The appellant was held not guilty of murder due to lack of intent and applicable self-defence, resulting in a conviction for culpable homicide without premeditation.

[1] This appeal revolves around a tragic event which culminated in the separation by death of a couple who had been together for 35 years. That fateful day was 26 November 2016. A 61 year old American woman, Guilda Mickelson ("the deceased"), was found dead in a hotel room in Kuala Lumpur. Her death was reported by her ex-husband, 61 year old American, Mickelson Gerald Wayne ("the appellant"). The appellant was in the same hotel room at the time of her death. He claimed that he had killed the deceased in self-defence. The appellant was, however, arrested and charged with her murder under s 302 ("s 302") of the Penal Code (" PC ").

[2] The appellant claimed trial at the High Court, Kuala Lumpur. At the end of the trial, the learned trial Judge found the appellant guilty of the offence of murder under s 302 PC . He was convicted and sentenced to death. He was unsuccessful in his appeal to the Court of Appeal. The Court dismissed his appeal and affirmed the conviction and sentence passed by the High Court.

[3] The appellant then filed this appeal. The appeal was heard on 14 July 2021. At the conclusion of submissions, we unanimously allowed the appeal. We set aside the conviction and sentence under s 302 PC and substituted it with a conviction under s 304(b) . After considering the plea in mitigation, we sentenced the appellant to seven years' imprisonment with effect from the date of arrest. Our reasons for doing so now follow. This will form the judgment of the Court.

The Salient Facts

[4] The salient facts leading to the conviction of the appellant can be gathered from the judgments of the Courts below and the record of proceedings. The appellant and the deceased were American citizens. They were formerly husband and wife. The appellant was working for Ericson Malaysia.

[5] On 26 November 2016, the deceased was checked into a hotel suite (Room No 1528) at St Giles, Gardens Hotel & Residences, Kuala Lumpur. At about 11.45 am on that day, the operator on duty, PW1 (Nursiyah binti Amsun) received a call through the hotel intercom from Room No 1528. The male caller asked for the police to be sent to his suite because there was some "trouble". PW1 notified the duty manager, PW 2 (Prusothmanan a/I Tamil Arasu). PW2 told her to call the Security Officer, PW6 (Jeganathan a/I Subramaniam). Both PW2 and PW6 went to Room 1528. Upon opening the door, the guest, later identified as the appellant, told him that his "wife" had died and she was on the bed inside the bedroom. PW2 entered the bedroom and saw a bloodied body on the bed. PW2 then asked the appellant how she died. The appellant replied that he had killed her. When asked how, the appellant replied that he had hit her on the head with a table lamp and then "cekik" (strangled) her.

[6] PW2 ordered PW6 to guard the appellant and immediately notified his superiors. The police had also been informed. PW2 then waited for the police to arrive. ASP Arikrishnan a/I Apparau (PW7) arrived at the scene around 2.45 pm. He found the appellant, the deceased and the security escort in the room. He said the deceased had died by that time. He arrested the appellant and brought him to the police station. PW7 also recorded the cautioned statement of the appellant. The investigating officer of the case, PW9 (ASP Nor Azuha binti Zakerya) ordered evidence to be collected from the said room and arranged for the post-mortem examination of the deceased. The pathologist who conducted the autopsy was Dr Prashant Naresh Samberkar (PW3). In summary, PW3 noted a fracture of the hyoid bone with surrounding soft tissue contusions. He concluded that the deceased had sustained minimal head trauma followed by injury to neck structures which was consistent with manual strangulation. In his opinion, the death of the deceased was due to "fatal compression of the neck".

[7] The evidence adduced by the prosecution as outlined above was sufficient to persuade the trial Judge that a prima facie