Kim v Attorney-General
[2014] NZHC 1383
•19 June 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-002506 [2014] NZHC 1383
UNDER the Extradition Act 1999, the New Zealand
Bill of Rights Act 1990, the Judicature Amendment Act 1972, the common law, and the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture
IN THE MATTER
of a request for extradition to China, the Death Penalty, Torture and Fair Trial, and decisions under ss 20, 21 and 24
Extradition Act 1999, Breaches of the New Zealand Bill of Rights Act 1990, and remedies of Public Law compensation, Declarations and orders in the nature of Prohibition, Certiorari and Mandamus
BETWEEN
KYUNG YUP KIM Applicant
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND
First Respondent
THE MINISTER OF JUSTICE OF NEW ZEALAND
Second Respondent
THE DISTRICT COURTS AT WELLINGTON AND AUCKLAND Third Respondents
Hearing: 3-4 June 2014 Counsel:
Dr A J Ellis and S Park for Applicant
V E Casey for First and Second Respondents
Third Respondents abide the decision of the CourtJudgment:
19 June 2014
KIM v THE ATTORNEY-GENERAL OF NEW ZEALAND [2014] NZHC 1383 [19 June 2014]
JUDGMENT OF COLLINS J
Introduction
[1] The People’s Republic of China (China) wishes to extradite Mr Kim from New Zealand to stand trial for the murder of Ms Chen, who died in Shanghai in December 2009. 3-4 June 2014
[2] To date the District Court has issued a provisional arrest warrant under s 20 of the Extradition Act 1999 (the Act) and determined that Mr Kim is eligible to be extradited under s 24 of the Act. The Minister of Justice (the Minister)1 has still to decide if Mr Kim should be surrendered to China.
[3] Mr Kim has applied for judicial review of a number of the steps taken and decisions given to date in the extradition process. His 281 paragraph amended statement of claim contains nine causes of action (one of which has been abandoned). In this judgment I have been asked to deal with six of the remaining causes of action pleaded by Mr Kim. Five of those causes of action allege, amongst other matters, that the District Court and other decision-makers failed to take account
of Mr Kim’s substantive rights.2 One cause of action focuses upon the conduct of
the police following Mr Kim’s arrest.
[4] I have decided that Mr Kim’s application for judicial review must be dismissed in all but one respect. The exception relates to the conduct of the police when they photographed Mr Kim and took his fingerprints following his arrest. The Act does not authorise the police to photograph and take the fingerprints of a person arrested pursuant to a provisional arrest warrant under the Act. Mr Kim is entitled to a declaration the police acted unlawfully when they photographed him and took his
fingerprints.
1 The Minister of Justice until 12 December 2011 was the Honourable Simon Power, who was then succeeded by the Honourable Judith Collins.
2 I explain in para [57] that in this judgment I refer to Mr Kim’s substantive rights as his rights under art 14 of the International Covenant on Civil and Political Rights, art 3 of the Covenant against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and his rights under ss 8 and 9 of the New Zealand Bill of Rights Act 1990.
[5] I have decided the substantive rights issues Mr Kim advances are to be considered by the Minister when she decides if Mr Kim should be surrendered to China and that they are not relevant to the two steps in the extradition process that have been completed. I have also concluded Mr Kim is wrong when he alleges his rights under ss 23, 25 and 27 of the New Zealand Bill of Rights Act 1990
(NZBORA) have been breached.3
[6] To help understand my reasons I shall explain: (1) The legislative framework.
(2) The chronology of events.
(3) The application for judicial review.
(4) Why the substantive rights issues have been raised prematurely. (5) Why there was no error at the provisional arrest warrant stage. (6) Why there was no error at the detention and bail decision stages.
(7)Why the Minister did not err when he decided to proceed with the extradition process.
(8)Why the Minister did not err when notifying the District Court that the Minister had received a request to extradite Mr Kim.
(9)Why the police acted lawfully when they arrested Mr Kim and searched his property.
(10)Why the police acted unlawfully when they photographed Mr Kim and took his fingerprints.
3 I explain in para [57] that in this judgment I refer to Mr Kim’s rights under ss 23, 25 and 27 of
the New Zealand Bill of Rights Act 1990 as his arrest and trial rights.
(11) My conclusions.
Legislative framework
[7] The Act governs the process for extraditing an accused or convicted person from New Zealand to another country. It also governs the way New Zealand requests the extradition of persons to New Zealand.
[8] The Act engages a number of principles and considerations such as, New Zealand’s compliance with its international obligations, the principles of comity, ensuring persons who are accused or convicted of serious crimes are brought to justice, ensuring New Zealand does not become a safe haven for fugitives4 and, ensuring, as far as is possible, compliance with the NZBORA.
[9] Extradition decisions are carefully allocated in the Act between the judicial and executive branches of government. This reflects the polycentric nature of the principles and considerations which underpin the Act.
[10] This case concerns one discrete class of extradition, namely where the request for extradition has been made by a country that is not a member of the Commonwealth and with which New Zealand does not have an extradition treaty. Requests for extradition in this class of cases involve a three-stage process prescribed in s 60 and Part 3 of the Act.
Stage one: arrest and appearance before the Court for bail
[11] Section 60 of the Act provides that when a country, such as China, makes a request to the Minister to extradite a person, such as Mr Kim, then the Minister must
consider the matters set out in s 60(3) of the Act.5 If the Minister decides that the
4 Kwok-Fung v The Hong Kong Special Administrative Region of the People’s Republic of China [2001] 3 NZLR 463 (CA) at [16]; Bujak v District Court at Christchurch [2009] NZCA 257 at [17]-[23]; Bujak v Minister of Justice [2009] NZCA 570 at [56].
