Kim v Minister of Justice
[2016] NZHC 1491
•1 July 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-1009 [2016] NZHC 1491
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 TortureIN THE MATTER OF
an application for discharge from detention pursuant to s 36 of the Extradition Act 1999
AND
of a request to China, and a decision to extradite the applicant, breaches of the New Zealand Bill of Rights Act 1990, and International Law remedies of Public Law compensation, declarations and orders in the nature of Prohibition Certiorari and Mandamus
BETWEEN
KYUNG YUP KIM Applicant
AND
THE MINISTER OF JUSTICE First Respondent
THE ATTORNEY-GENERAL Second Respondent
Hearing: 15 and 16 February 2016
Further submissions received on 28 April 2016 and 6 May 2016
Appearances:
A J Ellis and G K Edgelet for the applicant
A M Powell and A F Todd for the respondentsJudgment:
1 July 2016
JUDGMENT OF MALLON J (Discharge application)
KIM v THE MINISTER OF JUSTICE [2016] NZHC 1491 [1 July 2016]
Table of contents
Introduction ....................................................................................................................................... [1] Mr Kim’s personal details ................................................................................................................ [4] The suspected intentional homicide ................................................................................................. [6] The extradition process ................................................................................................................... [17] Chronology of extradition steps ..................................................................................................... [38] When does the jurisdiction under section 36 arise ....................................................................... [57] What is the scope of the Court’s power under s 36 ...................................................................... [76] What constitutes “sufficient cause” under section 36 .................................................................. [78] The United Kingdom .................................................................................................................... [79] Canada ......................................................................................................................................... [89] Australia ....................................................................................................................................... [99] Approach to considering whether “sufficient cause” is shown .................................................. [105] What happened here ................................................................................................................... [106] Has sufficient cause been shown .................................................................................................[111] Result .............................................................................................................................................. [130]
Introduction
[1] Kyung Yup Kim is currently in custody at Mt Eden Prison, Auckland. He has been in custody since 10 June 2011 because he is the subject of an extradition request from the People’s Republic of China (the PRC). That request is made because he is suspected of intentionally killing a woman in Shanghai in December
2009.
[2] There are two applications before me:
(a) an application under s 36 of the Extradition Act 1999 (the Act) to discharge Mr Kim from the extradition; and (b)
an application for judicial review of the Minister’s decision on
30 November 2015 that Mr Kim is to be surrendered to the PRC.
[3]
Thi
s judgment determines the first of those applications. This application is
made because Mr Kim remains in custody, without charge, and has been there for
five years. My judgment on the judicial review application is issued separately but contemporaneously with this judgment.
Mr Kim’s personal details
[4] Mr Kim is a citizen of the Republic of Korea. He holds a Korean passport, although this is currently in the possession of the Korean Embassy. He has permanent residence in New Zealand and regards New Zealand as his home.
[5] Mr Kim first came to New Zealand with his parents in 1989 when he was 14 years old. Mr Kim’s mother is a New Zealand permanent resident. His father and younger brother are New Zealand citizens. He is the father of two New Zealand- born children who are New Zealand citizens. The children are now aged 15 and 16 years. The mother of the children does not live in New Zealand. Prior to Mr Kim’s detention he was the principal caregiver for the children. They now live with their grandparents in New Zealand.
The suspected intentional homicide
[6] As part of the procedure that applies in New Zealand in respect of an extradition request, a hearing took place in the District Court.1 The hearing determined whether there was a prima facie case against Mr Kim in respect of an extradition offence.2 At that hearing the District Court reviewed the evidence provided by the Chinese authorities.3 It received evidence from two New Zealand experts. It also heard evidence from Mr Kim and his mother. The following summary comes from the District Court judgment as the evidence is not provided in the material before me.
[7] Mr Kim is suspected by the Chinese authorities of killing Pei Yun Chen, a woman aged 20 years, in Shanghai on about 10 December 2009. Mr Kim was in Shanghai from 22 August 2009 to 14 December 2009. He had entered Shanghai on a
visitor’s permit. He was visiting Shanghai to see his girlfriend Jiaqin Li. Ms Li had
1 Re Kim DC Auckland CRI-2011-004-11056, 29 November 2013.
2 Extradition Act 1999, s 24(2)(d)(i).
3 An application was made on Mr Kim’s behalf for an oral examination of the witnesses on which
the case against Mr Kim was based. This was declined.
previously lived in Auckland but she had returned to Shanghai to live with her parents. Mr Kim rented an apartment in Caobao road, Shanghai and initially lived there. From November 2009 he mainly stayed with Ms Li, at her parents’ apartment in Huiming Garden, Shanghai although he continued to rent the Caobao Road apartment.
[8] Ms Chen’s body was found by sparrow hunters in a wasteland in Qibao town, in the Minhan District of Shanghai on 31 December 2009. Following this discovery an autopsy was carried out. The autopsy noted a 2.5 cm wound on her forehead and injuries to her lips and mouth. The autopsy concluded that the cause of death was strangulation and she had sustained injuries to her forehead from a blunt object. As part of the extradition process, the scientific evidence was reviewed by a New Zealand pathologist, Dr M D Sage. His evidence was that the condition of the body at the time of the autopsy was consistent with Ms Chen having died at or about the time she went missing (on 10 December 2009 as next discussed), but there was no reasonably reliable scientific way of determining her actual time of death except by very broad estimate.
[9] Police inquiries revealed that Ms Chen was last seen alive on the evening of
9 December 2009. At approximately 7.30 pm she left her parents’ home in Qibao to walk to a bar where she worked as a waitress. She left the bar at approximately midnight on 10 December 2009. Her mother reported her missing and said that her mobile phone was out of service on 14 December 2009.
[10] Ms Chen’s body was found wrapped from head to toe in a large black cloth, bound with a piece of tape. Pieces of a coloured quilt were also found wrapped around her head and hips underneath the black cloth. In early 2010 the police circulated pictures of the quilt found with the body. The quilt was identified by Ms Li as being similar to one Mr Kim had at his apartment on Caobao Road. She also told the police that the black cloth and tape were similar to items she had seen at his apartment.
[11] As a result of the information provided by Ms Li, the Chinese police went to the Caobao Road apartment. Ten blood samples were extracted for analysis. Nine
samples were found to match the DNA of Pei Yun Chen. This evidence was reviewed by Ms Susan Vintiner, a forensic scientist employed by the Environmental Science and Research Services (ESR). She confirmed that the DNA results of several of the blood stains extracted from the Caobao Road apartment were consistent with them having originated from Ms Chen. She further noted that two samples of the blood stains, obtained from the mattress wrapping Ms Chen’s body, could have originated from Ms Li or another person sharing the same DNA profile as
Ms Li.4
[12] The Chinese Police examined Mr Kim’s mobile phone records. This showed that Mr Kim sent a text message on the morning of 10 December 2009 to the phone of Ki Yong Park, a Korean national, asking Mr Park to contact him urgently. Mr Park made a statement to the police to the effect that Mr Kim had telephoned him several times between 11 and 12 December 2009. He said that, on returning from work on 12 December 2009, he found Mr Kim waiting near his apartment, crying and smoking. Mr Kim told him he had found a prostitute and may have beaten her to death. There was evidence to suggest that the deceased, Ms Chen, engaged in prostitution.
[13] Mr Kim’s evidence at the District Court hearing was that on 9 December
2009 he collected his girlfriend after she finished work and took her to her family home on his scooter at approximately 6 pm. Later he went out with Mr Park for a drink and a meal at a bar close to where Mr Park lived. That evening he asked Mr Park if he could borrow his car because his mother was arriving from Korea on
12 December and he wanted to use the car to show her around Shanghai. Mr Kim continued drinking until after midnight. By this time Mr Park had left. He phoned Ms Li in the early hours of the morning to tell her that he was on his way home. She
told him not to come to her parents’ home and so he slept at his apartment.
4 It is unclear from the District Court’s summary of the evidence whether these two samples were part of the nine samples that the Chinese experts had identified as matching Ms Chen’s DNA, but it seems that at least one of them must have been given that there is reference to ten blood samples having been extracted and nine were found to match Ms Chen. It is also unclear if the “mattress” is intended to refer to the quilt found with the body.
[14] Mr Kim denies murdering Ms Chen. He denies ever having met her. His apartment was located on the fourth floor of a large apartment block, which was one of several in a compound. He said that, if there had been a struggle or a serious assault in the apartment, other people in nearby apartments would have heard the altercation due to the thinness of the apartment walls. He also said it would have been difficult to move a body from the fourth floor apartment and out of the complex as a gatehouse, which was manned continuously day and night, stood at the exit. He said there were no elevators in the apartment block so that the body would need to be carried down four flights of stairs.
[15] Mr Kim also denied sending a text to Mr Park on the morning of 10
December 2009. He suggested that Mr Park may have made these statements under pressure from the Chinese police. He also suggested that Ms Li may have been involved in the killing herself and a “cover up” by the Chinese authorities may have occurred. He said Ms Li’s father was a member of the Communist party and, by virtue of his long-standing membership, held an important administrative post at a hospital.
[16] At the District Court hearing Mr Kim’s mother also gave evidence. She said she had planned her travel to the PRC in mid-November 2009 and had purchased her ticket at this time. She arrived in Korea on 11 December 2009 and flew to the PRC the following day. She left the PRC on 14 December 2009 as she had received word that her father, who lived in Korea, was ill. She refuted any suggestion that her reason for going to the PRC was to assist her son once she had learned that he had killed someone. She said she could not physically assist in removing a body from his apartment as she found it difficult to climb the staircase. She said her health was poor as a result of having suffered a stroke, and she had heart problems for which she received treatment at an Auckland hospital.
