Minister of Justice v Kyung Yup Kim

• Jurisdiction: New Zealand
• Judge: O'Regan,French JJ,O'Regan J
• Judgment Date: 13 April 2022
• Neutral Citation: [2022] NZSC 44
• Docket Number: SC 57/2019
• Court: Supreme Court

Between

Minister of Justice

First Appellant

Attorney-General

Second Appellant

and

Kyung Yup Kim

Respondent

[2022] NZSC 44

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

SC 57/2019

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

Criminal — appeal against a Court of Appeal decision which adjourned the appellant's appeal against the upholding of the respondent's judicial review challenge of a decision to extradite him to the People's Republic of China — risk of torture and fair trail rights — assurances — Extradition Act 1999

Counsel:

U R Jagose QC and A F Todd for Appellants

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

• A The application for leave to adduce the expert reports annexed to the parties' joint report dated 3 December 2021 is granted.

• B The appeal is allowed. The decision of the Court of Appeal is set aside.

• C The Minister of Justice's decision of 19 September 2016 to surrender the respondent under s 30 of the Extradition Act 1999 is reinstated.

• D Costs are reserved.

JUDGMENT OF THE COURT

REASONS

	Para No
Glazebrook, Ellen France and Arnold JJ	[1]
O'Regan and French JJ	[82]

GLAZEBROOK, ELLEN FRANCE AND ARNOLD JJ

(Given by Ellen France J)

Table of Contents

Para No Introduction	[1]
Steps undertaken following delivery of the 4 June 2021 judgment	[4]
Summary of the parties' positions on the responses	[10]
Torture	[17]
Background	[18]
The needfor two further inquiries and the PRC response	[24]
The sufficiency of the two further assurances on torture	[26]
The risk to Mr Kim	[27]
The quality of the assurances	[32]
Whether the assurances will be honoured	[34]
Conclusion on risk of torture	[40]
Fair trial	[41]
Judicial committees	[43]
The operational aspects and the 2019 Opinions	[48]
Equality of arms	[58]
Outside influence	[63]
Disclosure	[70]
Delay	[74]
Conclusion on fair trial	[76]
Mr Kim's health	[77]
Result	[78]
New evidence	[79]
Costs	[80]

Introduction

1 In a judgment delivered on 4 June 2021 1 the Court, by majority, adjourned the appeal by the appellants, the Minister of Justice and the Attorney-General, against a decision of the Court of Appeal. 2 The Court of Appeal had allowed an appeal by the respondent, Mr Kim, in his judicial review of the 19 September 2016 decision of the then Minister of Justice (Hon Amy Adams) under s 30 of the

Extradition Act 1999 that he should be surrendered to the People's Republic of China (PRC) to face trial on one count of intentional homicide. The Court of Appeal quashed the Minister's decision on the basis of the risks to Mr Kim in terms of torture and fair trial, among other things

2 In adjourning the appeal the Court held that, assuming some specific issues relating to aspects of the analysis of the risks to Mr Kim were satisfactorily resolved, there would be no substantial grounds (no real risk) of Mr Kim being subjected to torture or of an unfair trial if surrendered to the PRC. 3 The appeal was adjourned to give the appellants the opportunity to make further inquiries, seek further assurances from the PRC Government on the specific issues identified and consider any submissions made by Mr Kim. 4 These steps have been taken.

3 The issue for us now is whether the responses provided by the PRC satisfactorily resolve the outstanding issues identified by the Court in the earlier judgment. We address that issue after saying a little more about the principal steps undertaken since delivery of the earlier judgment.

Steps undertaken following delivery of the 4 June 2021 judgment

4 In the earlier judgment the Court directed the parties to submit a joint report setting out the result of the further inquiries made and any further assurances received, as well as the proposed disposition of the appeal and any other relevant circumstances. 5 The parties were also directed to describe any differences between them and whether a further hearing was sought. The joint report dated 3 December 2021 filed by the parties helpfully summarises the steps taken since the delivery of the earlier judgment and we adopt that summary in the description which follows.

