Kim v Attorney-General
[2015] NZHC 3290
•17 December 2015
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 RespondentJudgment:
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 courts following Mr Kim’s arrival in New Zealand is set out in a judgment of the Court of Appeal.4 To date there have been approximately 35 court appearances most of which have been initiated by applications brought by Mr Kim. The following paragraphs briefly summarise the key judicial events that have taken place.
[10] On 23 May 2011, the Ministry of Justice received an initial request to surrender Mr Kim to China. That application was made under s 18 of the Act. The Ministry of Justice applied for a provisional warrant to arrest Mr Kim under s 20 of the Act. That application was granted by Judge Broadmore on 10 June 2011. Mr Kim was arrested at his home in Auckland later on 10 June 2011. He appeared in the Auckland District Court on 11 June 2011 and was remanded in custody in the remand facility at Mt Eden Prison.
[11] Mr Kim made further brief appearances in the Auckland District Court on 13,
17 and 22 June 2011. He continued to be remanded in custody.
[12] On 17 August 2011, Mr Kim was again remanded in custody for a hearing to determine if he was eligible to be surrendered. A determination that a person is eligible to be surrendered is made under s 24 of the Act.
[13] On 7 February 2012, Mr Kim applied for bail in the Auckland District Court.
Bail was refused. The High Court dismissed Mr Kim’s appeal on 28 February 2012.
[14] A hearing date to determine Mr Kim’s eligibility for surrender was set for
15 October 2012. In the meantime, on 18 September 2012, Mr Kim made his first application for a writ of habeas corpus. That application was declined. The Court of Appeal dismissed Mr Kim’s habeas corpus appeal on 12 October 2012. On
20 December 2012, the Supreme Court dismissed Mr Kim’s application for leave to
appeal the Court of Appeal’s decision.
4 Kim v Prison Manger, Mt Eden Correctional Facility [2015] NZCA 2.
[15] Judicial review proceedings were commenced by Mr Kim on 20 November
2012.
[16] A second bail application was made in the District Court on 17 December
2012. That application was dismissed, as were appeals to the High Court on
1 March 2013 and the Court of Appeal on 6 May 2013.
[17] On 9 September 2013, the District Court gave a judgment on preliminary issues relating to the hearing to determine if Mr Kim was eligible to be surrendered.
[18] On 29 November 2013, the District Court determined Mr Kim was eligible to be surrendered to China. A third bail application was dismissed by the District Court that day.
[19] Mr Kim filed a notice of appeal from the eligibility decision on
11 December 2013.
[20] Mr Kim’s judicial review application was determined by the High Court on
19 June 2014. The High Court found against Mr Kim on all material issues.5
[21] On 28 November 2014, Mr Kim filed his second application for habeas corpus. That application was dismissed by Brewer J on 3 December 2014.6
[22] On 4 December 2014, Mr Kim filed his third application for habeas corpus. That application was dismissed by Brewer J on 10 December 2014.7 The Court of Appeal dismissed Mr Kim’s appeal in relation to his third habeas corpus application on 25 February 2015. On 23 April 2015 the Supreme Court dismissed Mr Kim’s application for leave to appeal the Court of Appeal’s decision.
[23] Mr Kim has been remanded in custody since his arrest on 10 June 2011.
5 Kim v Attorney-General [2014] NZHC 1383.
6 Kim v The Prison Manager, Mt Eden Corrections Facility [2014] NZHC 3051.
7 Kim v The Prison Manager, Mt Eden Corrections Facility [2014] NZHC 3152.
[24] On 30 November 2015, the Minister of Justice issued her decision in which she determined Mr Kim is to be surrendered to China.
[25] On 10 December 2015, Mr Kim filed an application to judicially review the Minister’s decision. He also applied to be discharged under s 36 of the Act on the grounds that the Minister had unduly delayed her decision. The present bail application was also filed on 10 December 2015.
[26] On 16 December 2015 the Court received an EM bail report prepared pursuant to s 30F of the Bail Act 2000. That report concludes Mr Kim is suitable for EM bail and that his family’s house in Auckland is a suitable an EM bail address.