The extradition process
[17] Extradition requests made to New Zealand are governed by the Extradition Act 1999 and any applicable bilateral extradition treaty. The Act contains two different procedures for extradition from New Zealand depending on which country
makes the extradition request. One of those is “the back-warrant procedure”. This is a generally faster and more straightforward procedure. It applies to Australia and the United Kingdom.5 The other is the standard procedure. It applies to a Commonwealth country other than Australia and the United Kingdom, a country with which New Zealand has an extradition treaty, a country designated by Order in Council, or a country in respect of which a specific individual request has been accepted.6
[18] New Zealand does not have a bilateral extradition treaty with the PRC. If extradition of a person from New Zealand to the PRC is to be considered under the Act, a request must be made to the Minister of Justice. The Minister is required to consider certain matters (including the seriousness of the offence and any undertakings provided by the country) in deciding whether the request should be dealt with under the Act. If the Minister decides that the request should be dealt with
under the Act the standard procedure applies.7
[19] There are four stages in applying the standard procedure:8
(a) issuing a warrant and arresting the subject of the request; (b) bringing the subject before the court as soon as possible;
(c) determining whether the subject is eligible for extradition; and
(d)deciding whether the subject should be surrendered to the extradition country and making any consequential surrender order.
[20] The first stage of the process begins with a request for surrender by the extradition country transmitted through diplomatic channels to the Minister of
5 Extradition Act 1999, Part 4.
6 Sections 13-16.
7 Section 60.
8 Kim v Prison Manager Mt Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR 589 [Supreme Court re Kós J decision] at [11] to [18] refers to these four stages. Sometimes this process is described as a three staged process, with the first two stages being treated as part of the same stage. See for example: Kim v Attorney General [2015] NZHC 3290 [Collins J – bail decision]. After the surrender order is made, the final step is the conveyance of the subject out of New Zealand (which could be described as the fifth stage).
Justice. The request must be accompanied by a copy of the arrest warrant for the person issued in the extradition country, and a description of the offence, the maximum penalty that applies to the offence, and the conduct constituting the offence.9
[21] The Minister may notify the District Court of the extradition request and request that it issue a warrant to arrest the subject of the extradition and bring them before the Court.10 Alternatively, the Minister can decline to notify the District Court.11 If notified, the District Court Judge may issue a warrant if the Judge is satisfied that the person is (or is suspected of being) in New Zealand (or on his or her
way here) and there are reasonable grounds to believe that the person is an extraditable person in relation to the extradition country and the offence is an extradition offence.12
[22] The District Court also has the power to issue a provisional warrant for the arrest of a person without there having been a request for surrender and a notice from the Minister. It may do so where a warrant for the arrest of a person has been issued in an extradition country, the person is (or is suspected of being) in New Zealand (or on his or her way here) and there are reasonable grounds to believe that the person is an extraditable person in relation to the extradition country and the offence is an extradition offence, and the Judge is satisfied that it is necessary or desirable for an
arrest warrant to be issued urgently.13 If this occurs, the applicant must report this to
the Minister.14 On receipt of the report the Minister may, if she thinks fit, order that the proceedings be discontinued.15 If she orders the discontinuance of the proceedings she may cancel any warrant of arrest and order that the subject be
discharged.16 The proceedings may not continue until the Minister has notified that a
9 Extradition Act 1999, s 18(4).
10 Section 19(1).
11 Section 19(3).
12 Section 19(2).
13 Section 20.
14 Section 21(1).
15 Section 21(3).
16 Section 21(4).
request for surrender has been transmitted to her.17 The notice must be received within a reasonable time or the person is to be discharged.18
[23] The second stage of the process involves the person arrested on a warrant being brought before a Court as soon as possible.19 The person cannot be released without bail and they are not bailable as of right.20 The Bail Act 2000 applies with some modification.21
[24] Under the Bail Act the person must be released on reasonable terms and conditions unless the court is satisfied there is just cause for continued detention.22
In considering whether there is just cause for continued detention the Court must take into account certain matters, the most relevant of which are likely to be the risk that the person will fail to appear in court on the date to which they are remanded (that is, the person is a flight risk) and any other matter that would make it unjust to detain the person.23 There are other matters the Court may take into account. These include the nature of the offence with which they are charged, the strength of the evidence, the seriousness of the punishment, the likely length of time before the matter comes to trial and any other special matter that is relevant in the particular circumstances.24
[25] If bail is not granted the court has the power to order the person’s detention.25
The person may be detained in custody or a hospital or secure facility.26 The Act also makes provision for detention to be in a place other than a prison as follows:
27 Detention in place other than prison
17 Section 23(4).
18 Section 23(4).
19 Section 23(1).
20 Section 23(2).
21 Section 22(1)(b).
22 Bail Act 2000, s 7(5). The Court may impose any conditions it thinks fit: Extradition Act 1999, s 23(3).
23 Bail Act 2000, s 8(1)(a)(i) and (b).
24 Section 8(2)(a),(b), (c), (f) and (h).
25 That power can be inferred from s 23 and in any event arises under s 22 which incorporates provisions of the Summary Proceedings Act 1957: Kim v The Prison Manager Mt Eden Corrections Facility [2012] NZCA 471, [2012] 3 NZLR 845 [Court of Appeal re Kós J decision].
26 Summary Proceedings Act s 46 and s 184T(3): Kim (Court of Appeal re Kós J decision), above n 25, at [34]-[43].
If the court orders the detention of the person at any time under this Part, but is of the opinion that, because of the circumstances of the case, it would be dangerous to the life or pose a significant risk to the health of the person to detain the person in a prison, it may order that the person be held in custody—
(a) at the place where the person is for the time being; or
(b) at any other place to which the court considers that the person can be removed without danger to the person's life or risk to the person's health—
until such time as the person can, without such danger or risk, be detained in a prison or is surrendered or is discharged according to law.
[26] At the third stage of the process the court determines whether the person is eligible for surrender in relation to the offence for which extradition is sought.27
The suspect is eligible for surrender if the required supporting documents have been produced to the court, the court is satisfied the offence is an extradition offence in relation to an extradition country and the evidence produced at the hearing would, under New Zealand law, justify the person’s trial if the conduct constituting the offence had occurred in New Zealand.28 The person is not eligible for surrender if a
mandatory restriction applies.29 The court may determine that a person is not
eligible for surrender if the person satisfies the court that a discretionary restriction applies.30 The court’s decision on eligibility can be appealed on a question of law only.31
[27] If the District Court finds the subject of the request is ineligible for surrender, he or she must be discharged and released from custody, unless an intention to appeal that determination is immediately notified to the court and the judge decides to order continued detention or issue a warrant for the person’s arrest and detention as the case may be.32 In that case bail may be again considered under the Bail Act.33
[28] If the District Court determines the subject is eligible for surrender to the extradition country, the court must issue a warrant for the detention of the person
27 Extradition Act 1999, s 24(1).
28 Section 24(2).
29 Sections 7 and 24(3).
30 Sections 8 and 24(4).
31 Section 68.
32 Sections 26 and 70.
33 Section 70(3).
pending the person’s surrender or discharge. The detention may be in a prison or other place authorised in accordance with s 27 or s 184T(3) of the Summary Proceedings Act 1957.34 Bail may again be considered.35 The court must inform the person that they will not be surrendered until 15 days from the date the warrant for detention has expired and during that period they have the right to apply for a writ of habeas corpus. They must also be informed of the right to lodge an appeal.36 The court must also provide certain information to the Minister about the proceeding.37
[29] The issue of a warrant for the person’s detention on the finding of eligibility triggers the fourth stage of the process. The Minister must determine whether or not the subject of the request should be surrendered to the extradition country, unless the subject of the request voluntarily surrenders to the extradition. The Act sets out both mandatory and discretionary grounds on which the Minister may decline to order surrender.38 The Minister may seek any undertakings from the extradition country that the Minister thinks fit, for the purposes of determining whether the person is to be surrendered.39
[30] The mandatory grounds for declining surrender are set out in ss 7 and 30(2)
of the Act. For present purposes the relevant provisions in s 30(2) are as follows:
30 Minister must determine whether person to be surrendered
…
(2) The Minister must not determine that the person is to be surrendered—
(a) if the Minister is satisfied that a mandatory restriction on the surrender of the person applies under section 7; or
…
34 Section 26(1). Section 184T of the Summary Proceedings Act provides for detention in a hospital or secure facility when two health assessors have certified that the person is mentally impaired and their mental condition requires that they be in a hospital or secure facility instead of a prison.
35 Extradition Act 1999, s 26(2).
36 Section 26(1)(d).
37 Section 26(1)(c).
38 Sections 7, 8 and 30.
39 Section 30(6).
(b) if it appears to the Minister that there are substantial grounds for believing that the person would be in danger of being subjected to an act of torture in the extradition country; or
…
[31] For present purposes the relevant mandatory restriction in s 7 is as follows:
7 Mandatory restrictions on surrender
A mandatory restriction on surrender exists if –
…
(c) on surrender, the person may be prejudiced at his or her trial or punished, detained, or restricted in his or her personal liberty by reason of his or her race, ethnic origin, religion, nationality, sex, or other status, or political opinions;
…
[32] The discretionary grounds on which surrender may be declined are set out in ss 8 and 30(3). For present purposes the relevant discretionary grounds are as follows:
30 Minister must determine whether person to be surrendered
…
(3) The Minister may determine that the person is not to be surrendered if—
(a) it appears to the Minister that the person may be or has been sentenced to death by the appropriate authority in the extradition country, and the extradition country is unable to sufficiently assure the Minister that—
(i) the person will not be sentenced to death; or
(ii) if that sentence is or has been imposed, it will not be carried out; or
(b) it appears to the Minister that a discretionary restriction on the surrender of the person applies under section 8; or
…
(d) without limiting section 32(4), it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or
(e) for any other reason the Minister considers that the person should not be surrendered.40
[33] For present purposes the relevant discretionary restriction is as follows:
8 Discretionary restrictions on surrender
(1) A discretionary restriction on surrender exists if, because of—
…
(c) the amount of time that has passed since the offence is alleged to have been committed or was committed,—
and having regard to all the circumstances of the case, it would be unjust or oppressive to surrender the person.
[34] If the Minister determines the subject is not to be surrendered, the person must be discharged from custody forthwith.41 If the Minister decides the subject is to be surrendered, she must make a surrender order in respect of that person.42
Section 31(2) stipulates the time at which a surrender order can be made as follows:
31 Surrender order
…
(2) The Minister must not make a surrender order in respect of a person—
(a) until the expiration of 15 days after the date of the issue of the warrant of detention of that person under section 26; or
(b) if an appeal, or an application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, until after the date that the proceedings are finally determined and the result is that the person is eligible to be surrendered,—
whichever is the later.
