Kim v The People's Republic of China
[2013] NZCA 136
•6 May 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA153/2013 [2013] NZCA 136 |
| BETWEEN KYUNG YUP KIM |
| AND THE PEOPLE'S REPUBLIC OF CHINA |
| Hearing: 24 April 2013 |
| Court: Arnold, Harrison and White JJ |
| Counsel: T Ellis and G K Edgeler for Appellant |
| Judgment: 6 May 2013 at 3.00 pm |
Reissued: 10 May 2013 at 3.00 pm
Effective date of judgment: 6 May 2013 at 3.00 pm
JUDGMENT OF THE COURT
The appeal is struck out.
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REASONS OF THE COURT
(Given by White J)
In the High Court at Auckland Venning J dismissed an appeal by Mr Kim[1] against a decision of Judge Cunningham in the District Court at Auckland[2] refusing
him bail pending his extradition hearing.[3] The issue now is whether this Court has jurisdiction to hear a second appeal by Mr Kim.
[1] Kim v The People’s Republic of China [2013] NZHC 388.
[2]R v Kim DC Auckland CRI 2011-004-11056, 17 December 2012.
[3]Extradition Act 1999, s 24. The background to Mr Kim’s case is explained in Kim v The Prison Manager, Mount Eden Corrections Facility [2012] NZSC 121, the judgment of the Supreme Court dismissing his appeal against refusal of an application for habeas corpus.
The issue arises because s 66(4) of the Bail Act 2000, which governs this Court’s jurisdiction to hear appeals from the High Court relating to bail, provides that:
Nothing in this section applies in respect of any decision made by a High Court Judge if that decision was made on appeal from any decision of a District Court.
The clear purpose of this provision is to exclude a second right of appeal to this Court when a right of appeal from the District Court to the High Court has already been exercised.[4]
[4] Misuik v R [2010] NZCA 142, (2010) 24 CRNZ 864.
Notwithstanding s 66(4), counsel for both Mr Kim and the Crown filed written submissions suggesting that this Court has jurisdiction to hear Mr Kim’s appeal. They submitted that, as ss 28 and 49(1) and (2) of the Bail Act do not apply in this case, the High Court has (and effectively exercised) inherent jurisdiction to hear an originating application for bail[5] rather than an appeal from the District Court and this Court therefore has jurisdiction to hear the appeal against the High Court’s determination of that originating application under s 66(1) and (2) of the Bail Act.
[5] Zaoui v Attorney-General [2004] NZSC 31, [2005] 1 NZLR 577 at [26].
At the same time, however, Ms Mobberley acknowledged that her comprehensive submissions, which were adopted by Mr Edgeler for Mr Kim, depended on this Court accepting that the power of the District Court under s 28(1) of the Bail Act to grant a defendant bail for the period of an adjournment does not include power to refuse the defendant bail as occurred in Mr Kim’s case. Ms Mobberley accepted that if the power under s 28(1) includes the power to refuse bail for the period of an adjournment, then Mr Kim’s appeal to the High Court would have been against the decision of Judge Cunningham in the District Court, the High Court would not have been exercising its inherent jurisdiction and, by virtue of s 66(4), Mr Kim would have no second right of appeal to this Court.
The issue of jurisdiction turns therefore on the interpretation of s 28(1) of the Bail Act which provides:
In any case referred to in section 46(1) of the Summary Proceedings Act 1957 (which relates to dealing with a defendant on adjournment), the District Court may grant the defendant bail under this section for the period of the adjournment.
There is no dispute that ss 22 and 23 of the Extradition Act 1999 (relating to the powers of the District Court following arrest) applied to Mr Kim and that by virtue of those provisions s 46(1) of the Summary Proceedings Act 1957 and s 28 of the Bail Act also applied to him when he sought an adjournment of his extradition hearing in the District Court and applied to that Court for bail.
Under s 23(2) of the Extradition Act Mr Kim was not bailable as of right and could not go at large without bail. Under s 22(3) of the Extradition Act his application for bail had to be determined by a Judge. Under s 46(1) of the Summary Proceedings Act the District Court is empowered to grant a defendant bail under the Bail Act or remand the defendant in custody for the period of the adjournment.
Against this statutory background, we have no difficulty in concluding that, notwithstanding the submissions for the parties, the power of the District Court under s 28(1) of the Bail Act to grant bail for the period of an adjournment must include the power to refuse to do so. It is trite law that when Parliament confers a statutory power on a tribunal to grant an application the tribunal also has power to refuse to exercise it.[6] The express power to grant the application includes by necessary implication the power to refuse to exercise it.[7] If this were not the case, the Crown would have a right of appeal when the District Court Judge decided to grant bail, but the defendant would not have a right of appeal when the Judge refused to grant bail. Parliament would not have intended such a perverse outcome.
[6]Judicature Amendment Act 1972, s 3 (definitions of statutory power and statutory power of decision) and s 4 (application for review of refusal to exercise a statutory power).
[7]F A R Bennion Bennion on Statutory Interpretation (5th ed, LexisNexis, London, 2002) at Part IX.
This means that when Judge Cunningham in the District Court refused Mr Kim’s application for bail, she was refusing to exercise her power to do so under s 28(1) of the Bail Act. As Venning J in the High Court correctly accepted,[8] Mr Kim’s appeal to the High Court was against that decision under that statutory provision.
[8] Kim v The People’s Republic of China, above n 1, at [17].
Once it is accepted that Mr Kim has exercised his statutory right of appeal to the High Court from the decision of the District Court under s 28(1) of the Bail Act and that the High Court was therefore not exercising its inherent jurisdiction, there is no question that, by virtue of s 66(4) of the Bail Act, Mr Kim has no second right of appeal to this Court. The parties cannot by agreement confer jurisdiction on this Court when none exists.
For completeness we record that Mr Ellis informed the Court that if this Court found against Mr Kim he would pursue his remedies before the United Nations Working Group on Arbitrary Detention. That is a matter for Mr Kim, but we note that it remains open for him to have his District Court hearing under s 24 of the Extradition Act, which has been adjourned at his request since 2011, brought on for determination.[9]
Result
[9] Kim v The Prison Manager, Mount Eden Corrections Facility, above n 3, at [4] and [76].
For the reasons we have given, this Court has no jurisdiction to hear and determine Mr Kim’s appeal and it is struck out.
Solicitors:
Crown Law Office, Wellington for Respondent
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