Kim v Minister of Justice - [2016] NZHC 1490

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ORDER PROHIBITING PUBLICATION OF THE IDENTITY OF THE COUNTRIES THAT HAVE PROVIDED DETAILS ABOUT THEIR DEALINGS WITH THE PEOPLE'S REPUBLIC OF CHINA (AT [58] AND [236] IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-1036 [2016] NZHC 1490

UNDER
the Extradition Act 1999, the New Zealand Bill of Rights Act 1990, the Judicature Amendment Act 1972, the common law, and the International Covenant on Civil

and Political Rights, and the United
Nations Convention Against Torture

IN THE MATTER OF

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 and evidence received on 26 February
2016, 2 and 11 March 2016

Appearances:

A J Ellis and G K Edgelet for the applicant
A M Powell and A F Todd for the respondents

Judgment:

1 July 2016

KIM v THE MINISTER OF JUSTICE [2016] NZHC 1490 [1 July 2016]

JUDGMENT OF MALLON J (Judicial review)

Table of contents

Introduction ....................................................................................................................................... [1] Approach to judicial review ............................................................................................................. [3] New evidence ..................................................................................................................................... [8] Extradition Act 1999 ....................................................................................................................... [16] The Minister’s process .................................................................................................................... [28] Torture.............................................................................................................................................. [35] The Extradition Act....................................................................................................................... [35] International obligations .............................................................................................................. [36] NZBORA ....................................................................................................................................... [44] The briefing paper ........................................................................................................................ [45] The Minister’s decision................................................................................................................. [60]
Mr Ansley’s evidence .................................................................................................................... [61] The submissions............................................................................................................................ [64] Fair Trial .......................................................................................................................................... [85] The Extradition Act....................................................................................................................... [85] International obligations .............................................................................................................. [86] NZBORA ....................................................................................................................................... [89] The briefing paper ........................................................................................................................ [92] The Minister’s decision............................................................................................................... [101]
Mr Ansley’s evidence .................................................................................................................. [102] The approach to fair trial concerns ............................................................................................ [105] No public, independent and impartial tribunal ...........................................................................[113] Other procedural protections ..................................................................................................... [126]
Death penalty ................................................................................................................................. [131] International obligations ............................................................................................................ [131] NZBORA ..................................................................................................................................... [134] The briefing paper ...................................................................................................................... [135] The Minister’s decision............................................................................................................... [136] The submissions.......................................................................................................................... [137] Mental health ................................................................................................................................. [138] The briefing paper ...................................................................................................................... [138] The Minister’s decision............................................................................................................... [142] Submissions ................................................................................................................................ [143] Assurances from the PRC............................................................................................................. [144] The use of assurances in principle ............................................................................................. [144]
Is the general situation in the PRC disqualifying ....................................................................... [161] Assessing the nature and quality of the assurances .................................................................... [174] Scrutiny of the assurances that were obtained ........................................................................... [185] Practical arrangements for monitoring...................................................................................... [217] The strength of the bilateral relationship ................................................................................... [224] New Zealand’s experience with assurances ................................................................................ [233] Information received from other countries ................................................................................. [236]

Convention on the Rights of the Child ........................................................................................ [242] Improper influence ........................................................................................................................ [247] Summary of conclusions ............................................................................................................... [253] Result .............................................................................................................................................. [262]

Introduction

[1] Mr Kim is suspected by the authorities in the People’s Republic of China (the PRC) of killing a young woman in Shanghai in December 2009. He is the subject of an extradition request by the PRC and the Minister has determined that he is to be surrendered to the PRC. Mr Kim seeks to quash the Minister’s decision. He contends the Minister’s decision was unlawfully reached. Although a broad range of judicial review grounds are relied on, his overall contention is that the Minister failed to come to grips with the realities of the Chinese legal system in which pre- trial torture is endemic, a fair trial is not possible and assurances about the treatment of Mr Kim and as to the death penalty cannot be relied on.

[2] The background to the Minister’s decision is set out in my judgment delivered on the same date, on Mr Kim’s related application for a discharge of the extradition proceedings.1 This decision concerns the application for judicial review of the Minister’s surrender decision.

Approach to judicial review

[3] The statement of claim contains a number of causes of action. These causes of action allege that the Minister made errors of law, undertook inadequate enquiries, took into account irrelevancies, and failed to take into account relevant considerations. It is also said that the Minister made errors of law, failed to provide adequate reasons on important aspects of her decision and reached an unreasonable decision. As is usual in a significant judicial review application, these grounds of review overlap (the errors alleged can be analysed under one or more of these
grounds). Like counsel for Mr Kim, I will therefore consider the particular concerns

1 Kim v The Minister of Justice [2016] NZHC 1491 [discharge application].

with the Minister’s decisions by topic (torture, fair trial, the death penalty, mental

health issues, and the assurances obtained) rather than by particular causes of action.2

[4] There are two discrete causes of action. One of these is that the Minister’s decision was affected by apparent bias as a result of public statements made by the Prime Minister of New Zealand. That cause of action is considered separately. The other concerns Mr Kim’s treatment in prison. This cause of action is not presently pursued because it involves substantial evidence which is in dispute. Counsel acknowledges that I am not in a position to consider this at this stage.

[5] I note at the outset that judicial review is concerned with the lawful exercise of a public power. In this case that public power was a statutory power of decision which conferred upon the Minister a significant discretion in a difficult area with important competing considerations at play. On the one hand Mr Kim is suspected of murder and New Zealand should play its role as an international citizen in the
prosecution of serious criminal offending.3 On the other hand the Minister was

being asked to return a New Zealand resident to a country whose criminal justice system is different from our own, whose record on human rights is the subject of adverse international commentary and when it has not committed to the relevant international instruments in the way that we have.

[6] The substantial briefing paper officials provided to the Minister, and the detail traversed in this judgment, are indicative of the difficulties. The Law Commission has recommended reform in this difficult area.4 Despite these difficulties the legislation required the Minister to make a speedy decision or risk the prospect of a successful discharge application. In contrast, counsel for Mr Kim urged upon me the need for care rather than speed. Counsel for the respondent did
not press for urgency either.

2      Throughout this judgment I refer to submissions made by Mr Kim. The submissions were advanced on his behalf by Dr Tony Ellis.
3      Kim v Prison Manger Mount Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR 589 at [42]: “The overall purpose of the Extradition Act includes facilitation of the bringing to justice
of those in New Zealand accused of serious crimes committed outside New Zealand.” This is also recognised in the Law Commission’s recent review of extradition law in “Extradition and Mutual Assistance in Criminal Matters” NZLC Issues Paper 37 (December 2014).
4      “Modernising New Zealand’s Extradition and Mutual Assistance Laws” NZLC Report 137 (February 2016).

[7] I am mindful of these difficulties and in particular that the question for me is whether the Minister’s power has been lawfully exercised. However fundamental human rights, involving potential risks to Mr Kim’s life and liberty, are at stake. It is an area where the court is required, in its supervisory jurisdiction, to closely scrutinise the Minister’s exercise of the power. That is not to say there should be no deference accorded to matters requiring the Minister’s judgment. Heighted scrutiny is not a merits review. While it is difficult to define with precision what heightened scrutiny entails, in the present context I consider it requires the court to ensure the decision has been reached on sufficient evidence and has been fully justified, while recognising that Parliament has entrusted the Minister (not the courts) to undertake adequate enquiries and to exercise her judgment on whether surrender should be
ordered.5

New evidence

[8] At the hearing counsel for Mr Kim sought leave to file additional evidence, being a further affidavit from Mr Kim and an affidavit of Clive Ansley.6 The respondents opposed leave.

[9] The objection in respect of Mr Kim’s affidavit was that it had been filed late and counsel for the respondents had not had the opportunity to consider it. The affidavit concerns Mr Kim’s treatment in prison. At the hearing this was not advanced by Mr Kim’s counsel in support of the judicial review. It has therefore not been necessary for me to rely on this affidavit in considering the judicial review application.

[10] The objection in respect of Mr Ansley’s affidavit was also on the basis that it

had been filed late and counsel for the respondents had not had the opportunity to

5 In taking this approach, I have relied upon the discussion of the intensity of review in Woolf and others De Smith’s Judicial Review (7th ed, Sweet & Maxwell, London, 2013), especially at [11-
086] to [11-102] and [11-127]. See, also, R v Secretary of State for the Home Department Ex p. Launder [1977] 1 WLR 839 at 979 and 982. This case involved an extradition request by the Hong Kong government, in respect of a British national, at a time when Hong Kong’s sovereignty was being transferred from the United Kingdom to the PRC. The Court acknowledged that it was a case where “anxious scrutiny” was required but also considered that deference was required when there was room for two different views about whether the PRC would preserve the existing criminal justice system in Hong Kong.
6 At the time of the hearing the affidavit, which had only recently been prepared, was unsigned.
After the hearing a signed version of the affidavit was filed.

consider it. It was also on the basis that it appeared to the respondents to be irrelevant. Counsel were given the opportunity to consider the affidavit and to make submissions as to its admissibility after the hearing.

[11] Mr Ansley’s affidavit gives expert evidence on the Chinese judicial system. As counsel for Mr Kim explained, there were difficulties obtaining funding for the evidence from Mr Ansley and the judicial review proceeding had come up for hearing very quickly. The evidence was able to be obtained after a private benefactor provided assistance shortly before the hearing.

