other hand. The deceased's hands and legs were tied.

(vii) When the police finally gained entry into the room, the appellant went into the bathroom dragging the deceased along. The appellant then stood on the toilet bowl and was seen holding a broken bottle shouting "saya bunuh dia orang", saya bunuh dia orang". The appellant was subsequently arrested.

(viii) The cause of death as found by the pathologist SP10 was severe head injury due to trauma impact which in itself can cause death. Other internal injuries present were fracture of left 8th, 9th and 10th ribs. There were other multiple injuries which were not fatal as per post-mortem report P37. SP10 said that the chances of survival to a human with injury to the head and face are very slim.

(ix) The chemist SP8 who conducted the toxicology test on the urine and blood of the deceased confirmed them to contain amphetamine and methamphetamine respectively (P34). According to SP8, "seseorang di bawah pengaruh dadah jenis dadah 'psycostimulant' boleh pengaruhi pemikiran kita".

The Case For The Defence

[4] The appellant in his defence amongst others adduced the following relevant facts:

The appellant said that he and the deceased had a few drinks and were taking drugs called "syabu" before they got into a quarrel which ended with them throwing things at each other. He said the quarrel was due to the fact that the deceased