Minister of Justice and another v Kyung Yup Kim

• Jurisdiction: New Zealand
• Judge: Glazebrook,Ellen France,Arnold JJ,Glazebrook J,O'Regan,French JJ,O'Regan J
• Judgment Date: 04 June 2021
• Neutral Citation: [2021] NZSC 57
• Court: Supreme Court
• Docket Number: SC 57/2019

Between

Minister of Justice

First Appellant

Attorney-General

Second Appellant

and

Kyung Yup Kim

Respondent

[2021] NZSC 57

Court:

Glazebrook, O'Regan, Ellen France, Arnold and French JJ

SC 57/2019

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Criminal, International — appeal against a Court of Appeal order which upheld the decision made by the then Minister of Justice, (“the Minister”), that K should be surrendered to the People's Republic of China where he was charged with intentional homicide — assurances for fair trial requirements — International Covenant on Civil and Political Rights

Counsel:

U R Jagose QC, A F Todd and G M Taylor for Appellants

A J Ellis, B J R Keith and G K Edgeler for Respondent

A S Butler, R A Kirkness and C S A Harris for Human Rights Commission as Intervener

JUDGMENT OF THE COURT

REASONS

	Para No.
Glazebrook, Ellen France and Arnold JJ	[1]
O'Regan and French JJ	[478]

Glazebrook, Ellen France AND Arnold JJ

(Given by Glazebrook J)

Table of Contents

	Para No.
Introduction	[1]
Procedural history	[3]
Further background	[10]
The allegations	[10]
Seeking assurances	[16]
First surrender decision	[19]
First judicial review decision	[23]
Second surrender decision	[28]
Second judicial review decision	[30]
Court of Appeal judgment	[31]
Issues	[38]
What is the standard of review?	[40]
Court of Appeal judgment	[40]
Appellants' submissions	[41]
Intervener's submissions	[42]
Mr Kim's submissions	[45]
Our assessment	[46]
Was the Minister obliged to make a preliminary assessment of the general human rights situation in the PRC before seeking assurances?	[52]
Court of Appeal judgment	[52]
Appellants' submissions	[54]
Mr Kim's submissions	[55]
Our assessment	[57]
Conclusion on preliminary question	[64]
In what circumstances is it possible to rely on assurances related to torture?	[66]
Ministerial briefings	[69]
Court of Appeal judgment	[72]
Issues raised about torture assurances by commentators	[75]
Caselaw on diplomatic assurances	[84]
New Zealand's statutory framework	[103]
The three questions	[108]
Does extradition to a country that practises torture breach UNCAT?	[109]
Can assurances be sought where, absent assurances, there would be substantial grounds for believing a person to be extradited would be in danger of being subjected to torture?	[112]
Can assurances be sought from a state where torture is systemic?	[122]
Conclusion	[127]
The assurances on torture in this case	[129]
Assessing the risk in this case	[131]
Relevant considerations in the three-stage test	[136]
Guidance on monitoring	[140]
Material before the Minister	[144]
Ministerial briefing of 23 November 2015	[144]
Criminal procedure	[145]
Torture in the PRC: legal position	[147]
General situation in the PRC relating to torture	[152]
Individual risk to Mr Kim	[158]
Assurances	[160]
Further Ministerial briefings and advice	[163]
Further information as to the situation regarding torture in the PRC and Mr Kim's personal risk	[164]
Further details about the assurances	[170]
Decisions and submissions	[180]
Minister's reasons of 3 October 2016	[180]
Court of Appeal judgment	[185]
Appellants' submissions	[193]
Mr Kim's submissions	[194]
Intervener's submissions	[195]
Issues arising with regard to the assurances	[197]
Risk to Mr Kim	[198]
Quality of assurances	[212]
First assurance	[213]
Second assurance	[218]
Third assurance	[221]
Fourth assurance	[224]
Fifth assurance	[229]
Importance of a robust monitoring regime	[230]
Timing of visits	[232]
Notice of visits	[236]
Continued monitoring	[237]
Private visits	[239]
Medical examinations	[243]
Sixth assurance	[247]
Seventh assurance	[249]
Tenth assurance	[251]
Twelfth assurance	[256]
Likelihood that the assurances will be honoured	[257]
Conclusion on risk of torture	[263]
Fair trial issues	[265]
What is the proper test for assessing whether there will be a fair trial?	[266]
Court of Appeal judgment	[266]
Appellants' submissions	[270]
Mr Kim's submissions	[272]
Intervener's submissions	[273]
Ministerial briefing of 23 November 2015	[275]
Our assessment	[277]
Background: fair trial issues	[288]
Assurances related to fair trial	[288]
Court of Appeal's concerns	[289]
Appellants' submissions	[291]
Mr Kim's submissions	[292]
Intervener's submissions	[293]
Discussion of main fair trial assurances received	[294]
Judicial independence	[300]
Court structure	[301]
Ministerial briefing of 23 November 2015	[305]
First surrender decision	[308]
Evidence for first judicial review	[309]
Second surrender decision	[312]
Court of Appeal judgment	[313]
Additional material on judicial committees	[316]
Referral criteria	[318]
Number of referrals	[322]
Process	[324]
Eligibility to attend	[327]
International standards	[329]
Issues	[334]
Role of the PRC courts	[335]
Political influence	[339]
Operation of judicial committees	[341]
Right to silence	[356]
Background: law and practice in the PRC	[356]
Court of Appeal judgment	[360]
Our assessment	[362]
Position of defence counsel	[368]
Background: law and practice in the PRC	[368]
Court of Appeal judgment	[376]
Our assessment	[379]
Disclosure	[384]
Background: law and practice in the PRC	[384]
Court of Appeal judgment	[391]
International standards	[394]
Our assessment	[402]
Examining witnesses	[408]
Background: law and practice in the PRC	[408]
Court of Appeal judgment	[411]
International standards	[413]
Our assessment	[418]
Conclusion on fair trial	[422]
Should the Minister have received an assurance with regard to remand time?	[424]
Court of Appeal judgment	[427]
Appellants' submissions	[429]
Mr Kim's submissions	[431]
Our assessment	[432]
Summary of our decision on appeal	[434]
Torture	[435]
Surrender where risk of torture	[435]
The test	[437]
Risk to Mr Kim	[439]
Quality of assurances	[443]
Whether the assurances will be honoured	[445]
Conclusion on torture	[446]
Fair trial	[447]
The test	[447]
Main fair trial assurances	[448]
Judicial independence	[450]
Right to silence	[458]
Position of defence counsel	[460]
Disclosure	[463]
Examining witnesses	[464]
Conclusion on fair trial	[465]
Remand time	[466]
Cross-appeal	[467]
Mr Kim's submissions	[467]
Our assessment	[468]
Disposition of appeal	[469]
Result	[475]