[12] There is no issue that Mr Ansley has significant expertise in the Chinese judicial system. To adopt the respondents’ submission on this aspect, there can be no dispute that Mr Ansley is qualified by reason of his education, experience and scholarship to provide opinions on the Chinese criminal justice system, including in relation to the political structures in the PRC.

[13] The respondents also now accept that aspects of Mr Ansley’s evidence are potentially relevant to the extent that Mr Kim contends the Minister failed to adequately investigate matters necessary to make her decision. The respondents say, however, that the Minister made inquiries which were “by a considerable margin more thorough than the law required of her” and that Mr Ansley’s affidavit would not have materially contributed to the view the Minister reached. The respondents say Mr Ansley provides information on matters of which the Minister was already aware. They say the real issue in this case is the adequacy of the assurances provided by the PRC and Mr Ansley does not address this.

[14] The starting point in judicial review is to focus on the information that was before the decision maker.7 However new evidence may in some circumstances be relevant to a ground of review. Here Mr Ansley’s affidavit may be relevant to the extent it provides information the Minister did not have and which is material in the
sense that it may have led to a different decision.8 That may be on the basis that the

7 Michael Fordham Judicial Review Handbook (6th ed, Hart Publishing, Oxford, 2012) at [17.2].
See also Roussell Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1
NZLR 650 at 658.
8 Woolf, above n 5, at [11-053] referring to Denning JL in Ladd v Marshall [1954] 1 WLR 1489 at

information demonstrates the factual basis upon which the Minister made her decision was mistaken in a material way.9 Such a mistake may have arisen because inadequate inquiries have been made.10 Or it may go to the reasonableness of the Minister’s decision.11 The grounds overlap but the Minister’s decision is susceptible to review where matters obviously material to her decision were not part of her direct consideration.12 I will approach Mr Ansley’s evidence on this basis.

[15] New evidence was also adduced by the respondents. This arose out of the reliance Mr Kim’s counsel placed on an article in the Irish Times. This article reported on an apparent breach of an assurance given to Ireland by the PRC in respect of the death penalty. The respondents have filed an affidavit concerning enquiries which have been made with officials in Ireland about that report. I will discuss this evidence when discussing the Minister’s assessment of the assurances
obtained in this case.13

Extradition Act 1999

[16] The Minister’s statutory power which is the subject of this review application is contained in the Extradition Act 1999. My judgment on the discharge application sets out in detail the extradition process under the Extradition Act.14 For present
purposes the key points are as follows.

1491: new evidence is permissible where it “should probably have had an important (though not necessarily decisive) influence on the result of the case”.
9      Fordham, above n 7, at [17.2.5] citing E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 at [68]: “Assuming the relevance of showing a mistake of fact in the … decision there may need to be evidence to prove it.” R v Criminal Injuries Compensation Board ex p A [1999] AC 330, 334G-345C.
10     Fordham, above n 7, at [17.2.5] citing R v Rochfield District Council, ex p Ferdinando 8
September 1992 unrep and R v Haringey London Borough Council ex p Norton (1998) 1 CCLR
168.
11     Woolf, above n 5, at [11-056]: “Our view is that a material mistake or disregard of a material fact in and of itself renders a decision irrational or unreasonable”.
12     Woolf, above n 5, at [11-056]: “The taking into account of a mistaken fact can just as easily be

absorbed into a traditional legal ground of appeal of review by referring to the taking into account of an irrelevant consideration; or the failure to provide reasons which are adequate or intelligible, or the failure to base the decision upon any or adequate evidence.”; see, for example, New Zealand Federation of Commercial Fishermen Inc v Minister of Fisheries HC Wellington CIV-2008-485-2016, 23 February 2010 at [27].
13 Refer [238] to [239] below.
14 Kim (discharge application), above n 1, at [17]-[37].

[17] First, New Zealand does not have a bilateral extradition treaty with the PRC. If a person’s extradition 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 (the seriousness of the offence, the objects of the Extradition Act, any undertakings provided by the country and any other matters the Minister considers relevant) in deciding whether the request should be dealt with under the
Act.15 If the Minister decides that the request should be dealt with under the Act the

standard procedure under the Act applies.

[18] Secondly, an order for surrender is the last stage of a process which involves: (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.

[19] Thirdly, the specific power conferred on the Minister to determine whether to order surrender is as follows:16

30 Minister must determine whether person to be surrendered

(1) If the Court issues a warrant for the detention of a person under section 26(1)(a) … the Minister must determine in accordance with this section whether the person is 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

…

15 Extradition Act 1999, s 60(3).
16 Omitting parts of the section which do not assist the issues involved in this case.

(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

…

(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

(c) the person is a New Zealand citizen and—

(i) if there is a treaty in force between New Zealand and the extradition country, it does not preclude the surrender of New Zealand citizens; or

(ii) if there is an Order in Council made under section 16 in relation to the extradition country, it does not preclude the surrender of New Zealand citizens; or

(iii) if there is no applicable treaty or Order in Council in relation to the extradition country, any undertakings or arrangement in relation to extradition between New Zealand and the extradition country do not preclude the surrender of New Zealand citizens—

but the Minister is satisfied that, having regard to the circumstances of the case, it would not be in the interests of justice to surrender the person; 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.17

17 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.

(4) Subsection (3)(c) applies even if the person is a citizen of both New
Zealand and the extradition country.

…

(6) For the purposes of determining under this section whether the person is to be surrendered, the Minister may seek any undertakings from the extradition country that the Minister thinks fit.

[20] The power therefore confers both mandatory and discretionary grounds for declining surrender. For present purposes the relevant mandatory grounds are the restriction in respect of torture (s 30(2)(b)) and the following mandatory restriction in s 7:

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;

…

[21] For present purposes, the discretionary grounds in s 30(a), (d) and (e) are potentially relevant. The following discretionary ground in s 8 is also potentially relevant:

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.

…

[22] The discretionary ground in s 30(3)(c) does not directly apply because Mr Kim is not a citizen of New Zealand. However he is a resident of this country and has lived here since he was 14 years old. His family live here. His father and his

brother, and his two children are New Zealand citizens. His mother is a New Zealand resident. The matters the Minister might take into account in the interests of justice in respect of a New Zealand citizen might therefore be relevant when considering “any other reason” as to why Mr Kim should or should not be surrendered (s 30(3)(c)).

[23] It is also relevant to note that the discretionary ground in s 30(3)(b) is additional to a discretionary ground that applies under s 32. That section applies where the Minister has determined under s 30 that a person is to be surrendered but one of the following situations arises:

(a) First, where the request for extradition is in respect of an offence of which the person has been convicted in the extradition country but the person is liable to be detained in a prison because of a sentence of imprisonment imposed for an offence against the law of New Zealand (s 32(1)).

(b)Secondly, where in the Minister’s opinion, compelling or extraordinary circumstances of the person make it unjust or oppressive to surrender the person before the expiration of a particular period (s 32(3)).

[24] In the first situation the Minister may make an order for surrender that is to come into effect after the person ceases to be liable to be detained in New Zealand or the Minister may decline to make a surrender order (s 32(2)). In the second situation the Minister may order that the surrender order is to take effect after a period of time and she may cancel the order (s 32(4) and (5)). These sections do not apply directly to Mr Kim. They do, however, enable a Minister to consider the time which a person has served in a New Zealand prison when deciding whether to order Mr Kim’s surrender. Potentially that is relevant to Mr Kim when considering “any other reason” as to why Mr Kim should or should not be surrendered (s 30(3)(e)). Time since the offence is alleged to have been committed may also be relevant (s 8(1)(c)).

[25] Although there are discretionary grounds for refusal, that discretion is to be exercised consistently with New Zealand’s international obligations and the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA).18
As explained in Zaoui v Attorney-General (No 2):19

Those provisions [sections 8 and 9 NZBORA] do not expressly apply to actions taken outside New Zealand by other governments in breach of the rights stated in the Bill of Rights. That is also the case with arts 6.1 and 7 of the ICCPR. But those and comparable provisions have long been understood as applying to actions of a state party – here New Zealand – if that state proposes to take action, say by way of deportation or extradition, where substantial grounds have been shown for believing that the person as a consequence faces a real risk of being subjected to torture or the arbitrary taking of life. The focus is not on the responsibility of the state to which the person may be sent. Rather, it is on the obligation of the state considering whether to remove the person to respect the substantive rights in issue.

[26] In Zaoui the Supreme Court was considering the removal process under the Immigration Act 1987 of a refugee in respect of whom the Director of Security had issued a security risk certificate. An issue arose as to the stage at which the Crown’s obligations under the NZBORA and the international treaties were to be considered under that Act. The Court held that it arose under s 72 which provided that deportation “may” be ordered by the Governor-General, where the Minister certified the person’s continued presence in New Zealand constituted a threat to national
security. The Court said:20

The power conferred by s 72 is to be interpreted and exercised consistently with the provisions of ss 8 and 9 of the Bill of Rights and with the closely related international obligations in the Covenant and the Convention Against Torture. Because the power can be so interpreted and applied, those provisions as a matter of law, prevent removal if their terms are satisfied even if the threat to national security is made out in terms of s 72 and art
33.2 [United Nations Convention Relating to the Status of Refugees 1951].