5 Extension of Act for individual requests
(3) … the Minister must consider the following matters in order to decide whether the request should be dealt with under this Act:
(a) any undertakings given by the country making the request that a person who is accused or convicted of an offence in New Zealand that is an extradition offence in relation to New Zealand and the other country may, if found in that country or within the jurisdiction of that country, be returned to New Zealand; and
request should be dealt with under the Act then the person who is the subject of the request may be arrested and surrendered in the manner provided for in Part 3 of the Act.
[12] Alternatively, the requesting country may apply for a provisional arrest warrant under s 18 of the Act. The provisional arrest warrant procedure may be pursued even though the Minister has not received a request to surrender the person.6
A District Court Judge may issue a provisional arrest warrant if he or she is satisfied that:
(1) a warrant for the arrest of the person has been issued by an authorised
Court or Judge in the extradition country;7
(2)the person is or suspected of being in New Zealand or on his or her way to New Zealand;8
(3)there are reasonable grounds to believe the person is an extraditable person and that the offence for which he or she is sought is an extraditable offence;9 and
(4)“It is necessary or desirable for an arrest warrant to be issued urgently”.10
[13] When a person is arrested pursuant to a provisional arrest warrant he or she must be brought before the District Court as soon as possible.11 The District Court is empowered to grant bail to a person who is arrested pursuant to a provisional
warrant.12
(b) the seriousness of the offence; and
(c) the object of this Act as specified in section 12; and
(d) any other matters that the Minister considers relevant.
6 Extradition Act 1999, ss 18(2) and 60(7).
7 Section 20(1)(a).
8 Section 20(1)(b).
9 Section 20(1)(c).
10 Section 20(1)(d).
11 Section 23(1).
12 Section 23(2).
[14] If a provisional arrest warrant is issued then the applicant for the warrant must notify the Minister that the provisional arrest warrant has been issued.13 The Minister may then, if he or she thinks fit, “order that the proceedings be discontinued”.14
[15] When a person is arrested pursuant to a provisional arrest warrant the Minister is required to notify the District Court that the Minister has received a request under s 18 of the Act to surrender the person.15 Section 23(4)(c)(ii) authorises the District Court to fix a reasonable time for the Minister to notify the District Court that the Minister has received a request for surrender of the person.
[16] The extradition process cannot proceed until the Minister notifies the Court that the Minister has received a request for the surrender of the arrested person.16 If the Court does not receive notice from the Minister within the specified time then the Court must discharge the arrested person.17
Stage two: eligibility for surrender
[17] If the procedures following arrest have been complied with then the District
Court must proceed to determine if the arrested person is eligible for surrender.
[18] Section 24(2) requires the District Court to be satisfied of the criteria set out in that subsection when assessing if the arrested person is eligible for surrender. For present purposes those criteria are:
(1)that the supporting documents described in s 18(4) of the Act have been produced to the Court;
(2) the requesting country is an extradition country;
(3) the offence for which extradition is sought is an extraditable offence;
and
13 Extradition Act 1999, s 21(1).
14 Section 21(3).
15 Section 23(4).
16 Section 23(4)(a).
17 Section 23(4)(c).
(4)the evidence would justify the arrested person going to trial if the offence had occurred in New Zealand.
[19] In addition, s 24(3) provides the District Court must not find the arrested person is eligible for surrender if the person satisfies the Court that one of the mandatory restrictions on surrender applies. The mandatory restrictions on surrender are set out in s 7 of the Act and include:
(1)where the offence is of a political character, or is only an offence under military law;18
(2)where extradition is sought to prosecute or punish on account of race, ethnic origins, religion, nationality, sex or political opinions;19
(3)where the person may be prejudiced by reason of race, ethnic origins, religion, nationality, sex or political opinions;20
(4)where the person has already been punished, acquitted or pardoned of the offence;21 and
(5)where the person is detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.22
[20] The District Court may also have regard to the discretionary restrictions on surrender set out in s 8 of the Act.23 Those considerations include:
(1) the case is trivial;24
(2) the accusations are not made in good faith;25
18 Extradition Act 1999, s 7(a) and (d).
19 Section 7(b).
20 Section 7(c).
21 Section 7(e).
22 Section 7(f) and (g).
23 Section 24(4).
24 Section 8(1)(a).
(3) the delay since the alleged offending took place;26 and
(4) the person is facing prosecution for a different offence in
New Zealand.27
[21] If the District Court determines that the arrested person is eligible for surrender then the Court issues a warrant for the detention of the person pending his or her surrender and sends all relevant information to the Minister.28
Stage three: surrender
[22] The final stage involves the Minister determining if the detained person should be surrendered.29
[23] Section 30(2) of the Act requires the Minister to have regard to the mandatory restrictions on surrender set out in s 7 of the Act. In addition, there are further mandatory considerations set out in s 30(2) of the Act. Those additional mandatory restrictions on surrender include:
(1)where there are substantial grounds for believing that the person would be subjected to torture;30
(2)where the person is a New Zealand citizen (and certain other criteria are met);31 or
(3)where there is no assurance that the person will only be tried for the extradition offence and not be surrendered to another country.32