[35] A person subject to the above extradition procedure may apply to the High
Court to be discharged from the extradition, as follows:
36 Discharge of a person if not surrendered within 2 months
40 The respondents accept that s 30(3)(e) is engaged if there is any reason to have concern about trial fairness in the extradition country.
41 Extradition Act 1999, s 35.
42 Section 31(1).
(1) This section applies if a person is not surrendered and conveyed out of New Zealand under a surrender order or a temporary surrender order made under this Part within 2 months—
(a) after the date of the issue of the warrant for the detention of the person under section 26 … pending surrender, if no appeal or application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending; or
(b) if an appeal, or an application for review or habeas corpus, in respect of a determination under this Act, or any appeal from such an appeal or application, is pending, after the date that the proceedings are finally determined;
...
(2) If this section applies, the person may apply to a Judge of the High
Court to be discharged.
(3) If an application to be discharged is made under subsection (2), the Judge may, on proof that reasonable notice of the intention to make the application has been given to the Minister, unless sufficient cause is shown against the discharge,—
(a) discharge the surrender order or temporary surrender order, as the case may be; and
(b) order the discharge of the person from the place where the person is detained, if the person is not liable to be detained under any other order for detention.
….
[36] Accordingly an application for discharge can only be made if two months have elapsed since the warrant for detention was made, upon a finding of eligibility for surrender (at the third stage of the process), without the subject being conveyed out of New Zealand. The relevant date for bringing an application changes if there is a pending appeal or application for review or habeas corpus in respect of any determination under the Act. In that case the application can only be made if the subject has not been conveyed to the extradition country within two months after the pending proceeding (the appeal or application for review or habeas corpus) is finally determined. Discharge may be ordered unless sufficient cause is shown against it.
[37] Section 38 provides:
To avoid doubt, the discharge of a person under any provision of this Part or under any enactment repealed by this Act does not of itself preclude further
proceedings under this Act, whether or not they are based on the same conduct, to extradite the person under this Act.
Chronology of extradition steps
[38] The discovery of Ms Chen’s body and the ensuing investigation by the Chinese police resulted in a warrant for Mr Kim’s arrest as a suspect of intentional homicide issued on 10 March 2010. An Interpol alert was issued on 2 May 2010. Mr Kim was still in Korea at this time. Notwithstanding that alert, on 4 October
2010 Mr Kim left Korea and returned to New Zealand.
[39] On 25 May 2011 New Zealand received a request from the PRC, dated 18
May 2011, seeking Mr Kim’s surrender on one count of intentional homicide. The extradition request provided a number of supporting documents. These included details of the evidence on which Mr Kim was suspected of intentionally killing Ms Chen. The documents also included a decision by the Supreme People’s Court of the PRC dated 28 January 2011 stating that if Mr Kim is extradited from New Zealand to the PRC, and if he is convicted after trial of a crime punishable by death penalty, the trial court will not impose the death penalty on him, nor impose the death penalty with a two year reprieve.
[40] The District Court issued a provisional arrest warrant for Mr Kim dated 9
June 2011.43 He was brought before the court on 11 June 2011 pursuant to that warrant. He was remanded in custody.44 On 27 June 2011 the Minister decided to continue the extradition proceeding.45 On 15 August 2011 the Minister decided that the request from the PRC was to proceed under the Act.46 On 17 August 2011 the
court offered a fixture for the eligibility hearing on 30 November 2011. That fixture
43 The application was made by the New Zealand Police on the request of the Shanghai police pending the Minister’s decision on whether the request was to be dealt with under the Act. The only copy of the warrant that is before me is that set out in the Court of Appeal’s decision Kim (Court of Appeal re Kós J decision), above n 25, at [12]. That copy refers to an application on
10 June 2011 from China for a provisional warrant but is signed 9 June 2011 by the District Court Judge. It appears that Mr Kim was arrested by the New Zealand Police on 10 June 2011 (see Kim v Attorney General [2014] NZHC 1383 [Collins J decision] at [34]) and presumably spent the night in the police cells before he was first brought before the Court on 11 June 2011.
44 This was a Saturday and no Judge was available. Mr Kim was remanded in custody to appear before a Judge on 13 June 2011. Mr Kim made no application for bail but reserved his position in that respect. The Judge remanded him in custody. See Kim v Prison Manager Mt Eden Corrections Facility [2012] NZHC 2417, [2012] NZAR 990 [Kós J decision] at [3].
45 Extradition Act 1999, s 21.
46 Section 60.
was not suitable for Mr Kim’s then counsel and the date of 15 February 2012 was set
instead. On 17 November 2011 that fixture was vacated and a new fixture for 2 July
2012 was set.
[41] Throughout the above period Mr Kim appeared in the District Court a number of times. In each case he was remanded in custody. On 7 February 2012 Mr Kim applied for electronically monitored bail. The District Court (Judge Gibson) refused the application.47 On 28 February 2012 the High Court (Brewer J) dismissed an appeal against that refusal.48 Brewer J considered Mr Kim was a flight risk due to
the serious nature of the alleged offence, the strength of the evidence, and the seriousness of the punishment if convicted. He regarded this risk as too great to be adequately addressed by electronic monitoring (which would provide the authorities with a warning if there was an attempt to abscond) and the offer of sureties from family members.
[42] An application for habeas corpus was declined by the High Court on
18 September 2012.49 That application was made on the basis of errors in the dates referred to in the warrant issued following the District Court’s eligibility decision, the absence of reasons for issuing that warrant, the absence of a power to detain under the provision pursuant to which the warrant was issued, the request had not complied with Chinese law and Mr Kim was not extraditable because he was not “accused” of an extraditable offence. These matters were all dismissed.50 On
12 October 2012 an appeal from that decision was dismissed.51 On 20 December
2012 the Supreme Court dismissed a further appeal.52
47 Re Kim, above n 1.
48 Kim v The People’s Republic of China [2012] NZHC 294 [Brewer J decision].
49 Kim (Kós J decision), above n 44.
50 Kós J held that the errors did not give rise to miscarriage; reasons were not required on the face of the warrant; there was a power to detain; and the remaining matters required evidence which was not before the Judge and was not properly determined on a summary determination at [29] - [31].
51 Kim (Court of Appeal re Kós J decision), above n 25.
52 By this stage the only issues were habeas corpus sought on the basis that the request had not complied with Chinese law and Mr Kim was not extraditable because he was not “accused” of an extraditable offence. The majority of the Supreme Court approached these matters differently from the High Court and the Court of Appeal but the same outcome resulted, namely dismissal of the application. Kim (Supreme Court re Kós J decision), above n 8.
[43] Mr Kim made a further application for bail. The application was made on the basis of changed circumstances, namely that because of “human rights considerations” it was unlikely that Mr Kim would ever be extradited. The application was declined by the District Court on 17 December 2012.53 On 1 March
2013 the High Court (Venning J) dismissed an appeal against the refusal to grant bail.54 The Judge agreed with the earlier decision of Brewer J that Mr Kim was a flight risk and that the risk could not be addressed satisfactorily by conditions. The Judge viewed the human rights issues Mr Kim raised as being for consideration at later stages (that is, when the District Court made its eligibility decision and when the Minister made her surrender decision). On the material before him, the Judge
was unable to conclude that the likelihood of Mr Kim’s surrender was so slim as to make it unjust to detain him pending the eligibility hearing. On 6 May 2013 the Court of Appeal dismissed an appeal against the High Court decision on the basis that there was no jurisdiction to hear the appeal.55
[44] While these applications were being pursued, the District Court eligibility hearing was deferred at Mr Kim’s request from 2 July 2012 to 15 October 2012 and then to 9 September 2013. The District Court Judge (Judge Gibson) issued his decision on 29 November 2013. He determined that Mr Kim was eligible for surrender.56 At that time a further bail application was dismissed. Mr Kim filed an appeal against the eligibility decision on 11 December 2013.
[45] Some time earlier, on 20 November 2012, Mr Kim had filed an application for judicial review. That application contained nine causes of action and at a hearing on 3 and 4 June 2014 the High Court (Collins J) was asked to consider six of them.57
Five of those six largely concerned the failure of the District Court and other decision makers to consider Mr Kim’s right not to be subjected to the death penalty
or torture and his right to receive a fair trial. These claims failed because they were
53 Kim v The Peoples Republic of China DC Auckland CRI-2011-004-11056, 17 December 2012 [Judge Cunningham decision].
54 Kim v The Peoples Republic of China [2013] NZHC 388 [Venning J decision].
55 Kim v The Peoples Republic of China [2013] NZCA 136 [Court of Appeal re Venning J decision]. There was no second right of appeal because Mr Kim had exercised his statutory right of appeal to the High Court under the Bail Act, and the High Court was not exercising its inherent jurisdiction.
56 Re Kim, above n 1.
57 Kim (Collins J decision), above n 43.
for consideration at a later stage of the process, namely when the Minister made her determination on surrender. The sixth claim concerned police conduct when Mr Kim was arrested under the provisional warrant. The High Court granted a declaration that the police had acted unlawfully in photographing Mr Kim and taking his fingerprints (as they had no power to do so). The High Court’s judgment on those
causes of action was delivered on 19 June 2014.58
[46] On 12 September 2014 Mr Kim abandoned his appeal of the District Court’s eligibility decision. On that day Mr Kim’s lawyer also provided submissions against surrender to the acting Minister of Justice (Hon Christopher Finlayson). On
19 September 2014 Mr Kim discontinued the judicial review proceeding. Therefore, as at 19 September 2014, there were no pending proceedings. The present Minister of Justice (Hon Amy Adams) received her warrant on 6 October 2014. On
6 November 2014 she received her first substantial briefing on the matter. On
11 November 2014 the Minister decided that she would be assisted in her consideration of the surrender decision if further specific assurances regarding torture and fair trial rights were obtained from the PRC. She instructed officials to progress this with urgency. Mr Kim was advised of this on 14 November 2014.
