Kim v Attorney-General

[2019] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2015-485-1009

[2019] NZHC 1670

UNDER

the inherent jurisdiction of the High Court

IN THE MATTER OF

an application for variation of conditions of bail

BETWEEN

KYUNG YUP KIM

Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing:	17 July 2019
Counsel:	G K Edgeler for Applicant A M Powell for Respondent
Judgment:	17 July 2019

ORAL JUDGMENT OF MALLON J

Introduction

[1]    Kyung Yup Kim is the subject of an application for extradition by the People’s Republic of China. The extradition is sought on a count of intentional homicide. The Chinese authorities allege he killed a 20 year old woman when in Shanghai in 2009. The request for extradition was made on 25 May 2011. In accordance with the processes under the Extradition Act 1999 Mr Kim was arrested and detained in custody on 10 June 2011.

[2]    While the extradition processes and Mr Kim’s challenges to them took their course, Mr Kim remained in custody for over five years and three months. During that time, he made four bail applications which were all dismissed on the basis that he

KIM v THE ATTORNEY-GENERAL [2019] NZHC 1670 [17 July 2019]

was a flight risk. On 21 September 2016 I granted him bail pursuant to the High Court’s inherent jurisdiction. The bail was subject to electronic  monitoring and  a  24 hour curfew. He was released from prison on that bail the following day. As the extradition processes and challenges to it continue, Mr Kim has now been subject to those conditions for over two years and nine months. He now applies for this Court to exercise its inherent jurisdiction to vary his conditions so that electronic monitoring and the 24 hour curfew are removed.

[3]    The basis for the application is a change of circumstances. The changed circumstances relied on are:

(a)a recent decision of the Court of Appeal that quashes the Minister’s order to surrender him and directs the Minster to reconsider that decision;1 and

(b)the length of Mr Kim’s detention.

[4]    The Crown has sought leave to appeal the Court of Appeal’s decision. Subject to that, the Crown accepts the Court of Appeal’s decision affects both the likelihood and immediacy of Mr Kim’s surrender, and that this reduces his flight risk. It further accepts that Mr Kim has been on restrictive bail conditions, effectively home detention, for a significant period. That said, it considers Mr Kim’s flight risk is not eliminated while the extradition request remains extant. It accepts the curfew should be relaxed so that Mr Kim would be required to return home each night unless he notifies the Police that he will be elsewhere. It submits, however, that electronic monitoring should continue. This would enable his movements to be monitored when he is away from the address. Without that requirement, it would be necessary for the Police to carry out bail checks at the address for over what is likely to be an extended period of time. There would also need to be reporting conditions.

[5]    I accept it is appropriate to relax the conditions of Mr Kim’s bail. Mr Kim has now been detained, in custody or in home detention, for a little over eight years on as yet unproven allegations. This is an unprecedented length of remand detention in this

1      Kim v Minister of Justice of New Zealand [2019] NZCA 209.

country and there is still some way to go if he is ultimately to be surrendered. This period is approaching what might be a minimum period of imprisonment if convicted on a charge of murder in this country. Continuing this detention on its current terms would, in my view, be unnecessarily oppressive in the circumstances.

[6]    In particular, it is my view that continuing both the 24 hour curfew and the electronic monitoring would be unnecessarily oppressive. Mr Kim has been compliant with his bail, his family are here, he currently does not have a passport, and an irrevocable undertaking by the Korean embassy to advise the government if Mr Kim were to seek travel documents, which has been provided to the Court, remains in force. The conditions of bail proposed on Mr Kim’s behalf, together with a reporting requirement, appropriately address his risk.

[7]The conditions of bail are replaced with the following conditions:

(a)to reside at the current bail address;

(b)to advise the New Zealand Police when he is to spend the night away from the bail address;

(c)to report once per week to the nearest Police station (understood to be the Balmoral Police Station) on a day to be set in liaison with counsel;

(d)to not leave New Zealand;

(e)any passport or other travel documents remain surrendered to the Court;

(f)not to seek or obtain travel documents;

(g)not to enter any airport or Customs controlled area; and

(h)not to visit any travel centre or use online travel booking websites without the approval of his bail officer.

[8]    Mr Kim’s release on bail on these conditions applies pending the final determination of the Minister of the request by China for his extradition and of any judicial review of that decision or appeal from such a review.

[9]    Costs should follow the event. Category 2 Band A is to apply recognising the Crown’s partial agreement to the variation and therefore that a comparatively small amount of time was needed to seek this variation.

Mallon J