S v Yunhua (Criminal Case No. 5 of 2025) [2026] MWHCFin 2 (16 September 2026)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI FINANCIAL CRIMES DIVISION CRIMINAL CASE NO. 5 OF 2025 BETWEEN: THE REPUBLIC -VS- LIN YUNHUA

Coram

THE HONOURABLE JUSTICE R.E. KAPINDU, PhD Mr. C. Khunga and Ms. N. Nundwe, of Counsel for the State. Mr. P. Nkhutabasa and Ms. V. Banda, of Counsel for the Applicant/Accused Person Mr. F. Dzikanyanga, Court Reporter/Official Interpreter. Mr. Mike MacKenzie (Chinese Interpreter) Ms. E. Lupwayi and Mr. Chrispin Jordan, Court Reporter.

Ruling

KAPINDU, J

1. The Accused Person herein, Mr. Lin Yunhua, who is also the Applicant in the instant matter, is currently facing trial before this Court on various charges of corrupt practices under the Corrupt Practices Act (Cap. 7:04 of the Laws of Malawi) (the CPA). The charges he faces include corrupt practices with public officers, contrary to Section 24(2) as read with Section 34 of the CPA; abuse of office, contrary to Section 25(2) as read with Section 34 of the CPA; and abuse of public office, contrary to Section 25B(2) as read with Section 34 of the CPA. : . He is currently detained at Dedza prison on remand pending conclusion of his trial before this Court. . It is significant to mention that Mr. Yunhua is also a convict. He was convicted for having committed wildlife offences relating to the prohibited possession of listed wildlife species without a licence, contrary to section 86(1) of the national Parks and - Wildlife Act, as read with Section 110B of the same. . He was sentenced to 14 years imprisonment with hard labour for those offences by the Chief Resident Magistrate Court at Lilongwe in September 2019. He served out that rather long sentence, due largely to a number of sentence remissions and a resultant presidential pardon that he received in July 2025. The charges that he is currently facing before this Court, in their fundamental essence, relate to his alleged attempts through senior prison officials, to influence the presiding officer, namely the Chief Resident Magistrate who tried him, during his trial on the wildlife offences above-mentioned, so that she could give him a more lenient sentence. . There are also other charges that he is facing on or.connected to alleged abuse of office as stated in paragraph 1 above. . On the 7% of August 2026, Mr. Yunhua brought an application before this Court in which he was principally secking to be discharged from the present criminal proceedings on the basis that, according to him, the State was no longer willing to prosecute him. . In the alternative, he seeks in that application to be released on bail pending conclusion of the matter before this Court.

Hearing of the application commenced in open Court on the 20" of August 2026. At the start of that hearing, learned Counsel for the Applicant, Mr. Powell Nkhutabasa, informed the Court that the application was supported by an Affidavit sworn by Counsel Vaida Banda, and Skeleton Arguments, which he duly adopted. Before proceeding, however, he yielded to Counsel Chrispin Khunga of the Anti-Corruption Bureau (ACB) (the State), who sought to raise a preliminary matter concerning the State’s present position with regard to the Accused Person’s application for a discharge. Counsel Khunga informed the Court that, following this Court’s earlier Ruling of 13% July 2026 concerning an application brought by the Prosecution to withdraw the matter, the State was now reviewing the prosecutorial future of the whole case. Counsel for the State submitted that until that review is concluded, the State will not be in a position to definitively support or oppose the Accused Person’s application for discharge. Accordingly, Counsel sought an adjournment in respect of that limb of the application. I'should quickly mention here that before Counsel Khunga could proceed much further with his representations, after he stated that he was adopting Counsel Ngwambula Nundwe’s Affidavit of 20" August 2026 in support of the State’s position, the Court stopped him' for some clarifications. The Court drew Counsel’s attention to the existence, on the record, of two affidavits, filed on behalf of the State, that seemed to be deposing to two conflicting, or indeed diametrically opposed positions. . The first Affidavit, which was filed on 18" August 2026 and sworn by Counsel Peter Sambani, expressly indicated that the deponent had obtained instructions from the Acting Director General of the ACB, and he proceeded to set out the substance of those instructions. Observably, on its face, that Affidavit was clearly not only one in opposition, but in fact in firm opposition to the Accused Person’s application for discharge. A second Affidavit was subsequently filed on 20" August 2026, sworn by Counsel Ngwambula Nundwe, again stating that the deponent was acting on the specific directions of the Acting Director General of the ACB.