25 Extradition Act 1999, s 8(1)(b).
26 Section 8(1)(c).
27 Section 8(2).
28 Section 26.
29 Section 30.
30 Section 30(2)(b).
31 Section 30(2)(c).
32 Section 30(5).
[24] Section 30(3) lists discretionary considerations which the Minister may take into account when determining whether or not the person is to be surrendered. Those factors include:
(1) any of the discretionary restrictions on surrender set out in s 8 of the
Act;33
(2)where the person may face the death penalty and the Minister is not satisfied that the person will not be executed;34
(3)where the person is a New Zealand citizen and the provisos to the mandatory restrictions in s 30(2)(c) do not apply and if the Minister is satisfied that it would be not in the interests of justice to surrender the person;35
(4)where there are compelling or exceptional circumstances which would make it unjust or oppressive to surrender the person;36 or
(5)where for any other reason the Minister considers that the person should not be surrendered.37
[25] The Minister may seek any undertakings from the extradition country that the
Minister thinks fit.38
[26] If the Minister decides to surrender the person, and if there are no outstanding applications for review, habeas corpus or appeals from determinations under the Act then the Minister makes a surrender order.39
[27] There is a two month time limit from the date when the District Court determines the person is eligible to be surrendered to when he or she is sent from
33 Extradition Act 1999, s 30(3)(b).
34 Section 30(3)(a).
35 Section 30(3)(c).
36 Section 30(3)(d).
37 Section 30(3)(e).
38 Section 30(6).
39 Section 31(2).
New Zealand.40 If there is a failure to comply with this time limit the person may apply to a High Court Judge to be discharged.41 However, the two month time limit is suspended during any appeal or application for a review or habeas corpus from a determination under the Act.42
Chronology
[28] 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. Mr Kim has two daughters who are New Zealand citizens.
[29] In December 2009 Mr Kim was living in Shanghai with his former girlfriend, Ms Li. Mr Kim flew from Shanghai to Seoul on 14 December 2009.
[30] On 31 December 2009 the body of Ms Chen was found at a wasteland area in Shanghai. It was clear that Ms Chen had been intentionally killed. Investigations by the police in Shanghai led the authorities in Shanghai to believe Mr Kim had murdered Ms Chen at his apartment on 11 December 2009.43
[31] 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 in relation to Mr Kim on 14 May 2010. The offence alleged in the warrant is murder/intentional homicide.44
[32] Mr Kim flew from Seoul to Auckland on 4 October 2010. There has been no explanation why he was able to travel through South Korea and New Zealand
immigration checkpoints without apparently activating the Interpol “Red Notice”.45
40 Extradition Act 1999, s 36(1).
41 Section 36(2).
42 Section 36(1)(b) and (c).
43 It is alleged Ms Chen’s DNA was found in the bedroom of Mr Kim’s apartment. It is also
alleged he told a friend in Shanghai that he had killed someone.
44 Criminal Law of the People’s Republic of China, 1 October 1997, art 232.
45 Mr Kim also appeared in the Auckland District Court on a minor drugs charge on 4 February
2011. Again it would appear that the Interpol “Red Notice” was not activated.
[33] On 23 May 2011 the Ministry of Justice received an initial request to extradite Mr Kim. That initial request was accompanied by approximately 200 pages of documents. Officials decided not to invite the Minister to initiate the extradition process pursuant to s 60 of the Act. Instead an application was made for a provisional arrest warrant under s 20 of the Act. That application was made to Judge Broadmore in the Wellington District Court on 10 June 2011. Judge Broadmore issued a provisional arrest warrant that day.
[34] Later on 10 June 2011 Mr Kim was arrested at his home in Auckland. The police searched his home and car for his passport but were unable to locate it. Mr Kim was taken to the Auckland Central Police Station where he was photographed and his fingerprints taken. Mr Kim appeared in the Auckland District Court on 11 June 2011. He was remanded in custody.
[35] On 24 June 2011 the Minister was notified under s 21 of the Act that the District Court had issued a provisional arrest warrant for Mr Kim. The Minister decided on 27 June 2011 to continue the extradition proceeding.
[36] Mr Kim made further brief appearances in the Auckland District Court on 13,
17 and 22 June 2011. At the hearing on 22 June 2011 the District Court required the Minister to notify the Court by 17 August 2011 if he had received a request for the surrender of Mr Kim.46 Mr Kim was remanded in custody until 17 August 2011.
[37] On 17 August 2011 the Minister notified the Auckland District Court that he had received a request to surrender Mr Kim. Mr Kim was remanded in custody for a hearing to determine if he was eligible to be surrendered. The eligibility hearing was scheduled to take place on 15 February 2012. However, that fixture was initially deferred at Mr Kim’s request until 2 July 2012.
[38] On 7 February 2012 Mr Kim applied for bail in the Auckland District Court. Bail was refused. The High Court upheld that decision on 28 February 2012.
46 Extradition Act 1999, s 23(4). Refer para [19] above.
[39] On 24 May 2012 Mr Kim applied for the eligibility hearing to be deferred. A new date for that hearing was set for 15 October 2012. However, that fixture was also vacated at Mr Kim’s request when he informed the Court that he was proposing to apply for a writ of habeas corpus and commence judicial review proceedings.
[40] The High Court declined Mr Kim’s habeas corpus application on
18 September 2012. The Court of Appeal dismissed Mr Kim’s habeas corpus appeal on 12 October 2012 and the Supreme Court dismissed Mr Kim’s further habeas corpus appeal on 20 December 2012.
