KIM v THE PEOPLE's REPUBLIC of CHINA

• Jurisdiction: New Zealand
• Judge: Venning J
• Judgment Date: 01 March 2013
• Neutral Citation: [2013] NZHC 388
• Docket Number: CRI-2013-404-000007
• Court: High Court
• Date: 01 March 2013

Under the Extradition Act 1999 and the Bail Act 2000

In The Matter Of An Appeal Against A Refusal Of Bail

Between

Kyung Yup Kim

Appellant

and

The People's Republic Of China

Respondent

[2013] NZHC 388

CRI-2013-404-000007

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appearances:

G K Edgeler for Appellant

A K Mobberley for Respondent

JUDGMENT OF Venning J

Venning J

This judgment was delivered by me on 1 March 2013 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Introduction

1 The appellant, Mr Kim, appeals against a decision of Judge Cunningham in the District Court at Auckland on 17 December 2012 declining him bail.

Background

2 Mr Kim is a citizen of the Republic of Korea. He has permanent residence in New Zealand.

3 Mr Kim was arrested in 2011 pursuant to a request from The People's Republic of China (China). China seeks to extradite him in connection with the murder of a woman in Shanghai in December 2009.

4 On 7 February 2012 Mr Kim applied for electronically monitored bail. Judge Gibson in the District Court declined bail essentially because he considered Mr Kim to be a flight risk. An appeal was taken from that decision to this Court. On 28 February 2012 Brewer J dismissed the appeal.

5 At the time of the bail hearing in the District Court and the appeal in the High Court Mr Kim's eligibility hearing under s 24 of the Extradition Act 1999 was scheduled for July 2012.

6 After the bail hearings, Mr Kim instructed new counsel. A different approach was taken. At Mr Kim's request the eligibility hearing was vacated. Mr Kim applied for a writ of habeas corpus. In a decision delivered on 18 September 2012 Kos J declined the application for habeas corpus. An appeal was taken from that decision. The Court of Appeal upheld Kos J's decision. An appeal to the Supreme Court was also dismissed.

7 Mr Kim also filed an application for judicial review of the process leading to the issue of the provisional warrant which led to Mr Kim's initial and continued incarceration.

8 Mr Kim then made a further application for bail to the District Court in December 2012 on the basis of a change in circumstances. The change in circumstances relied on was categorised by the Judge as “human rights concerns”. Judge Cunningham considered the further material advanced in support of the application for bail and accepted “there are issues that need to be raised in terms of Mr Kim's human rights’ considerations”, which had not been raised before in the context of a bail hearing. However, the Judge declined the application for bail.

9 The Judge's reasons are summarised at the conclusion of her decision:

[26] When I consider whether or not there has been a change of circumstances, I have already acknowledged that issues have been raised today that have not been raised before. However, the fact remains that there is a reasonably strong case against Mr Kim and I accept that he does still pose a flight risk for the reasons that Judge Gibson and Brewer J set out in their decisions. That has not changed because these human rights arguments about why he should not be extradited have been raised in the way that they have.

Jurisdiction and the approach to the bail appeals generally

10 A preliminary issue arises as to the jurisdiction for this appeal.

11 Section 22 of the Extradition Act 1999 provides as follows:

22 Powers of court

• (1) In proceedings under this Part, except as expressly provided in this Act or in regulations made under section 102,—

• (a) The court has the same jurisdiction and powers, and must conduct the proceedings in the same manner, as if the proceedings were a [committal] hearing of an information for an indictable offence alleged to have been committed within the jurisdiction of New Zealand; and

• [(b) The following provisions apply to the proceedings, so far as applicable and with the necessary modifications:

  • (i) Parts 5 and 5A and sections 203, 204, and 206 of the Summary Proceedings Act 1957:

  • (ii) Parts 1 (except sections 9 to 12), 2, and 4 of the Bail Act 2000:

  • [[(iii) the Criminal Procedure (Mentally Impaired Persons) Act 2003.]] ]

• …

• [(3) Despite section 46( 1) and (2) of the Summary Proceedings Act 1957 (as applied by [[section 157]] of that Act) and section 28(2) of the Bail Act 2000, a decision under this Part to remand a person in custody or on bail may be made only by a Judge.]

12 In brief the appellant's argument is that the reference to Part 4 of the Bail Act 2000 incorporates s 49(2) of the Bail Act which in turn applies the provisions of ss 41 and 42 of the Bail Act so that this is to be treated as an appeal under s 41 of the Bail Act.