[47] On 28 November 2014 and 3 December 2014 Mr Kim filed further applications for habeas corpus. These applications concerned the power under which the warrant for detention was issued when the District Court had determined Mr Kim’s eligibility for surrender. Initially, on 29 November 2013, this was issued under s 70. On 3 December 2014 the High Court (Brewer J) considered it should have been ordered under s 26.59 In the meantime, on 2 December 2014, the District Court issued a new warrant under s 26. The challenge to the procedure by which this was done was dismissed on 10 December 2014.60
[48] On 11 December 2014 New Zealand conveyed a draft set of assurances to the
PRC. On 15 December 2014 Mr Kim’s lawyer provided the Minister with further
58 Mr Kim succeeded in obtaining a declaration that the police acted unlawfully when they took his photograph and fingerprints when he was arrested pursuant to the provisional arrest warrant.
59 Kim v The Prison Manager Mt Eden Corrections Facility [2014] NZHC 3051 [Brewer J – first habeas corpus decision].
60 Kim v The Prison Manager Mt Eden Corrections Facility [2014] NZHC 3152 [Brewer J –
second habeas corpus decision].
submissions. (These were in response to the letter from the Minister dated 14
November 2014.) On 18 December 2014 the PRC supplied an amended version of draft assurances to New Zealand. On 10 and 11 February 2015 a delegation from the PRC visited Wellington to discuss the assurances. On 25 February 2015 the Court of Appeal dismissed an appeal against the High Court’s 10 December 2014 decision
(dismissing the habeas corpus application).61 On 20 to 22 April 2015 a New Zealand
delegation visited Beijing to discuss the assurances. On 23 April 2015 the Supreme Court dismissed Mr Kim’s application for leave to appeal the Court of Appeal’s decision.62
[49] On 7 July 2015 the Minister provided Mr Kim with a copy of the information on which she intended to make her decision on surrender. This included the assurances from the PRC. Submissions were invited by 29 July 2015. Mr Kim’s lawyer requested an extension. On 20 July 2015 the Minister advised that an extension until 9 September 2015 was granted. On 9 September 2015 Mr Kim’s lawyer provided further submissions. He also requested a further extension until the end of October to allow Mr Kim to be assessed by a psychiatrist and a psychologist, explaining that he had only just been granted legal aid for this and he had difficulty in finding appropriately experienced practitioners. On 10 September 2015 the Minister granted an extension until 28 October 2015. On 23 October 2015 further submissions regarding Mr Kim’s mental health were provided.
[50] On 6 November 2015 the PRC responded by email to questions regarding medical treatment. On 23 November 2015 the Ministry provided the Minister with a final briefing on matters to be considered when making a decision under s 30 of the Act. On 30 November 2015 the Minister informed Mr Kim that she had decided to order his surrender to the PRC (the surrender decision). I am informed that the Minister made the surrender order that day. She did not, however, serve the surrender order, and undertook not to take any steps pursuant to that order, because Mr Kim had signalled he would seek judicial review of any decision to surrender
him.
61 Kim v The Prison Manager Mt Eden Corrections Facility [2015] NZCA 2 [Court of Appeal re
Brewer J second habeas corpus decision].
62 Kim v The Prison Manager Mount Eden Corrections Facility [2015] NZSC 47 [Supreme Court re Brewer J second habeas corpus decision].
[51] On 4 December 2015 Mr Kim applied for a discharge under s 36 of the Act or alternatively to be granted bail. At a case management conference on 10 December
2015 it was agreed that the bail application would be heard first. On 11 December
2015 Mr Kim applied for judicial review of the Minister’s decision to surrender him.
[52] On 16 December 2015 the bail application was heard in the High Court (Collins J).63 The bail application was made pursuant to the High Court’s inherent jurisdiction. Electronically monitored bail at Mr Kim’s parents address was sought. Bail was sought on the basis that Mr Kim’s continued detention was arbitrary, in breach of s 22 of the New Zealand Bill of Rights Act, and contrary to art 9 of the International Convention on Civil and Political Rights (ICCPR). The detention was
said to be arbitrary because the Minister had taken too long to make her decision, detention should not be in a prison, and Mr Kim’s mental health and treatment in prison warranted the granting of bail. Mr Kim’s treatment in prison was also said to breach s 23(5) of the NZBORA and to be contrary to art 10(1) of the ICCPR which affirm the right to be treated with humanity and with respect for the person’s inherent dignity.
[53] The High Court Judge delivered his decision on 17 December 2015. He declined to grant bail. He declined to reach any conclusion on Mr Kim’s treatment in prison because the respondent had not had an opportunity to file evidence. The evidence on Mr Kim’s mental health was that it had stabilised and the medical staff at the prison would discharge their responsibilities by ensuring he received appropriate care and attention.
[54] The Judge considered Mr Kim’s continued detention was not arbitrary on the
following basis:64
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
63 Kim (Collins J – bail decision), above n 8.
64 At [54].
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.
[55] Bail was declined on the basis that Mr Kim was a flight risk. The Judge considered this risk was heightened because the Minister had made her decision to surrender Mr Kim to the PRC. Mr Kim had taken every step to resist being extradited and the extradition process was now nearing a conclusion. This was regarded as strongly increasing the risk of Mr Kim fleeing New Zealand. The Judge also considered other factors supported the decision to decline bail, namely: the charge against Mr Kim was extremely serious, the District Court had determined there was a prima facie case against him, if convicted Mr Kim was likely to be sentenced to a lengthy period of imprisonment and the time until his judicial review hearing was short.
[56] On 15 January 2016 Mr Kim filed an appeal to the Court of Appeal against this decision. This appeal expired and was deemed abandoned on 19 April 2016. However I apprehend that steps were not taken to prosecute the bail appeal while Mr Kim awaited the outcome of his discharge application. His bail application had been heard in advance of the discharge application as there was a need to allow time for evidence to be filed in opposition to the discharge application. Although the applications were heard separately, they are related.
When does the jurisdiction under section 36 arise
[57] Mr Kim’s application for discharge is the first to have been made under s 36 of the Act.65 The first question is whether there is jurisdiction to hear the application.
[58] At the hearing the respondent accepted there was jurisdiction on the basis that Mr Kim’s legal proceedings were finally determined on 19 September 2014 and he was not surrendered and conveyed out of New Zealand by 18 November 2014. From that point the respondent submitted a discharge application could be made.
Following the hearing, I sought further submissions on this issue because Mr Kim
65 Section 36 was not discussed during Parliamentary debates on the Act. The explanatory note in the select committee report does not provide further assistance on the way it should be applied.
has legal proceedings on foot, namely his judicial review application of the surrender determination. In light of those submissions I am now satisfied that there is jurisdiction for the reasons that follow.
[59] Section 36 has the following structure:
(a)
(b)
s 36(1) defines when the section applies;
if s 36(1) applies, s 36(2) permits an application for discharge to be
made; (c)
if an application for a discharge is made under s 36(2), s 36(3) sets out
what a Judge may do (namely discharge the surrender order or order
their discharge from detention and sets out the criteria for doing so);
and (d)
s 36(4) sets out a situation when a discharge order may not be made
and s 36(5) expands on what is covered by s 36(4). [60]
The
parties are agreed that if the criteria in s 36(1) are met, that triggers the
right to make an application for a discharge (under s 36(2)). Once the application has been made the Court has jurisdiction to consider it (under s 36(2)). It is therefore the making of an application when the criteria in s 36(1) are met, that gives the Court jurisdiction. The question is whether the criteria in s 36(1) were met when the discharge application was filed on 4 December 2015.
[61] Section 36(1) has the following components (that is, the section applies if): (a) a person is not surrendered or conveyed out of New Zealand;
(b)under a surrender order (or a temporary surrender order) made under this Part;
(c) within two months after the date set out in s 36(1)(a) or (b) (whichever of those is applicable).
[62] One reading of those words is that the conveyance must take place pursuant to a surrender order that is made within two months after the date set out in s 36 (1)(a) or (b). In other words the section is about delay in the fourth stage of the process, namely delay in the surrender determination by the Minister. On this interpretation an application can be made at any time before a surrender order is made, if that surrender order is not made within two months after the relevant date in s 36(1)(a) or (b).
[63] However, I accept the respondent’s submission that the better interpretation is that it is the conveyance which must take place within two months after the relevant date. In other words the section relates to delay in the process from the date a person is determined to be eligible for extradition and the date the person is actually conveyed out of the country. On this interpretation the words “under a surrender order (or a temporary surrender order) made under this Part” are merely descriptive of the process by which the surrender occurs. I consider this to be the more natural reading of the words.
[64] This interpretation also betters fits with the purpose of the section. That purpose is to provide some protection for a person from languishing in prison during the extradition process.66 In other jurisdictions delays at specific stages of the
extradition are dealt with by specific provisions.67 Here there are no other provisions
which protect against delay at other stages of the process. Therefore, if the first interpretation was applied, s 36 would not protect against any delay between a
66 See para [105] below.
67 See, for example, Canada where s 69 of the Extradition Act SC 1999, cl 18 provides that a discharge application can be made in two situations: (1) if the surrender order has not been made
within a specified period; or (2) if the person is not surrendered and conveyed within a specified period; see also the United Kingdom where the Extradition Act 2003 (UK) contains a number of provisions dealing with discharge for delay at various stages in the process (ss 4, 6, 8, 11, 12, 35 and 36 for category 1 countries and ss 75, 76, 79, 82, 117 and 118 for category 2 countries); see also the former position in the United Kingdom where, under s 16 of the Extradition Act 1989
(UK), a discharge application could be made if the person was “still in the United Kingdom”
after the expiry of the relevant period. The relevant period depended on whether there are proceedings for judicial review of the Secretary’s decision to order return. Other provisions also permitted a discharge (s 11) or a decision not to return (s 12) where “by reason of the passage of time” since the alleged offence “it would, having regard to all the circumstances, be unjust or oppressive to return him”; see also Australia, where section 22(2) of the Extradition Act 1988 (Cth) is directed to the time within which the Attorney-General makes the determination on surrender. There are other provisions requiring timeliness at other stages of the process. This includes s 26(5) which requires, on application, that a person be released from custody if the person is still in custody in Australia more than two months after the day that a surrender warrant can be executed.
surrender determination and the execution of the surrender order, despite the likely prospect that the person is in prison (rather than on bail) and that it is within the state’s power to execute the order. Greater protection against state delay is afforded if s 36 is concerned with the period from the warrant of detention on the eligibility finding to the conveyance out of New Zealand.