18 The respondents accept this position and the advice to the Minister proceeded on this basis.
Compare with Bujak v The Minister of Justice [2009] NZCA 570 at [31] where, when there was a treaty between New Zealand and the country seeking extradition which did not refer to humanitarian considerations, the Court of Appeal commented that it was “a large topic” as to whether the values in the ICCPR and the NZBORA should apply. The Court of Appeal did not need to decide the issue in that case. The Supreme Court declined leave because, as the Court of Appeal had concluded, the humanitarian arguments would fail on the facts: Bujak v The Minister of Justice [2010] NZSC 8. In the present case there is no treaty with the PRC.
19 Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [79].
20 At [91].

[27] Similarly, the discretion conferred on the Minister under s 30 can be interpreted consistently with the rights affirmed in the NZBORA and New Zealand’s obligations under the relevant international treaties.21 The Minister, in effect, therefore, where there are substantial grounds for believing that the receiving state will not comply with the fundamental rights affirmed in the NZBORA and New Zealand’s international obligations under the relevant international instruments, should not order surrender.

The Minister’s process

[28] The background to the extradition request and the various stages of the extradition process which eventually led to the Minister’s decision to order Mr Kim’s surrender is set out in detail in my judgment on the discharge application.22 For present purposes the Minister’s process by which she made her surrender decision is especially relevant. The Minister provided an affidavit on this aspect.

[29] The Minister received her warrant as Minister of Justice on 6 October 2014. She was briefed on this case upon assuming the office. She received a substantial briefing paper on 6 November 2014. This included the record of the District Court proceeding and submissions from Dr Ellis contending that Mr Kim should not be surrendered. The Minister determined at this stage to explore the seeking of further assurances from the PRC.

[30] On 7 July 2015, when the assurances had been finalised, the Minister wrote to Dr Ellis enclosing information on which her surrender decision would be made, advising she intended to make her decision by 12 August 2015, and seeking submissions by 29 July 2015. Dr Ellis made requests for further time. These were granted. The submission process concluded on 28 October 2015.

[31] On 3 November 2015 officials inquired with the PRC as to mental health treatment for Mr Kim if he was surrendered. A response was received on 6
November 2015.

21 New Zealand Bill of Rights Act 1990 (NZBORA), s 6.
22 Kim (discharge application), above n 1, at [38] to [61].

[32] The Minister received a briefing paper from the Ministry of Justice on 9

November 2015. That paper referred to a report by Human Rights Watch concerning police torture of criminal suspects in China.23 The Minister sought further information about this, particularly as to the weight she should attribute to it and its relevance to the matters she needed to consider. The Ministry’s supplementary briefing on this topic was incorporated into a final briefing paper dated 23 November
2015 (the briefing paper).24

[33] Accompanying the briefing paper were six volumes of material. These volumes enclosed Dr Ellis’ submissions, the District Court file, reports on the PRC by the United Nations and international non-governmental organisations referred to in the briefing paper, relevant legislation and international conventions, and the assurances from the PRC.

[34] The Minister advises that she made her decision on the basis of the briefing paper and the accompanying materials. The Minister notified Mr Kim of her decision that he was to be surrendered and the reasons for that decision by letter dated 30 November 2015.

Torture

The Extradition Act

[35] As set out above, surrender must not be ordered 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 PRC (s 30(2)(b)). Further, the Minister may determine not to order the person’s surrender if for any other reason the Minister considers the person should not be surrendered (s 30(3)(e)). Ill-treatment
falling short of torture could potentially come within this discretionary ground.

23 Human Rights Watch “Tiger Chairs and Cell Bosses – Police Torture of Criminal Suspects in
China” (May 2015) < (last accessed 28 June 2016).
24 This was a substantial paper (476 paragraphs/88 pages).

International obligations

[36] Article 7 of the International Covenant on Civil and Political Rights (ICCPR)

provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

[37] The First Optional Protocol to the ICCPR provides for the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of the rights set out in the ICCPR.

[38] New Zealand ratified the ICCPR in 1978 and the First Optional Protocol in

1989. The PRC has signed, but not ratified, the ICCPR. It has not signed or ratified the First Optional Protocol.

[39] Article 3 of the Convention against Torture and Other Cruel, Inhumane or

Degrading Treatment or Punishment (the Convention against Torture) provides:

1. No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

[40] Article 20 of the Convention against Torture provides for the Committee against Torture to investigate if it receives reliable information which appears to contain well-founded indications that torture is being systematically practised in the territory of a State Party. Findings are communicated to the State along with comments or suggestions. A summary of the result may be included in the Committee’s annual report.

[41] Article 22 of the Convention against Torture provides for the Committee to receive individual complaints of violations by a State Party of the Convention’s provisions and sets out a procedure for dealing with such complaints.

[42] The Optional Protocol to the Convention against Torture establishes a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

[43] New Zealand ratified the Convention against Torture in 1989. It ratified the Optional Protocol in 2007. The PRC signed the Convention against Torture and ratified it in 1988. However, it has not agreed to arts 20 and 22. Nor has it signed the Optional Protocol. The PRC’s position is that “the Chinese government believes that the promotion and protection of human rights is mainly realised through the
efforts of countries themselves not through the means of visits to state parties”.25

NZBORA

[44] Section 9 of the NZBORA provides:

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

The briefing paper

[45] The briefing paper provided advice to the Minister under a number of headings.

[46] First it summarised the submissions for Mr Kim, namely that there were substantial grounds for believing that Mr Kim would be tortured on return to the PRC, and that this was because torture is endemic in the PRC, it is used to obtain confessions (which are important in the PRC system), and it is particularly common and severe in murder cases.

[47] Secondly, it provided advice as to the proper approach. This advice was that the Minister needed to ask herself whether there were substantial grounds for believing that Mr Kim would be in danger of being subjected to an act of torture, and danger meant more than a mere theory or suspicion but less than highly probable.26
The Minister was to consider the general situation in the PRC regarding torture, and against that background consider whether Mr Kim was personally at risk. This
meant it was necessary for the Minister to consider the nature and quality of the

25 Human Rights Council “Report of the Working Group on the Universal Periodic Review: Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review” (27 February 2014) A/HRC/25/5/ Add.1.
26 There is no challenge to this as being the correct approach.

assurances provided by the PRC and the particular circumstances and characteristics

of Mr Kim’s situation.

[48] Thirdly, it advised that the Minister’s decision needed to be consistent with New Zealand’s international obligations under the Convention against Torture and the ICCPR. It advised the Minister that the Act provided that she could not order Mr Kim’s surrender if there were substantial grounds for believing he would be in danger or being subject to an act of torture in the PRC. It also advised the Minister what the PRC had and had not agreed to in respect of the Convention against Torture

and the Optional Protocol.27

[49] Next the briefing paper discussed the general situation. Here it was noted that Chinese law enforcement’s heavy reliance on confessions went back to imperial times; since 1979 it had been illegal to obtain confessions by torture in the PRC; and since 1996 the criminal procedural law contained an amendment to deemphasise the importance of confessions. However the “consensus of commentators and the UN is that there is overwhelming credible evidence of routine use of torture and ill- treatment in the PRC, particularly to extract confessions.” Further “[c]ommentators and the UN note that torture and ill-treatment occurs in ordinary criminal cases, but the risk is especially high for political or religious dissidents, ethnic minorities, and
human rights defenders”.28 And commentators and the UN state that, “with the

exception of high profile cases or crackdowns, police officers are rarely held

responsible for abuse, and receive light penalties if they are”.29

[50] The briefing paper went on to set out in some detail the findings of the Special Rapporteur on Torture, who visited the PRC at the end of 2005 at the invitation of the PRC Government. This included information that many methods of torture had been used in the PRC, there was a growing willingness to acknowledge the problem and a number of positive developments to combat torture and ill- treatment had occurred at the legislative level and at the central and provincial level, and this had contributed to a steady decline in torture practices over recent years.
There were, however, a number of problems with the effectiveness of efforts to

27 In this section it did not refer to the PRC having signed by not ratified the ICCPR.
28 At [230].
29 At [232].

combat torture. These problems included that the definition of torture under Chinese law did not fully correspond to the international standard, there was a degree of localism inherent in policing and criminal procedure, essential procedural safeguards were absent (namely exclusion of evidence and the presumption of innocence), most suspects were interrogated without lawyers, there was no independent monitoring and police exercise wide discretion in matters of arrest and detention and are under great pressure to solve cases. The Special Rapporteur’s view was that “torture, though on the decline particularly in urban areas, remained widespread in the
PRC”.30

[51] The briefing paper advised the Minister of the follow up report issued by the Special Rapporteur in 2010. He sought information from the PRC Government on implementation of the recommendations which had been made. The PRC did not provide any input. The Special Rapporteur’s report was therefore based on NGO (non-governmental organisation) sources. The Special Rapporteur noted reports about the excessive use of pre-trial detention putting suspects at risk of torture and ill-treatment. The briefing paper set out the following observation of the Special
Rapporteur:31

… However, the Special Rapporteur regrets that China fails to take concrete steps in this regard, rejects to release concrete data about enforcement efforts and to increase transparency in the criminal justice system. Despite some efforts to improve the regulations criminalizing torture, the Special Rapporteur regrets that no further steps have been taken to bring the Chinese criminal law in line with the requirements of articles 1 and 4 of the [Convention against Torture]. The Special Rapporteur expresses concern about allegations of continuing use of confessions obtained through torture in judicial proceedings. Although welcoming the increased use of video and audio taping at interrogations, he regrets that such material is fully controlled by the police authorities making an effective and independent monitoring impossible. He is further concerned about the lack of investigations, prosecution and punishment of the perpetrators of torture. He reiterates that no independent mechanism mandated to monitor all places of detention has been created and thus strongly encourages the Government to ratify and implement the [Optional Protocol].

