Kim v Minister of Justice of New Zealand

• Jurisdiction: New Zealand
• Judge: Winkelmann J
• Judgment Date: 11 June 2019
• Neutral Citation: [2019] NZCA 209
• Court: Court of Appeal
• Docket Number: CA562/2017
• Date: 11 June 2019

Between

Kyung Yup Kim

Appellant

and

Minister of Justice of New Zealand

First Respondent

Attorney-General of New Zealand

Second Respondent

[2019] NZCA 209

Court:

Cooper, Winkelmann and Williams JJ

CA562/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Procedure, Judicial Review — extradition to the People's Republic of China — suspected of intentional homicide — risk of pre-trial torture and extra-judicial execution — fair trial — reliance on assurances — Extradition Act 1999 — New Zealand Bill of Rights Act 1990 — International Covenant on Civil and Political Rights

Counsel:

A J Ellis, G K Edgeler and BJR Keith for Appellant

A F Todd and G M Taylor for Respondents

• A The appeal is allowed.

• B The Minister of Justice's decision to surrender the appellant under s 30 of the Extradition Act 1999 is quashed.

• C The Minister of Justice must reconsider whether the appellant is to be surrendered in accordance with the matters identified at [278] of this judgment.

• D The respondents are jointly and severally liable to pay the appellant one set of costs for a standard appeal on a band B basis and usual disbursements. We certify for second counsel.

• E Costs in the High Court are to be dealt with by that Court having regard to this judgment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

	Para No.
INTRODUCTION	[1]
Some necessary context as to the extradition process
The Minister's role in the extradition process	[10]
The surrender decision and the relevance of international law and the New Zealand Bill of Rights Act 1990	[11]
International law bearing upon exercise of s 30 discretion	[15]
New Zealand Bill of Rights Act and exercise of s 30 discretion	[17]
PRC's adoption of international covenants	[22]
The process to extradite Mr Kim	[24]
Briefing to the Minister	[29]
Minister's first decision	[31]
First judicial review	[36]
Minister's second decision	[39]
Second judicial review	[42]
Grounds of appeal	[44]
Standard of review	[45]
FIRST GROUND OF APPEAL	[48]
Is reliance upon diplomatic assurances consistent with New Zealand's international obligations?
Submissions	[48]
First judicial review	[52]
Second judicial review	[56]
Analysis	[57]
(a) Can New Zealand lawfully accept assurances to meet a risk of torture?	[57]
(b) Did the Minister err in failing to address a preliminary question whether assurances should be accepted in this case?	[71]
SECOND GROUND OF APPEAL	[80]
Did the Minister take into account a consideration irrelevant to her surrender decision?
Submissions	[80]
Analysis	[81]
THIRD GROUND OF APPEAL	[84]
Did Minister err in accepting assurances in relation to torture as adequate to protect Mr Kim on return to PRC?
Submissions	[84]
Evidence before the Minister in connection with use of torture and extra-judicial killings in the PRC	[89]
Minister's first decision	[95]
First judicial review	[97]
Briefing prior to the second decision	[104]
Second judicial review	[114]
Analysis	[117]
(a) Did Minister take into account an irrelevant consideration, namely relative risk?	[117]
(b) Did the Minister err in assessing the magnitude of the risk that Mr Kim would be tortured?	[118]
(c) Did the Minister err in concluding that other factors reduced Mr Kim's risk?	[121]
(d) Was the Minister's conclusion that the assurances were adequate to protect Mr Kim reasonable?	[127]
FOURTH GROUND OF APPEAL	[140]
Did the Minister err in relying upon diplomatic assurances as an adequate protection against the imposition of the death penalty?
Exposure to death penalty	[140]
Submissions	[142]
Minister's first decision	[144]
Judicial review decisions	[147]
Analysis	[153]
FIFTH GROUND OF APPEAL	[156]
Did the Minister fail to address the risk of extra-judicial killing?
Relevant background	[161]
Analysis	[164]
SIXTH GROUND OF APPEAL	[167]
Did the Minister apply an incorrect legal standard in determining whether Mr Kim's right to a fair trial would be upheld?
Legal framework	[169]
Analysis	[176]
SEVENTH GROUND OF APPEAL	[183]
Did the Minister err in concluding that there was no risk of departure from fair trial standards justifying refusal of surrender?
PRC's criminal justice system	[188]
Right to a hearing before an independent and public tribunal	[192]
Right to legal representation	[222]
Right not to be compelled to testify or confess guilt	[244]
Conclusion	[257]
EIGHTH GROUND OF APPEAL	[258]
Did the Minister err in making the decision to surrender Mr Kim notwithstanding the absence of assurance addressing the risk of disproportionate punishment?
Relevant background	[258]
Analysis	[264]
NINTH GROUND OF APPEAL	[269]
Did the Minister err in relying on advice from PRC officials as to Mr Kim's access to mental health care in custody in the PRC?
SUMMARY OF CONCLUSIONS	[271]
RESULT	[276]
COSTS	[279]