Earlier bail decisions
[27] In Kim v The People’s Republic of China, Brewer J dismissed Mr Kim’s appeal from a decision of Judge Gibson declining Mr Kim’s application for bail.8 In his decision, Brewer J explained the risk of Mr Kim leaving the jurisdiction was the “determinative factor” in declining the appeal.9 Brewer J considered a number of factors including the nature of the charge faced by Mr Kim , the strength of the case against him and the seriousness of the punishment to which Mr Kim was exposed. After evaluating these and other factors Brewer J dismissed Mr Kim’s appeal.
[28] A year later Venning J dismissed Mr Kim’s appeal from a decision of Judge Cunningham in which she had declined Mr Kim’s bail application.10 Venning J also focused upon the risk of Mr Kim fleeing the jurisdiction. Venning J referred to the judgment of Brewer J delivered on 28 February 2012 and said:11
Nothing has changed since that decision in relation to the issue of flight risk. I agree with and adopt that reasoning and conclude there is a risk that, if granted bail, Mr Kim may fail to appear for the extradition hearing.
[29] Appeals from the decisions of Brewer and Venning JJ dismissing Mr Kim’s
bail appeal were dismissed by the Court of Appeal.
8 Kim v The People’s Republic of China [2012] NZHC 294.
9 At [13].
10 Kim v The People’s Republic of China [2013] NZHC 388.
11 At [33].
Basis of bail application
[30] Mr Kim’s bail application focuses upon three broad contentions.
[31] First, it is submitted on behalf of Mr Kim that his continued detention without bail is “arbitrary” and a breach of his right to be treated “with humanity and with respect for the inherent dignity of the person”. The claim Mr Kim’s continued detention breaches his right to be treated “with humanity and with respect for the inherent dignity of the person” is primarily based upon Mr Kim’s concerns about the strict prison regime to which he is currently subjected.
[32] Second, Mr Kim’s continued detention is adversely affecting his health.
[33] There is medical evidence to support this concern. Two medical reports have been filed in support of Mr Kim’s bail application. One report is from Mr Tamatea, a clinical psychologist. The second report is from Dr Rosic, a forensic psychiatrist.
[34] In his report, Mr Tamatea explains the tests and evaluations he undertook when concluding Mr Kim is suffering a major depressive disorder and anxiety disorder.
[35] Mr Tamatea recommends Mr Kim be monitored by professional staff in relation to possible suicide. Mr Tamatea suggests that Mr Kim should receive, amongst other interventions, professional help to reduce his isolation and to cope with his “highly changeable prison environment”.12
[36] In her report, Dr Rosic explains:13
… it is more likely than not Mr Kim’s detention in Mt Eden Prison for over four years [has] substantially contributed to the development of his Major depressive disorder (severe) with anxious distress and suicide risk.
12 Report of A Tamatea, 2 October 2015 at 9.
13 Report of V Rosic, 20 October 2015 at 7.
[37] Dr Rosic also records that:14
… [a] substantial part of Mr Kim’s helplessness, hopelessness, powerlessness, resignation and resort to suicidal planning could be attributed to his anticipatory anxiety and depression in response to his feelings that he is already sentenced to death.
[38] Dr Rosic has contacted the prison psychiatric team and recommended Mr Kim be prescribed anti-depressant medication and sleeping pills. Dr Rosic has also recommended Mr Kim be placed under close monitoring and observation.
[39] Third, Dr Ellis submitted on behalf of Mr Kim that there is no legitimate basis for the Crown submission that there is a realistic risk Mr Kim will flee the jurisdiction if he is granted EM bail.
Basis of opposition
[40] The Crown opposes Mr Kim’s application on three grounds.
[41] First, the Crown submits Mr Kim’s continued detention does not breach any of the rights guaranteed to him by the NZBORA. The Crown says Mr Kim’s continued detention is not arbitrary and that it wishes to have the opportunity to adduce evidence to challenge the proposition that the regime which operates in Mt Eden Prison breaches Mr Kim’s right to be treated with humanity and with respect for the dignity of the person.