[52] The briefing paper also noted the Special Rapporteur had not been back to the

PRC since 2005 as he had not received another invitation. The briefing paper went

30 At [243].
31 At [245] citing Manfred Nowak “Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment: Follow-up to the recommendations made by the Special Rapporteur” A/HRC/13/39/Add.6 (26 February 2010).

on to refer to new measures implemented in 2009 to improve practices in detention centres and 2012 amendments to the criminal procedural law including a requirement for interrogations to be recorded or videotaped if the alleged crime is punishable by life imprisonment or death.

[53] Next the briefing paper discussed a 2013 guidance note issued by the UK Home Office. This guidance concludes:32

Prison conditions in China are described as harsh and often degrading, both for political prisoners and for criminal offenders, who are often housed together. There is objective evidence of security officials severely ill- treating prisoners and detainees, that the use of torture to extract forced confessions is widespread and the number of deaths in custody, some due to torture is a matter for concern. Evidence indicates that some of the worst treatment is extended to political dissidents, religious dissidents and human rights activists, although not exclusively. This treatment may include forced psychiatric incarceration/treatment, sexual, physical and psychological abuse.

[54] The briefing paper then went on to discuss in some detail information provided by Human Rights Watch in a May 2015 report which Mr Kim’s submissions had referred to.33 The briefing paper advised the Minister this report was “particularly relevant” because of its recency and subject matter (torture of
‘ordinary’ criminals, as well as well-known high-risk groups). The briefing paper provided information about the organisation, including that it had been subject to criticism by some, but also that its work had also been considered by international bodies and had been granted leave to intervene in the Othman case.34 The briefing paper said the 2015 report to a large extent confirmed what was already known about the PRC and that was why it had been necessary to obtain specific assurances from the PRC. It then said:35

The main point for you to take from the Report is that its conclusions support the view, expressed by other commentators and the UN, that
‘ordinary’ criminals (not only members of well known high-risk groups)
have been subjected to torture in the PRC.

32 At [256].
33     Human Rights Watch, above n 23.
34     Othman (Abu Qatada) v The United Kingdom (2012) 55 EHRR 1, [2012] ECHR 817.
35     Briefing paper, at [265]-[266].

The Report also suggests that murder suspects are at a higher risk of torture than other ‘ordinary’ criminals. That suggestion is new and is discussed further below.

[55] The briefing paper noted the Human Rights Watch report was based on interviews with 48 detainees and analysis of verdicts on the internet. The briefing paper considered it was “not possible to draw any reliable conclusion” arising from the information obtained from the interviewees because they comprised a very small sample and no information was provided as to how these interviewees were selected. The briefing paper also considered it was “not possible to draw any definitive conclusions” from the analysis of verdicts. It included the following comments
about torture of murder suspects in the briefing paper:36

Of particular relevance to Mr Kim’s case is Human Rights Watch’s observation that a number of lawyers they interviewed (although the report only expressly cites one) said that torture is particularly common and severe in particular types of cases, including murder. It attributes this, at least in part, to the fact that the government has made a clear priority of murder cases in recent years, putting pressure on the police to solve them.

Human Rights Watch’s suggestion that murder suspects are at a higher risk than other ‘ordinary’ criminals is new. The Ministry has not identified reports by any other commentator or the UN that supports this view, so it is unclear how accurate it is. In particular, we note that the Special Rapporteur, in his 2006 report, did not identify murder suspects as a specific group from which he had received complaints of torture…

[56] The briefing paper also noted the Human Rights Watch’s conclusions that judges often ignored requests to exclude evidence, expected defendants to prove that torture had taken place and often evaluated torture solely on the basis of evidence produced or controlled by the police, that there still remained an incentive for police to use torture or ill-treatment to obtain a confession, and that the police still held enormous power over the judiciary. The briefing paper concluded the discussion of
this report with the following comment:37

It is important to note that the Report does not suggest that all criminal suspects are likely to be tortured. In addition, it does not address the risk faced by a person in Mr Kim’s particular situation, being a foreign national the subject of formal assurances and diplomatic monitoring.

36 At [272]-[273].
37 At [285]-[286].

The Ministry does not consider that anything in the Report suggests that further or different assurances need to be sought from the PRC in addition to those already provided.

[57] Next the briefing paper discussed the PRC’s domestic law, including that it

expressly prohibited torture to extract confessions. It also included a discussion of

2012 reforms which provided for videotaping or recording of pre-trial interrogations where the person is suspected of committing an offence punishable by life imprisonment or capital punishment.

[58] Lastly in respect of the general position regarding torture, the paper discussed the experience of New Zealand and some other countries concerning prison conditions in the PRC as follows:38

MFAT has advised that there are currently nine NZ citizens detained in Chinese prisons or detention facilities. NZ provides active consular assistance, which includes monitoring of health and well-being, liaising with family members and ensuring access to legal advice. NZ officials also monitor detainees through visits, and by attending hearings at key times. In one case, a NZer made a complaint of mistreatment and forced labour to the media following release and return to NZ. A formal complaint was not made to consular officials.

In respect of other countries, MFAT has advised that:39

[Country A] has on average 100 citizens in prison in the PRC. [Country A’s] Embassy has not received any allegations of torture against [Country A’s] citizens to date. [Country A] ensures that the PRC knows of its active interest in the welfare of its citizens, and conducts monthly visits.

[Country B] said that it was not aware of any instances of torture against [Country B’s] citizens in prisons in the PRC, although there had been allegations of physical violence, including beatings. [Country B’s] Embassy conducted visits to check on the welfare of prisoners. [Country B’s] officials considered that prisons in the main centres were the safest and that the main issues arose in pre-trial detention. Allegations of mistreatment after conviction were not considered common.

[Country C] reported that, generally speaking, it finds Chinese prisons to be relatively safe. However, it noted a recent case where a

38 At [318]-[320].
39 The respondent sought suppression of the identity of the countries that have provided information about their dealings with the PRC. This was on the basis that the information is diplomatically sensitive and disclosure of the information could affect the ability of New Zealand to obtain such information. A suppression order has been made on that basis which is subject to further order of the Court.

[Country C] prisoner alleged intimidation and mistreatment from prison guards after he complained about prison conditions.

[Country D] has 12 long-term prisoners in the PRC. [Country D’s] Embassy visits these prisoners quarterly. There have been no complaints of mistreatment or torture; however, it was noted that all consular visits took place alongside prison staff and this would be a disincentive for a prisoner to make a complaint.

Monitoring and consular visits may help protect foreign national prisoners against torture or other ill-treatment.

[59] The briefing paper then went on to discuss how the information about the general situation in the PRC related to Mr Kim. This section discussed the assurances, submissions made on behalf of Mr Kim and other matters the Ministry considered to be relevant. It then provided a summary of all of the above material. The relevant considerations in relation to Mr Kim were identified as being:

(a) Mr Kim was not a member of any well known high-risk group and was therefore an “ordinary criminal”. Although the Human Rights Watch Report identified murder suspects as being at a higher risk, it was unclear how accurate this was.

(b)Mr Kim’s situation is significantly different because of the extradition dimension. Assurances have been obtained from the PRC and his treatment will be monitored pursuant to those assurances.

(c) New Zealand and other countries have not expressed concerns about the systematic mistreatment of their citizens in Chinese prisons, although there have been some allegations of mistreatment in individual cases.

(d) Other relevant factors include:40

Mr Kim is likely to be tried in Shanghai. Commentators and the UN state that torture appears to be on the decline in urban areas, such as Shanghai;

Mr Kim’s role in the alleged offending has already been
investigated, meaning he may spend less time in pre-trial detention.

40 At [349.1]-[349.3].

Commentators and the UN consider that pre-trial detention is the time a suspect is most at risk of torture; and

The prima facie case against Mr Kim appears to be relatively strong and includes scientific evidence which has been reviewed in NZ. This means that Mr Kim may be at a lesser risk of torture to extract a confession.

The Minister’s decision

[60] The Minister’s decision on this aspect was based on the Ministry’s advice in the briefing paper. In determining that Mr Kim was to be surrendered the Minister advised, in a letter to Mr Kim, as follows:41

I do not consider there are substantial grounds to believe you will be in danger of an act of torture in the PRC.

While there is evidence that torture is still an issue in the PRC, I consider there are other significant factors which differentiate you from those likely to be at risk of torture:

The PRC has provided detailed and specific assurances about your treatment which also provide for monitoring of your treatment, including through visits by NZ consular officials with the option of independent medical examination. I am satisfied that the assurances given by the PRC can be relied on in this instance, having had regard to the factors set out in Othman (Abu Qatada) v The United Kingdom. In particular, I consider the provisions allowing for monitoring of your treatment will provide a significant deterrent to any act of torture. NZ and other countries have experience where assurances given by the PRC have been honoured.

