Kim v The Prison Manager, Mount Eden Corrections Facility

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J,Chambers J
Judgment Date20 December 2012
Neutral Citation[2012] NZSC 121
Date20 December 2012
Docket NumberSC 80/2012

[2012] NZSC 121



Elias CJ, McGrath, William Young, Chambers and Glazebrook JJ

SC 80/2012

Kyung Yup Kim
The Prison Manager, Mount Eden Corrections Facility

T Ellis and G K Edgeler for Appellant

M R Heron QC Solicitor-General and D J Perkins for Respondent

Appeal against refusal of application for a warrant of habeas corpus — appellant arrested in NZ after ex parte application for provisional arrest warrant was made and warrant was issued — appellant had successfully obtained adjournments of hearing under s24 Extradition Act 1999 (“EA”) (determination of eligibility for surrender) which would determine whether eligible for surrender in relation to offences allegedly committed by him in Shanghai — adequacy of overseas arrest warrant in issue — whether appellant was an “accused” person in terms of s3(1) EA (meaning of extraditable person).

The issues were: whether the overseas arrest warrant was adequate and whether the information before the Judge was sufficient to satisfy him on reasonable grounds that K was a person accused of having committed the offence of murder in China and whether the Judge had reasonable grounds on the information to believe that s20(1)(c) EA (provisional arrest warrant may be issued) were met.

Held: This appeal related to the first stage of extradition proceedings — the decision to detain a person under a provisional warrant issued under s20 EA. The purpose of such detention was to hold a person who was the subject of a criminal process overseas, so that extradition proceedings could be undertaken. This decision was preliminary to the substantive extradition proceedings and determinations to follow.

The Judge was able to rely on material that would be open to challenge at the eligibility hearing when deciding whether a provisional arrest warrant should be issued as (s20(1) EA). At this stage, whether or not article 47 Extradition Law of the People's Republic of China (request made to foreign states for extradition) had been complied was irrelevant to issues under s20 EA, as were submissions concerning the possibility of torture or imposition of the death penalty if K were surrendered.

The challenge to the provisional arrest warrant was capable of fair determination on the basis accepted in Manuel v Superintendent of Hawkes Bay Regional Prison. In Manuel, the CA held that habeas corpus was the appropriate procedure in which to challenge the lawfulness of administrative or judicial determinations only when the challenge was able to be determined fairly by summary process. (Majority decision).

The remaining submission was that K had not been accused of having committed an extraditable offence as required by s3(a) EA (meaning of extraditable person), but was rather suspected of having done so. Ascertaining whether someone in NZ was an “accused” person in the extradition context necessarily took account of the procedural differences in the approach to prosecution of crime in different national jurisdictions. It was not appropriate to look to a formal charge, equivalent to what happened under NZ procedure at a relatively early stage, to identify when a suspect became an accused person.

The fact that an enforcement authority sought surrender of a person or provisional detention prior to laying formal charges was not inconsistent with the person being properly regarded as an accused person. The purpose of questioning might be to check that there was a proper basis for an official accusation after hearing from the accused person. The information before the Judge indicated that at the time the Chinese Police requested K's arrest under a provisional warrant, extensive evidence implicating the appellant had been obtained and the process of prosecution under Chinese law was well under way. The Judge clearly had reasonable grounds to believe K had been accused of the alleged crime and was an extraditable person.

Appeal dismissed.

  • A The appeal is dismissed.

  • B There is no order for costs.


Elias CJ, McGrath and Glazebrook JJ


William Young J


Chambers J



(Given by McGrath J)


Kyung Yup Kim, a citizen of the Republic of Korea and a permanent resident of New Zealand, is presently detained in Mt Eden Prison pursuant to a warrant of detention issued under the Extradition Act 1999. Mr Kim appeals to this Court against a judgment of the Court of Appeal, 1 upholding the High Court, 2 which refused his application for a warrant of habeas corpus.

