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Kim v Attorney-General

Kim v Attorney-General

Case [2016] NZHC 2235 21 September 2016

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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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim v Attorney-General

Details

AGLC: Kim v Attorney-General [2016] NZHC 2235
Case: [2016] NZHC 2235
Decision Date: 21 September 2016

CaseChat Overview and Summary

Kyung Yup Kim, a resident of New Zealand, has been detained for over five years 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. The Attorney-General opposes the application. Kim has been in custody since June 2011. The extradition request was made in May 2011. New Zealand does not have an extradition treaty with China. The process under the Extradition Act 1999 involves several stages: issuing a warrant and arresting the subject of the request; bringing the subject before the court; determining whether the subject is eligible for extradition; and deciding whether the subject should be surrendered to the extradition country and making any consequential surrender order. The Minister of Justice decided to consider the extradition request. Kim was arrested and detained in custody. The decision on surrender is made by the Minister but it can be challenged by judicial review. 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. The present application was filed on 24 August 2016. The application is made in reliance on the Court's inherent jurisdiction to grant bail. The court considered that it had jurisdiction to reconsider the application for bail. The respondent did not challenge the appropriateness of relying on the Court’s inherent jurisdiction for the bail application. Nevertheless the respondent opposed bail on the basis that, because the court had determined on three previous occasions that Kim was a flight risk, it “would be wrong, and without jurisdiction, to allow a collateral challenge to those determinations.” The court rejected this submission. The court held that this was not a collateral challenge and that it was appropriate to revisit the application for bail in light of the substantial period of time Mr Kim had been in custody. The court considered that the outcome of Mr Kim's application for discharge, together with the further nine months Mr Kim had 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 had taken its course, provided this Court with jurisdiction to reconsider Mr Kim's bail application. The court also held that it was consistent with the court's supervisory responsibilities in light of Mr Kim's right not to be arbitrarily detained. The court considered that Mr Kim was a flight risk. However the court also considered that the length of time he had been in custody favoured bail. There were factors that reduced his risk, particularly the terms on which bail was to be granted. The court was satisfied that Mr Kim should be released on bail. Bail was granted on the following terms: (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; (c) to not leave the bail address except as would be permitted under ss 30M and 30L of the Bail Act 2000; (d) to cooperate with, and comply with any lawful direction given by, an EM assessor; (e) to present himself at the door of the 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 bail address and present it when required to do so by any member of the police; (g) to allow an EM assessor access to the bail address for the purpose of speaking to another occupant of the bail 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; (l) to present himself at the door of the bail address when required to do so by any member of the police or an EM assessor; and (m) to keep the notice of bail in his possession at the bail address and present it when required to do so by any member of the police. The court decided that costs should follow the event.

Orders