As stated earlier, the Court noted that this later affidavit appeared to advance a position that was diametrically opposed to that adopted in Counsel Sambani’s earlier affidavit, and yet the latter did not, in its text, expressly refer to, explain, qualify or withdraw the carlier affidavit. In the premises, the Court considered that this was a matter that required clarification. The Court observed that evidence that is placed before a court, and more so on oath, cannot simply be treated as though it had never been filed merely because the party concerned subsequently wishes to adopt a different position. Where a subsequent affidavit materially departs from an earlier one, it is imperative that the later affidavit should acknowledge the earlier one, and explain the reason for the changed position. This is particularly important where, like in the instant case, the two affidavits purport to be premised on instructions that are said to have been issued by the same authority, namely the Acting Director General of the ACB. Responding to the Court’s observations on this issue, Counsel Khunga began by stating that both Counsel Sambani and Counsel Nundwe, in swearing their respective aflldavité, acted on the directions of the Acting Director General of the ACB. He stated that by the time he issued fresh instructions to Counsel Nundwe to swear the second affidavit, the Acting Director General had changed the position that he earlier held when he instructed Counsel Sambani to do the same. He stated that the change in position was due to emerging facts, namely that the matter was now under review by the State. Counsel then explained that the intention of the State had been to withdraw the earlier affidavit and to replace it with the later one. He stated that the State had, however, been unable to physically retrieve the carlier affidavit from the Court file because the file was already before the Judge. Counsel stated that his intention had therefore been to inform the Court orally that the second affidavit had superseded the first one and that the first one should be ignored. ) | Counsel Khunga further explained that the change arose following what he termed as miscommunication surrounding the preparation of the first affidavit.

Counsel accordingly confirmed that the second affidavit represented the State’s current. position and that the State did not seek to rely upon the earlier affidavit deposed by Counsel Sambani. He therefore prayed to the Court that the State be allowed to a]dopt the second affidavit of Counsel Nundwe of 20™ August, 2026 in support of the State’s position, which prayer the Court granted. The Court nevertheless emphasised that it is good practice that, where sworn evidence has formally been placed before a court and a party subsequently seeks to retract or materially alter such evidence, it is imperative to expressly identify the earlier affidavit and formally explain its withdrawal or replacement by way of another affidavit or supplementary affidavit. That course of action, the Court noted, avoids ambiguity on the record and, more importantly, removes any possible concern arising from the existence of apparently contradiétory statements made under oath. Having received the explanation from Counsel, which the Court accepted, the Court proceeded with the hearing on the basis that the affidavit filed on 20™ August 2026 represented the State’s current position. Effectively, on the issue of the application for discharge, the State’s position was that, following this Court’s decision of 13™ July 2026, it was now reviewing the matter. The result of the review, according to Counsel Khunga, was that the State was considering various options as potential outcomes of the review process. The State might decide to proceed on the path of facilitating termination of the proceedings whether by way of entering a discontinuance under Section 99 of the Constitution as read with Section 77 of the of Criminal Procedure and Evidence Code (Cap. 8:01 of the Laws of Malawi) (the CP & EC), a discharge of the Accused Person from the present proceedings under Section 247 of the CP & EC or otherwise. Alternatively, Counsel stated, the State might, after the review, decide to continue with the present prosecution. In view of this state of affairs, the State prayed that the application for discharge herein be'adjoumed pending the outcome of the State’s review. Counsel Nkhutabasa for the Applicant stated that he had no objection to that prayer. The Court therefore granted the prayer for adjournment of the application for discharge of the Accused Person herein from the present proceedings, pending review of the matter by the State.

With regard to the alternative application by the Accused Person for release from detention on bail pending his trial, the State’s response was that it did not object to the application for bail, provided that the Court imposed stricter conditions that would ensure that the Accused Person was available to the Court when required. The Court reminded both parties that under Part I, section 9 of the Bail Guidelines Act, the law specifically provides that: “Notwithstanding the fact that the Prosecution does not oppose the granting of bail, the court has the duty to weigh up the personal interests of the Accused Person against the interests of justice.” In this connection, the Court reminded Counsel for both parties that both this Court, in its earlier Ruling of 7 November 2025 in the present proceedings, and the Supreme Court of Appeal, in Lin Yunhua vs Republic, MSCA Criminal Application No. 21 of 2021, a decision of 15% March, 2024 by Chikopa, JA (as he then was), previously considered and carefully weighed the issue of whether appropriate conditions could be imposed that would suffice against the risk of flight by the Accused Person, and came to the conclusion that the interests of justice firmly tilted in favour of continued detention as the Applicant herein was, in both instances, deemed to be a real flight risk. The Court thus wondered whether the parties could think of other novel conditions that would assure the Court of a firm guarantee that if set on liberty with bail, the Accused Person would no longer be a flight risk, given the previous concerns that both the High Court and the Supreme Court of Appeal had earlier expressed in respect of the personal circumstances of the same Accused Person. In this regard, the parties asked the Court foran adjournment so that they might examine the circumstances and issues considered in those priot decisions and propose novel and stricter conditions that would guard against the risk of flight on the part of the Accused Person if released from detention with bail.

