Kim v Attorney-General
[2016] NZHC 2235
•21 September 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-1009 [2016] NZHC 2235
UNDER the Inherent Jurisdiction of the Court IN THE MATTER OF
an application for bail
BETWEEN
KYUNG YUP KIM Applicant
AND
THE ATTORNEY-GENERAL Respondent
Hearing: 20 September 2016 Appearances:
T Ellis and G Edgeler for the Applicant
A Todd for the RespondentJudgment:
21 September 2016
JUDGMENT OF MALLON J
Introduction
[1] For over five years Kyung Yup Kim, a New Zealand resident, has been detained in Mt Eden prison because he is the subject of an extradition request from the People’s Republic of China. He seeks bail pending a final determination on his surrender to China. Bail is opposed by the respondent.
Background
[2] On 25 May 2011 China requested Mr Kim’s extradition on suspicion of intentionally killing a woman in Shanghai in 2009. New Zealand does not have an extradition treaty with China. However the Minister of Justice may decide to consider the request under the Extradition Act 1999 and in this case she did so. Pursuant to the process under that Act Mr Kim was arrested and detained in custody
on 10 June 2011. He has been in custody ever since.
KIM v THE ATTORNEY-GENERAL [2016] NZHC 2235 [21 September 2016]
[3] There are a number of stages to the extradition process under the Act. They are as follows:1
(a) stage 1: issuing a warrant and arresting the subject of the request; (b) stage 2: bringing the subject before the court as soon as possible;
(c) stage 3: determining whether the subject is eligible for extradition;
and
(d)stage 4: deciding whether the subject should be surrendered to the extradition country and making any consequential surrender order.
[4] This process therefore ends with the final determination of whether to order Mr Kim’s surrender and his conveyance to China pursuant to that order. The decision on surrender is made by the Minister but it can be challenged by judicial review. In this case the Minister first ordered Mr Kim’s surrender on 30 November
2015. This decision was successfully challenged by judicial review in a judgment delivered on 1 July 2016.2 The Minister was directed to reconsider her decision. On
19 September 2016 (the day before the present bail application) the Minister advised Mr Kim that she had decided he was to be surrendered to China. The Minister advised that the reasons for her decision would be outlined in a further letter in the coming days. Mr Kim intends to judicially review this decision.
Bail
[5] Mr Kim has sought bail on a number of occasions. On each occasion he has been declined bail on the basis that he is a flight risk. I set out below a summary of each of these applications, essentially copying the summary set out in an earlier
judgment where I considered Mr Kim’s application for discharge from extradition.3
1 Kim v Prison Manager Mt Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR 589 at
[11] to [18] refers to these four stages.
2 Kim v Minister of Justice [2016] NZHC 1490 [judicial review decision].
3 Kim v Minister of Justice [2016] NZHC 1491 [discharge decision] at [41]-[56].
The first application
[6] The first application was made on 7 February 2012. This was after Mr Kim’s initial remand in custody (stage 2) and before the determination of his eligibility for surrender (stage 3). The District Court (Judge Gibson) declined bail.4 An appeal from that decision was dismissed by the High Court (Brewer J) on 28 February
2012.5 Brewer J considered Mr Kim was a flight risk due to the serious nature of the
alleged offence, the strength of the evidence, and the seriousness of the punishment if convicted. He regarded this risk as too great to be adequately addressed by electronic monitoring and the offer of sureties from family members.
The second application
[7] The second application was made on 17 December 2012. This was again prior to the determination of Mr Kim’s eligibility for surrender (that is, prior to stage
3). The application was made on the basis of changed circumstances, namely that because of “human rights considerations” it was unlikely that Mr Kim would ever be extradited. The application was declined by the District Court on 17 December
2012.6
[8] On 1 March 2013 the High Court (Venning J) dismissed an appeal against the refusal to grant bail.7 The Judge agreed with the earlier decision of Brewer J that Mr Kim was a flight risk and that the risk could not be addressed satisfactorily by conditions. The Judge viewed the human rights issues Mr Kim raised as being for consideration at later stages of the process. On the material before him, the Judge was unable to conclude that the likelihood of Mr Kim’s surrender was so slim as to
make it unjust to detain him pending the eligibility hearing.
