Kim v The Attorney-General
| Jurisdiction | New Zealand |
| Judge | Collins J |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] NZHC 3290 |
| Docket Number | CIV-2015-485-001009 |
| Court | High Court |
| Date | 17 December 2015 |
Under The Extradition Act 1999
In the Matter of an application for a discharge or bail in the inherent jurisdiction
[2015] NZHC 3290
CIV-2015-485-001009
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
Application for release on bail pending the hearing of an application to quash a decision of the Minister of Justice determining that the applicant was to be surrendered to China to face trial on a charge of murder — to date there had been approximately 35 court appearances, most of which had been initiated by applications brought by the applicant, including habeas corpus and judicial review proceedings — previous appeals against refusal of bail had failed on the grounds of flight risk — the application was made in reliance on the High Court's inherent jurisdiction as the Extradition Act 1999 (EA) did not refer to bail being granted where the Minister had ordered an applicant to be surrendered under s30 EA — whether the applicant's detention was contrary to s23(5) New Zealand Bill of Rights Act 1990 (NZBORA) (right to be treated with humanity and with respect for the inherent dignity of the person) or s22 NZBORA (liberty of the person) — what were the factors for determining bail applications in the Court's inherent jurisdiction — whether there was a serious flight risk.
A J Ellis and G K Edgeler for Applicant
A M Powell for Respondent
JUDGMENT OF Collins J
Mr Kim has applied to be released on bail pending the hearing of his application to quash a decision of the Minister of Justice (the Minister) in which she has determined that Mr Kim is to be surrendered to China to face trial on a charge of murder. Mr Kim has also applied under s 36 of the Extradition Act 1999 (the Act) to be discharged on the ground that the Minister failed to make a decision to surrender Mr Kim within the timeframe envisaged under the Act.
Mr Kim's bail application relies on the inherent jurisdiction of the High Court. He proposes that his bail be electronically monitored (EM bail).
I have decided not to grant Mr Kim's application for the following three reasons:
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(1) Mr Kim's continued detention is not “arbitrary”. 1 Nor is it possible for me to conclude at this juncture that Mr Kim's detention breaches his right to be “treated with humanity and with respect for the inherent dignity of the person”. 2
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(2) There is a real risk of Mr Kim fleeing New Zealand if he is granted EM bail.
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(3) Mr Kim's mental health issues can be managed safely in the remand facility at Mt Eden Prison or at the Mason Clinic if necessary.
Mr Kim was born in South Korea in 1975. He and his family immigrated to New Zealand in 1989. Mr Kim is still a citizen of South Korea, but he and his family are also permanent residents of New Zealand.
In December 2009, Mr Kim was living in Shanghai. He flew from Shanghai to Seoul on 14 December 2009.
On 31 December 2009, the body of a Ms Chen was found at a wasteland area in Shanghai. It is clear Ms Chen had been intentionally killed. Investigations by the police in Shanghai led the authorities to believe Mr Kim had murdered Ms Chen at his apartment on 11 December 2009.
A warrant for Mr Kim's arrest was issued by the Shanghai Municipal Public Security Bureau on 11 March 2010 and an Interpol “Red Notice” was issued on 14 May 2010. The offence alleged in the warrant is “murder/intentional homicide”. 3
Mr Kim flew from Seoul to Auckland on 4 October 2010.
A chronology of the applications and hearings that have been conducted in New Zealand courts following Mr Kim's arrival in New Zealand is set out in a judgment of the Court of Appeal. 4 To date there have been approximately 35 court appearances most of which have been initiated by applications brought by Mr Kim. The following paragraphs briefly summarise the key judicial events that have taken place.
On 23 May 2011, the Ministry of Justice received an initial request to surrender Mr Kim to China. That application was made under s 18 of the Act. The Ministry of Justice applied for a provisional warrant to arrest Mr Kim under s 20 of the Act. That application was granted by Judge Broadmore on 10 June 2011. Mr Kim was arrested at his home in Auckland later on 10 June 2011. He appeared in the Auckland District Court on 11 June 2011 and was remanded in custody in the remand facility at Mt Eden Prison.
Mr Kim made further brief appearances in the Auckland District Court on 13, 17 and 22 June 2011. He continued to be remanded in custody.
On 17 August 2011, Mr Kim was again remanded in custody for a hearing to determine if he was eligible to be surrendered. A determination that a person is eligible to be surrendered is made under s 24 of the Act.