13 While acknowledging s 22(1)(b)(ii) provides for Part 4 of the Bail Act to apply, Ms Mobberley submitted s 49(2) of the Bail Act did not apply as s 49(2) only applies if s 49(1) is engaged and none of the provisions listed in s 49(1) were engaged in the present case.

14 Ms Mobberley submitted that s 22(1)(b)(i) of the Extradition Act applied Part 5 of the Summary Proceedings Act 1957. She submitted Mr Kim was in custody pursuant to s 46(2) of the Summary Proceedings Act which was invoked by s 157 of that Act.

15 Ms Mobberley accepted that this Court would, in any event, have inherent power to hear an application for bail, although in an originating rather than appellate capacity: Zaoui v Attorney-General1 and that the relevant considerations provided for in s 8 of the Bail Act 2000 applied, even in the event that the Court was required to consider the matter in its inherent jurisdiction.

16 Section 22(1) of the Extradition Act is the determinative provision. Section 22(1)(a) aligns the extradition process with the committal process for an indictable offence. For that reason, Part 3 of the Bail Act (which provides for bail in summary proceedings) is omitted from s 22(1)(b). Further, Part 5 of the Summary Proceedings Act (which provides for committal proceedings for indictable offences) is applied. Importantly, s 49(1) applies certain provisions of Part 3 of the Bail Act to

proceedings to which Part 5 of the Summary Proceedings Act applies, as if they were references to committal proceedings. One of those is s 49(1)(a) s 28 (bail on adjournment).

17 When Mr Kim sought bail in the District Court on his appearances in that Court s 28 of the Bail Act was engaged by s 46(1)(b) of the Summary Proceedings Act. I conclude that s 49(2) of the Bail Act applies and the appellant has a right of appeal to this Court under s 41 of the Bail Act.

18 I note that such a conclusion is consistent with the decision of Inglin v USA. 2 In that case Priestley J also concluded that s 49(2) provided a right of appeal in a case where bail had been declined in the District Court, in that case following an eligibility hearing.

19 The next issue is whether bail appeals in general are appeals against a discretion. Mr Edgeler submitted that, as bail appeals are heard by way of rehearing (s 41(6)), they are not appeals against a discretion. Mr Edgeler supported the submission by reference to a number of provisions in the Bail Act which expressly refer to the discretion in the following instances:

bail following a guilty plea; 3 bail pending sentence; 4

bail pending appeal; 5 and bail by appellate Courts in respect of appeals. 6

20 Mr Edgeler noted the Bail Act only refers to a discretion in respect of bail pre-trial in the limited circumstance of an arrest following a breach of bail: s 58(4).

21 I am not able to accept Mr Edgeler's submission. The issue for the Court when considering bail is whether there is just cause for continued detention: s 8. Consideration of whether there is just cause for continued detention is the exercise of a discretion after having regard to the relevant factors.

22 Next, in a number of the sections identified by Mr Edgeler, the reference to discretion is in the heading to the section, for example, ss 13 and 14 and there is no reference to the exercise of a discretion in the body of the section. It is however plain that in each case the Court is required to exercise a discretion whether to grant bail, and the discretion involved in the decision is of the same nature as the decision whether to grant bail under s 8, albeit that the considerations may be different.

23 In any event this Court is bound by the decisions of the Court of Appeal that confirm the principles in B v Police (No 2)7 continue to apply to appeals under the Bail Act 2000: Hereora v R, Dodd v R. 8

24 I confirm that an appeal against a decision on bail is an appeal against the exercise of a discretion.

25 Mr Edgeler submitted that if I found against the appellant on that point, the District Court Judge erred in principle in her approach to the question of bail in any event.

The basis for the appeal/application

26 Mr Edgeler submits that the Judge was wrong in principle and fell into error because she misunderstood the argument advanced for Mr Kim and in the approach she took to balancing the competing interests in play. The appellant says that, while the Judge referred to the new issues raised, she did not make an express finding in relation to them and in particular failed to weigh them in the balance against the perceived flight risk the appellant posed.

27 Mr Edgeler emphasised that it is not the case for Mr Kim on this appeal that the human rights arguments somehow diminish or affect what may be perceived as his flight risk or the strength of any prima facie case against him. Instead, the focus should be on the likelihood he...