Introduction

1 Mr Kim is a citizen of the Republic of Korea. He came to New Zealand with his family in 1989, when he was 14 years old. He and his mother are permanent residents of New Zealand, while his father and younger brother are New Zealand citizens. Mr Kim is the father of two teenage children, for whom he is the principal caregiver.

2 Chinese authorities allege that in 2009, Mr Kim killed a 20-year-old woman Pei Yun Chen in Shanghai. Chinese police have both forensic and circumstantial evidence linking Mr Kim to the homicide. On 25 May 2011 New Zealand received a request from the People's Republic of China (the PRC) seeking the extradition of Mr Kim on one count of intentional homicide. That request included an assurance that if convicted, Mr Kim would not be sentenced to death.

3 In response to that request, Mr Kim was arrested in New Zealand and held in custody pending completion of extradition proceedings. He remained detained for over five years as the extradition proceedings made their way through the courts before eventually being released on electronic bail. The proceedings in connection with this request for extradition have a lengthy and complex history, which we need only outline in part. 1 In the ensuing seven years since that initial arrest, Mr Kim has resisted surrender arguing that he will be at significant risk in the PRC of torture, extra-judicial killing or the imposition of the death penalty. He says his mental health is such that he should not be surrendered, and that if he is surrendered, he will receive inadequate treatment. He claims to have a defence to the charge but says he will not receive a fair trial if returned to the PRC because of systemic and fundamental flaws in its criminal justice system. Finally, Mr Kim argues that if convicted, he will be exposed to a disproportionately severe sentence.

4 The Minister of Justice is responsible under the Extradition Act 1999 (the Extradition Act) for the decision to surrender Mr Kim. The Minister sought and received various assurances from the PRC to meet the concerns identified by Mr Kim and Ministry officials in connection with the risk of torture and Mr Kim's right to a fair trial. In late 2015, following receipt of those assurances, the then Minister of Justice, the Hon Amy Adams, determined that Mr Kim was to be surrendered. She concluded that Mr Kim was at risk of torture if surrendered but that assurances provided by the PRC which allowed extensive monitoring of Mr Kim's treatment adequately addressed this risk. In assessing the risk the assurances had to meet, the Minister proceeded on the basis that, as an ordinary criminal, Mr Kim was not at high risk of torture, and that other aspects of his case further reduced the risk. She was satisfied that recent reforms to criminal procedure, and assurances regarding access to a lawyer, met any risk that Mr Kim would not receive a fair trial on his return.

5 Mr Kim applied successfully to judicially review that decision before Mallon J. 2 The Judge identified reviewable errors and directed the Minister to reconsider her decision. 3

6 The Minister, having reconsidered whether to surrender Mr Kim, again decided that Mr Kim was to be surrendered. Mr Kim then applied to judicially review the Minister's second surrender decision, but on this second occasion, Mallon J refused the application. 4

7 Mr Kim now appeals that refusal of judicial review. He argues that in declining the second application for review, the Judge overlooked serious errors in the Minister's decision-making process and reasoning. Mr Kim's overall contention is that in deciding to surrender Mr Kim, the Minister failed to come to grips with the functioning of the PRC's legal system in which pre-trial torture and extra-judicial execution is endemic, and a fair trial is not possible. He argues the Minister underestimated the extent of the risks that Mr Kim faced, due to errors in her decision-making process and because she took a view of the facts not reasonably open to her. He contends that the Minister ought not to have relied upon diplomatic assurances because that practice undermines the standing of international conventions and the rule of law in the PRC, and because the assurances in this case are inadequate to meet the concerns they purport to address.

8 The issues on this judicial review are difficult. Mr Kim's case is the first occasion on which New Zealand has been asked to extradite to the PRC. Extradition processes...