Kim v Prison Manager, Mount Eden Corrections Facility - [2012] NZSC 121

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IN THE SUPREME COURT OF NEW ZEALAND

SC 80/2012
[2012] NZSC 121

BETWEEN KYUNG YUP KIM
Appellant

AND THE PRISON MANAGER, MOUNT EDEN CORRECTIONS FACILITY
Respondent

Hearing: 10 December 2012

Court: Elias CJ, McGrath, William Young, Chambers and Glazebrook JJ

Counsel: T Ellis and G K Edgeler for Appellant
M R Heron QC Solicitor-General and D J Perkins for Respondent

Judgment: 20 December 2012

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order for costs.

____________________________________________________________________

REASONS

Elias CJ, McGrath and Glazebrook JJ	[1]
William Young J	[49]
Chambers J	[61]

ELIAS CJ, McGRATH AND GLAZEBROOK JJ

(Given by McGrath J)

Introduction

Kyung Yup Kim, a citizen of the Republic of Korea and a permanent resident of New Zealand, is presently detained in Mt Eden Prison pursuant to a warrant of detention issued under the Extradition Act 1999. Mr Kim appeals to this Court against a judgment of the Court of Appeal,[1] upholding the High Court,[2] which refused his application for a warrant of habeas corpus.

Procedural background

[1]Kim v Prison Manager, Mt Eden Corrections Facility [2012] NZCA 471, [2012] 3 NZLR 845.

[2]Kim v Prison Manager, Mt Eden Corrections Facility [2012] NZHC 2417, [2012] NZAR 990.

In May 2010 Interpol published a Red Notice in respect of the appellant on its public website. On 1 June the police in Shanghai wrote to the New Zealand office of Interpol asking that he be provisionally arrested. The letter foreshadowed that the People’s Republic of China intended to request the surrender of Mr Kim from New Zealand to China for the intentional murder of Ms Peiyun Chen in Shanghai in December 2009. It was accompanied by a certified copy and English translation of a warrant for the arrest of the appellant issued by the Shanghai Municipal Public Security Bureau. The letter also enclosed a number of documents variously headed “Identification Record”, “Interrogation Record” and “Questioning Record” comprising verified written statements to police officers of the Criminal Investigation Division of the Bureau. China’s request for extradition of the appellant was received by the New Zealand Government on 23 May 2011.
An ex parte application for a provisional arrest warrant in respect of the appellant was made on behalf of China early in June and a provisional arrest warrant dated 9 June 2011 was issued by Judge Broadmore.
The appellant was arrested soon after and came before the District Court on 13 June. He did not then seek bail, indicating he might do so in the future, and was remanded in custody. When some six months later he applied for bail, his application was heard by Judge Gibson and refused with reasons on 7 February 2012.[3] An appeal to the High Court against that decision was dismissed.[4] Since then Mr Kim has been detained under warrants which have been successively reissued at callover hearings at the District Court. During the period of his detention the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZSC 121
Decision Date: 20 December 2012

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal against a refusal to grant a writ of habeas corpus. Kyung Yup Kim, a South Korean national and permanent resident of New Zealand, was arrested and detained under a warrant issued by a District Court Judge. The warrant was issued on the basis of a request from the People's Republic of China for the appellant's provisional arrest and extradition to face charges of murder. The Court of Appeal had previously refused the appellant's application for a writ of habeas corpus, holding that the issues he raised were not suitable for determination in those proceedings. The Supreme Court dismissed the appeal, agreeing with the Court of Appeal that the issues were not suitable for summary determination in habeas corpus proceedings and should be addressed in judicial review proceedings. The majority held that the appeal should be dismissed on the basis that the issues were not properly susceptible to fair and sensible summary determination. Justice Chambers dissented, holding that the Courts below were correct to dismiss the proceeding on the basis that the issues were not suitable for habeas corpus proceedings.

Orders