[65] This interpretation also fits with the history of s 36, as helpfully traversed in
the respondent’s submissions. Section 36 is derived from s 12 of the Extradition Act
1870 (UK)68 and s 7 of the Fugitive Offenders Act 1881 (UK), the latter of which applied to extraditions to Commonwealth countries. Under this legislation a fugitive subject to a foreign arrest warrant could be committed to prison by a police magistrate, if the magistrate was satisfied the criteria for committal were met, to await their surrender. The Secretary of State (or Minister of Justice or Attorney- General as relevant) determined whether to order, by issuing a warrant, the fugitive’s surrender. The Secretary of State could not make the surrender order until 15 days after the committal to prison or, if a writ of habeas corpus was issued, after the court’s decision on the writ was given.
[66] The power to discharge for delay was similar under each of these Acts although the relevant time period was one month for extraditions in the Commonwealth and two months otherwise. For present purposes it is sufficient, to illustrate the forerunner to the present s 36, to set out s 7 of the Fugitive Offenders Act 1881 (UK) which was as follows:
If a fugitive who … has been committed to prison in any part of [the Commonwealth] to await his return, is not conveyed out of that part within one month after such committal, a superior court, upon application by or on behalf of the fugitive, and upon proof that reasonable notice of the intention to make such application has been given, if the said part is the United Kingdom, to a Secretary of State, and if the said part is [some other part of the Commonwealth to the Minister of Justice or the Attorney-General of that part], may, unless sufficient cause is shown to the contrary, order the fugitive to be discharged out of custody.
[67] The Extradition Act 1965 replaced the Extradition Act 1870 (UK) for New
Zealand in respect of extradition to non-Commonwealth countries (the Fugitive
68 Enacted for New Zealand by the New Zealand Extradition Act 1874 and then the Extradition and
Fugitive Offenders Act 1908.
Offenders Act 1881 (UK) continued to apply to extradition within the
Commonwealth). Section 12 of the 1965 Act was in similar terms to s 12 of the
1870 Act.
[68] Under all of these Acts an application for discharge from custody could be made if the length of time between committal (the eligibility determination) and conveyance of the country (following the surrender decision) was too long (that is longer than one or two months from committal depending on whether the country was within the Commonwealth). The sections were intended to ensure the state determined and implemented surrender decisions promptly.
[69] The respondent’s submissions note that challenges to the Magistrate’s committal decision or the Minister’s surrender decision were made by application for a writ of habeas corpus. Such applications have traditionally always been regarded as requiring urgent consideration. The respondent’s submissions also note that these Acts predated the Judicature Amendment Act 1972 and more generally the expansion of the Court’s supervisory judicial review jurisdiction. Additionally, the matters relevant to the Minister’s surrender decision have expanded with further restrictions introduced in 1976 in respect of Commonwealth jurisdictions which match those that applied to other countries, and with the enactment of the Crimes of Torture Act 1989 and the Abolition of the Death Penalty Act 1989.
[70] When the Extradition Act 1999 was enacted, the discharge power in the former legislation was essentially the same, although it anticipated that, in addition to habeas corpus applications, appeals and judicial review applications could be made and it recognised that this would affect the time period within which the surrender and conveyance could take place. An application for a discharge may be made if the surrender and conveyance has not occurred (pursuant to a surrender order) within two months after the date set out in s 36(1)(a) or (b). Although it made provision for appeals and judicial review applications, and the procedure now involved a surrender order (as opposed to a warrant procedure), there is no indication of any intention to alter the scope of the discharge power.
[71] The next question is to determine which is the relevant date under s 36(1)(a) or (b). Where no appeal, application for review, or habeas corpus application has been made the position is straightforward. Section 36(1)(a) applies (and therefore an application for discharge can be made) if the conveyance has not taken place within two months after the date of the warrant issued on the eligibility determination.
[72] If an appeal, application for review, or habeas corpus application is made after the eligibility determination, then s 36(1)(a) will only apply if that appeal or application is not “pending”. If, however, an appeal, application for review, or habeas corpus application is “pending” then s 36(1)(b) will apply. It is apparent that the intention is to postpone the period within which the conveyance is to take place where proceedings challenging the extradition process are on foot and have not been determined. Consistent with this, s 31(2) prohibits the Minister from making a surrender order until the expiry of 15 days after the issue of the warrant for detention, or any pending appeal or application for review or habeas corpus in respect of the eligibility determination is finally determined and the result is that the person is eligible to be surrendered, whichever is the later.
[73] Accordingly, the earliest the Minister could have made her surrender decision was 15 December 2013 (15 days after the eligibility decision) and the latest time period for conveying Mr Kim out of New Zealand, pursuant to a surrender order, before s 36 could apply was 29 January 2014, unless there were pending proceedings as there were.
[74] A judicial review application was filed on 20 November 2012 and an appeal was filed on 11 December 2013. The appeal was abandoned on 12 September 2014 and the remaining aspects of the judicial review were discontinued on 19 September
2014. This meant that the Minister could not make her surrender decision before 19
September 2014 (s 31(2)(b)) and Mr Kim’s surrender and conveyance, pursuant to a surrender order, needed to occur by 19 November 2014, failing which an application for discharge could be made under s 36. On any date after 19 November 2014 Mr Kim was able to apply for a discharge under s 36 while he remained in this country and unless and until he filed proceedings challenging a determination under the Act.
[75] As at 4 December 2015, although a surrender order had been made, Mr Kim had not been conveyed out of New Zealand. As at that date an application for judicial review was foreshadowed but had not been filed. The respondent submits that, as it was not filed, it did not presently exist and so was not pending. I proceed on that basis. The position would have been different if the application for review was filed with or prior to the application for discharge. The effect of filing this application is that, if it is successful (and the surrender order is quashed and the Minister is redirected to consider her surrender determination), Mr Kim will again be able to apply for a discharge under s 36 if he is not surrender and conveyed out of New Zealand, pursuant to a surrender order, within two months of the final determination of the judicial review application.
What is the scope of the Court’s power under s 36
[76] The power under s 36 is to “discharge the surrender order … and order the discharge of the person from the place where the person is detained.” I agree with the submission of both parties that the discharge is a discharge of the extradition proceeding.69 However this “does not of itself preclude further proceedings under this Act” to extradite the person even if based on the same conduct. Counsel for Mr Kim accepts the outcome of granting a discharge may be that the extradition proceeding will start afresh.
[77] The ability to instigate further proceedings to extradite a person who has been discharged may also be relevant to whether a discharge should be ordered. In other words, a discharge may lead only to further time in custody awaiting extradition. In that case, bail on suitable conditions may be the better course where there has been considerable delay in the extradition process.
What constitutes “sufficient cause” under section 36
[78] As noted no court in this jurisdiction has yet been called upon to make any decision about the way s 36 should be applied. The respondents contend that what
constitutes “sufficient cause” against discharge is a question of fact and degree and
69 That was the view taken in Canada (Minister of Justice) v Everard [2005] OJ No 468, 74 OR (3d) 363 (Ont CA) at [22]; and United States of America v Orphanou [2011] OJ No 6100, 2011
ONSC 7537, 250 CRR (2d) 340 at footnote 1.
requires an assessment of what is reasonable in all the circumstances. Mr Kim agrees with this. Decisions from other jurisdictions with similar provisions assist in identifying the relevant considerations as to whether sufficient cause is shown.
The United Kingdom
[79] Section 7 of the Fugitive Offenders Act 1881, set out above, was considered in Re Shuter.70 In that case Mr Shuter appeared before the Chief Magistrate on 17
June 1959 and was committed to Brixton prison to await his return to Kenya under a warrant in respect of alleged “very serious offences” committed in Kenya.71 The committal was successfully appealed on the ground that the magistrate did not have satisfactory evidence as to the law of Kenya. The matter was remitted back for the magistrate to hear that evidence. On 15 July 1959 Ms Shuter was committed to await his return under a fresh warrant. The one month period for Mr Shuter’s conveyance out of the United Kingdom therefore expired on 17 August 1959. He was booked to return on a flight to Kenya on 16 August 1959 but that flight was
cancelled.
[80] On Mr Shuter’s application for a discharge from custody the Court held that “may” meant “shall” discharge the person from custody unless sufficient case were shown. The Court also held that “sufficient cause” did not relate only to something outside the control of the authorities (for example, the cancellation of the flight). Rather matters of “reasonableness in all the circumstances” were relevant to whether
“sufficient cause” was shown.72
[81] On the facts the Court considered the following matters. The flight date had been arranged to coincide with the leave of police officers who were to escort Mr Shuter back to Kenya. These arrangements were reasonably made. The delay in his conveyance was only a day or two. The offences were serious. Mr Shuter’s solicitor
had been informed of the arrangements and had taken no objection. Mr Shuter was
70 Re Shuter [1960] 1 QB 142, [1959] 3 WR 652, [1959] 3 All ER 481.
71 At 145.
72 At 148.
not being detained for an unreasonable time. The application for discharge was therefore refused.73
[82] That provision was considered again in R v Brixton Prison (Governor) (ex parte Enahoro).74 That case concerned a person committed to prison to await his return to Nigeria on charges of treason and conspiracy. Five months after his committal the Home Secretary determined it was just to order his return to Nigeria. However, before issuing the warrant for his return, the Home Secretary decided to report the matter to Parliament so it could express a view. That process was
completed in just under one month.
[83] Following the approach in Shuter,75 the Court considered that if the person was detained for more than one month from the committal it was for the Secretary of State “to account for the delay”.76 Unless he satisfied the Court “the detention in all the circumstances … [was] reasonable” the person was to be discharged.77 That burden was satisfied by the Secretary of State in that case because everything which had been done from the date of the committal to the date of the hearing before that Court, had been done in the interests of the person “and to ensure that he would suffer no injustice if he was sent back to Nigeria.”78
[84] The United Kingdom 19th century extradition legislation was replaced with the Extradition Act 1989 (UK). That legislation included s 16 which was of similar effect to that in s 7 of the 1881 Act providing that the Court “may, unless sufficient cause is shown to the contrary” order a person to be discharged. Such an order could be made two months after the first day on which he could have been returned having regard to s 11(2).79 Section 11(2) provided that a person could not be committed until 15 days from the order for committal had expired or, if an application for
habeas corpus was made, as long as proceedings on that application were pending.