[41] This judicial review proceeding was filed on 20 November 2012.
[42] A further 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.
[43] On 9 September 2013 the District Court gave a judgment on preliminary issues relating to the eligibility hearing. On 29 November 2013 the District Court determined Mr Kim was eligible for surrender. A further bail application was dismissed by the District Court that day.
[44] A notice of appeal from the eligibility decision was filed on 11 December
2013. A decision on the case stated question was delivered by the District Court on
13 May 2014. That appeal has still to be determined, as has an application to judicially review aspects of the eligibility decision that are pleaded in the eighth and ninth causes of action of the amended statement of claim.
The application for judicial review
[45] It is convenient to analyse the six grounds for judicial review I have been asked to consider under the following headings:
(1) The failure to consider substantive rights issues; (2) The provisional arrest warrant;
(3) The detention and bail decisions;
(4) The Minister’s decision under s 21 of the Act;
(5) The Minister’s notice under s 23(4) of the Act;
(6) The arrest of Mr Kim and search of his property; and
(7) The taking of Mr Kim’s photographs and fingerprints.
The failure to consider substantive rights issues
[46] A key plank in Mr Kim’s application for judicial review is his concern that to date decision-makers have not taken into account the substantive rights issues that might be engaged if Mr Kim is surrendered to China. This issue is pleaded in the first five causes of action that I have been asked to consider.
[47] The submission that decision-makers were obliged to take into account substantive rights issues applies to every step in the extradition process that has been completed so far.
[48] The substantive rights issues which Mr Kim says are engaged fall into three categories:
(1) the risk that Mr Kim will be executed if he is surrendered to China; (2) the risk Mr Kim will be tortured if he is surrendered to China; and
(3) the risk Mr Kim will not receive a fair trial if he is surrendered to
China.
[49] Ms Casey, counsel for the Attorney-General and Minister, objected to aspects of the evidence that Dr Ellis relied upon to support his submission that Mr Kim’s substantive rights were likely to be seriously compromised if he is surrendered to China. Ms Casey submitted that as a matter of law the substantive rights issues
raised by Dr Ellis are not relevant to the two stages that have been completed so far in the extradition process and therefore the substantive rights evidence is not admissible.
[50] I have concluded Ms Casey is right in her analysis of the law. However, as the issues raised by Mr Kim are important I will briefly explain the evidence he relies upon.
Risk of execution
[51] There is evidence that the Minister inquired into whether or not China had undertaken to refrain from imposing the death penalty if Mr Kim were surrendered to China and convicted of the murder of Ms Chen. That inquiry appears to have been made in mid-August 2011 when the Minister was preparing to notify the District Court that he had received a request to extradite Mr Kim. The Minister was told by officials that New Zealand had received an assurance from China at a government to government level that the death penalty would not be imposed on Mr Kim if he were convicted of murdering Ms Chen.
[52] Dr Ellis submitted, however, that assurances of this nature were of little value as they could not be enforced. Dr Ellis drew support for this submission from academic articles47 and Israil v Kazakhstan48 in which the United Nations Human Rights Committee said:49
While a statement was made by the Chinese authorities in their request of extradition that the author [Mr Israil] would not be sentenced to death … and the State Party did not address this issue, the Committee considers that a risk of conviction and death sentence being procured through treatment incompatible with art 7 of the Convention is not removed.
47 Gregor Noll “Diplomatic Assurances and the Silence of Human Rights Law” (2006) 7 MJIL
104; Nina Larsaeus “The Use of Diplomatic Assurances in the Prevention of Prohibited
Treatment” RSC Working Paper 32 (Refugee Study Centre, University of Oxford, October
2006).
48 Israil v Kazakhstan (Judgment) CCPR Human Rights Committee CCPR/C/103/D/2024/2011, 28
January 2011.
49 At [9.5].
Risk of torture
[53] To date no assurance has been sought from the Chinese government that
Mr Kim will not be subjected to torture if he is surrendered to China.
[54] Dr Ellis based his submission that there was a real risk of Mr Kim being tortured if he is surrendered to China upon research conducted by Mr Nowak, the special rapporteur of the Commission on Human Rights who, in 2006 issued a report on “Torture and Cruel, Inhuman or Degrading Punishment in China”.50 Dr Ellis quoted extensively from Mr Nowak’s report in which he explained in considerable detail the evidence he had gathered concerning torture of persons in China suspected of committing crimes and how torture was frequently used to obtain confessions.
Absence of fair trial rights in China
[55] The submission that Mr Kim would not receive a fair trial in China is based upon:
(1)Mr Nowak’s report in which he said that one of the largest obstacles to eliminating torture in China is the institutional weakness and lack of independence of the judiciary and the absence of procedural safeguards in the Chinese judicial system. The safeguards which Mr Nowak referred to which he says are weak or non-existent in China include “the presumption of innocence; the privilege against self-incrimination; the right to remain silent … timely access to
counsel; and adequate time and facilities to prepare a defence.”51
(2)An affidavit from Mr Matas, a Canadian lawyer who is an expert in the Chinese legal system. Mr Matas’s affidavit explained how criminal hearings in China are not genuinely public, judicial officials are not independent of the Chinese Communist Party and China’s Judges are not impartial in proceedings between the state and an
individual.
50 Civil and Political Rights, including the Question of Torture and Detention Report of the Special
Rapporteur on the question of torture, Manfred Nowak, E/CN.4/2006/6, 23 December 2005.
