The distinction between murder and culpable homicide hinges on the intention; conviction for murder was established due to the evidence of intent to kill.

Introduction

[1] The respondent was charged before the Sandakan High COURT for murder and attempt to commit suicide. The charges read as follows:-

First charge:-

"That you on 2 May 2012 at about 6.30 pm, at an unnumbered house at the Perumahan Pekerja Kampung Arau, Ladang Genting Tanjung in the District of Kinabatangan, in the State of Sabah, did commit a murder by causing a death to one, Intan Bago (Passport No AM 282072) and thereby committed an offence punishable under s 302 of the Penal Code ."

Second charge:-

"That you on 2 May 2012 at about 6.35 pm, at an unnumbered house at the Perumahan Pekerja Kampung Arau, Ladang Genting Tanjung in the District of Kinabatangan, in the State of Sabah, had attempted to commit suicide by stabbing yourself with a knife, and thereby, committed an offence punishable under s 309 of the Penal Code .".

[2] The respondent had pleaded guilty to the second charge and he was accordingly convicted. The learned High COURT Judge postponed sentencing for the second charge until the conclusion of the trial in respect of the first charge.

[3] At the end of the trial of the first charge, the respondent was convicted for an offence of culpable homicide not amounting to murder punishable under s 304(a) of the Penal Code (" PC "). He was sentenced to 25 years imprisonment commencing from the date of his arrest. The respondent was also sentenced to 1 year imprisonment in respect of the second charge. The learned High COURT Judge ordered that both sentences to run concurrently and upon completion of his sentences, the respondent be deported to his country of origin. Aggrieved by the impugned conviction and sentence in respect of the reduced charge, the Public Prosecutor ("PP") has now appealed to this COURT.

[4] We have heard learned Deputy Public Prosecutor ("DPP") and learned counsel for the respondent at some length. We have also perused the written submissions carefully and gone through the record of appeal in its entirety. For the reasons that follow, we found there was merit in this appeal and accordingly we allowed the appeal by the PP. We set aside the conviction and sentence of the learned trial judge and substituted it with an order of conviction for murder as originally charged. The respondent was sentenced to death as prescribed under s 302 of the PC .