73 At 149.
74 R v Brixton Prison (Governor) (ex parte Enahoro) [1963] 2 QB 455, [1963] 2 All ER 477 [Enahoro].
75 Parker CJ delivered the principal judgment in both cases.
76 At 479.
77 At 479.
78 At 480, lines C to D and from line I.
79 If there were any judicial review proceedings the period was one month after the proceedings were at an end. It was also one month if the warrant was issued under s 12.
[85] This power to discharge was considered in Hines v Secretary of State for the Home Department.80 The case concerned a person who had escaped from a Brazilian prison where he was serving a sentence for drug trafficking. He made his way to the United Kingdom where, in 2004, he was convicted and sentenced to 11 years imprisonment on further drugs offences. His earliest release date under that sentence was 15 August 2009. Meanwhile on 31 August 2005 he was arrested in
custody on an extradition request from Brazil. On 10 August 2006 he was committed to await the Secretary of State’s decision on his return. He was informed that his representations about that would not be considered until 15 August 2009, when his custodial sentence would come to an end. On 14 October 2009 the Secretary of State wrote a letter to the Brazilian authorities seeking information about prison conditions in their country. It asked for a reply by 27 November 2009. No reply was received by that date and a further letter was sent on 8 December 2009. On 9 December 2009 the person sought his discharge pursuant to s 16.
[86] The Court followed the approach that “unless sufficient cause is shown to the contrary” the Court is entitled to take into account reasonableness in all the circumstances. The Court distinguished the present situation from another case under s 16 where a discharge was granted. That case had held that reasonableness could not be shown when the period expired due to an error by the Secretary in
interpreting the legislation and because of “administrative inertia”.81
[87] The Court accepted that sufficient cause had been shown. Soon after 15
August 2009 the Secretary was considering the representations made on behalf of the applicant. Legal advice was sought. By 14 October the Secretary was writing “seeking detailed information which was rightly considered necessary to enable him to do justice to the applicant’s representations”.82 The questions “necessitated careful consideration in Brazil”. The case was considered to be similar to Enahoro.
It did not involve “inordinate delay”.83
80 Hines v Secretary of State for the Home Department [2010] EWHC Civ 69 (Admin) [Hines].
81 Re Oskar (1988) The Independent, 10 March (QB) as discussed in Hines, above n 80, at [8]-[11].
82 At [12].
83 At [12].
[88] Extradition in the United Kingdom is now governed by the Extradition Act
2003 (UK). This repealed the Extradition Act 1989 (UK). The discharge power in this legislation is different in that it is not subject to sufficient cause being shown. Instead, if within the “required period” the Secretary of State does not make an order for extradition, the court must order the discharge. The required period is two months starting with the appropriate date (which depends on various circumstances). However the required period may be extended by order of the High Court on an
application made before the required period has expired.84 If no application has been
made and granted, the two month period is applied strictly.85
Canada
[89] Canada has a similar provision to our s 32 and the former UK legislation (s 7 of the 1881 Act and s 16 of the 1989 Act). Section 69 of the Extradition Act SC
1999 provides that, on application by a person detained, the Court “may … order the person to be discharged out of custody unless sufficient cause is shown against the discharge”. This application can be made in four situations: if the Minister has not made an order of surrender within 90 days of the person’s committal or within 45 days of the conclusion of any appeal proceedings, or the person is not surrendered or conveyed to the extradition country within 45 of the days of the order of surrender or
within 45 days of the conclusion of legal proceedings.86
[90] The Canadian legislation enables the Minister to extend the time for making the determination on surrender by 45 or 60 days depending on the circumstances.87
There are other provisions intended to ensure a prompt conclusion to the proceedings. This includes the requirement for a hearing of any appeal or judicial review of the Minister’s determination to be scheduled by the Court of Appeal “at an
early date whether that date is in or out of the prescribed sessions of that court”.88
84 Extradition Act 2003 (UK), ss 99 and 102.
85 See R (Zaporozhchenko) v City of Westminster Magistrates Court [2010] EWHC 34 (Admin), [2011] 1 WLR 994 where the Government of Ukraine sought to extradite two persons to stand
trial on charges of misappropriating the equivalent of £1 million. The order for extradition was made one day after the two month period expired. The discharge was granted.
86 Extradition Act SC 1999, ss 40 and 69.
87 Section 40(5).
88 Sections 51 and 57.
[91] Section 69 was considered in Canada (Minister of Justice) v Reumayr.89
That case concerned an extradition request made by the United States for Mr Reumayr to stand trial in that country on charges of possession of equipment and materials with intent to cause an explosion (relating to an alleged plot to bomb the Trans-Alaska pipeline). The suspect was arrested in Canada on 18 August 1999. On
12 May 2004 the suspect applied to be discharged out of custody under s 69. By that time he had been in custody for nearly five years.
[92] Following the suspect’s initial arrest on a provisional warrant, in October
2001 he was committed into custody to await his surrender. Between 5 November
2001 and 23 May 2002 he made submissions to the Minister regarding his surrender. He sought and obtained an extension for filing the submissions and he consented to the Minister’s requests for an extension for making the surrender determination. On
23 May 2002 the Minister determined the suspect was to be surrendered within the time limit as extended.
[93] An appeal and judicial review application were brought. On 26 June 2003 the Court of Appeal dismissed the appeal but allowed the judicial review application. The order for surrender was set aside and then remitted back to the Minister for reconsideration. The Minister was directed to determine whether the surrender order was consistent with the committal order. The issue related to the law relevant to “attempt”. The Minister had not reconsidered whether to order surrender by 12 May
2004 when the suspect made his application for discharge. It was the period between
26 June 2003 and 12 May 2004 that was relevant for the purposes of the application since that period exceeded the 45 day period after the appeal and judicial review proceeding was concluded.
[94] The majority (Ryan and Smith JJ) of the British Columbia Court of Appeal found that sufficient cause for the delay had been shown. The majority judgment noted the intention of the time limits was to ensure that persons subject to an order of committal “do not languish awaiting the Minister’s decision on surrender.”90 Section
69 provided a remedy if there was delay. The majority considered “it cannot be said
89 Canada (Minister of Justice) v Reumayr (2005) 199 CCC (3d) 1 (BCCA) [Reumayr].
90 At [104].
that the officials … responded with alacrity to the order of this Court to reconsider the Minister’s first decision on the issue of dual criminality.”91 That was because the legal opinion on the meaning of “attempt” was not sought from the United States until nine months after the Court order. However “it was not the case that they had nothing else to consider”.92 Mr Reumayr’s counsel sought a reconsideration of the entire file and raised new issues. To consider these issues “much more” than the 45 day time limit was required.93 The majority considered it was not open to Mr Reumayr to expect the Minister to conduct a wide-ranging reassessment and then to insist that the decision be made very quickly.94 A three month period of inactivity was “troubling” but “in the overall context of the complexities placed before the Minister” the conclusion remained that sufficient cause was shown.95
[95] Mr Reumayr also sought a stay on the grounds of delay. Relevant to this was the overall period from the time when he was first arrested under a provisional warrant on 18 August 1999. The majority considered that “[w]hile this period of time seems remarkably long, it is explained by the numerous court applications and decisions along the way.”96 Mr Reumayr had “substantially contributed to the
overall delay by, as he is entitled to do, pursing appeals and applications”.97 It was
necessary for all those required to make the decisions, to seriously consider them. This took time. The delay had to be examined in the context of the case which included the seriousness of the allegations and Canada’s Treaty obligations to the United States. The delay did not “shock the conscience” and was not “simply
unacceptable”.98 The grounds for a stay were accordingly not made out.99
[96] Finch CJ dissented. The Chief Justice focussed on the delay between the Court’s order (26 June 2003) and the request for the legal opinion (8 March 2004). He said that no reason was put forward as to why the Minister’s consideration of the
question posed by the Court did not commence promptly after the Court’s decision,
91 At [111].
92 At [111].
93 At [112].
94 At [113].
95 At [114].
96 At [121].
97 At [129].
98 This is the test for a stay.
99 At [153].
or why that could not have been considered concurrently with the efforts necessary to respond to Mr Reumayr’s further submissions. The Minister’s unexplained delay continued after the initial step was taken to request the advice: the next development was Mr Reumayr’s application under s 69 on 12 May 2004.
[97] The Chief Justice considered that delay in extradition proceedings is not comparable with what is considered to be unreasonable delay under the Charter concerning the right to trial within a reasonable time. That was because some systemic delay is inevitable in criminal proceedings due to the large number of cases. By contrast the number of extradition proceedings per year is small and the number of times a Minister must consider surrendering a fugitive was relatively infrequent. The Chief Justice concluded that virtually the whole of the delay was attributable to the Minister and was unexplained.
[98] The Chief Justice considered the discharge application went hand-in-hand with the habeas corpus application.100 He regarded the delay of 11 and a half months between the Court’s order to reconsider and the Minister’s decision as meeting the test of “shocking” or “simply unacceptable”.101 He would therefore have ordered a remedy in the nature of habeas corpus. The Chief Justice would have also granted a stay of the extradition proceedings. Taking into account the overall delay since Mr Reumayr was arrested, the delay from the Court’s order on 26 June 2003 until the date the surrender order was made was “simply unacceptable”.102
Australia
[99] The corresponding provision in Australia is worded differently. Section 22(2)
of the Extradition Act 1988 (Cth) provides:
The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
100 Under s 69 an application for discharge is made to a judge of the superior court “who has power
to grant a writ of habeas corpus.
101 At [83].
102 At [93].
[100] This provision was considered in Santhirarajah v Attorney-General for the Commonwealth.103 That case involved a United States request to Australia to extradite a Sri Lankan citizen suspected of offences involving exporting military weapons from the United States for acquisition by the Liberation Tigers of Tamil Eelam (a United States’ designated terrorist organisation). At the time the Federal Court was considering this application for judicial review of the surrender decision
the suspect had been detained in custody for more than four years.