You are an ‘ordinary’ criminal suspect. You are not a member of a well-known high-risk group, such as political or religious dissidents, ethnic minorities, or human rights defenders. While Human Rights Watch has recently identified murder suspects as high risk, it is unclear how reliable that finding is, and I consider the presence of assurances and other differentiating factors in your circumstances that I have outlined mean you personally are not at a high risk;

The prima facie case against you appears to be relatively strong and includes scientific evidence which has been reviewed in NZ. This means that you appear to be at a lesser risk of the use of torture to extract a confession;

Your role in the alleged offending has already been investigated, meaning you may spend less time in pre-trial detention. Commentators and the UN consider that pre-trial detention is the time a suspect is at most risk of torture;

41 At [29]-[30.5].

You are to be tried in Shanghai, where commentators and the UN
suggest incidences of torture are on the decline.

Mr Ansley’s evidence

[61] Mr Ansley comments that the use of torture is endemic in Chinese criminal investigations. He says that, so routine is the practice, the assumption of torture must be the starting point in assessing any statements allegedly made to police interrogators. He says that because of this, “all accused persons in China belong to a group specially at risk of torture” and “it would be astonishing if a person accused of
homicide were not subject to torture”.42 Moreover statements used in Chinese

criminal trials and in foreign extradition proceedings are routinely obtained by torture, and also through threats made against families of the witnesses. This systemic and routine coercion of witnesses goes to the heart of assessing the reliability of testimony.43

[62] Mr Ansley further says, although there are many published statements in western countries that the government is committed to implementing human rights and the rule of law, the evidence provides no support for that premise. For example, despite the PRC being a signatory to the Convention against Torture and torture is an offence under the Criminal Code, it appears to have had no impact on the criminal investigation system. He refers to an interview with a prosecutor in 2015 who, in her first year in the role, was criticised for not meeting her quotas and was told by her
superiors “if he has not confessed … fix it”.44 He notes that the Reasons for

Judgment in a case will contain no reference to claims of torture made in the case, referring to an example of a case he is familiar with.

[63] Mr Ansley refers to an escalating campaign of terror against the criminal defence and human rights bar which has continued from July 2015 to the present.45

42 Affidavit of Clive Ansley at [139].
43 Mr Ansley gives a specific example of this occurring in relation to a witness statement in relation to the extradition of Lai Changxing (the subject of the Lai case discussed below at [155] and n 114). That witness described having given her statement following two months of torture.
Having provided testimony that she was subject to torture, she subsequently disappeared. See
affidavit of Clive Ansley at [116](n).
44 At [87] and fn 10. It is unclear from the affidavit whether 2015 was the prosecutor’s first year in that role or whether that was only a reference to the date when Mr Ansley conducted the interview.
45 At [104].

He does not know which commentators might have said that torture is in decline in urban areas. He says he is “very familiar with Shanghai and I have seen no evidence of this alleged decline in torture. On the contrary, I have been involved with several Shanghai cases in recent years in which we found clear evidence of torture.”46

The submissions

[64] Mr Kim submits that the Minister failed to consider whether there was a risk of death by torture. He also submits the Minister failed to consider the types of torture which are used in the PRC. In my view there was no error in these respects. It is evident the Minister proceeded on the basis that torture remained an issue in China, but her view was that Mr Kim was not personally at risk of that for the reasons she stated. If he was not personally at risk of torture it follows that he was not personally at risk of death by torture or any of the particular kinds of torture that are used.

[65] Next Mr Kim submits the Minister asked herself whether Mr Kim was at a “high risk” of torture and this was the wrong test. I do not accept this submission. The test applied by the Minister was that set out in her conclusion: she did not consider there were substantial grounds to believe Mr Kim would be in danger of an act of torture in the PRC. In referring to “high risk” the Minister was explaining her view that Mr Kim was not in any group well-known as being at a high risk of torture, and although the Human Rights Watch had identified murder suspects at high risk of torture, Mr Kim was personally not at high risk. This was one reason for her conclusion. The other reasons were the assurances, the evidence already gathered and that Mr Kim was to be tried in Shanghai.

[66] Mr Kim submits the Minister failed to quantify the lowering of the risk due to the trial being held in Shanghai. The advice in the briefing paper was that “torture is on the decline in urban areas, such as Shanghai”.47 However the information to support that advice was quite general. The risk in Shanghai was not specifically
discussed. The briefing paper referred to the Special Rapporteur’s view that torture

46 At [141].
47 At [25.1].

was “on the decline particularly in urban areas” but “remained widespread”.48 It also referred to information from Country B that the “main centres” were “safest”.49 This factor therefore could only provide limited support for the conclusion that Mr Kim’s circumstances made him less likely to be at risk of torture.

[67] Mr Kim submits the Minister was wrong to conclude that Mr Kim’s role had been investigated already and therefore his time in pre-trial detention might be reduced. He submits this is nothing more than speculation. The Chinese authorities have not yet interrogated Mr Kim (even though they could have sought to do so while he has been detained in New Zealand over the last five years). He says the available information indicates that 99 per cent of those facing criminal charges in
the PRC confess and this assisted by torture.50 He says it is misleading to say the

scientific evidence has been reviewed in New Zealand, because the review has only been of the written material explaining how the DNA testing has been carried and the DNA itself has not been reviewed. The evidence of the Chinese witnesses has not been heard orally and cross examination has not been carried out. He says the reliability of their evidence is in doubt if they have been tortured or intimidated to provide it.51

[68] I agree it is somewhat speculative to conclude that Mr Kim is at less risk of torture because the strength of the evidence is such that he will spend less time in pre-charge detention. It does not address the key risk of torture, namely that Mr Kim has not confessed to the killing (indeed he denies it) and the PRC criminal justice system relies heavily on confessions.

[69] Mr Kim submits the Minister wrongly considered Mr Kim to be an “ordinary” criminal. He says this was wrong because the Human Rights Watch have recently identified murder suspects as high risk. I do not agree with this submission.
Consistent with the advice the Minister received, she was describing Mr Kim as

48 At [243]. See also Manfred Nowak “Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment: Mission to China” E/CN.4/2006/6/Add.6A (10 March 2006) at [71]-[72].
49 See [58] above.
50 The briefing paper at [371] refers to various sources citing the conviction rate as being 98-99 per cent.
51 The affidavit of Clive Ansley supports the possibility of witness statements being obtained by torture.

“ordinary” in the sense of not being in one of the groups she described as being well known to be at a high risk. The Minister was aware the Human Rights Watch had identified murder suspects as high risk (and had sought further information from the Ministry about that), but her conclusion was that Mr Kim was not personally at risk.

[70] Mr Kim submits it was also wrong to describe him as an “ordinary” criminal because in Valetov v Kazakhstan the Human Rights Committee required that no distinction was to be made of the type of criminal conduct.52 However this takes the Committee’s comments out of context. The Committee was commenting that the obligation on states not to expose individuals to the risk of torture was “not … subject to any balancing considerations with the type of criminal conduct an individual is accused or suspected of”.53 It does not mean that the type of crime the person is suspected or accused of committing may not be relevant to the risk of torture that person faces.

[71] Mr Kim submits it was also wrong to describe him as an “ordinary” criminal, given that he gave sworn evidence in the District Court eligibility hearing that his girlfriend, whose father was a high official in the Communist Party, was responsible for the killing.54 Mr Kim submits that such a defence in the PRC would guarantee him a confession obtained by torture. I agree that this appears not to have been considered by the Minister and that it may be relevant to the assessment of his risk. However, the assurances are aimed at eliminating the risk of torture. If they are effective, the failure to consider this point is not material.

[72] Mr Kim submits the Minister failed to consider that Mr Kim was a member of an ethnic minority as a Korean. Related to this, Mr Kim submits the Minister failed to provide sufficient reasons as to why Israil v Kazakhstan did not apply.55 In that case the UN Human Rights Committee held that an extradition from Kazakhstan to the PRC of a Chinese national of Uighur origins violated articles 6 and 7 of the
ICCPR. In reaching that view, the Committee said:56

52     Valetov v Kazakhstan CCPR/C/110/D/2104/2011, 28 April 2014.
53     At [14.2].
54     Re Kim DC Auckland CRI-2011-004-11056, 29 November 2013 at [25].
55     Israil v Kazakhstan CCPR/C/103/D/2024/2011, 1 December 2011.
56     At [9.5].

... The Committee considers at the outset that it was known, or should have been known, to the State party’s authorities at the time of the author’s extradition that there were widely noted and credible public reports that China resorted to use of torture against detainees and that the risk of such treatment was usually high in the case of detainees belonging to national minorities, including Uighurs, held for political and security reasons. ...

[73] The Minister’s conclusion that Mr Kim was an “ordinary criminal” suspect was not wrong on the basis of Israil. Mr Kim was not a Uighur held for political and security reasons. The Minister’s conclusion was in accordance with the briefing paper which advised that Mr Kim was not a member of a well-known high-risk group such as “political or religious dissidents, ethnic minorities, or human rights defenders”.57 This in turn appears to be based on the Special Rapporteur’s 2006
report which did not refer to Koreans.58 It is unclear if the Special Rapporteur

regarded Koreans as within the group of “ethnic minorities” for whom the risk of torture is greater. If there was reliable information that all ethnic minorities, including Koreans, were at higher risk of torture than those of Chinese ethnicity then the Minister’s conclusion would be based on a mistaken basis.59 Mr Ansley’s affidavit says all foreigners are at a disadvantage but he provides examples only in the civil context.

