YULONG v THE STATE (SC 03 of 2026) [2026] ZWSC 5 (6 January 2026)

Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 1 REPORTABLE

(03) CAI YULONG v THE STATE SUPREME COURT OF ZIMBABWE MAVANGIRA JA, BHUNU JA & MUSAKWA JA HARARE: 16 SEPTEMBER 2025 & 6 JANUARY 2026 C. Tachiona & L. Mawire, for the appellant T. C. Mujokoro, for the respondent MUSAKWA JA:

1. This is an appeal against conviction and sentence by the High Court of Zimbabwe (‘the court a quo ’) convicting the appellant of three charges namely; murder, attempted murder and assault, as defined under ss 47(1), as read with s 189, and s 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (‘the Code’). BACKGROUND FACTS

2. The appellant was brought before the court a quo facing three charges as outlined above. It was alleged that on 24 May 2024, at Stone Steel Mine, also known as Blue Mine, Zhombe, the appellant unlawfully and with intent to kill or alternatively, realising that there was a real risk or possibility that his conduct might cause death and continuing nonetheless, shot Goni Goni in the thigh with a Norinco pistol, thereby causing his death. Using the same firearm, he was further alleged to have attempted to kill John Muchawaya Bera by shooting him once on the right knee and once on the left thigh. Additionally, the appellant was alleged to have unlawfully struck Lovemore Mapfanya once on the head with a clenched fist, intending to Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 2 cause harm or realising that there was a real risk of causing harm and persisting in his conduct despite that risk.

3. The appellant pleaded not guilty to all the charges. In his defence, he did not dispute shooting the deceased in respect of the murder charge, nor the complainant in the attempted murder charge. He contended that his actions were taken in self-defence and in defence of his property. As to the assault charge, he contended that it was fabricated.

4. The appellant operates Stone Steel Mine, also known as Blue Mine, located in Zhombe, Kwekwe which shares a boundary with Blackhand 10 Mine owned by Cornelius Shariwa. The State’s evidence established that the deceased and the complainants in counts 2 and 3 were employees of Blackhand 10 Mine. On the day of the incident, they had gone underground to erect a barricade at the intersection of Stone Steel Mine and Blackhand 10 Mine. While engaged in this work, the appellant entered his mine via his shaft and proceeded to the intersection. A confrontation ensued, during which the appellant shot at the Blackhand 10 Mine workers, resulting in the death of the deceased and injuries to the complainant in count 2, John Muchawaya Bera. The appellant also allegedly struck another worker, Lovemore Mapfanya, on the head, giving rise to the assault charge in count 3.

5. In his defence outline, the appellant contended that prior to the incident, illegal gold panners had repeatedly breached the underground workings between his mine and Blackhand 10 Mine, stealing gold ore and mining equipment. He claimed that despite reporting these incidents to the police, the problem persisted as no intervention was made by the police. On the day of the incident, the appellant stated that his security guard, Takesure Ndlovu, informed him that intruders had entered the mine. These individuals were allegedly armed Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 3 with axes, machetes, hammers, chisels and they were engaging in illegal mining activities. According to the appellant, Takesure had encountered the intruders underground but refused to accompany him, claiming that they had chased him and attempted to attack him.

6. According to the appellant, he entered the shaft alone, with a torch on his forehead and saw approximately eight individuals carrying sacks of gold ore from his mine through Blackhand 10 Mine’s exit. All of them were armed with weapons, which included machetes, axes, hammers and chisels. Upon seeing the appellant, they ran toward him, threatening and shouting in a language he did not understand. The appellant fired three warning shots into the roof of the mine to deter the attackers, but they continued charging at him. Fearing for his life and the safety of his property, he shot twice at the legs of the complainant, who was carrying a metal weapon. This complainant retreated after being shot. The deceased, armed with an axe, continued advancing toward the appellant with the intention to attack. The appellant then fired at the deceased's leg, causing him to fall to the ground. The intruders subsequently pulled away the wounded complainant and exited through Blackhand 10 Mine’s shaft.