51 At [56].
[56] Dr Ellis submitted that the decisions made to date in Mr Kim’s extradition
proceedings breached the rights guaranteed to him by:
(1) sections 8, 9, 23(1)(a), 25(a) and 27 of the NZBORA;52
(2) article 14 of the 1966 International Covenant on Civil and Political
Rights (ICCPR);53 and
(3) article 3 of the 1984 United Nations Convention against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment
(CAT).54
52 8 Right not to be deprived of life
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice …
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment …
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it ...
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the
following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court ...
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any
tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in
accordance with law, for judicial review of that determination.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
531. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or
when the interest of the private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicly would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interests of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
54 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
[57] In this judgment I classify the rights guaranteed by ss 8 and 9 of the NZBORA, art 14 of the ICCPR and art 3 of the CAT as “substantive rights”. I classify the rights guaranteed by ss 23, 25 and 27 of the NZBORA as “arrest and trial rights”.
[58] There can be no suggestion that Mr Kim has been or will be exposed to breaches of ss 8 and 9 of the NZBORA while in New Zealand.
[59] The arrest and trial rights guaranteed by ss 23, 25 and 27 of the NZBORA may be engaged in the first two stages of the extradition process to the extent that those sections apply to the procedures and hearings conducted in New Zealand. I shall address those rights later in this judgment.55
[60] The division of decisions in the Act between the judicial and executive branches of government clearly means that only the Minister can consider the substantive rights issues raised by Dr Ellis. It is the Minister who makes the primary decision whether New Zealand should surrender Mr Kim after taking into consideration the factors identified in s 30 of the Act. This Court can be asked only to judicially review the Minister’s decision once it is made.
[61] In this case the Minister must consider the risk of torture to Mr Kim56 and she is likely to also consider the value of the assurances that Mr Kim will not be executed57 and any other circumstances, including whether Mr Kim will receive a fair trial.58 At this stage the Minister will be advised to consider the principles outlined in Soering v United Kingdom59 and may decline to surrender Mr Kim if there is a “very strong case” of a real risk of “flagrant breach” of the rights protected by the ICCPR and CAT.60
[62] The submission that the District Court needed to consider the substantive rights issues raised by Dr Ellis at the first two stages of the extradition process was
55 Refer paras [81], [85]-[86] and [90]-[95].
56 Extradition Act 1999, s 30(2)(b). Refer para [23] above.
57 Section 30(3)(a). Refer para [24] above.
58 Section 30(3)(e). Refer para [24] above.
59 Soering v United Kingdom (1989) 11 EHRR 439.
60 Bujak v Minister of Justice, above n 4, at [32]-[38] and [43].
considered and rejected by the Supreme Court in the context of Mr Kim’s habeas corpus appeal. The Supreme Court said in relation to the issue of the provisional arrest warrant:61
… the appellant made submissions concerning the possibility of torture or imposition of the death penalty, if he is surrendered. These submissions are premature. They address mandatory and discretionary considerations which fall for consideration later in [the] extradition proceedings. They are not matters that have to be considered under s 20 at the first stage …
[63] Dr Ellis submitted that as the Supreme Court made this statement in the context of a habeas corpus appeal they do not govern the way I should decide Mr Kim’s judicial review application.
[64] Even if there was merit in this aspect of Dr Ellis’ submission I would have respectfully concluded that the Supreme Court’s explanation as to when substantive rights issues are to be considered was undoubtedly correct and entirely consistent with the approach which has been taken by the Full Court of Appeal in Kwok-Fung v The Hong Kong Special Administrative Region of the People’s Republic of China.
The Court of Appeal said:62
… some powers are conferred only on the Minister: danger of torture, mandatory and discretionary restrictions on surrendering citizens, danger of the death penalty, the humanitarian and other discretions conferred by s30(3)(d) and (e).
[65] The Court went on to address the argument that the prospect of torture ought to be considered by the District Court at the preliminary stages of the extradition process. The Court of Appeal said:63
The reference to the Minister’s role to protect persons from the danger of torture (consistently with article 3 of the [United Nations] Convention against Torture [1984]) provides an opportunity to mention the appellant’s argument, in his written submissions, based on the guarantee in s 9 of the Bill of Rights against torture and cruel, degrading and disproportionately severe treatment. Under the Act … that matter is for the Minister.
61 Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR
589 at [31] per Elias CJ, McGrath and Glazebrook JJ.
62 Kwok-Fung v The Hong Kong Special Administrative Region of the People’s Republic of China
above n 4, at [28].
63 At [28].
[66] The New Zealand approach is also consistent with leading decisions in cognate jurisdictions. For example, in Idziak v Canada, the Supreme Court of Canada noted that in relation to the Canadian immigration regime, which is similar to New Zealand’s:64
Parliament chose to give discretionary authority to the Minister of Justice. It is the Minister who must consider the good faith and honour of this country in its relations with other states. It is the Minister who has the expert knowledge of the political ramifications of an extradition decision ...
[67] Accordingly, I agree with Ms Casey that neither ss 8 and 9 of the NZBORA, nor New Zealand’s international obligations impose a requirement on the decision- makers in the first two stages of the extradition process to consider the substantive rights issues that might arise if Mr Kim is surrendered to China. It will be for the Minister to consider the relevant substantive rights issues before a final decision is made to surrender Mr Kim to China pursuant to s 30 of the Act.