[42] Second, the Crown says there is a genuine risk that Mr Kim may try to flee the jurisdiction if he is granted EM bail. The factors which the Crown rely upon to support this aspect of its case include:
(1) the serious nature of the charges faced by Mr Kim; (2) the strength of the case against Mr Kim;
(3) the seriousness of the punishment which may be imposed if Mr Kim
is convicted of murder in China;
14 Report of V Rosic, above n 13, at 8.
(4) the anxiety which Mr Kim has about standing trial for murder in
China; and
(5)evidence that those which to do so can leave New Zealand unlawfully even when on EM bail.
[43] Third, the Crown says that while Mr Kim does have some mental health issues, those difficulties have been successfully managed at Mt Eden Prison and will continue to be properly managed.
[44] The evidence in support of this aspect of the Crown’s case comes from Ms Harrison, the Clinical Services Manager at Mt Eden Prison. She has explained the medical facilities available to prisoners at Mt Eden Prison and the care and attention that has been given to Mr Kim since he was admitted into Mt Eden Prison. The facilities available in Mt Eden Prison can be supplemented by Mr Kim being transferred to the Mason Clinic, a psychiatric treatment facility in Auckland if that should become necessary.
[45] Ms Harrison has explained that until recently the health staff at Mt Eden Prison thought Mr Kim’s mental health was stable. He was, however, placed in the At Risk Unit on 5 October 2015 where he received medical treatment from a psychiatric nurse and a doctor. Mr Kim was moved out of the At Risk Unit a few days later after his mental health stabilised. However, Mr Kim was moved back into the At Health Risk Unit on 1 December 2015 after the Minister communicated her decision to surrender Mr Kim to China. Mr Kim was discharged from the At Risk Unit on 9 December 2015, after a psychiatrist assessed he was at low risk of self- harm and that there was no need for him to remain in the At Risk Unit.
Inherent jurisdiction to grant bail
[46] Section 22 of the Act sets out the powers of the Court in relation to extradition proceedings. Section 22(1)(b)(ii) of the Act provides that apart from six
sections, the provisions of the Bail Act apply with necessary modifications to extradition proceedings.15
[47] The Act specifically envisages bail being granted at four stages of an extradition process. The Act refers to bail decisions in relation to persons to whom the following extradition steps apply:
(1) Where an arrest warrant has been issued upon the request of the
Minister under s 19 of the Act.16
(2) Where a provisional arrest warrant has been issued under s 20 of the
Act.17
(3)Where there has been a determination that the person is eligible to be surrendered.18
(4) Where the person consents to his or her surrender.19
[48] The Act does not refer to bail being granted where the Minister has ordered an applicant to be surrendered under s 30 of the Act. Nor does the Act expressly prohibit the granting of bail to a person who has been made the subject of an surrender order by the Minister. It is for this reason Mr Kim’s bail application relies on the High Court’s inherent jurisdiction.
[49] In Zaoui v Attorney-General the Supreme Court explained that the High Court retained its inherent jurisdiction to grant bail except where the High Court’s jurisdiction has been expressly or impliedly revoked by Parliament.20
[50] While the Bail Act does not expressly apply to persons in Mr Kim’s position,
the Bail Act does provide a helpful point of reference when the High Court is asked
15 The provisions of the Bail Act which are excluded from applications under the Extradition Act
1999 are ss 2, 4, 9, 10, 11 and 12 of the Bail Act 2000.
16 Extradition Act 1999, s 22(3).
17 Section 22(3).
18 Section 26(2).
19 Section 28(6).
20 Zaoui v Attorney-General (No 2) [2005] 1 NZLR 577 (SC); see also Pora v R [2014] NZCA 74.
to exercise its inherent jurisdiction to grant bail. Thus, factors which weigh against the High Court exercising its inherent jurisdiction to grant bail include the risk of the applicant failing to answer to his or her bail,21 the risk of the applicant interfering with witnesses22 and the risk of the applicant offending while on bail.23 In the present case the Crown only relies upon its concern that Mr Kim will flee
New Zealand.