[101] One of the issues in the judicial review was the interpretation of s 22(2). The Attorney-General submitted her power to make a determination did not cease after the time when it was reasonably practicable to make the determination. Rather she could make her determination at any time but an application could be brought to enforce the exercise of the power if that had not occurred as soon as was reasonably practicable.104 The Court disagreed. It considered that once the time in the section had passed (that is, as soon as was reasonably practicable having regard to the circumstances), the Attorney-General had no power to surrender the person.105
[102] In favouring this construction the Court considered it provided a reasonable limit of intrusion into the life and liberty of people who are sought for surrender.106
Requiring the Attorney-General to exercise her power in a timely manner on pain of losing the power provided a strong incentive to act in accordance with the purpose of providing a speedy process.107 A person subject to a surrender request typically faced significant barriers to exercising court proceedings for mandamus: they may be strangers to the Australian legal system, they would normally be on remand with the attendant difficulty of seeking out and obtaining legal representation and they will
require funds to retain legal representation in circumstances where, as a result of their detention, they will have been unable to work for some time.108 The potential for injustice to the suspect must be balanced against the consequences of Australia’s
extradition arrangements with other countries. However those consequences were in
103 Santhirarajah v Attorney-General for the Commonwealth of Australia [2012] FCA 940 [Santhirarajah].
104 At [64].
105 At [73].
106 At [76].
107 At [77].
108 At [79].
the hands of the Attorney-General who could act to ensure compliance with s
22(2).109
[103] On the facts the Attorney-General had failed to exercise her power as soon as it was reasonably practicable having regard to the circumstances.110 On 10 June
2009 the magistrate had found the suspect to be an eligible person for surrender. By November 2009 the United States’ position on its non-refoulement obligations under the ICCPR was known (namely, that it disclaimed any such obligation under art 6 and art 7). On 14 December 2011 the suspect filed his application for mandamus. On 21 February 2012 the Attorney-General made the surrender determination. In the two months between 14 December 2011 and 21 February 2012 the United States had offered the assurances which the Attorney-General had sought, the Attorney-General had agreed to them, the Department had provided a substantial briefing paper to the Attorney-General including legal advice, and the Attorney-General had accepted the advice. The activity in that two month period showed the reasonably practicable
pace at which matters could proceed.111
[104] The evidentiary onus therefore shifted to the Attorney-General to show that the determination was made in time notwithstanding the two years that had elapsed between November 2009 and December 2011. Evidence showed 150 communications between the United States and Australia in respect of the determination during that period. No evidence was provided as to the substance of those communications.112 Nor was there evidence explaining why the Department’s advice could not have been give earlier. This evidence therefore did not rebut the conclusion that it was reasonably practicable to make the determination two years earlier than it was.113 The result was that the determination to surrender the suspect
had been made without power and was invalid.114
109 At [80].
110 At [94].
111 At [92].
112 At [72].
113 At [91].
114 At [94].
Approach to considering whether “sufficient cause” is shown
[105] From these cases, the following points can be taken:
(a) The purpose of the section is to ensure that a person is not detained beyond that which is reasonably necessary in all the circumstances. It is a protection against an unreasonable restraint on a person’s liberty while the surrender request is considered. If the Minister does not act in an appropriately timely manner, there is the possibility that a person will be discharged from custody or a surrender order.115
(b)The relevant considerations are not confined to matters outside the control of the authorities (for example, a flight cancelled by the carrier).116 The reason for the delay, the length of the delay, the seriousness of the offence, whether there had been any concern expressed by or on behalf of the person and the total period of detention are relevant considerations.117
(c) It is for the Minister to “show cause” by accounting for the delay.118
Sufficient cause will not be shown where the delay has arisen from administrative inertia.119 The period of delay may be explained by the complexities of the issues and the need to investigate matters raised by, or in the interests of, the person to be extradited (such as their treatment in the country seeking extradition).120 However such delay must be properly explained by the evidence and any period of
inactivity will be scrutinised.121
115 See, for example, Santhirarajah, above n 103.
116 Re Shuter, above n 70.
117 Re Shuter, above n 70; as to the relevance of the total period of delay, however, compare the majority in Reumayr, above n 89, which focussed on the period after the direction from the
Court of Appeal to reconsider the decision, with the dissenting judgment which also took into
account the total period of detention from the time when the person was arrested118 Re Shuter, above n 70; Enahoro, above n 74.
119 Re Oskar, above n 81, as discussed in Hines, above n 80.
120 Enahoro, above n 74; Hines, above n 80; Reumayr, above n 89.
121 Santhirarajah, above n 103; Reumayr, above n 89, dissenting judgment.
(d)A delay of, or inactivity for, a few months may be tolerated.122 A delay for much longer periods may also be tolerated but the issue will be one of fact and degree considered in the context of the period of delay after the eligibility determination and the surrender decision, the reason for that delay, and the total period of the detention.123
What happened here
[106] In this case the following occurred:
(a) Stage 1: 25 May 2011 (request for extradition) to 9 June 2011 (provisional arrest warrant) [period of less than a month];124
(b)Stage 2: 11 June 2011 (Mr Kim was brought before a court and remanded in custody) to 30 November 2011 (first date scheduled for eligibility hearing) [five to six months];
(c) Stage 3: 30 November 2011 (first date scheduled for eligibility hearing) to 19 September 2014 (completion of all challenges to the eligibility determination) [two years and nine months]; and
(d)Stage 4: 19 September 2014 to 30 November 2015 (decision to order surrender) [one year and two months].
[107] Stages one and two were completed promptly. The most significant period of delay was in stage three of the process. Nearly two years of the time taken to
determine Mr Kim’s eligibility arose from the requests for adjournments of the
122 Hines, above n 80, (delay of four months but investigating matters in a diligent inquiry so as to properly inform his eventual decision).
123 For example, in Santhirarajah, above n 103, in the context of a total period of detention of four years, the absence of proper evidence to explain a period of two years, and when subsequent events showed a decision could be made in two months, the view was taken that the Attorney- General had not exercised her power “as soon as it was reasonably practicable having regard to
the circumstances.” Similarly, the dissenting judge in Reumayr, above n 89, considered a period
of nine to 10 months was inadequately explained in the context of total period of detention of five years whereas the majority considered it was properly explained in the context of the wide- ranging assessment on complex matters that was necessary.
124 Stage 1 concluded on 27 June 2011 when the Minister decided to continue the extradition proceeding.
eligibility hearing made on behalf of Mr Kim during which period he was pursuing a habeas corpus application and seeking bail. The remaining nine months arose from Mr Kim’s legal proceedings challenging the eligibility hearing. Those challenges were brought promptly by Mr Kim and dealt with promptly by the courts.
[108] In relation to stage four:
(a) This took around one year longer than the two month period which gives rise to the right to make a discharge application.
(b)Approximately 10 months of that period (that is from the beginning of stage four on 19 September 2014 until the assurances were communicated on 3 July 2015) were because of the process related to obtaining assurances from the PRC as to the treatment of Mr Kim if surrendered. During approximately five months of that 10 month period (between 28 November 2014 and 23 April 2015) Mr Kim was also pursuing further habeas corpus applications.
(c) Approximately three months of this period (7 July 2015 to 23 October
2015) was for Mr Kim to make his submissions and obtain expert medical advice.
(d)Approximately one month (23 October 2015 to 30 November 2015) was for the Minister to consider those submissions and an extensive briefing paper and to make her decision on surrender.
[109] Insofar as the delay arose from the Minister’s actions, it arose out of the process in seeking assurances. Evidence has been filed to explain what was involved in seeking assurances. That evidence can be summarised as follows:
(a) Between 19 September 2014 and 6 November 2014: officials were continuing work on a comprehensive briefing paper for their (new) Minister. This work was carried out in consultation with the Ministry of Foreign Affairs and Trade (MFAT). This work included analysing
the applicable international conventions, domestic legislation and assurances discussed in international case law. It was work carried out in light of submissions on behalf of Mr Kim that there were substantial grounds for believing he would be subject to torture in the PRC, he would not receive a fair trial, and the death penalty assurance could not be relied upon. It was also carried out in the context of New Zealand never having extradited anyone to the PRC and never having sought assurances regarding torture or fair trial rights from any country. The work included producing a draft set of possible further assurances.
(b)Between 6 November 2014 and 14 November 2014: the Minister reviewed the information before her and decided to seek further assurances from the PRC and she notified Mr Kim of this.
(c) Between 11 November 2014 and 11 December 2014: officials from the Ministry and MFAT carried out further work on the draft assurances including engaging an international legal expert in Chinese law and these draft assurances were provided to the PRC.
(d)Between 11 December 2014 to 3 July 2015: the PRC responded with an amended version of the assurances on 18 December 2014. The Minister was not satisfied with this amended version. Chinese officials indicated a preference to discuss the assurances at face-to- face meetings, leading to a meeting in Wellington on 10 and 11
February 2015 and a further meeting in Beijing on 20 to 22 April
2015. These meetings involved senior delegates on both sides. The meetings were conducted with translators. These meetings and associated communications led to the PRC providing the assurances by way of a formal diplomatic communication (a Note Verbale).
[110] The evidence on behalf of the respondent is that it is customary to engage with states through formal diplomatic communications and, as they represent the official views of the Government, great care must be taken in formalising and
finalising them. Although communications via diplomatic channels can take time, adherence to established processes is critical for the effective progress of diplomatic matters. The face-to-face meetings also enabled officials to obtain clarity on matters relating to the assurances. Mr Adank, a senior official at MFAT, has expressed the view that the meetings enabled progress to be made more quickly than if this had occurred via formal written communication alone and that the assurances could not have been concluded in a shorter timeframe to the requisite standard.
Has sufficient cause been shown
[111] The total period of Mr Kim’s detention (now five years) pre-trial is concerning. However the focus under s 36 is on the period from the final determination of legal proceedings until the date of surrender and conveyance out of the country. That is not to say that the overall period of detention is irrelevant. Where, as here, there has been a very long period of time from the arrest to the final determination of legal proceedings, it is especially important that the Minister proceed appropriately expeditiously in considering the surrender decision, but recognising the matter must be considered fully and properly. However, when considering whether sufficient cause has been shown, it is the period of one year and two months which must be explained, not the total period of five years.
[112] The evidence establishes that once the period commenced (that is, on 19
September 2014) the Minister and her officials proceeded expeditiously. Time was taken to obtain assurances but the evidence explains what was involved in obtaining those assurances and why it took the time that it did. As discussed, that period overlapped with further habeas corpus applications made by Mr Kim.