7. The appellant further stated that he checked on the deceased, who was still alive and attempted to minimise bleeding by using a torn piece of a sack and his work suit to tie the injured leg. He called for assistance from his employees, who helped ferry the deceased out of the shaft. Unfortunately, the deceased passed away before medical help could be obtained. His body was lying on the ground awaiting the arrival of the police. The appellant said he instructed his employee, Roy Taguma, to report the incident to the police. Upon their arrival, the police detained and charged him. He claimed that he had no intention of killing anyone, as evidenced by the injuries inflicted on the people he shot. The appellant said he offered to Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 4 show the police the weapons and sacks of gold ore left underground by the intruders, but the police declined his offer to go down the mine, even when he offered to provide protective clothing for access into the shaft. THE COURT A QUO ’S FINDINGS

8. The court a quo found no evidence to substantiate the appellant’s claim that the deceased and his colleagues were illegal gold miners stealing from his mine. The State’s evidence consistently established that the deceased and the complainants were employees of Mr Cornelius Shariwa, the appellant’s neighbour. This evidence remained unchallenged during both the investigation and trial. Mr Shariwa testified that the deceased and his colleagues were his employees and produced an employee register containing their names, surnames and national identification numbers. Although the defence questioned the register’s authenticity, citing missing details such as employment dates and salaries and its nonregistration with the Ministry of Mines, Mr Shariwa explained that there was no legal requirement for such registration and that the register served its intended purpose. The court a quo held that the defence failed to cite any law invalidating the register and concluded that, even without it, Mr Shariwa’s oral testimony sufficiently established the employment status of the deceased and complainants.

9. The court a quo further reasoned that it would be illogical for Mr Shariwa to claim illegal gold panners as his employees, as he would derive no benefit from such a false assertion. The appellant himself acknowledged knowing Mr Shariwa as a neighbour with whom he shared a mining boundary. No evidence was presented to suggest that Mr Shariwa did not have employees or was not conducting mining activities. It was also established that the Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 5 deceased and his colleagues were working with Mr Shariwa’s son, Komborerai Shariwa, erecting a barricade underground at the intersection of the two mines. The court a quo found it implausible that the son of the mine owner would be engaged in illegal panning.

10. On this basis, the court a quo rejected the appellant’s defences of self-defence and defence of property, holding that the requirements of ss 253, 254, 257, and 258 of the Code in line with self defense and defense of property which entails that a person facing imminent attack should act reasonably in defending the property and self were not met. The court a quo noted that the appellant’s use of a firearm against fleeing individuals was unnecessary, as there was no imminent attack. Even if the deceased and colleagues had been intruders, the appellant could have removed himself or sought assistance rather than resorting to lethal force.

11. Regarding sentence, the court highlighted severe aggravating factors. The murder occurred in a mining shaft where five other individuals were present. The appellant fired indiscriminately in the tunnel and up the shaft, creating a substantial risk of killing or seriously injuring others. The appellant shot at the deceased and his colleagues as they were fleeing, demonstrating malice. The court a quo noted that the sanctity of human life must be upheld and that the appellant’s conduct constituted a cold-blooded killing. Victim impact statements confirmed the profound trauma caused by the deceased’s death.

13. The court a quo also considered mitigatory factors which included that the appellant was a first offender, aged 56, married in China with two adult children and had a minor child in Zimbabwe. He expressed remorse and provided US$3 000 in financial assistance to the deceased’s family. He also attempted to render first aid to the deceased underground. Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 6 Balancing justice with mercy, the court imposed a sentence of 30 years’ imprisonment for murder, 10 years for attempted murder (with 5 years suspended on condition of no violent offence within five years, running concurrently with the murder sentence), and US$100 for assault or one month’s imprisonment in default of the fine.

14. Dissatisfied with the decision of the court a quo, the appellant noted an appeal to this Court against both conviction and sentence on the following grounds of appeal: “GROUNDS OF APPEAL As regards conviction

1. The court a quo erred in both law and fact by finding that the appellant possessed the requisite intention to kill the deceased and to attempt the murder of John Muchawaya Bera, despite the absence of evidence establishing such intent necessary to sustain convictions for murder and attempted murder.

2. The court a quo erred in both law and fact by convicting the appellant of murder and attempted murder when the evidence clearly established that he was acting in selfdefence and in defence of his property.

3. The court a quo erred in both law and fact by convicting the appellant in the absence of sufficient evidence proving that, on the day in question, the victims were constructing a barricade between the appellant’s mine and their employer’s mine and not that they were stealing gold ore.

4. The court a quo erred in fact by accepting warned and cautioned statements that had been inaccurately translated from Chinese to English, thereby creating a misleading impression of the appellant’s attitude towards the alleged offences. Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 7 As regards sentence

1. The court a quo erred in law and fact by imposing a 30-year sentence without considering s 9 of the Sentencing Guidelines, 2023, and key mitigating factorsincluding the Appellant’s status as a first offender, advanced age, remorse, assistance with funeral costs, low risk of reoffending, positive contribution to the economy and his conduct subsequent to the shooting which was meant to avert a threat to life.

