By Karen Msiska:
The High Court in Lilongwe on Monday dismissed an application by the State to withdraw a case in which Chinese Lin Yunhua is accused of attempting to corrupt public officers.
In his ruling, Justice Redson Kapindu stated that an application to withdraw a criminal case can only be made before a subordinate court and that the Director of Public Prosecutions (DPP) has constitutional and statutory powers to discontinue a criminal case without applying to the Court.
The Anti-Corruption Bureau (ACB), which is prosecuting the matter of the State v Lin Yunhua (criminal case number 5 of 2025), applied to the Court to withdraw the case in line with Section 81 of the Criminal Procedure and Evidence Code (CP&EC).
However, delivering his ruling, Justice Kapindu said the application was misconceived on a point of law as it was based on a procedure that is not applicable before the High Court.
“The application is, therefore, incompetent on that basis and falls to be dismissed on that ground alone,” he said.
Section 81 of the CP&EC states: “In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instruction of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal (a) if it is made before the accused is called upon to make his defence, he shall be discharged, but such discharge of an accused shall not operate as a bar to subsequent proceedings against him on account of the same facts; and (b) if it is made after the accused is called upon to make his defence, he shall be acquitted.”
Kapindu added that, instead of pursuing the cause through an application to the court, a situation he branded as an abuse of the Court process, the DPP could have exercised his powers to discontinue a case as provided for in Section 99(2)(c) of the Constitution as read with Section 77 of the CP&EC.
“When exercising such power, the DPP does not need to seek the permission of the Court. Of course, Section 99(3) of the Constitution requires that he or she must furnish reasons for exercising such power within 10 days from the date of entering the discontinuance.”
Section 99(2)(c) states: “The Director of Public Prosecutions shall have power in any criminal case in which he or she considers it desirable so to do subject to subsection (5) to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or herself or any other person or authority.”
Section 99(3) states: “Subject to section 101(2), the powers conferred on the Director of Public Prosecutions by subsection (2)(b) and (c) shall be vested in him or her to the exclusion of any other person or authority and whenever exercised, reasons for the exercise shall be provided to the Legal Affairs Committee of the National Assembly within ten days.”
Lin was charged with corrupt practices with public officers, contrary to Section 24(2) as read with Section 34 of the Corrupt Practices Act (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 alleged to have offered the bribes while undergoing trial in the High Court for offences bordering on wildlife trafficking and financial crimes. He was found guilty of and convicted for the same.
