Kim v The Prison Manager, Mount Eden Corrections Facility

• Jurisdiction: New Zealand
• Judge: William Young J,Chambers J
• Judgment Date: 20 December 2012
• Neutral Citation: [2012] NZSC 121
• Docket Number: SC 80/2012
• Court: Supreme Court
• Date: 20 December 2012

Between

Kyung Yup Kim

Appellant

and

The Prison Manager, Mount Eden Corrections Facility

Respondent

[2012] NZSC 121

Court:

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

SC 80/2012

IN THE SUPREME COURT OF NEW ZEALAND

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).

Counsel:

T Ellis and G K Edgeler for Appellant

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

• A The appeal is dismissed.

• B There is no order for costs.

JUDGMENT OF THE COURT

REASONS

Elias CJ, McGrath and Glazebrook JJ	[1]
William Young J	[49]
Chambers J	[61]

ELIAS CJ, McGRATH AND GLAZEBROOK JJ

(Given by McGrath J)

Introduction

1 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

2 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.

3 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.

4 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

5 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.

Issues

6 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

7 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

8 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 for arrest of the person issued in the extradition country by a person having authority to issue it, together with a written deposition describing the offence, the applicable penalty and the conduct constituting the offence. 6

9 The decision on whether such a request should be dealt with under the Act is made by the Minister of Justice who must consider certain matters, including the seriousness of the offence, the object of the Act and any other matters that the Minister considers relevant. If the Minister decides to extend the Act on such an individual request, the subject of the request is liable to be arrested and surrendered in the manner provided by the general extradition procedure in Part 3. That part of the Act then applies with the necessary modifications. 7

10 Section 60 also incorporates by reference the provisions in Part 3 for a provisional arrest. Section 60(7) provides:

• (7) … a provisional arrest warrant in relation a person who is, or is suspected of being, in New Zealand or is on his or her way to New Zealand may be issued in accordance with Part 3 even if a request to which this section applies has not yet been made. (emphasis added)

In this respect, s 20(2) mirrors s 60(7) and permits a provisional arrest warrant to be obtained under Part 3, even if at this point no request for surrender has been made. 8

11 There was no issue taken that Part 3 of the Act applies in this case. Under Part 3, there are four stages of decision-making in extradition proceedings. First, a District Court Judge may issue a warrant for the arrest of a person who is in, or suspected of being in or on the way to, New Zealand, for extradition purposes. Alternative procedures are available. The arrest warrant may be issued under s 19, on the request of the Minister, following a request for extradition of the person by an extradition country. Under s 20, the Judge may, in certain circumstances, which we

will later discuss, issue a provisional arrest warrant whether or not a formal request for surrender of the person has been made under s 18. That is the type of warrant issued by Judge Broadmore in this case

12 The Act requires that a person arrested under either warrant must be brought before the Court as soon as possible. This is the second stage. The person will either be granted bail, which is not available as of right, or will be detained pending determination of his or her eligibility for surrender under s 24. If the Judge decides that the person is eligible for surrender, the Minister must determine whether the person is to be surrendered. 9 Subject to certain exceptions not presently relevant, if the Minister determines that the person is to be surrendered, the Minister must make a surrender order. 10

13 The determination of whether a person is eligible for surrender is under a judicial process. It comprises the third stage and a critical step in extradition proceedings under Part 3. If the person is held under a provisional warrant, the Court's hearing may not proceed until the Minister notifies the...