The provisional arrest warrant
[68] In addition to the claim that the District Court erred by not considering Mr Kim’s substantive rights at the time of issuing the provisional arrest warrant, there are three further limbs to Mr Kim’s judicial review of the way the provisional arrest warrant was considered and issued. Those three limbs are:
(1) the conduct of the applicant’s counsel and witness;
(2)the absence of any grounds to justify the issuing of the provisional arrest warrant on the grounds of urgency; and
(3) the absence of reasons for issuing the provisional arrest warrant.
Conduct of applicant’s counsel and witness
[69] The first and second grounds of judicial review in the amended statement of claim take issue with the way in which the application for a provisional arrest
64 Idziak v Canada [1992] 3 SCR 631 at 659.
warrant was presented.65 In particular, there are allegations of bad faith on the part of counsel for the applicant and the detective who swore an affidavit in support of the provisional arrest warrant.66 There are also allegations of a conflict of interest67 and a failure to disclose relevant information and/or misleading the District Court.68
Bad faith
[70] There is no evidence of bad faith on the part of counsel, the witness, or decision-makers in this case. I need not say anything further about this allegation.
Conflict of interest
[71] Dr Ellis has raised legitimate questions about who actually applies for a provisional arrest warrant in cases such as this. The documents filed in the District Court in support of the provisional arrest warrant were intituled in a way which said China was the applicant. Counsel who appeared in support of the application was a counsel in the Crown Law office who also provided advice to the Ministry of Justice, New Zealand Police and indirectly, the Minister in relation to Mr Kim’s extradition. The multiple roles performed by the applicant’s counsel have triggered the suggestion that there was a conflict of interest when they purported to act for China and advised various members of the executive branch of New Zealand’s government.
[72] In Dotcom v United States of America69 the Supreme Court discussed who should have been identified as the applicant to extradite Mr Dotcom. The Chief Justice suggested the Minister was the applicant.70 The other members of the Supreme Court disagreed with the Chief Justice and said that in that case counsel from the Crown Law Office appeared as “representative acting on behalf of the requesting state”.71 The approach taken by the majority of the Supreme Court reflected the views of the Court of Appeal in Mailley v District Court at North Shore,
in which it was said that applications such as the one the Court was concerned with
65 Amended Statement of Claim at [86.1] and [93]-[103].
66 At [114]-[145].
67 At [101]-[103].
68 At [101]-[104].
69 Dotcom v United States of America [2014] NZSC 24.
70 At [2], [6] and [38].
71 At [100]-[103], [213] and [308].
should be brought in the name of the requesting country, in that case the
Commonwealth of Australia.72
[73] There appears to have been a variety of approaches to the intituling of extradition proceedings in New Zealand. In some cases applications have been brought in the name of the New Zealand Police, in other cases the New Zealand Police have been named as acting on behalf of the requesting country and in other cases the requesting country only is named as the applicant.73
[74] For my part, I think there is merit in adopting the practice which appears to be now followed in the United Kingdom where applications are brought in the name of the senior law officer representing the government of the requesting country.74
[75] Notwithstanding the possibility that there may be some confusion over the way the application for the provisional arrest warrant was intituled, the reality is no conflict of interest arose in this case. When Crown counsel appeared in support of the application for the provisional arrest warrant they were not representing China. Instead, they were discharging New Zealand’s obligation under the Act of ensuring that the appropriate legislative steps were taken to initiate the extradition process. There was no conflict in the same counsel subsequently advising members of the executive branch of government in relation to decisions that had to be made under the Act in relation to Mr Kim.
[76] Similarly, the suggestion that Crown counsel and the police misled the District Court is misplaced. Dr Ellis said they had a duty to advise the District Court on the potential human rights abuses that Mr Kim might face if he were surrendered to China. However, as I have already explained the substantive rights issues raised by Dr Ellis are to be considered by the Minister in the third stage of the extradition process. Crown counsel and the police had no duty to inform the District Court of
matters that were not relevant to the decision which the District Court had to make.
72 Mailley v District Court at North Shore [2013] NZCA 266 at [38].
73 At [37].
74 See for example, Kapri v The Lord Advocate Representing the Government of the Republic of
Albania [2013] UKSC 48.
Absence of evidence of urgency
[77] Dr Ellis submitted that there was no basis upon which the District Court could have been satisfied that it was necessary or desirable that a provisional arrest warrant be issued urgently.75
[78] The District Court was informed of the following matters:
(1)A warrant for Mr Kim’s arrest had been issued by China for murder/intentional homicide and that there were reasonable grounds to be believe Mr Kim is an extraditable person.
(2) Mr Kim left Shanghai for Seoul shortly after the alleged murder in
December 2009.
(3) China had issued an Interpol Red Notice in relation to Mr Kim on
15 May 2010.
(4) The allegations against Mr Kim were extremely serious.
(5) The allegations in themselves raised issues of public safety.
(6)Mr Kim had previous convictions in New Zealand including convictions for breach of Court orders.
(7) Mr Kim held a Korean passport and had travelled to and from New
Zealand on a number of occasions.
(8)China considered Mr Kim was a flight risk and that he posed some risk to public safety.
[79] In my assessment, those factors justified the District Court deciding that a provisional arrest warrant should be issued urgently.
75 Extradition Act 1999, s 20(1)(d). Refer para [12] above.
Absence of reasons
[80] Dr Ellis submitted that the District Court Judge failed to give reasons for issuing the provisional arrest warrant.
