Kyung Yup Kim v The Prison Manager, Mount Eden Corrections Facility

• Jurisdiction: New Zealand
• Judge: Elias CJ,Glazebrook,Arnold JJ
• Judgment Date: 23 April 2015
• Neutral Citation: [2015] NZSC 47
• Docket Number: SC 27/2015
• Court: Supreme Court
• Date: 23 April 2015

Between

Kyung Yup Kim

Applicant

And

and

The Prison Manager, Mount Eden Corrections Facility

Respondent

[2015] NZSC 47

Court:

Elias CJ, Glazebrook and Arnold JJ

SC 27/2015

IN THE SUPREME COURT OF NEW ZEALAND

Catchline: Application for leave to appeal against the dismissal of a habeas corpus application — the People's Republic of China requested that the applicant be extradited to China — the District Court (DC) held that the applicant was eligible for extradition — DC issued a warrant for his continued detention under s70(1) Extradition Act 1999 (EA) (custody pending appeals) — applicant lodged an appeal against the eligibility finding but then withdrew it — applicant then filed an application for habeas corpus on the basis that his continued detention under the s70(1) warrant was unlawful as he had abandoned his appeal, so that the warrant had expired — in the meantime, the DC judge had issued a new warrant under s26(1) EA — at the time the second warrant was issued, the applicant had not been represented or present, but the DC Judge said he was merely correcting the error of having issued the warrant under s70 (1) — the applicant argued the Judge had been functus officio when he issued the s26(1) warrant — whether habeas corpus should have been granted.

Counsel:

T Ellis for Applicant

A F Todd for Respondent

The application for leave to appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

1 The People's Republic of China (PRC) has requested that the applicant, Mr Kim, be extradited to China to face trial on a charge of intentional homicide. Mr Kim arrived in New Zealand from Seoul, South Korea, on 4 October 2010 and the PRC's extradition request was received on 23 May 2011. On 9 June 2011, Mr Kim was arrested pursuant to a provisional warrant issued by Judge Broadmore. Mr Kim has been in custody since that time.

2 Since June 2011, Mr Kim's case has been before the courts on numerous occasions. Mr Kim's surrender eligibility hearing was set down several times, but then adjourned on Mr Kim's application. Mr Kim has made a number of unsuccessful applications for bail, has brought judicial review proceedings, made applications for writs of habeas corpus and appealed. As Brewer J has said, “Mr Kim does not want to be extradited to China and has challenged every step of the extradition process”. 1 The proposed appeal in this case relates to an application for habeas corpus that was dismissed by Brewer J on 10 December 2014. 2

3 The background is that, on 29 November 2013, Judge Gibson found that Mr Kim was eligible for surrender under s 24 of the Extradition Act 1999. This meant that he could be extradited if the Minister of Justice so determined. 3 Mr Kim said immediately that he intended to appeal against that decision. Judge Gibson then issued a warrant under s 70(1) of the Act (which deals with custody pending appeals) for Mr Kim's continued detention. (The Judge was advised by counsel that this was the appropriate course.) Mr Kim filed an appeal against Judge Gibson's eligibility finding on 11 December 2013 but subsequently, on 12 September 2014, filed a notice of abandonment and shortly thereafter discontinued other proceedings that he had on foot.

4 Then, on 26 November 2014, Mr Kim filed an application in the High Court that the surrender order be discharged, as well as an application for habeas corpus. The basis for the habeas corpus application was that Mr Kim's continued detention under the s 70(1) warrant was unlawful as he had abandoned his appeal, so that the warrant had expired. Brewer J accepted this argument, but did not issue a writ of habeas corpus. This was because Judge Gibson had issued a fresh warrant for Mr Kim's detention under s 26(1) of the Act, in circumstances which we detail at [7] below. Brewer J said that where a person had been determined to be eligible for surrender under s 24, s 26(1) required the District Court to issue a warrant for his or her detention pending the person's surrender to the extradition country or...