[51] Also relevant is s 8(2) of the Bail Act which sets out factors the Court may take into account when considering if there is a just reason for declining bail. Those factors include:
(1) the nature of the offence with which the applicant is charged;24
(2) the strength of the evidence and probability of conviction;25
(3)the severity of the punishment to which the applicant is liable if convicted;26 and
(4) the likely length of time before the case is heard.27
Analysis
New Zealand Bill of Rights Act
[52] I start from the basic premise that Mr Kim is innocent until he is proven guilty according to law.28
[53] Mr Kim cites s 23(5) of the NZBORA which reaffirms the right of every
person arrested or detained to be “treated with humanity and with respect for the inherent dignity of the person”. This right incorporates into domestic law the
21 Bail Act 2000, s 8(1)(a)(i).
22 Section 8(1)(a)(ii).
23 Section 8(1)(a)(iii).
24 Section 8(2)(a).
25 Section 8(2)(b).
26 Section 8(2)(c.)
27 Section 8(2)(f).
28 New Zealand Bill of Rights Act 1990, s 25(c).
obligation in art 10(1) of the International Covenant on Civil and Political Rights which states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human persons”. I would need to provide the Crown with the opportunity to provide evidence addressing this issue before I could conclude the regime in Mt Eden Prison breaches Mr Kim’s right to be treated “with humanity and with respect for the inherent dignity of the person”. Mr Kim’s evidence in support of his bail application was filed on 15 December
2015. The Crown has not had an adequate opportunity to respond to it. I have therefore chosen not to reach any conclusions on this particular issue and have placed it to one side when reaching my decision.
[54] Mr Kim also suggests that his continued detention is arbitrary, and therefore a breach of s 22 of the NZBORA. 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.
Flight risk
[55] I am also satisfied there is a real risk of Mr Kim failing to remain in New Zealand if he is granted EM bail. In reaching this conclusion I record that I am satisfied the proposed EM bail address is an appropriate address for EM bail.
[56] An assessment of Mr Kim’s flight risks involves an examination of the factors set out in s 8(2) of the Bail Act and any other relevant matters relied upon by the applicant.
[57] I agree with the Crown that the risk of Mr Kim fleeing New Zealand has increased now that the Minister has made her decision that Mr Kim is to be surrendered to China. Mr Kim’s lengthy journey in which he has taken every
possible step to rest being extradited to China is nearing a conclusion. This factor strongly increases the risk of Mr Kim fleeing New Zealand.
[58] When I evaluate the relevant factors set out in s 8(2) of the Bail Act I reach the following conclusions:
(1) Nature of the charge
The charge against Mr Kim is obviously extremely serious. This is a
factor that weighs heavily against Mr Kim’s application.
(2) Strength of the evidence
Dr Ellis, senior counsel for Mr Kim, acknowledged that on paper, the case against Mr Kim is strong. However, Dr Ellis strenuously argued that the evidence against Mr Kim has not been tested and no conclusions about the strength of the evidence which Mr Kim is facing should be drawn. I disagree. The District Court carefully evaluated the evidence when determining that Mr Kim was eligible for surrender. The District Court determined that there is a prima facie case against Mr Kim.
(3) The seriousness of the likely punishment
If convicted of murder in China Mr Kim is likely to be sentenced to a lengthy period of imprisonment.
(4) Time to hearing
Mr Kim’s application for judicial review and his application under s 36 of the Act can be heard on 15 and 16 February 2016. This is a factor that weighs in favour of the Crown’s submission that bail should not be granted.
(5) Health issues
I am also satisfied that although Mr Kim has suffered health issues, those issues are not sufficient to justify him being granted EM bail.
Ms Harrison’s evidence satisfies me that every effort has been made to carefully monitor Mr Kim’s mental health whilst he has been in Mt Eden Prison and that the medical staff at Mt Eden Prison will continue to discharge their professional responsibilities by ensuring Mr Kim receives appropriate care and attention. As at 9 December
2015 it is clear that Mr Kim’s mental health issues have stabilised. Mr Kim’s health will need to continue to be carefully monitored.
Conclusion
[59] Mr Kim’s application for EM bail is dismissed.
[60] No order for costs is made.
D B Collins J
Solicitors:
Carole Curtis, Auckland for Applicant
Crown Law Office, Wellington for Respondent
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