[74] Mr Kim submits the Minister took insufficient note of the Human Rights Watch report. I do not agree. It is apparent the Minister took into account that report because she specifically requested the Ministry to provide her with further information about that report. In accordance with that request, the final briefing paper discussed this organisation and the report in some detail. No particular error is identified in that discussion, nor in the Ministry’s advice that the report did not address Mr Kim’s particular situation as a foreign national the subject of formal assurances and diplomatic monitoring and that there was nothing in the report which suggested any further or different assurances should be sought.

[75] Mr Kim submits the domestic reforms are inadequate. He points out that complaints go to the Public Security Department, which is also the prosecution. This

57 Letter to Mr Kim at [30.2].
58 Manfred Nowak, above n 48.
59 See affidavit of Clive Ansley at [138]. His evidence is that any foreigner is at a disadvantage in a Chinese court.

lacks independence and is contrary to the urgings of the Committee against Torture to take “necessary legislative and other measures to ensure complete separation between the functions of pre-trial investigation and detention” and to “establish an independent, effective and confidential mechanism to facilitate the submission of complaints by victims of torture and ill-treatment to the competent and independent
authorities …”.60 Mr Kim’s submission is concerned with the difficulties a person

faces in complaining about torture. Torture is difficult to detect and is likely to be denied. A complaint to the state may lead to further mistreatment and the amendments to the criminal procedure are ineffective if no complaints are made or able to be proven.61

[76] The briefing paper addressed these aspects to some extent. For example, when addressing fair trial considerations, the Ministry advised that, notwithstanding substantial revisions of the law in 1996 and 2012, “commentators and the UN remain concerned that the judiciary is not independent, with the risk of interference by the Government or Communist Party”.62 The Ministry further advised that “aspects of the law are not strictly followed in practice, particularly in cases involving well known high-risk groups”.63 The political oversight of the criminal justice system was a point repeated later in the paper when providing an introduction to the PRC’s criminal justice system.

[77] When discussing the assurances the Ministry also advised as follows:64

While there have been significant improvements in recent years, the PRC does not have a system of protection against torture that would be considered effective by international standards. As discussed in the section on torture, it is not willing to cooperate with international monitoring mechanisms such as the Committee against Torture, and commentators state that perpetrators are rarely held to account. In addition, information about places of detention and torture is routinely withheld under the Law of the PRC on Guarding State Secrets (1988, revised 2010).

60     Committee against Torture “Concluding Observations on the fifth periodic report of China” (3
February 2015) CAT/C/CHN/CO/5 at [21].
61     This difficulty can be seen in Clive Ansley’s affidavit at [103]-[131] which shows the repercussions if any Chinese citizen was to oppose the government, particularly human rights lawyers.
62 At [430].
63 At [371].
64     At [151]-[153].

While the PRC is party to the CAT, it is not party to its Optional Protocol (OPCAT). The OPCAT requires state parties to establish an independent monitoring body or bodies at the domestic level to ensure compliance with human rights in detention. It also requires states to cooperate with the international monitoring mechanism, the Subcommittee on Prevention of Torture.

NZ is party to the OPCAT and has appointed specialised, independent agencies to undertake regular site visits to places of detention and work with detaining authorities to maintain a high standard. While a country may have an effective system of protection despite not being party to a relevant international treaty, the absence of ratification is one of a range of relevant factors that may be taken into account when considering the nature and efficacy of a country’s framework for the protection of persons deprived of liberty.

[78] It cannot therefore be said that the Minister failed to consider these aspects. The Minister’s decision proceeded on the basis that torture was still an issue but there were significant factors that differentiated Mr Kim’s position. Key amongst those factors was the provision of detailed and specific assurances. What might be questioned is whether the Minister linked the Ministry’s advice on these matters to whether the monitoring components of the assurances were likely to be effective. I will return to this issue when discussing assurances.

[79] Mr Kim submits the Minister failed to consider that if Mr Kim’s mental health deteriorates it is likely he will be placed in solitary confinement. If he does not confess he is likely to be detained in solitary confinement for longer. In my view this submission is speculative. The Minister has received assurances concerning Mr Kim’s treatment. The relevant issue in this respect is the reliance which can be placed on those assurances.

[80] Mr Kim submits the Minister failed to obtain the best up to date information as she should have done given the gravity of the issues. The UN Committee against Torture had last reported on the PRC in November 2008. On 9 December 2015, just nine days after the Minister’s decision, the UN Committee against Torture issued its report on China. Mr Kim says that New Zealand officials would have been aware this report was to be issued. Mr Kim relies on the totality of the report which shows that torture is still endemic.

[81] The report included the following:65

Notwithstanding the numerous legal and administrative provisions prohibiting the use of torture, the Committee remains seriously concerned over consistent reports indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions. It also expresses concern over information that the majority of allegations of torture and ill-treatment take place during pre-trial and extra-legal detention and involve publicly security officers, who wield excessive power during the criminal investigation without effective control by procuratorates and judiciary. This overarching power is reportedly further intensified by the public security’s joint responsibilities over the investigation and the administration of detention centres which, in the Committee’s view, creates an incentive for the investigators to use detention as a means to compel detainees to confess (arts. 2, 12, 13 and 16).

[82] That the Minister could have waited for this report, but she was required to make a timely decision and the information already before her indicated that torture remained a significant issue in the PRC notwithstanding the reforms. For example, in 2010 the Special Rapporteur welcomed the increased use of video and audio taping at interrogations but regretted that “such material is fully controlled by the police authorities making an effective and independent monitoring impossible”.66
Similarly the 2013 UK Home Office guidance note referred to objective evidence

that “the use of torture to extract forced confessions is widespread”.67 The particular relevance of the 2015 report is that it confirms that, notwithstanding the reforms and efforts to address the problem, “the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions”.68 The Minister proceeded on the basis that torture is an issue in the PRC but significant factors differentiated Mr Kim’s position. In these circumstances it was not an error to have proceeded to make her decision without waiting for this report.

[83] Mr Kim submits the Minister failed to consider that torture and ill-treatment are deeply entrenched in the criminal justice system. I do not accept this submission
for the reasons just stated. The question is whether the issues arising from a deeply

65 Committee against Torture, above n 60, at [20].
66 Refer to the quote at [51] above.
67 Home Office “Operational Guidance Note: China” (October 2013) GOV.UK <gov.uk>.
68 Committee against Torture, above n 60, at [20].

entrenched practice of torture and ill-treatment were taken into account when considering the likely effectiveness of the assurances.

[84] In summary, on this aspect of the review, the information before the Minister appropriately alerted her to the general situation in the PRC. That situation meant that surrender properly could be ordered only if it was open to the Minister to conclude that significant factors differentiated Mr Kim’s position. The Minister was not wrong to take into account that Mr Kim was not within a “well known high-risk group”. The Minister’s reliance on the apparent strength of the case and the stage at which the investigation was at, however, does not appear to have taken into account the heavy reliance the PRC’s criminal justice system places on confessions. The Minister’s reliance on Shanghai as the place where Mr Kim will be tried could not reasonably be given much weight given the limited information on which that factor was based. The key differentiating factor was the assurances. Accordingly surrender properly could be ordered only if there were sufficient grounds for concluding that those assurances were likely to be effective.

Fair Trial

The Extradition Act

[85] The Minister may determine not to order Mr Kim’s surrender if “for any other reason” she considers he should not be determined (s 30(3)(e)). The respondents accept that this enables the Minister to decline to order surrender because of fair trial concerns.

International obligations

[86] Article 14 of the ICCPR provides:

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

c) To be tried without undue delay;

d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance, assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

g) Not to be compelled to testify against himself or to confess guilt.

…

[87] The First Optional Protocol provides for the Human Rights Committee to receive and consider complaints from individuals claiming to be victims of violations of the rights set out in the ICCPR.

[88] As noted above, New Zealand ratified the ICCPR in 1978 and the First Optional Protocol in 1989. The PRC has signed, but not ratified, the ICCPR. The PRC has not signed or ratified the First Optional Protocol to the ICCPR.

[230] It is also relevant that repercussions in the bilateral relationship with New Zealand are not the only consideration. There are potential repercussions for the PRC internationally were it to become known that the assurances with New Zealand were not honoured. The Minister referred to this in her reasons for being satisfied that the death penalty assurance would be honoured. A failure to comply with a death penalty assurance would likely become known. The assurances do not expressly prohibit New Zealand from disclosing this.

[231] Evidence has been filed by John Adank, a senior official at MFAT with experience in diplomatic processes and communications, in connection with the assurances obtained in this case. He says it is a fundamental principle that states conduct their dealings with each other in good faith. Failure to observe diplomatic assurances give rise to serious reputational and diplomatic risk, which can affect both the immediate bilateral relationship and a country’s relationships with other members of the international community. A country’s ability to advance its domestic and foreign policy priorities at the international level depends, among other things, on the strength of its relationship with other countries and its reputation. Mr Adank concludes that “[t]o regard diplomatic assurances as ineffectual, therefore, overlooks the realities of the diplomatic and political circumstances in which they are conducted”. I accept this evidence, although note that in the present case the assurances appear not to permit New Zealand to disclose any information on Mr Kim’s treatment to other countries.

