Kim v The People's Republic of China

• Jurisdiction: New Zealand
• Judge: White J
• Judgment Date: 10 May 2013
• Neutral Citation: [2013] NZCA 136
• Docket Number: CA153/2013
• Court: Court of Appeal
• Date: 10 May 2013

Between

Kyung Yup Kim

Appellant

and

The People's Republic of China

Respondent

[2013] NZCA 136

Court:

Arnold, Harrison and White JJ

CA153/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Reissue of decision as to whether the Court of Appeal (“CA”) had jurisdiction to hear appeal under s66 Bail Act (2000) (“BA”) (appeal from decision of High Court relating to bail) — both Crown and applicant argued that bar against appeals under s66(4) (section does not apply to decision made by HC on appeal from a decision of the District Court) did not apply as s28 BA (bail on adjournment) did not apply to a refusal of bail by District Court (“DC”) — HC had therefore effectively exercised inherent jurisdiction to hear an originating application for bail, rather than an appeal from the DC — whether the power of the DC under s28(1) BA to grant a defendant bail for the period of an adjournment did not include power to refuse the defendant bail.

Counsel:

T Ellis and G K Edgeler for Appellant A Mobberley for Respondent

JUDGMENT OF THE COURT

The appeal is struck out.

REASONS OF THE COURT

(Given by White J)

1 In the High Court at Auckland Venning J dismissed an appeal by Mr Kim 1 against a decision of Judge Cunningham in the District Court at Auckland 2 refusing

him bail pending his extradition hearing. 3 The issue now is whether this Court has jurisdiction to hear a second appeal by Mr Kim

2 The issue arises because s 66(4) of the Bail Act 2000, which governs this Court's jurisdiction to hear appeals from the High Court relating to bail, provides that:

Nothing in this section applies in respect of any decision made by a High Court Judge if that decision was made on appeal from any decision of a District Court.

The clear purpose of this provision is to exclude a second right of appeal to this Court when a right of appeal from the District Court to the High Court has already been exercised. 4

3 Notwithstanding s 66(4), counsel for both Mr Kim and the Crown filed written submissions suggesting that this Court has jurisdiction to hear Mr Kim's appeal. They submitted that, as ss 28 and 49(1) and (2) of the Bail Act do not apply in this case, the High Court has (and effectively exercised) inherent jurisdiction to hear an originating application for bail 5 rather than an appeal from the District Court and this Court therefore has jurisdiction to hear the appeal against the High Court's determination of that originating application under s 66(1) and (2) of the Bail Act.

4 At the same time, however, Ms Mobberley acknowledged that her comprehensive submissions, which were adopted by Mr Edgeler for Mr Kim, depended on this Court accepting that the power of the District Court under s 28(1) of the Bail Act to grant a defendant bail for the period of an adjournment does not include power to refuse the defendant bail as occurred in Mr Kim's case. Ms Mobberley accepted that if the power under s 28(1) includes the power to refuse bail for the period of an adjournment, then Mr Kim's appeal to the High Court would have been against the decision of Judge Cunningham in the District Court, the

High Court would not have been exercising its inherent jurisdiction and, by virtue of s 66(4), Mr Kim would have no second right of appeal to this Court

5 The issue of jurisdiction turns therefore on the interpretation of s 28(1) of the Bail Act which provides:

In any case referred to in section 46(1) of the Summary Proceedings Act 1957 (which relates to dealing with a defendant on adjournment), the District Court may grant the defendant bail under this section for the period of the adjournment.

6 There is no dispute that ss 22 and 23 of the Extradition Act 1999 (relating to the...