[113] The assurances were sought for the benefit of Mr Kim in that they were concerned with how Mr Kim would be treated in the PRC once extradited. This was a case where assurances were necessary if surrender was to be ordered (noting it is a separate issue whether those assurances were adequate and whether surrender properly was ordered). If the Minister had not sought those assurances and determined not to order surrender, that would leave untried the offence of which Mr Kim is suspected of committing. In that sense, in seeking the assurances the
Minister was acting in pursuance of New Zealand’s role as an international citizen in
facilitating and supporting the prosecution and prevention of crime.125
[114] The offence Mr Kim is suspected of committing is very serious. In this country, the offence if proven attracts a sentence of life imprisonment with the possibility of release on parole from 10 or more years depending on the circumstances.126 The 10 month period in obtaining the assurances is not disproportionate to the seriousness of the offence and the likely penalty if convicted.
[115] The strongest argument for Mr Kim that sufficient cause has not been shown is that the assurances could have been sought well before September 2014. The extradition process commenced in 2011. On 15 August 2011 the Minister decided that the request was to proceed under the Act. At the time the PRC had provided an assurance that if convicted the death penalty would not be imposed, nor would it impose the death penalty with a two year reprieve. However, as counsel for Mr Kim submits, the issues concerning torture and fair trial rights which led to the seeking of assurances were always present.
[116] The respondent submits that it would have been wrong in law for the Minister to have pursued assurances at an earlier stage. The respondent submits that the Minister was not seized of the matter until all relevant legal challenges had been exhausted. The respondent says that if assurances were pursued in 2011 that could give rise to a suggestion of predetermination by the Minister prior to a decision on eligibility even being made. The respondent also submits that it would have been highly inappropriate from a diplomatic and practical perspective.
[117] I am not persuaded that it would have been wrong in law for the Minister to have begun the process of seeking assurances before September 2014. The Minister was seized of the matter in 2011 when she decided to continue the proceeding (following the report on the provisional warrant) on 27 June 2011 and when she decided the request was to proceed under the Act on 15 August 2011. The seeking of
further assurances in relation to the death penalty, torture and fair trial rights, on the
125 A role recognised in the Law Commission’s review of extradition matters, “Extradition and
Mutual Assistance in Criminal Matters” NZLC Issues Paper 37 (December 2014) at 1.5.
126 Sentencing Act 2002, s 103.
basis that appropriate assurances would be necessary if any surrender was to take place, is simply part and parcel of gathering information to assist in considering the extradition request. It could be pursued without any suggestion or appearance that surrender would be the ultimate outcome.
[118] Mr Adank gives evidence as to the diplomatic and practical reasons for not seeking the assurances earlier than when the eligibility stage of the process had concluded. He says:127
The timing of seeking assurances is important. Seeking assurances from the requesting state, particularly those regarding torture and fair trial rights is highly sensitive as a matter of diplomatic relations. Most notable is the potential for the requesting state to perceive such a request as a criticism of its policies, laws, and practices. Given the delicate nature of such a request, it is appropriate to approach assurances only at a time when they can genuinely be pursued and where there is a clear mandate to act. In light of New Zealand’s current statutory framework for extradition, it would have been neither practical nor appropriate to commence discussions regarding diplomatic assurances before the conclusion of appeals concerning Mr Kim’s eligibility for surrender and absent a direction from the Minister of Justice under s 30(6) to do so.
Further, because extradition proceedings can take a number of years, the situation in the requesting country may change, making specific assurances redundant or requiring further or different assurances at a later stage. This was a particularly relevant consideration in Mr Kim’s case as the PRC’s law and criminal justice system had evolved rapidly in recent years. Therefore, it was appropriate to seek assurances as close as practicable to the time at which they were to be assessed by New Zealand.
[119] I understand that seeking assurances is delicate because it may be perceived as a criticism of the PRC’s policies, laws and practices. However that perception, if it is going to arise, will do so regardless of whether the assurances are sought at the end of the eligibility determination stage or at the time the Minister is considering whether the request is to proceed under the Act. If the determination is that Mr Kim is not eligible for surrender, the assurances will be redundant in so far as Mr Kim is concerned. But the desire to avoid unnecessary offence to the country requesting the extradition needs to be balanced against the need to deal with an extradition request
expeditiously so that the subject does not languish unnecessarily in prison.
127 At 22-23.
[120] I am not persuaded by Mr Adank’s last point. While the PRC’s law and criminal justice system may have evolved rapidly in recent years, I do not understand the assurances which were sought to be any less than what would have been necessary in 2011. They are assurances relating to torture, the death penalty, a fair trial and the treatment of Mr Kim in prison. They are all fundamental to whether Mr Kim should be surrendered.
[121] The respondent also submits that the Minister who seeks the assurances should be the Minister who will make the decision on surrender. That is because Ministers may have different views on appropriate assurances and it would be undesirable to seek to revisit assurances with the requesting country. It is also said that issues or matters that may appropriately be the subject matter of assurances may only become apparent as a result of the eligibility proceedings or submissions to the Minister on surrender.
[122] Again I am not persuaded by these points. The assurances obtained are all fundamental to whether Mr Kim should be surrendered. It is difficult to see how any Minister acting reasonably could have been satisfied with any lesser assurances than that which were obtained. In any event if the Minister was not satisfied with the assurances obtained at the direction of a previous Minister, and if the Minister thought it inappropriate to seek additional assurances, then a decision not to surrender would be made.
[123] While the assurances related to matters raised on Mr Kim’s behalf during the eligibility process, as his counsel submits they hardly came as any surprise. They are matters arising out of concerns with the legal process in the PRC which are documented in publically available information. Mr Kim’s mental health deteriorated during his detention as the extradition process went on. Arguably that was unanticipated. The assurances include provision for Mr Kim to be examined by medical professionals. However, even without known concerns about Mr Kim’s mental health, the assurances obtained in this respect would be appropriate for any person who is to be extradited from this country to a prison in the PRC.
[124] Because the assurances could have been sought earlier, it can be said that the process took longer than it should have. However the additional time was relatively small in the context of this long running matter. The assurance process took 10 months but for five of those months Mr Kim was pursuing habeas corpus applications in any event. Despite the delay involved in seeking the assurances I consider sufficient cause has been shown. This was a complex matter involving issues concerning the risk of torture, the death penalty and fair trial rights in the PRC. This was the first time New Zealand had considered extraditing someone to the PRC and the first time it had negotiated assurances. Those assurances were sought to protect Mr Kim’s rights.
[125] Counsel for Mr Kim emphasises the total period which Mr Kim has spent in custody without charge while the extradition process has been underway. Five years in custody on suspicion of an offence is concerning. Although a very large portion of the time arose because of legal challenges pursued by Mr Kim, it can be argued that Mr Kim was entitled to pursue whatever legal avenues were available to him when extradition is sought to a country where there is cause for concern about how he will be treated. In other words the argument is that the delays are an inevitable outcome of the Minister deciding to proceed with an extradition request from the PRC with which there is no bilateral treaty.
[126] A possible answer to the inevitable delay is the possibility of bail. Mr Kim has sought bail on a number of occasions and on each occasion this has been declined because he is a flight risk. The evidence filed by the respondent at the bail hearing on 16 December 2015 included information suggesting that Mr Kim may be able to flee the country if he wished to do so. Mr Kim has used and travelled in and out of New Zealand on a number of travel documents, only two of which are known to be passports. However, as I understand it, the unknown travel documents relate to periods of travel before 1999. Between 1999 and July 2012 Mr Kim travelled on his South Korean passport. This expired on 25 August 2012. For travel between July
2007 and October 2010 Mr Kim travelled on his South Korean passport which expired on 8 June 2011.
[127] The main issues therefore appear to be that there is no formal process whereby the New Zealand authorities would be advised if Mr Kim applied for a new travel document from Korea and/or the risk that Mr Kim may travel using the passport of someone else or in some other way. Two examples were provided in the evidence of people of Chinese ethnicity fleeing New Zealand (apparently fleeing to
the PRC) despite having surrendered their passports.128 It does not appear that these
people were subject to electronic monitoring.
[128] Electronic monitoring does not eliminate the flight risk, but it does mitigate this risk. Under electronic monitoring a person is confined to an area subject to any permitted absences. The evidence is that the electronic monitoring system consists of a GPS tracker which is fitted to the person’s ankle, a monitor in the person’s residence called a beacon, and a computer system at a monitoring centre in Auckland.129 The GPS tracker sends a continuous signal to the beacon, which in turn sends real time information to the control centre. An unauthorised departure from the residence triggers an alert and notification to the Department of Corrections and
thereafter to the police. The beacon has tamper resistant features that generate alerts. The GPS tracker also generates alerts if the battery condition is low or if attempts are made to remove or damage the tracker.
[129] In light of the outcome of his discharge application Mr Kim may wish to again have an application for bail considered. His last application was declined on
17 December 2015. That application was brought on for hearing with urgency and separately from the discharge and judicial review applications. Another nearly six months has passed and the end may not yet be in sight given my decision on the
judicial review application. If it were to be renewed it would need to respond
128 One example provided was that of Li Hong Dai who was facing drugs importation and supply charges and was remanded on bail and required to surrender his passport. He left New Zealand and travelled to China on 26 October 2011, which was a few days prior to the trial date, using the passport of another person. He has not returned to New Zealand. The other example was that of Bo Jiang. He was a citizen of the PRC but had been living in New Zealand. His extradition was sought by the United States for importing counterfeit pharmaceuticals. He was believed to have substantial sums of money in Hong Kong bank accounts. On 25 January 2011 he was arrested on a provisional warrant and granted bail on condition that he surrender his passport and report to the police each day. Shortly before his eligibility hearing in October 2011 he disappeared. There is no record of his having left the country but police believe that he has done so and the manner of his departure is unknown.
129 Since February 2015 all electronically monitored bail has been monitored via GPS (previously it was monitored via radio frequency).
adequately to the concerns which have led the courts on all the other occasions to decline the grant of bail. I leave that for the parties to consider while expressing no view on its prospects.
Result
[130] The application for discharge is dismissed.
Mallon J
4
9
0