[81] However, as the Supreme Court has explained, the District Court Judge’s reasons for issuing the provisional arrest warrant are stated in the warrant itself. Those reasons are sufficient to meet the requirements of open justice guaranteed by s 25(a) of the NZBORA, and to permit the lawfulness of the decision to be properly reviewed by a Court exercising its supervisory jurisdiction in accordance with
s 27(2) of the NZBORA.76
The detention and bail decisions
[82] Mr Kim pleads the District Court was obliged to consider the potential abuses of his substantive rights when deciding to detain Mr Kim and when it declined his applications for bail. For the reasons I have explained in paragraphs [58] to [67] of this judgment I dismiss this aspect of Mr Kim’s application for judicial review.
The Minister’s decision under s 21 of the Act
[83] Mr Kim’s fourth ground of judicial review pleads that the Minister made reviewable errors of law when he decided under s 21 of the Act to allow the extradition process to continue. Mr Kim pleads that the Minister erred by:
(1) not considering Mr Kim’s substantive rights at this stage of the
extradition process;
(2) not providing Mr Kim with an opportunity to be heard; and
(3) not providing written reasons for the Minister’s decision under s 21 of
the Act.
76 Kim v Prison Manager, Mount Eden Corrections Facility, above n 61, at [41].
Substantive rights concerns
[84] Mr Kim’s substantive rights concerns can only be considered by the Minister during stage three of the extradition process. I shall not repeat the reasons why I believe this aspect of Mr Kim’s case is premature.
Right to be heard
[85] Section 21 of the Act provides the Minister with an opportunity to halt the extradition process if he or she thinks that is the right course of action. Section 21 involves a mechanical step in the extradition process and does not envisage a hearing. The Act does not contemplate an affected person being afforded an opportunity to be heard at every mechanical step in the extradition process.
[86] Mr Kim was fully entitled to be heard when the District Court decided he was eligible to be surrendered and he has a right to be heard when the Minister decides whether or not Mr Kim is to be surrendered to China.
Absence of reasons
[87] The Minister was not obliged to record his reasons for not stopping the extradition process. However, in this case the reasons for the Minister’s decision are clearly recorded in a briefing paper signed by the Minister on 27 June 2011.
The Minister’s notice under s 23(4) of the Act
[88] The fifth cause of action alleges the Minister made reviewable errors when he decided to sign a notice under s 23(4) of the Act, advising the District Court that a request to surrender Mr Kim had been received. There are two limbs to this aspect of Mr Kim’s case.
[89] In the first limb Mr Kim again says the Minister erred by not considering his substantive rights. For the reasons I have already fully explained this aspect of Mr Kim’s case fails because the Minister is required to consider Mr Kim’s substantive rights during the third stage of the extradition process.
[90] The second limb to the fifth cause of action is an allegation that Mr Kim’s rights to natural justice were not complied with because he was not afforded an opportunity to be heard before the Minister issued the s 23(4) notice. In my assessment, the s 23(4) notice was issued to comply with a purely mechanical step in the extradition process. The Minister did not need to afford Mr Kim an opportunity to be heard on whether or not the Minister had received a request to extradite Mr Kim.
Police conduct when arresting Mr Kim and searching his property
[91] The seventh cause of action77 focuses upon the conduct of the police at the time Mr Kim was arrested and processed in the Auckland Central Police Station. There are three limbs to this aspect of Mr Kim’s case, namely:
(1)he was not given sufficient information about why he was being arrested;
(2) the police conducted an unlawful search of Mr Kim’s property; and
(3) the police unlawfully took Mr Kim’s photograph and fingerprints.
Lack of information on arrest
[92] Mr Parker argued this aspect of Mr Kim’s case. He submitted that at the time of his arrest Mr Kim was not given particulars of the time and place of the murder or the identity of the alleged murder victim. Mr Park submitted this breached Mr Kim’s common law right to be given reasons for his arrest.78
[93] It is true Mr Kim was not told when he was arrested the name of his alleged victim, when Ms Chen was murdered or where she was allegedly murdered.
[94] However, in this case Mr Kim was arrested pursuant to a provisional arrest warrant issued under s 20 of the Act. He did not need information of the type that
would assist him in defending a murder charge in New Zealand. All that was
77 The sixth cause of action has been abandoned.
78 Christie v Leachinsky [1947] AC 573.
required was for Mr Kim to be advised that he was being arrested pursuant to a provisional arrest warrant issued under the Act.
[95] A careful examination of the evidence records that at the time of his arrest
Mr Kim was told:
(1) he was accused of murder in China;
(2) a warrant had been issued for his arrest in China; and
(3) an order had been made for his provisional arrest in New Zealand.
The information given to Mr Kim satisfied the requirement of s 23(1)(a) of the NZBORA that a person who is arrested or detained “be informed at the time of their arrest or detention the reason for it”.
Search
[96] The arresting officer has provided an affidavit which confirms that the search for Mr Kim’s passport at his property was conducted with Mr Kim’s consent and with the consent of Mr Kim’s father and brother. There was no reviewable error in the way the police searched Mr Kim’s property at the time of his arrest.
The police conduct in taking Mr Kim’s photograph and fingerprints
[97] Mr Park challenged the lawfulness of the police taking Mr Kim’s photograph
and fingerprints when he was processed at the Auckland Central Police Station.
[98] There is merit in this aspect of Mr Park’s submission. In my view, there is a lacuna in the legislation, the effect of which is that the police do not have a statutory power to take photographs and fingerprints of those who are arrested pursuant to a provisional arrest warrant issued under the Act.