[232] In any event, relative size and economic strength are not the only measure of the strength of bilateral relationship. I note, for example, the comment from the Bar from Mr Kim’s counsel about reports that the PRC wishes to seek extradition of Chinese nationals living in this country on various charges. This, and many other factors, may be relevant when considering whether the PRC will wish to ensure assurances with New Zealand are honoured. The Government is better placed than I am to assess the strength of the relationship between New Zealand and the PRC in light of all the relevant factors. Deference is appropriate.

New Zealand’s experience with assurances

[233] Mr Adank says New Zealand has never extradited anyone to the PRC and nor has it previously sought formal assurances regarding torture or fair trial rights from any country. He says New Zealand has previously received an assurance from the PRC not to apply the death penalty. That concerned a Chinese citizen accused of murder in New Zealand, who fled to the PRC and was subsequently tried for murder in that country. The PRC abided by this assurance.

[234] The briefing paper advised the Minister of this:

NZs experience with assurances from the PRC

MFAT advises that NZ has never extradited anyone to the PRC. However, NZ has previously received an assurance on the death penalty from the PRC in the case of Xiao Zhen.

Mr Xiao, a Chinese citizen, was charged with the murder of a taxi driver in Auckland. In 2011, the PRC tried and convicted Mr Xiao (who had fled to the PRC) for murder, using evidence gathered with the cooperation of the NZ Police (PRC law allows PRC citizens to be tried in the PRC for crimes committed in other jurisdictions).

An assurance not to apply the death penalty was observed, and Mr Xiao was sentenced to fifteen years’ imprisonment. A subsequent prison visit by Embassy staff in 2013 did not reveal any concerns regarding his treatment.

[235] This information was relevant to whether the Minister could be satisfied that the PRC would honour the death penalty assurance. However, as it was limited to one instance and concerned the death penalty only, it could not be given much weight in determining whether the assurances would be honoured, particularly the assurances in relation to torture and fair trial.

Information received from other countries

[236] As noted above, the briefing paper contained information from four countries about their experience with how their citizens are treated in prisons in the PRC. In contrast, in advising the Minister of the information obtained from other countries as to their experience with assurances obtained from the PRC, the briefing paper set out
information received from just two countries. Specifically it advised:179

179 Refer [58] above.

Experience of other countries with assurances from the PRC

MFAT obtained information in confidence from other Embassies to the PRC about their experiences with assurance from the PRC. It received the following information.

[Country B]

The [Country B] Embassy provided information about its practical experience regarding the deportation of [X].

[X’s] trial finished in [date] and he was sentenced to life imprisonment in compliance with the assurance not to impose the death penalty.

Since [X’s] detention, the Embassy has not been active in monitoring or visiting. The Embassy, however, observed that it had not had any representations from [X] or his family regarding ill-treatment.

With regard to the assurances, the Embassy considered that, on the whole, they had been observed “very scrupulously”, and suggested that in high profile cases, especially with an international dimension, the PRC would be very careful to observe any undertakings agreed to.

[Country A]

[Country A] does not have an extradition treaty with the PRC, but referred to the [date] case of [Y].

[Y] was a party to [criminal offending]. The perpetrators, including [Y], fled to [country A].

[Y] accepted a plea bargain and returned to the PRC where he was convicted of [the offending]. [Country A] received assurances from the PRC regarding the death penalty, torture, treatment in accordance with international agreements to which the PRC was a party, and consular-type visits from time to time.

[Y] has subsequently been released. [Country A] considers that the PRC observed its assurances and had “no issues” regarding the way [Y] had been treated.

[237] Mr Kim submits that this information is inadequate. It comes from only two countries which each refer to only one example. It is not known whether other countries were contacted but declined to reply or whether they replied with information indicating assurances were not honoured. One these countries in particular is significantly more powerful internationally than New Zealand and so its experience may not provide much assurance as to the likely New Zealand experience. Country B’s information cannot provide much assurance as no active monitoring or visiting took place. Complaints from the person’s family could not be expected as this could lead to repercussions for them.

[238] To illustrate the inadequacies of the enquiries made of other countries, Mr Kim provided a report from the Irish Times dated 7 April 2015 entitled “China to execute man over Dublin murder”. The article reports on an unlawful killing in Dublin 13 years ago. The PRC had sought Irish assistance in bringing the perpetrators, believed to be a group of Chinese men, to justice. Assurances were provided that if assistance was provided, none of the convicted would be executed. Chinese authorities subsequently advised that six of the seven men had been “brought to justice” with one of the men to be sentenced to death with a two year reprieve.” The report continued as follows:

… Chinese officials are now reportedly seeking the help of Irish authorities in extraditing the remaining suspect. The suspect is now an Irish citizen and the Department of Foreign Affairs are reported to be unwilling to extradite him.

The Chinese authorities have continued to pressure the Department of Foreign Affairs to extradite the man, while ignoring queries about the reason for breaking the previous promise that no extradited suspect would be executed.

A senior government source told the Mail: This has caused a major diplomatic crisis. Essentially a man is to be executed because of a Garda investigation in Dublin.

“The Chinese gave assurances they would not impose the death penalty and then they broke that agreement.”

“Despite being asked on a number of occasions why and how this happened,
they will simply not discuss that matter any further.”

The man is set to face execution by lethal injection in March.

[239] Following the hearing before me, an affidavit was provided by Michael Roger, a policy officer in the China unit of the North Asia Division at MFAT. He made enquires via the New Zealand High Commission in London and received a response from the Irish Department of Foreign Affairs (DFA). The DFA confirmed the above report was accurate at the time it was published. Since then the sentence had been officially reprieved and commuted to a life sentence. This happened in November 2015, following a period of engagement over the case between Irish officials and the Chinese Embassy in Dublin.

[240] This information is potentially materially relevant to the Minister’s decision.

It does suggest that relying on information from just two countries about their

experience with assurances from the PRC may be a misleading indicator of whether the assurances will be honoured in this case. It shows the importance of taking active steps to ensure the assurances are being kept. It also provides a concrete example of problems being able to be resolved bi-laterally, albeit in this instance only, following a refusal by Ireland to extradite a person to the PRC following the failure to honour the earlier assurance.

[241] As the respondents submit, officials made enquiries of, and received information from, four countries regarding their experience with the treatment of their citizens in the PRC. It can be inferred that two of those countries did not provide any relevant information as to their experience with the PRC honouring assurances. It would have been preferable if this was explicit,180 but there is no reason to think that unfavourable information was received and not disclosed. The fact remains that the information obtained about other countries experience was limited. This is relevant to the weight the Minister could place on this information in
being satisfied that the PRC would honour the assurances.

Convention on the Rights of the Child

[242] Mr Kim has two teenage children. They are New Zealand citizens. Their mother no longer lives in New Zealand. Prior to being remanded in prison, while awaiting the extradition process, Mr Kim was the principal caregiver of the children.

[243] Mr Kim submits that no consideration was given to arts 17 and 23 of the ICCPR and art 8 of the United Nations Convention on the Rights of the Child. Article 17 provides that “No one shall be subjected to arbitrary or unlawful interference with his …family”. Article 23 provides “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Article 8 provides that “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference.”

180 Refer Lai v Canada, above n 114, at [142] (holding it was insufficient to rely on the “notes”
when nothing was disclosed about them).

[244] The respondents referred to H (H) v Deputy Prosecutor of the Italian Republic, Genoa, a decision of the Supreme Court of the United Kingdom, where this issue was raised.181 The Supreme Court held that it was necessary to examine the way in which extradition would interfere with family life. The question was whether the interference with the private and family lives of the extraditee and members of his family was outweighed by the public interest in extradition. There was a strong public interest that the United Kingdom should honour its international treaty obligations, that those accused of crime should be brought to trial and those
convicted should serve their sentence and that safe havens for fugitive offenders should be eradicated. The weight to be given to those factors depended, however, on the circumstances of the particular case. In any case where a child’s rights were involved, the child’s best interests were a primary consideration, even though they might be outweighed by countervailing considerations in the particular case.

[245] That decision involved more than one appeal. The Supreme Court allowed one of the appeals. In doing so the Court considered the consequences for the children, the period of time between the alleged offences and the bringing of prosecutions, the conduct of the person during that time, the seriousness of the offences and the public interest in extraditing the person. It dismissed the appeal in the other case because the public interest in extradition prevailed over the other considerations.

[246] In this case Mr Kim did not submit to the Minister that she should not surrender him because of the severe consequences for his children. Evidence would be needed about this before this issue could be given proper consideration. The issue may be advanced on a reconsideration by the Minister. It also may be relevant to a bail application.

Improper influence

[247] Mr Kim contends that the Minister was improperly influenced by comments made by the Prime Minister, or that there is an appearance that she was. This

181 H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338.

contention arises out of two reports of comments made by the Prime Minister in the

New Zealand Herald.