[9] On 6 May 2013 the Court of Appeal dismissed an appeal against the High
Court decision on the basis that there was no jurisdiction to hear the appeal.8
4 Re Kim DC Auckland CRI-2011-004-11056, 29 November 2013.
5 Kim v The People’s Republic of China [2012] NZHC 294 [Brewer J decision].
6 Kim v The Peoples Republic of China DC Auckland CRI-2011-004-11056, 17 December 2012.
7 Kim v The Peoples Republic of China [2013] NZHC 388 [Venning J decision].
8 Kim v The Peoples Republic of China [2013] NZCA 136. There was no second right of appeal because Mr Kim had exercised his statutory right of appeal to the High Court under the Bail Act, and the High Court was not exercising its inherent jurisdiction.
The third application
[10] A third application was made when the District Court (Judge Gibson) determined that Mr Kim was eligible for surrender (at stage 3 above). This District Court decision was made on 29 November 2013.9 At that time a further bail application was dismissed.
The fourth application
[11] A fourth application was made on 4 December 2015. At this time the Minister had made her first decision on surrender (stage 4). Mr Kim applied for a discharge under s 36 of the Act. This application sought bail in the alternative. A judicial review proceeding was also foreshadowed. At a case management conference on 10 December 2015 it was agreed that the bail application would be heard first because that could be accommodated by the Court schedule immediately and at least some of the affidavit evidence relating to bail could be assembled quickly. The discharge application and the judicial review (filed on 11 December
2015) were scheduled for hearing in the new year so as to provide the parties adequate time to prepare affidavit evidence and submissions.
[12] The bail application was heard in the High Court (Collins J) on 16 December
2015.10 The bail application was made pursuant to the High Court’s inherent jurisdiction. Electronically monitored bail at Mr Kim’s parents address was sought. Bail was sought on the basis that Mr Kim’s continued detention was arbitrary, in breach of s 22 of the New Zealand Bill of Rights Act, and contrary to art 9 of the International Convention on Civil and Political Rights (ICCPR). The detention was said to be arbitrary because the Minister had taken too long to make her decision, detention should not be in a prison, and Mr Kim’s mental health and treatment in prison warranted the granting of bail. Mr Kim’s treatment in prison was also said to breach s 23(5) of the NZBORA and to be contrary to art 10(1) of the ICCPR which affirm the right to be treated with humanity and with respect for the person’s inherent
dignity.
9 Re Kim, above n 4.
10 Kim v Attorney General [2015] NZHC 3290 [Collins J decision].
[13] The High Court Judge delivered his decision on 17 December 2015. He declined to grant bail. He declined to reach any conclusion on Mr Kim’s treatment in prison because the respondent had not had an opportunity to file evidence. The evidence on Mr Kim’s mental health was that it had stabilised and the medical staff at the prison would discharge their responsibilities by ensuring he received appropriate care and attention.
[14] The Judge considered Mr Kim’s continued detention was not arbitrary on the
following basis:
[54] … I must reject the argument that Mr Kim’s continued detention is arbitrary because Mr Kim’s continued detention has been carefully reviewed on multiple occasions by New Zealand courts through his applications for habeas corpus and bail. His detention has been determined to be lawful on every occasion that Judges of the District Court, High Court and Court of Appeal have been called upon to examine the basis upon which Mr Kim has been detained in custody. In these circumstances it is not possible to conclude Mr Kim’s right not to be arbitrarily detained has been breached.
[15] Bail was declined on the basis that Mr Kim was a flight risk. The Judge considered this risk was heightened because the Minister had made her decision to surrender Mr Kim to China. Mr Kim had taken every step to resist being extradited and the extradition process was now nearing a conclusion. This was regarded as strongly increasing the risk of Mr Kim fleeing New Zealand. The Judge also considered other factors supported the decision to decline bail, namely: the charge against Mr Kim was extremely serious, the District Court had determined there was a prima facie case against him, if convicted Mr Kim was likely to be sentenced to a lengthy period of imprisonment and the time until his judicial review hearing was short.