Introduction

[1] Mr Kim is accused of killing a young woman, Ms Peiyun Chen, while he was in Shanghai in 2009. In May 2011, New Zealand received a request from the People's Republic of China (PRC) seeking his extradition on one count of intentional homicide. The request included an assurance that, if convicted, Mr Kim would not be subject to the death penalty.1

[2] This appeal concerns the decision made by the then Minister of Justice, the Hon Amy Adams (the Minister), that Mr Kim should be surrendered to the PRC.2

Procedural history3

[3] After receiving the request for extradition from the PRC, the Hon Simon Power, the then Minister of Justice, determined that the PRC's request should be dealt with under the Extradition Act 1999.4 The Extradition Act provides a two-stage process. First, the District Court must determine whether a person for whom an extradition request has been made is eligible for surrender to the requesting country.5 If it is held that the person is eligible for surrender, the Minister of Justice must then determine whether the person should be surrendered to the requesting country.6

[4] Mr Kim appeared before the District Court for his eligibility hearing from 16 to 18 September 2013. Judge Gibson issued his decision on 29 November 2013, determining that Mr Kim is eligible for surrender.7

[5] On 30 November 2015, the Minister (the Hon Amy Adams) determined that Mr Kim should be surrendered to the PRC, having obtained assurances relating to torture and fair trial issues (first surrender decision).8

[6] Mr Kim was successful in his judicial review of that decision before Mallon J in the High Court (first judicial review) and the Minister was directed to reconsider her decision.9

[7] Having considered further information and submissions, on 19 September 2016 the Minister concluded that Mr Kim should be surrendered (second surrender decision).

[8] Mr Kim's application for judicial review of that second surrender decision was dismissed by Mallon J in the High Court (second judicial review).10 His appeal against that decision was allowed by the Court of Appeal on 11 June 2019.11

[9] The application by the Minister of Justice and the Attorney-General (referred to collectively as the appellants in this judgment) for leave to appeal against the decision of...