[248] The first of these was a report in the NZ Herald on 17 August 2015 as follows:

The Chinese authorities are pressing New Zealand to extradite a non- Chinese resident from New Zealand to face unknown charges in China, Prime Minister John Key revealed today at his post-Cabinet press conference
…

Mr Key said New Zealand was not having any such issues and had not sent anyone back to China, but added “there is an individual they want extradited but it is not for reasons around finance”.

“It is not a money issue. It is in relation to criminal activity and the person is
not Chinese. It is in relation to a case that took place in China.”

[249] Mr Kim submits that the Prime Minister has assumed Mr Kim is guilty because he has referred to “criminal activity” rather than “alleged criminal activity”. He submits this may have unconsciously influenced the Minister into thinking that Mr Kim was guilty. I do not accept this submission. The statement is correct. The PRC is seeking Mr Kim’s extradition and the request does relate to criminal activity. The way in which the victim was found and the results of the autopsy strongly support the conclusion that she was unlawfully killed. Whether Mr Kim is the person who is guilty of the criminal activity is not commented upon by the Prime Minister. Moreover, it is not credible to think that the Minister would be influenced by these (neutral and accurate) comments from the Prime Minister. The Minister had considerable information on which to base her decision. This included the District Court file which assessed whether there was a prima facie case against Mr Kim.

[250] The second report in the New Zealand Herald was on 18 November 2015 (12 days before the Minister made her decision to order Mr Kim’s surrender to the PRC). This reported on the Prime Minister’s comments, while attending the APEC summit in Manila, as follows:

The Chinese Government wants New Zealand to deport a murder suspect back to China to face charges and Prime Minister John Key says it’s possible, if the death penalty is ruled out.

It was a decision to be made by Justice Minister Amy Adams.

Speaking with reporters last night in Manila, Mr Key revealed more details about the case ahead of his meeting today with China’s president Xi Jinping at the Apec summit.

The case is that of Kyung Yup Kim, a Korean-born New Zealand resident who is facing charges in China over the death of a woman in Shanghai in December 2009.

He returned to New Zealand in June 2011 and has been held in custody since then, making several unsuccessful legal challenges to extradition.

He revealed in August that the Government wanted the return of a person to face trial. That person was not a Chinese national.

Yesterday Mr Key said the suspect was accused of killing another person.

“It’s a long and complicated case.”

[251] Mr Kim contends the comment “… the Government wanted the return of a person …” is ambiguous, but a tenable and more obvious meaning is that the New Zealand Government wants Mr Kim returned to the PRC. I do not agree. It is the PRC that is seeking Mr Kim’s extradition, and it is therefore the country referred to that wants his return. New Zealand is the party considering that request. I therefore reject that this comment indicates improper political interference in the decision to be made by the Minister.

[252] The Minister says in her affidavit that she kept her senior colleagues including the Prime Minister informed of developments during the above process. By way of example she notes that on 6 July 2015 she advised Cabinet that she had received final assurances from the PRC, the relevant material was to be provided to Mr Kim through his lawyer for his comment, the decision was for her to make and she expected to make it in a few weeks, and media coverage was a possibility. The matter was not discussed at Cabinet and nor did she intend it to be. She says she was not influenced by any other Minister in making her decision and nor did any other Minister seek to influence her decision in any way. There is no reason for any doubt about this.

Summary of conclusions

[253] The PRC has not committed to the relevant international instruments on fundamental human rights in the way that New Zealand has. This includes it not

having agreed to the process provided in those instruments by which complaints of alleged violations of the international obligations can be considered, nor to the system of visits by independent bodies intended as a mechanism to prevent persons being subject to torture. It also retains the death penalty.

[254] The information before the Minister was that “the consensus of commentators and the UN is that there is overwhelming credible evidence of routine use of torture and ill-treatment in the PRC, particularly to extract confessions” and, despite recent efforts at reform, torture in the PRC remained widespread. The latest report from the UN Committee against Torture (which the Minister did not have) advises that torture “is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions”. It is accepted that if Mr Kim is to be extradited, assurances from the PRC about Mr Kim’s treatment and fair trial rights are necessary. There is limited information about whether the PRC has honoured assurances in the past, and this is the first occasion on which New Zealand has been asked to extradite a person to the PRC and the first occasion on which New Zealand has negotiated assurances. Mr Kim’s extradition takes place against this backdrop.

[255] Mr Kim has not confessed to the killing. He denies it and in the District Court eligibility hearing he raised the possibility that his girlfriend, whose father is said to be a high ranking official in the Communist Party, may be responsible. The PRC system relies heavily on confessions. The apparent strength of the case against Mr Kim (at least as it can be assessed in this country on the information provided) therefore appears not to materially reduce his risk of ill-treatment in pre-trial detention when interrogated by the police. There is some information, though very limited, that murder suspects are more at risk of torture or ill-treatment than those accused of some other crimes. The Minister did not have adequate information (at least as it is disclosed in this proceeding) on which to conclude that Mr Kim’s likely detention in Shanghai would materially reduce his risk. For all these reasons Mr Kim is therefore potentially at personal risk, although his risk is not at the highest level, and the critical issue was whether assurances would adequately protect Mr Kim.

[256] The Minister’s process was thorough and considerable work has been undertaken to seek to ensure Mr Kim’s rights will be protected if he is surrendered to the PRC. It is apparent also that the Minister has come to a considered view on the basis of that work. I nevertheless consider the Minister’s decision to order Mr Kim’s surrender must be reconsidered. I have reached the conclusion that this is necessary despite the care that has gone into seeking to ensure that Mr Kim’s rights will be protected if he is surrendered and despite the considerable time that has passed since Mr Kim was first remanded in prison as a result of the extradition request.

[257] I note and adopt, however, the following comment of Lord Hope, in directing a reconsideration of a decision concerning extradition to Albania in Kapri v Lord Advocate:182

The further delay that will result in the resolution of these proceedings is regrettable. But it is of the highest importance that due process be observed in matters of this kind. It is always tempting to resort to short cuts. But where a person’s liberty and his right to a fair trial is at issue that temptation must be resisted. It is plain that the matter must be properly investigated before a decision is taken as to whether the appellant’s extradition … should go ahead.

[258] I also note that this is the first occasion on which this country has been asked to extradite a person to the PRC and the first occasion on which assurances have been sought and obtained. It is important to ensure this is done properly to protect Mr Kim’s rights and potentially others for whom his case may form a precedent. The respondents acknowledge the real issue in this case is the adequacy of the assurances.

[259] The principal reason why I consider the surrender order must be reconsidered is that the Minister has not explicitly addressed why she is satisfied that the assurances could be relied upon to protect Mr Kim when they do not appear to permit New Zealand representatives to disclose information about his treatment to third parties. Issues concerning the assurances are left to be resolved on a bilateral diplomatic basis. In view of New Zealand’s limited experience with assurances from
the PRC and the limited information from other countries about their experience

182 At [34].

with the PRC honouring assurances, this may be inadequate to protect Mr Kim’s

rights. I consider this requires explicit consideration by the Minister.

[260] In addition, the Minister has concluded that Mr Kim will receive a trial that to a reasonable extent complies with the rights in art 14 of the ICCPR. However, in reaching that conclusion, she has not explicitly addressed whether the assurances sufficiently protect Mr Kim from ill-treatment and his right to silence during pre-trial interrogations, when they do not provide for Mr Kim to have the right to a lawyer present for all pre-trial interrogations. The assurances do provide that all interrogations will be recorded and provided, on request, to New Zealand representatives. The Minister has not, however, specifically addressed whether this is an adequate substitute for the presence of a lawyer in light of the power exerted by public security officers (said recently by the UN Committee to wield excessive power and be without effective control) and when the presence of a lawyer when an accused is questioned by the police is a well established right in this country. There is also the issue of whether Mr Kim will be compelled to answer questions in view of the apparently conflicting criminal procedure laws on this issue. At the moment that has been the subject of communications between officials from the two countries, but it is not specifically addressed in the assurances.

[261] Lastly I note that if the assurances are relied on to order Mr Kim’s surrender, the Minister will need to be satisfied that the access to Mr Kim which is permitted in the assurances will be proactively undertaken. On the information provided to this Court it is unclear what visits will actually occur (as opposed to what access is permitted) and whether any reliance can be placed on South Korea to monitor Mr Kim’s treatment (it is unclear if enquiries have been made with South Korea about this).

Result

[262] The application to review the order to surrender Mr Kim is granted. The Minister is directed to reconsider whether Mr Kim is to be surrendered in light of this judgment, and in particular the matters referred to in [259] and [261] above. At the hearing I did not hear submissions on the appropriate orders if I were to grant the

application for review. I seek memoranda within seven days (or longer if necessary) as to whether it is appropriate to quash the existing surrender order or whether it should be stayed, and whether any other consequential orders should be made. I am uncertain if costs are in issue. That too may be the subject of memoranda. Mr Kim’s counsel is also to advise whether the cause of action in respect of Mr Kim’s treatment is pursued, in which case timetabling directions will be necessary.

Mallon J

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Citations

Kim v Minister of Justice [2016] NZHC 1490

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UNDER	the Extradition Act 1999, the New Zealand Bill of Rights Act 1990, the Judicature Amendment Act 1972, the common law, and the International Covenant on Civil and Political Rights, and the United Nations Convention Against Torture
IN THE MATTER OF	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