2. The court a quo erred in law and fact by completely ignoring a mitigatory factor that the appellant’s belief during the time of commission of the offence that his property and life was under threat overwhelmed and clouded his judgment and could not have comprehended the consequence of his actions when he negligently opened fire.

3. The court a quo erred at law by imposing a sentence that is grossly at a tangent with sentences imposed in other cases of similar facts and or circumstances.” The appellant sought relief in the following terms: “WHEREFORE tendering as aforesaid, the appellant prays for the following relief:

1. The appeal against conviction of murder and attempted murder succeeds.

2. The appellant’s conviction and sentence are hereby quashed and the judgment of the court a quo is substituted with the following: ‘The accused be and is hereby found guilty of culpable homicide and assault respectively.’” IN THE FURTHER ALTERNATIVE, that: “1. The appeal against sentence succeeds.

2. The sentence of 30 years and 10 years imprisonment in respect of murder and attempted murder respectively imposed upon the appellant is set aside and substituted with the following; ‘The accused is sentenced as follows: Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 8 Count 1- 5 years imprisonment Count 2- 2 years imprisonment with one year suspended on condition of a fine not exceeding level 7.’” THE APPELLANT’S SUBMISSIONS ON APPEAL

15. At the hearing of the matter, Mr Tachiona, counsel for the appellant, submitted that the court a quo erred in convicting the appellant of murder in circumstances where he lacked the requisite intention to kill. He argued that the appellant acted in self-defence, seeking to protect both himself and his property from imminent harm. Counsel highlighted that before discharging the fatal shot, the appellant had fired three warning shots, to which the deceased did not respond. He further contended that the appellant did not aim at a vital organ such as the head, demonstrating that there was no intention to kill. In addition, reliance was placed on the medical affidavit, which confirmed that death resulted from excessive bleeding. Counsel pointed out that the appellant attempted to stop the bleeding by tying the wound with the deceased’s tracksuit and later transported him to the hospital.

16. On sentence, counsel submitted that the punishment imposed was excessive, particularly given mitigating factors such as the appellant’s contribution to the funeral expenses of the deceased and his role in the mining industry, which benefits the economy. He proposed that, should the conviction be upheld, the sentence ought to be reduced to 15 years’ imprisonment for murder, with a 2-year sentence for attempted murder wholly suspended on condition of payment of a fine not exceeding level seven.

17. The court queried the appellant’s defence on the attempted murder charge, noting that the victim had been shot from the back, which appeared inconsistent with the plea of selfdefence. In reply, counsel maintained that the incident occurred in darkness, amidst a scuffle Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 9 involving many people and that the shooting of the victim could have happened accidentally. He insisted that the appellant had no intention either to kill or to attempt to kill. THE RESPONDENT’S SUBMISSIONS ON APPEAL

18. On the other hand, Ms Mujokoro, counsel for the respondent, contended that the appellant’s guilt had been established beyond a reasonable doubt. She maintained that there was no lawful justification for shooting either the deceased or the victim of attempted murder. Counsel emphasised that both victims were shot from the back or the side, which indicated that they were fleeing from the appellant. Regarding sentence, she submitted that the court a quo committed no misdirection and that the sentence imposed was consistent with established case law. ISSUES FOR DETERMINATION

19. The following issues arise for determination:

1. Whether or not the court a quo erred in finding that intent to commit the murder and attempted murder had been established.

2. Whether or not the court a quo erred in making the factual finding that the complainants were constructing a barricade and not stealing gold ore.

3. Whether or not the court a quo erred in finding that the defences of self-defence and defence of property were not applicable under the circumstances.

4. Whether or not the court a quo failed to consider applicable sentencing guidelines and key mitigating factors APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the court a quo erred in finding that intent to commit the murder and attempted murder had been established. Judgment No. SC 03/26 Civil Appeal No. SCB 68/25 10

20. The first ground of appeal concerns whether the court a quo erred in finding that the appellant possessed the requisite intention to commit murder and attempted murder. The appellant contended that, although a firearm had been employed, he deliberately aimed at the legs of both the deceased and the surviving complainant, John Muchawaya Bera which areas of the body he averred were not ordinarily regarded as vital or inherently fatal. He argued that this deliberate targeting demonstrated an intention to disable or deter rather than to kill. Furthermore, the appellant submitted that he had a clear opportunity to aim at more vulnerable parts of the body but consciously refrained from doing so, a factor which, in his view, negated any inference of intent to kill, thereby contradicting the earlier assertion that the shooting took place in the dark.