[16] On 15 January 2016 Mr Kim filed an appeal to the Court of Appeal against this decision. At this time his application for discharge and his judicial review were yet to be heard by this Court. Counsel for Mr Kim filed a memorandum with the Court of Appeal proposing that the bail appeal be heard with any appeal from the discharge and judicial review judgments (should he be unsuccessful on those matters). He proposed that a telephone conference take place after the hearing on the discharge application and the judicial review which were scheduled for hearing on
15 and 16 February 2016. The Court of Appeal agreed with the proposal. No further steps were taken on Mr Kim’s behalf, presumably as my reserved decision on the discharge application and the judicial review was awaited, and on 19 April 2016 the bail appeal expired and was deemed abandoned.
This application
[17] As mentioned, the fourth bail application was brought as an alternative to the discharge application. It was heard first because it was less complex than the discharge application and therefore able to be heard immediately. Mr Kim’s discharge application was dismissed on 1 July 2016.11 In declining that application I said:
[129] In light of the outcome of his discharge application Mr Kim may wish to again have an application for bail considered. His last application was declined on 17 December 2015. That application was brought on for hearing with urgency and separately from the discharge and judicial review applications. Another nearly six months has passed and the end may not yet be in sight given my decision on the judicial review application. If it were to be renewed it would need to respond adequately to the concerns which have led the courts on all the other occasions to decline the grant of bail. I leave that for the parties to consider while expressing no view on its prospects.
[18] The present application was filed on 24 August 2016. The application is
made in reliance on this Court’s inherent jurisdiction to grant bail.12
Jurisdiction
[19] The respondent does not challenge the appropriateness of relying on the Court’s inherent jurisdiction for the bail application. This Court has been seized with the matter and the present bail application follows on from the discharge application being dismissed.
[20] Nevertheless jurisdiction is the primary ground on which the respondent opposes bail. The respondent submits that, because this Court has determined on
three previous occasions that Mr Kim is a flight risk (the decisions of Brewer,
11 Kim (discharge decision), above n 3.
12 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC).
Venning and Collins JJ),13 it “would be wrong, and without jurisdiction, to allow a collateral challenge to those determinations, particularly where the applicant abandoned his most recent appeal.”
[21] I do not accept this submission. The respondent relies on two cases to support this submission. The first is concerned with when a trial court can review a pre-trial ruling on the admissibility of propensity evidence.14 The second is concerned with when the High Court can reconsider its own discharge orders made pursuant to what was then s 347 of the Crimes Act.15 Underpinning those decisions are considerations of inconsistency and finality. As the Court of Appeal has said:16
Bail decisions fall into a different category. They are fluid in nature and may always be revisited if there were a change in circumstances.
[22] Counsel for the respondent submits that there has been no change to Mr Kim’s flight risk and the period of time Mr Kim has been detained is not a material change of circumstances. She submits that, even though it is a further nine months since bail was last considered, and even though Mr Kim has been detained for over five years in total, this is insufficient. If Mr Kim wished to contest the last decision to decline bail he needed to pursue his appeal to the Court of Appeal and he did not do so.
[23] I do not accept this submission. In the context of pre-trial remand it is well established that on-going delay until trial can provide grounds for a fresh consideration of bail. Such delay can result in bail being granted despite there being no other change in circumstances. By way of illustration of this well established position, I refer to Darwish v Police.17 In that case Mr Darwish was remanded in
custody on passport and drugs offences. Bail had been considered and refused by
13 Kim (Brewer J decision), above n 5; Kim (Venning J decision), above n 7; Kim (Collins J
decision), above n 10.
14 M (CA245/2015) v R [2015] NZCA 413.
15 R v Holt [2008] NZCA 388, [2009] 1 NZLR 325.
16 Leaupepe v Chief Executive of Department of Corrections [2012] NZCA 296, [2012] NZAR 765 at [19], in a decision discussing whether the High Court could recall a grant of bail or was
functus officio.
