Kim v Prison Manager, Mt Eden Corrections Facility - [2012] NZCA 471

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA637/2012
[2012] NZCA 471

BETWEEN KYUNG YUP KIM
Appellant

AND THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY
Respondent

Hearing: 8 October 2012

Court: Arnold, Randerson and White JJ

Counsel: T Ellis and G K Edgeler for Appellant
A M Powell and D J Perkins for Respondent

Judgment: 12 October 2012 at 3 p.m.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Costs are reserved in terms of [74] of this judgment.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No
Introduction	[1]
Background facts	[4]
The statutory framework	[17]
First issue: Was the Judge wrong to find there was power under s 23 of the Act to detain Mr Kim in custody?	[28]
Discussion	[34]
Second issue: Was the Judge wrong to find that two alleged deficiencies in the request to extradite Mr Kim were not suitable for determination in a habeas corpus application?	[45]
Discussion	[51]
Third issue: Should the Judge have treated the application for habeas corpus as an application for judicial review and ordered an expedited hearing?	[70]
Disposition	[73]

Introduction

The appellant Mr Kim is a citizen of the Republic of Korea but is also a permanent resident of New Zealand. The People’s Republic of China (the PRC) has made a request under s 18 of the Extradition Act 1999 (the Act) for Mr Kim’s surrender in connection with a murder alleged to have been committed in Shanghai in 2009.
Judge Broadmore issued a provisional arrest warrant under s 20 of the Act dated 9 June 2011. Mr Kim was arrested and brought before the District Court. He was then remanded in custody where he has remained despite attempts to obtain bail. Several fixtures have been made in the District Court for the determination under s 24 of the Act of Mr Kim’s eligibility for surrender, but these applications have all been adjourned at Mr Kim’s request. He is currently held by the respondent in custody under a warrant issued by Judge Gibson on 2 July 2012 pursuant to s 23 of the Act.
Some 15 months after his arrest and detention, Mr Kim applied to the High Court on 12 September 2012 for a writ of habeas corpus. In a judgment issued on 18 September 2012, Kós J dismissed the application.[1] Mr Kim now appeals against the dismissal of his application on three grounds:
(a)The Judge was wrong to find there was power under s 23 of the Act to detain Mr Kim in custody;
(b)The Judge was wrong to find that two alleged deficiencies in the request to extradite Mr Kim were not suitable for determination in a habeas corpus application; and
(c)The Judge ought to have treated the application for habeas corpus as an application for judicial review and ordered an expedited hearing.

Background facts

[1] Kim v R [2012] NZHC 2417.

On 11 March 2010,…

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] NZCA 471
Decision Date: 12 October 2012

CaseChat Overview and Summary

The appeal by Kyung Yup Kim against the dismissal of his application for a writ of habeas corpus was dismissed by the Court of Appeal of New Zealand. Mr Kim, a permanent resident of New Zealand and citizen of the Republic of Korea, is subject to an extradition request by the People's Republic of China for surrender in connection with a murder alleged to have been committed in Shanghai in 2009. The Court rejected three grounds of appeal. First, it found that the Judge was correct to find there was power under s 23 of the Extradition Act 1999 to detain Mr Kim in custody. Second, it held that the alleged deficiencies in the request to extradite Mr Kim were not suitable for determination in a habeas corpus application. Finally, the Court held that the Judge was not wrong to decline to treat the application for habeas corpus as an application for judicial review and order an expedited hearing. The appeal is dismissed and costs are reserved.

Orders