3s.

The parties also generally argued that the fact that the State made an earlier application for leave to withdraw the matter, which failed before this Court, and also that currently the State was reviewing the prosecutorial future of the present matter, meant that there had been a change of circumstances. After carefully listening to all the representations on the issue of release from detention on bail, the Court granted the parties the prayer to adjourn the matter so that they might have more time to prepare for their further representations on the issue. The bail hearing which had commenced on 20" August 2026 was accordingly adjourned for further hearing. It ultimately resumed-and concluded in open Court on 4% September 2026. This is now the Court’s Ruling on the applicaiion for release on bail. At the resumed hearing on 4" September 2026, Counsel Nkhutabasa for the Applicant reminded the ‘Court that the proceedings were a continuation of the Applicant’s application for bail. Counsel recalled that, at the previous hearing of 20" August 2026, the Court had invited the parties to address it further on the conditions that might appropriately be imposed were the Applicant to be admitted to release on bail. Counsel conceded that this was not the first application for bail made by the Applicant. He acknowledged that previous applications had been considered and declined, principally on the ground that the Applicant was. considered to be a flight risk. He recapped that it was against that background that the Court invited the parties to address the question of whether there were any conditions which could sufficiently address that concern should bail now be granted. Counsel for the Applicant indicated that he would not repeat the submissions previously made regarding the alleged change of circumstances, those matters having already been canvassed before the Court, and that his further submissions would, therefore, be confined to the further proposed bail conditions. In that regard, the Applicant filed a supplementary affidavit setting out a number of proposed conditions. Counsel submitted that the conditions had deliberately been

formulated in stringent terms in order to respond to the Court’s previously expressed concerns regarding the Applicant’s risk of absconding. Among the conditions proposed was that, upon release, the Applicant would reside at his daughter’s house in Area 49, Lilongwe, on a property identified to the Court as Plot No. 49/1/2217. Counsel stated that the property belonged to the Applicant’s daughter and that a Certificate of Lease had been exhibited to the supplementary affidavit. Counsel stated that the Applicant’s daughter was willing to offer her interest in the said property as collateral/security in connection with the Applicant’s bail in the event that he failed to comply with his conditions. Counsel, having adopted the supplementary affidavit, proceeded to outline its major highlights. The Court however considers it appropriate to set out the relevant part of the supplementary affidavit of Counsel Vaida Banda in full. “3. THAT this Affidavit supplements the Affidavit in support of application to discharge the Accused Person from criminal proceedings andjor to be granted bail.

4. THAT the Accused Person should be released on bail following any of the conditions below in addition to any other conditions that the Court imposes. 4.1. The Accused Person will adhere to a curfew set by the Court and must be within his residence at the curfew set. 4.2. The Accused Person should only be allowed to be visited at his residence by his immediate family at specific times of the week and day. 4.3. The Accused Person’s residence should be visited by the Police to ensure that conditions 4.1, 4.2 and 4.3 are adhered to. 4.3.1. Provided that the police shall alternate to avoid familiarity with the Accused Person 4.3.2. Provided that the police visiting and monitoring the Accused Person shall carry an audio and video recorder at all times during the visits, which shall not be switched off at any time of the visit and shall be submitted to the Court for review. 4.4. That the Accused Person should apply to this Court, and if the Court allows it, conditions may be imposed for the Accused Person to leave his place of residence for purposes of visiting the Bank, Hospital and/or any important places and events. 4.4.1. Provided that the Accused Person will include in the application the specific place where he intends to go, the specific purpose of the trip, time that he will spend at the place and the specific people he will meet at a designated place. 4.4.2. Provided also that the Accused will not be allowed to visit any other place outside Lilongwe District and the Accused Person will not be allowed to leave for his residence before 9:00 am or after 16:00 Hours. 4.4.3. Provided also that the trips will be accompanied by the Police who shall carry and wear a video and audio recorder, not be switched off during the trip, and shall be submitted to the Court for review. 4.4.4. Provided also that the Accused Person will not be allowed to carry and/or use a mobile phone during the trip. 4.4.5. Provided that the Accused Person will not make any diversions, meet and/or speak to other persons not specified in the application, and spend more time at a place than what is in the application and/or what the Court allowed. 4.4.6. Provided that the Accused Person will write a report on the trip and submit it to this Court within 24 hours after the trip. 4.5. That the Accused Person will provide sureties, one of which will be his daughter who will pledge her property Alimaunde 49/1/2217 as a guarantee that the Accused Person will appear for trial. I have attached and exhibited the certificate of lease for the property marked as VBI.