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Kim v Attorney-General

Kim v Attorney-General

Case [2014] NZHC 1383 19 June 2014

Extradition Act 1999

Substantial Risk

International Covenant on Civil and Political Rights

United Nations Convention Against Torture

Natural Justice

Extradition Law

Human Rights Law

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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 Court

Judgment:

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…

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 [2014] NZHC 1383
Case: [2014] NZHC 1383
Decision Date: 19 June 2014

CaseChat Overview and Summary

Kyung Yup Kim sought judicial review of several steps in the process of his extradition from New Zealand to China. The application was heard over two days in June 2014. The Court dismissed all but one of Mr Kim's claims. The Court found that the police had no authority to photograph Mr Kim and take his fingerprints when he was arrested under a provisional arrest warrant. The Court concluded that the police could not have relied on any common law power to justify their actions. The Court noted that the photographs and fingerprints taken had not been forwarded to China, and that there were no material consequences flowing from the police's actions in this instance. The Court issued a declaration that the police acted unlawfully when they photographed Mr Kim and took his fingerprints.

Orders