On 7 February 2012, Mr Kim applied for bail in the Auckland District Court. Bail was refused. The High Court dismissed Mr Kim's appeal on 28 February 2012.
A hearing date to determine Mr Kim's eligibility for surrender was set for 15 October 2012. In the meantime, on 18 September 2012, Mr Kim made his first application for a writ of habeas corpus. That application was declined. The Court of Appeal dismissed Mr Kim's habeas corpus appeal on 12 October 2012. On 20 December 2012, the Supreme Court dismissed Mr Kim's application for leave to appeal the Court of Appeal's decision.
Judicial review proceedings were commenced by Mr Kim on 20 November 2012.
A second bail application was made in the District Court on 17 December 2012. That application was dismissed, as were appeals to the High Court on 1 March 2013 and the Court of Appeal on 6 May 2013.
On 9 September 2013, the District Court gave a judgment on preliminary issues relating to the hearing to determine if Mr Kim was eligible to be surrendered.
On 29 November 2013, the District Court determined Mr Kim was eligible to be surrendered to China. A third bail application was dismissed by the District Court that day.
Mr Kim filed a notice of appeal from the eligibility decision on 11 December 2013.
Mr Kim's judicial review application was determined by the High Court on 19 June 2014. The High Court found against Mr Kim on all material issues. 5
On 28 November 2014, Mr Kim filed his second application for habeas corpus. That application was dismissed by Brewer J on 3 December 2014. 6
On 4 December 2014, Mr Kim filed his third application for habeas corpus. That application was dismissed by Brewer J on 10 December 2014. 7 The Court of Appeal dismissed Mr Kim's appeal in relation to his third habeas corpus application on 25 February 2015. On 23 April 2015 the Supreme Court dismissed Mr Kim's application for leave to appeal the Court of Appeal's decision.
Mr Kim has been remanded in custody since his arrest on 10 June 2011.
On 30 November 2015, the Minister of Justice issued her decision in which she determined Mr Kim is to be surrendered to China.
On 10 December 2015, Mr Kim filed an application to judicially review the Minister's decision. He also applied to be discharged under s 36 of the Act on the grounds that the Minister had unduly delayed her decision. The present bail application was also filed on 10 December 2015.
On 16 December 2015 the Court received an EM bail report prepared pursuant to s 30F of the Bail Act 2000. That report concludes Mr Kim is suitable for EM bail and that his family's house in Auckland is a suitable an EM bail address.
In Kim v The People's Republic of China, Brewer J dismissed Mr Kim's appeal from a decision of Judge Gibson declining Mr Kim's application for bail. 8 In his decision, Brewer J explained the risk of Mr Kim leaving the jurisdiction was the “determinative factor” in declining the appeal. 9 Brewer J considered a number of factors including the nature of the charge faced by Mr Kim, the strength of the case against him and the seriousness of the punishment to which Mr Kim was exposed. After evaluating these and other factors Brewer J dismissed Mr Kim's appeal.
A year later Venning J dismissed Mr Kim's appeal from a decision of Judge Cunningham in which she had declined Mr Kim's bail application. 10 Venning J also focused upon the risk of Mr Kim fleeing the jurisdiction. Venning J referred to the judgment of Brewer J delivered on 28 February 2012 and said: 11
Nothing has changed since that decision in relation to the issue of flight risk. I agree with and adopt that reasoning and conclude there is a risk that, if granted bail, Mr Kim may fail to appear for the extradition hearing.
Appeals from the decisions of Brewer and Venning JJ dismissing Mr Kim's bail appeal were dismissed by the Court of Appeal.
Mr Kim's bail application focuses upon three broad contentions.
First, it is submitted on behalf of Mr Kim that his continued detention without bail is “arbitrary” and a breach of his right to be treated “with humanity and with respect for the inherent dignity of the person”. The claim Mr Kim's continued detention breaches his right to be treated “with humanity and with respect for the inherent dignity of the person” is primarily based upon Mr Kim's concerns about the strict prison regime to which he is currently subjected.
Second, Mr Kim's continued detention is adversely affecting his health.
There is medical evidence to support this concern. Two medical reports have been filed in support of Mr Kim's bail application. One report is from Mr Tamatea, a clinical psychologist. The second report is from Dr Rosic, a forensic psychiatrist.
In his report, Mr Tamatea explains the tests and evaluations he undertook when concluding Mr Kim is suffering a major depressive disorder and anxiety disorder.
Mr Tamatea recommends Mr Kim be monitored by professional staff in relation to...
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