17 Darwish v Police HC Auckland CRI-2005-004-44644, 21 June 2005. See also R v Smith HC Auckland T22531, 16 September 2003 and Harris v Police HC Auckland CRI-2004-004-24934,
10 March 2006. The effluxion of a significant period of time may also provide grounds for relaxing strict bail conditions; see, for example, R v Fatu CA454/05, 15 December 2005 at [4].
the High Court on four previous occasions because of Mr Darwish’s flight risk. In
granting Mr Darwish bail on his fifth application the High Court Judge said this:
[4] The situation has now reached the stage, however, where Mr Darwish has been in custody for 18 months and will certainly be in custody for a few months longer if bail is not now granted. At the very earliest, his trial may take place in October of this year. It may be longer than that before the trial can be held. So the position is that unless he is granted bail at this juncture he will have been in custody for 2 years or perhaps longer before his trial can be heard and that, of course, reflects on the likely result if he is convicted on a number of the major charges which he faces.
[5] Throughout the history of the matter the principal concern on the part of the Crown in its opposition to bail has been that it regards Mr Darwish as a flight risk. Those submissions have commended themselves to Judges who have dealt with the matter on earlier occasions although in each case they have been concerned at Mr Darwish’s lengthening incarceration by comparison with the likely deposition or trial dates.
[6] The risk of flight is not to be minimized. Mr Darwish faces a number of passport offences and one of the issues in that regard which has commended itself to Judges on earlier bail applications is that it is asserted by the Crown that he has used the passport in a false name for travel into and out of New Zealand in the circumstances which gave rise to those charges.
[7] He is also charged with exporting from New Zealand. There was an intercepted conversation in which it is said that he has planned that offence and it is clear that he has been involved with foreign nationals, some of whom have been convicted overseas, particularly in Japan.
[8] As suggested to counsel during argument, the issue for bail really comes down to whether the flight risk possibility can be countermanded sufficiently to justify the granting of bail given Mr Darwish’s lengthy incarceration to date and the further time which must pass before his trial can occur.
[9] The only ways in which that flight risk can be minimized are to impose the strictest of terms of bail on him.
[24] This approach is consistent with a defendant’s right to be tried without undue
delay. In that context the Court of Appeal in Hereora v R said:18
[16] The right to be tried without undue delay under s 25(b) of the NZBORA is an important right. Although it is not suggested that this provision has been infringed in this case, the existence of the right, coupled with the right under s 25(c) of the NZBORA to be presumed innocent until proved guilty, are important considerations in deciding whether bail ought to be granted. The right to be tried without undue delay is primarily to ensure an accused receives a fair trial, but it also underlines and supports the
18 Hereora v R [2011] NZCA 491.
general policy reflected in s 7(5) of the Bail Act that an accused person must be released on reasonable terms unless there is just cause for continuing detention. In this respect, the Bail Act reflects s 24(b) of the NZBORA.
[17] This presumption recognises that long delay in custody pending trial for an accused who is presumed to be innocent is unfair and inappropriate unless just cause is shown. The ability of the Court to grant bail is a mechanism by which the right of the individual to be free from unfair or unreasonable detention pending trial can be recognised, subject to the protection of the public interest in eliminating or minimising the risks identified in s 8(1) of the Bail Act. Delay pending trial is explicitly recognised as a relevant consideration in s 8(2)(f) of the Bail Act, but it derives additional support from s 25(b) and (c) of the NZBORA. Generally speaking, the longer the delay, the more difficult it will be to find there is just cause for continued detention. Where the delay is very lengthy, it will often become a compelling, but not necessarily overwhelming, factor in favour of the grant of bail. (my emphasis).