5 On 9 July 2021, the Ministry of Foreign Affairs and Trade (MFAT) on behalf of the appellants put a number of questions and requests for further assurances to the Government of the PRC. The PRC Government replied on 1 September 2021. In

addition, the Minister of Justice made a request to the Minister of Foreign Affairs on 24 June 2021 seeking information about the strength of the current bilateral relationship between New Zealand and the PRC, the reliability of assurances, and any other relevant diplomatic matters. The response from the Minister of Foreign Affairs was dated 6 October 2021 although provided on 14 October 2021

6 Counsel for Mr Kim made submissions to the appellants about the content of the necessary inquiries; the need, in their submission, for ancillary inquiries and objective evidence gathering; and empirical and expert material. After receiving the response dated 1 September 2021 from the PRC Government and the letter of 6 October 2021 from the Minister of Foreign Affairs, counsel for Mr Kim provided further submissions and material to the Minister of Justice on 27 October 2021. That material included the expert reports which are the subject of an application for leave to adduce new evidence in this Court. Finally, Mr Kim provided the Minister of Justice with information and reports in relation to his medical condition. In relation to this material, the appellants dispute the relevance of the parts of it that became available subsequent to consideration by the Minister.

7 Further submissions were also made to the Minister of Justice by Amnesty International Aotearoa New Zealand, Human Rights Watch, and the Inter-Parliamentary Alliance on China. The Minister of Justice sought advice on this further material from the Minister of Foreign Affairs on 13 November 2021 and the Minister of Foreign Affairs responded in a letter dated 15 November 2021 but received on 16 November 2021.

8 By letter dated 16 November 2021, the Minister of Justice gave Mr Kim his view of the inquiries, responses and various circumstances. The Minister concluded that the responses provided by the PRC Government satisfactorily addressed the Court's outstanding issues. Those responses, along with the matters already addressed by the Court meant there were “no substantial grounds to believe that [Mr Kim] would be at risk of torture or an unfair trial”. Nor did the Minister consider Mr Kim's health or “the age of the case generally” were “sufficiently extraordinary or compelling to prevent extradition”.

9 Mr Kim sought a further hearing in this Court on the effect of the further assurances. A hearing was held on 4 February 2022.

Summary of the parties' positions on the responses

10 The appellants' position is that the responses received resolve the issues outstanding and there are now no substantial grounds for believing that Mr Kim is at risk of torture or of an unfair trial. The appeal can accordingly be allowed and the decision to surrender Mr Kim reinstated.

11 Mr Kim's case is that key questions were not answered by the PRC, either at all or in full, where answers were given they served only to confirm the risks to Mr Kim and, in any event, circumstances have changed in a way that means Mr Kim is at a real risk of both torture and an unfair trial should he be surrendered. The result is that the appeal must be dismissed and the matter remitted back to the Minister to reconsider the decision.

12 Underlying these competing positions is a difference between the parties as to the extent to which the Minister had to make his own assessment of the outstanding matters.

13 The appellants' submission is that the effect of the Court's earlier judgment was that there were some discrete points identified on which the Court sought further information. If the Minister of Justice was satisfied with the responses, it was open for him to refer the matter back to the Court. Alternatively, as the Court said in its earlier judgment, the Minister was entitled to depart from the previous Minister's decision. The Minister did not consider it necessary to take the latter course and he was entitled to reach that view.

14 Mr Kim says it was necessary for the Minister himself to reach a concluded view on the outstanding matters, to address matters raised by way of changed circumstances, and to provide a reasoned response. The Minister has not done so and, as we explained in the summary of his position above, Mr Kim submits there was no basis given the material before him on which the Minister could be satisfied the outstanding matters were resolved.

15 We address the specific points made by the parties in the discussion which follows. We preface our consideration by noting that, as will be apparent from the discussion which follows, we accept the correct approach is that advanced by the appellants. This Court left the case on the basis the Minister could be satisfied there was no real risk to Mr Kim if the stated assurances were given and confirmation of other matters obtained. 6 While the Court was divided on the question of whether the outstanding issues could be resolved in this way, the majority view was that they could. Accordingly, if the Minister was so satisfied as a result of the responses received from the PRC and the advice taken (here, from the Minister of Foreign Affairs), he...