[99] I am also satisfied the police could not have been acting pursuant to any common law power they may have when photographing Mr Kim and taking his fingerprints.
Legislative powers
[100] The lacuna in the legislation exists because s 82 of the Act, as it existed at the time of Mr Kim’s arrest, authorised the police to exercise their common law powers to search a person and the powers conferred on the police by s 37 of the Policing Act
2008.79
[101] Section 37 of the Policing Act 2008 at the relevant time gave the police power to search persons taken into custody. The power of the police to photograph and take fingerprints from arrested persons is contained in s 32 of the Policing Act
2008.80
[102] I am confident that the statutory power conferred on the police to search persons taken into custody does not extend to photographing and fingerprinting those who are arrested pursuant to a provisional warrant issued under the Act. My reason for reaching this conclusion is that Parliament drew a distinction in the Policing Act
2008 between obtaining identifying particulars of a person who is in custody81 and
searching a person in custody.82 Had Parliament intended photographs and fingerprints could be taken as part of a search there would have been little purpose in
enacting s 32 of the Policing Act 2008.
79 Extradition Act 1999 (as at 29 November 2010), s 82.
82 Search and seizure on arrest
(1) If a person is arrested on a warrant issued or endorsed under this Act, a constable may
search, without further warrant, the person arrested and may seize any thing, including any sum of money, found on the person or in the person’s possession if the constable believes on reasonable grounds that the thing on the person or in the person’s possession may be evidence as to the commission of any offence in relation to which the warrant to arrest was issued or endorsed or for which the surrender of the person is sought by the extradition country concerned.
(2) If there is no suitable searcher available at the place where the search is to take place, the person to be searched may be taken to another place to be searched.
(3) Nothing in this section limits or affects the right at common law of a constable to search a person on that person’s arrest or any power under section 37 of the Policing Act 2008.
80 32 Identifying particulars of person in custody
(1) …
(2) For the purpose of this section, a constable may take the identifying particulars of a person who is in the lawful custody of the Police if that person is detained for committing an offence and is—
(a) at a Police station; or
(b) at any other place being used for Police purposes.
81 Policing Act 2008, s 32.
82 Policing Act 2008, s 37.
[103] Thus, when s 82 of the Act was passed Parliament appears to have overlooked including reference to the police being given power to photograph and take fingerprints from those who are arrested under the Act. I cannot fill the void created by Parliament when it limited the powers of the police to searching a person arrested pursuant to the Act.
Police common law powers
[104] The police may exercise some powers under the common law when arresting a suspect. Those powers primarily relate to searches and the gathering of evidence.83
[105] A provisional arrest warrant in an extradition proceeding is a warrant of arrest only. Its sole purpose is to enable the person to be taken into custody. A person arrested pursuant to a provisional arrest warrant under the Act is not in the same position as a person arrested in relation to committing a crime in New Zealand.84
Absent legislative authority, I do not believe the police have the powers to
photograph and take the fingerprints of a person who is arrested pursuant to a provisional arrest warrant under the Act.
[106] Even if there is a common law power for the police to take photographs and fingerprints that power could not extend to the present situation where it was plainly not necessary to photograph Mr Kim and take his fingerprints in order to obtain evidence or confirm his identity.
[107] No reason has been given for photographing Mr Kim and taking his fingerprints. I am certain the police simply acted routinely when they processed Mr Kim and did so believing they had a statutory power to photograph him and take his fingerprints. However, where a person is arrested pursuant to a provisional warrant issued under the Act the police need to act in accordance with that
legislation, and not the wider powers conferred upon them by the Policing Act 2008.
83 Adair v McGarry 1933 JC 72; Keenan v Attorney-General [1986] 1 NZLR 241 (CA); R v Briggs
[2009] NZCA 244 at [40]-[42].
84 R v Commissioner of Police for the Metropolis, Ex P Rottman [2002] UKHL 20 at [3].
[108] There are no material consequences which flow from the police photographing Mr Kim and taking his fingerprints in this case. Ms Casey assured me the photographs and fingerprints have not been forwarded to China and they have not and will not be used in relation to evidence against Mr Kim.
[109] In other cases, the consequences of taking photographs and fingerprints may not be so uneventful. However, the only action I can take at this stage is to point out the lacuna in the Act.
[110] In my assessment, Mr Kim is entitled to a declaration that the police did act unlawfully when they took his photograph and his fingerprints when he was arrested pursuant to the provisional arrest warrant.
Conclusion
[111] The first seven grounds for judicial review pleaded in the amended statement of claim are dismissed other than that element of the seventh ground which alleges the police acted unlawfully when they photographed Mr Kim and took his fingerprints. Mr Kim is entitled to a declaration that the police acted unlawfully when they took his photograph and his fingerprints.
[112] As Mr Kim is legally aided there is no need for me to consider any issue relating to costs.
Future steps
[113] Mr Kim’s appeal from the determination that he is eligible for surrender has still to be heard, as are two causes of action for judicial review which challenge the lawfulness of the District Court’s decision that Mr Kim is eligible for surrender.
[114] It would be highly desirable if the appeal and remaining judicial review challenges can be heard and determined expeditiously so that any appeals from this judgment can be heard in tandem with any appeals which may flow from determining the appeal and the balance of the judicial review claims.
D B Collins J
Solicitors:
Crown Law Office, Wellington for First and Second Respondents
3
5
0