[25] Mr Kim is not charged with an offence and awaiting trial in this country.19
He does, however, have the right not to be arbitrarily detained.20 Detention that is initially lawful may become unlawful if its duration is excessive.21 Bail applications provide a mechanism for judicial supervision of Mr Kim’s detention. The present application has been made following my decision to decline Mr Kim’s application
for discharge from extradition due to delay. The prospect of a further bail application was a relevant consideration in that decision.22
[26] I consider the outcome of Mr Kim’s application for discharge, together with the further nine months Mr Kim has spent in custody since his last bail application was declined, against the backdrop of a total of five years spent in custody while the extradition process has taken its course, provide this Court with jurisdiction to reconsider Mr Kim’s bail application. In orthodox terms, this constitutes a sufficiently material change of circumstances for a fresh bail application. It is also consistent with this Court’s supervisory responsibilities in light of Mr Kim’s right
not to be arbitrarily detained.23
19 In Dotcom v USA [2014] NZSC 24, [2014] 1 NZLR 355, the Supreme Court, in a split decision, held that persons facing extradition proceedings were not charged with an offence within the meaning of ss 24 and 25 of the NZBORA. See the discussion in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A commentary (2nd ed, LexisNexis, Wellington, 2015) at [21.5.10]-[21.5.14].
20 NZBORA 1990, s 22 and art 9 of the ICCPR.
21 Zaoui v Attorney-General, above n 12, at [23].
22 See Kim (discharge decision), above n 3, at [126]-[129].
23 Zaoui v Attorney-General, above n 12, at [32]-[33].
[27] In my view that jurisdiction is not excluded because Mr Kim could have pursued his appeal against the last decision to decline him bail. That appeal is no longer on foot, we are now many months further along and Mr Kim remains in custody.
Merits
[28] It is not in dispute that Mr Kim is a flight risk. As it has been recognised in the previous bail decisions of this Court, he has the motivation to flee this jurisdiction (or disappear) because he is facing the prospect of a trial in China on a murder charge. The District Court has determined there is a prima facie case against him and he may be sentenced to a lengthy period of imprisonment in that country if he is convicted. It is on this basis that the respondent maintains its opposition to bail.
[29] In addition, the Minister has again determined, immediately prior to the hearing on the present bail application, that Mr Kim is to be surrendered to China. The process was at the same stage when the High Court last considered bail. The Court’s view at that time was that “Mr Kim’s lengthy journey in which he has taken every possible step to resist being extradited to China is nearing a conclusion. This factor strongly increases the risk of Mr Kim fleeing New Zealand.”24
[30] However Mr Kim’s flight risk must be balanced against other considerations as they arise at present. Mr Kim has now been in custody for over five years. This is a very substantial period of time for a remand prisoner, to which Mr Kim is akin. Counsel were unaware of any analogous period of pre-trial detention in this country. Counsel note that in Zaoui the Supreme Court regarded a period of 23 months in custody as oppressive and were prepared to grant bail even though the defendant was
the subject of security risk certificate.25
[31] The respondent submits it is relevant that Mr Kim applied for a number of adjournments of the eligibility hearing and, at that time, gave an undertaking not to
“raise delay against the Crown in respect of the judicial review or in respect of bail
24 Kim (Collins J decision), above n 10, at [57].
25 At [100].
because of the appellant’s own application to vacate the [eligibility] fixture date.”26
This was regarded as relevant when the High Court dismissed the appeal against the second bail application on 1 March 2013.
[32] We are now more than three years on. Mr Kim has pursued every available avenue to challenge the extradition. In doing so, he is exercising his rights. While most of the steps Mr Kim’s has taken to resist extradition have not succeeded, and those steps have delayed his extradition and therefore the time he has spent detained in this country, the backdrop against which his extradition is sought must also be remembered. New Zealand does not have an extradition treaty with China. China has not committed to the relevant international instruments on fundamental human
rights in the way New Zealand has, and:27
[254] The information before the Minister was that “the consensus of commentators and the UN is that there is overwhelming credible evidence of routine use of torture and ill-treatment in the [People’s Republic of China] PRC, particularly to extract confessions” and, despite recent efforts at reform, torture in the PRC remained widespread. The latest report from the UN Committee against Torture (which the Minister did not have) advises that torture “is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions”. It is accepted that if Mr Kim is to be extradited, assurances from the PRC about Mr Kim’s treatment and fair trial rights are necessary. There is limited information about whether the PRC has honoured assurances in the past, and this is the first occasion on which New Zealand has been asked to extradite a person to the PRC and the first occasion on which New Zealand has negotiated assurances. Mr Kim’s extradition takes place against this backdrop.