Procedural background

In May 2010 Interpol published a Red Notice in respect of the appellant on its public website. On 1 June the police in Shanghai wrote to the New Zealand office of Interpol asking that he be provisionally arrested. The letter foreshadowed that the People's Republic of China intended to request the surrender of Mr Kim from New Zealand to China for the intentional murder of Ms Peiyun Chen in Shanghai in December 2009. It was accompanied by a certified copy and English translation of a warrant for the arrest of the appellant issued by the Shanghai Municipal Public Security Bureau. The letter also enclosed a number of documents variously headed “Identification Record”, “Interrogation Record” and “Questioning Record” comprising verified written statements to police officers of the Criminal Investigation Division of the Bureau. China's request for extradition of the appellant was received by the New Zealand Government on 23 May 2011.


An ex parte application for a provisional arrest warrant in respect of the appellant was made on behalf of China early in June and a provisional arrest warrant dated 9 June 2011 was issued by Judge Broadmore.


The appellant was arrested soon after and came before the District Court on 13 June. He did not then seek bail, indicating he might do so in the future, and was

remanded in custody. When some six months later he applied for bail, his application was heard by Judge Gibson and refused with reasons on 7 February 2012. 3 An appeal to the High Court against that decision was dismissed. 4 Since then Mr Kim has been detained under warrants which have been successively reissued at callover hearings at the District Court. During the period of his detention the appellant has been offered fixture dates for the Court's hearing under s 24 of the Extradition Act that will determine whether he is eligible for surrender in relation to the offences he allegedly committed in Shanghai. He has however successfully applied on each occasion for adjournment of the fixture.

On 12 September 2012, following a change of counsel, the appellant applied to the High Court for a writ of habeas corpus, claiming that he was being illegally detained. He has also recently filed judicial review proceedings, in which he challenges the decision to issue the provisional warrant and various actions and decisions of New Zealand government Ministers and officials in relation to the application for his extradition. The sole matter before this Court, however, is the habeas corpus proceedings.


The appellant's argument in this Court is that he has been unlawfully detained because there was insufficient information before the Court in terms of s 20 of the Extradition Act to satisfy the Judge that:

  • (a) the authorities which were required by art 47 of the Extradition Law of the People's Republic of China to consent to a request for extradition had given their approval; and

  • (b) there were reasonable grounds to believe the appellant is accused of having committed an extradition offence in China and that he was, accordingly, an extraditable person. The police in Shanghai merely

    suspected that he had committed the murder and wanted him for questioning.
The statutory scheme

Before addressing this argument, it is necessary to refer to the statutory context, confining our discussion to provisions which are relevant to this case. Requests for extradition to and from New Zealand are governed by the Extradition Act. The object of the Act is stated in s 12:

12 Object of this Act

The object of this Act is to provide for the surrender of an accused or convicted person from New Zealand to an extradition country or from an extradition country to New Zealand, and in particular—

  • (a) to enable New Zealand to carry out its obligations under extradition treaties; and

  • (b) to provide a means for New Zealand to give effect to requests for extradition from Commonwealth countries; and

  • (c) to provide a means for New Zealand to give effect to requests for extradition from non-Commonwealth countries with which New Zealand does not have an extradition treaty; and

  • (d) to provide a simplified procedure for New Zealand to give effect to requests for extradition from Australia and certain other countries; and

  • (e) to facilitate the making of requests for the extradition of persons to New Zealand.

“Extradition country” is defined in terms that denote a country to which the part of the Act providing for the relevant extradition proceedings applies. 5


As the particular purposes listed in the object provision foreshadow, the Act provides a number of means for giving effect to extradition objections or requests. In particular, provided certain requirements are met, the Act enables non-Commonwealth countries and countries with which New Zealand does not have an extradition treaty (a category which includes China) to make requests for extradition of a person accused of an offence committed within that country's

jurisdiction. To this end, Part 5 of the Act provides, in s 60, for the extension of its provisions to cover individual requests on an application to the Minister of Justice. The application must be accompanied by duly authenticated supporting documents. These include a warrant...

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