Kim v Attorney-General - [2015] NZHC 3290

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-001009 [2015] NZHC 3290

UNDER The Extradition Act 1999

IN THE MATTER

of an application for a discharge or bail in the inherent jurisdiction

BETWEEN

KYUNG YUP KIM Applicant

AND

THE ATTORNEY-GENERAL Respondent

Hearing: 16 December 2015

Counsel:

A J Ellis and G K Edgeler for Applicant
A M Powell for Respondent

Judgment:

17 December 2015

JUDGMENT OF COLLINS J

Summary of judgment

[1] Mr Kim has applied to be released on bail pending the hearing of his application to quash a decision of the Minister of Justice (the Minister) in which she has determined that Mr Kim is to be surrendered to China to face trial on a charge of murder. Mr Kim has also applied under s 36 of the Extradition Act 1999 (the Act) to be discharged on the ground that the Minister failed to make a decision to surrender Mr Kim within the timeframe envisaged under the Act.

[2] Mr Kim’s bail application relies on the inherent jurisdiction of the High

Court. He proposes that his bail be electronically monitored (EM bail).

[3] I have decided not to grant Mr Kim’s application for the following three

reasons:

KIM v THE ATTORNEY-GENERAL [2015] NZHC 3290 [17 December 2015]

(1)Mr Kim’s continued detention is not “arbitrary”.1 Nor is it possible for me to conclude at this juncture that Mr Kim’s detention breaches his right to be “treated with humanity and with respect for the inherent dignity of the person”.2

(2)There is a real risk of Mr Kim fleeing New Zealand if he is granted EM bail.

(3) Mr Kim’s mental health issues can be managed safely in the
remand facility at Mt Eden Prison or at the Mason Clinic if necessary.

Background

[4] Mr Kim was born in South Korea in 1975. He and his family immigrated to New Zealand in 1989. Mr Kim is still a citizen of South Korea, but he and his family are also permanent residents of New Zealand.

[5] In December 2009, Mr Kim was living in Shanghai. He flew from Shanghai to Seoul on 14 December 2009.

[6] On 31 December 2009, the body of a Ms Chen was found at a wasteland area in Shanghai. It is clear Ms Chen had been intentionally killed. Investigations by the police in Shanghai led the authorities to believe Mr Kim had murdered Ms Chen at his apartment on 11 December 2009.

[7] A warrant for Mr Kim’s arrest was issued by the Shanghai Municipal Public

Security Bureau on 11 March 2010 and an Interpol “Red Notice” was issued on

14 May 2010. The offence alleged in the warrant is “murder/intentional homicide”.3

[8] Mr Kim flew from Seoul to Auckland on 4 October 2010.

1      New Zealand Bill of Rights Act 1990, s 22.
2      Section 23(5).
3      Criminal Law of the People’s Republic of China, 1 October 1997, art 232.

[9] A chronology of the applications and hearings that have been conducted in New Zealand…

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 [2015] NZHC 3290
Case: [2015] NZHC 3290
Decision Date: 17 December 2015

CaseChat Overview and Summary

Kyung Yup Kim applied to be released on bail pending the hearing of his application to quash a decision of the Minister of Justice, who had determined that he was to be surrendered to China to face trial on a charge of murder. Mr Kim also applied under s 36 of the Extradition Act 1999 to be discharged on the ground that the Minister had failed to make a decision to surrender him within the timeframe envisaged under the Act. The bail application relied on the inherent jurisdiction of the High Court. He proposed that his bail be electronically monitored (EM bail). Collins J decided not to grant Mr Kim’s application for bail. The decision was based on three factors. First, Mr Kim’s continued detention was not “arbitrary”. Nor was it possible to conclude at that juncture that Mr Kim’s detention breached his right to be “treated with humanity and with respect for the inherent dignity of the person”. Second, there was a real risk of Mr Kim fleeing New Zealand if he was granted EM bail. Third, Mr Kim’s mental health issues could be managed safely in the remand facility at Mt Eden Prison or at the Mason Clinic if necessary. The Court dismissed Mr Kim’s application for EM bail. No order for costs was made.

Orders