[33] Negotiating the original set of assurances extended Mr Kim’s detention by nine months. As discussed in my discharge judgment these assurances could have been sought at an earlier stage of the extradition process.28 In the event, I considered the Minister had not explained how these assurances were sufficient in some respects and the Minister was directed to reconsider her decision.29 This has extended Mr Kim’s detention further. This is not intended to attribute blame to anyone for this state of affairs. The important fact is, however, that Mr Kim has been detained for a
very long time for alleged offending which is yet to be proven.
26 Kim (Venning J decision), above n 7, at [65].
27 Kim (judicial review decision), above n 3.
28 Kim (discharge decision), above n 2, at [117]-[124].
29 Kim (judicial review decision), above n 2, at [259]-[261].
[34] In December 2015 the Court predicted that the extradition process was nearing a conclusion. This has not turned out to be so. The Minister was directed to reconsider her decision on 1 July 2016. On 19 September 2016 she advised her decision was to order surrender. Her reasons are to follow shortly. Mr Kim’s counsel has instructions to challenge this decision: he envisages judicial review and possible appeals ultimately to the Supreme Court. He also envisages a possible application for urgent measures from the relevant international committee. How long these steps ultimately may take is unknown quite apart from the possibility of further time if he succeeds at any of these stages and the Minister is again directed to reconsider her decision.
[35] Mr Kim has suffered health issues while in custody. He is receiving treatment for depression. The adverse effect on Mr Kim’s health from his detention is attested to by members of his family who regularly visit him. His family has suffered adverse effects from his detention, particularly his two daughters who were at intermediate school when Mr Kim was first arrested. They are now finishing high school. He misses them very much. They feel “empty” due to their father’s absence from their daily life. Mr Kim’s daughters’ rights to family life are relevant. They do not have a relationship with their mother (she left them in the care of Mr Kim and his family when they were very young). The adverse effects of the restraint on Mr Kim’s liberty continue to be felt as this is continued.
[36] There are factors which militate against Mr Kim’s flight risk if he is granted bail. First, Mr Kim has lived here since he was 14 years old. His mother, father, brother and daughters live here. Mr Kim’s brother and mother attest to the importance to them all of Mr Kim returning to the family home. They do not believe he is a flight risk and would not assist him to leave New Zealand. The respondent notes that Mr Kim did leave his children for several months when he went to Shanghai in 2009. However, as counsel for Mr Kim submits, this was in a different life (some time ago and in different circumstances to the present).
[37] Secondly, Mr Kim does not have a current passport. His most recent travel document was a South Korean passport (AQ0017245). He used this for a return trip from Auckland to Shanghai in 2007 and again in 2008. He also used this for travel
from Auckland to Shanghai 2009, and from Korea to Auckland in October 2010. That passport has now expired. Mr Kim has only ever had passports issued by the South Korean Government. He has no other travel documents of any kind, valid or expired. Mr Kim has previously provided an irrevocable direction to the Korean Embassy and Consular Officials that they are to inform the New Zealand authorities if he attempts to obtain a passport or other travel document. The Deputy Ambassador of the Republic of Korea, who was present in Court at the bail hearing, has confirmed that this direction remains in effect.
[38] The respondent has filed evidence of other cases where bailed defendants have fled from the jurisdiction. They appear to be examples of defendants in quite different circumstances to Mr Kim. Their alleged offending was of the kind where they were likely to have access to substantial sums of money and to have contacts in other countries. They also did not appear to have been subject to electronic monitoring. Mr Kim has not been able to earn an income for over five years. I am told his family’s means are relatively modest and they exhausted their funds on legal fees in the early stages of the extradition process.
[39] Mr Kim’s bail would be subject to electronic monitoring. Since February
2015 all electronically monitored bail is monitored via GPS (previously it was monitored by radio frequency).30 The GPS system sends real time information to a control centre. An unauthorised departure from the bail residence triggers an alert and notification to Corrections and thereafter to the police. Where the grant of bail is subject to a 24 hours a day curfew it is monitored 24 hours a day and alerts at any time of the day are responded to. The proposed bail address is 1.3 kilometres, or a two minute drive, from a police station and approximately a 30 minute drive to the airport without traffic delays.
[40] I note that Mr Kim has previously failed to comply with sentences of community work. However this was a long time ago and in different circumstances. These breaches do not strongly count against him and the respondent does not seek
to place any weight on them as a result.
30 This was not the position when the appeals refusing electronically monitored bail were considered by the High Court on the first two occasions.
Result
[41] In all these circumstances I am satisfied that Mr Kim should be released on bail. The length of time he has been in custody favours bail despite the flight risk that previous courts have identified. There are factors that reduce his risk, particularly the terms on which bail is to be granted. Those terms are as follows:
(a) To submit to electronic monitoring by the Department of Corrections of his compliance with his conditions of bail, and subject to a 24 hours a day curfew.
(b) To travel directly from his place of detention to the bail address (as set
out in Corrections “Adult EM Bail Suitability Report” dated 16
September 2016 (the EM Bail address).
(c) To not leave the EM Bail address except as would be permitted under ss 30M and 30L of the Bail Act 2000 as approved by the Department of Corrections EM Bail Team, including to attend doctor/hospital/specialist/dentist appointments as approved by the Department of Corrections EM Bail Team, or to attend Government agency appointments as approved by the Department of Corrections EM Bail Team, or to attend appointments with legal counsel as approved by the Department of Corrections EM Bail Team.
(d) To cooperate with, and comply with any lawful direction given by, an
EM assessor.
(e) To present himself at the door of the EM Bail address when required to do so by any member of the police or an EM assessor.
(f) To keep the notice of bail in his possession at the EM address and present it when required to do so by any member of the police.
(g)To allow an EM assessor access to the EM address for the purpose of speaking to another occupant of the EM address at the request of that occupant.
(h)To not tamper with or damage the electronic monitoring equipment or do anything with the intention of interfering with the functioning of that equipment.
(i) Any passport or other travel documents remain surrendered to the
Court.
(j) Not to seek or obtain travel documents.
(k)Not to enter any airport, or Customs controlled area, and not to visit any travel centre, or use online travel booking websites.
[42] These conditions are the terms sought by the respondent if bail was to be granted. The respondent also sought surety. Surety had previously been offered in support of an earlier bail application when Mr Kim was represented by different counsel. Dr Ellis advises that Mr Kim’s family’s financial resources were exhausted in the earlier stages of the extradition process. To require it now would place an unfair financial burden on them and it is not necessary. I have decided not to require it.
[43] In addition, bail is conditional on the Court and the Korean Embassy receiving an updated signed copy of the irrevocable direction which Mr Kim has provided to the Korean Embassy and Consular Officials. The terms as set out in the attachment to Dr Ellis’ memorandum dated 20 September 2016 are in an acceptable form from the Court’s perspective.
[44] Lastly, bail on these terms is to be arranged as soon as possible but allowing for the notice which the EM bail team needs (as set out in the respondent’s memorandum dated 20 September 2016) in order to arrange for the tracker bracelet to be attached and for a field officer to meet Mr Kim at his bail address, install the
home unit and carry out the necessary briefings. Subject to the above terms and conditions, Mr Kim’s release on bail applies pending the final determination by the Minister of the request by China for his extradition, or of any judicial review of that decision or appeal from such a review.
Costs
[45] Mr Kim seeks costs and disbursements on this application. The respondent resists costs on the basis that it is not clear if Mr Kim has actually “incurred” any costs because he has no income or assets. Mr Kim is not in receipt of legal aid for this application. He is represented by counsel. Legal costs have therefore been incurred, albeit that his counsel may not have been intending to seek payment of them if Mr Kim could not pay them or payment may have been sought from a benefactor. If costs are awarded there will be some money to go towards the costs
that have been incurred.31 In my view costs should follow the event. If there is any
dispute about their calculation memoranda may be submitted within 14 days of this judgment.
Mallon J
31 See, for example, Zygadlo v Earthquake Commission [2016] NZHC 1699 at [50]-[51].
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