Kim v The Prison Manager, Mt Eden Corrections Facility
[2014] NZHC 3051
•3 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-3107 [2014] NZHC 3051
UNDER the Habeas Corpus Act 2001 and
Extradition Act 1999
IN THE MATTER
of a request from the People's Republic of China for the extradition of Kyung Yup Kim
BETWEEN
KYUNG YUP KIM Applicant
AND
THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY AND ATTORNEY-GENERAL
Respondents
Hearing: 28 November 2014 Counsel:
T Ellis and S Park for Applicant
JC Pike QC and A Walker for RespondentsJudgment:
3 December 2014
JUDGMENT OF BREWER J
This judgment was delivered by me on 3 December 2014 at 9:15 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Carole Curtis (Auckland) for Applicant
Crown Law (Wellington) for Respondents
Counsel: Dr Tony Ellis
KIM v THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY AND ATTORNEY-GENERAL [2014] NZHC 3051 [3 December 2014]
Introduction
[1] The People’s Republic of China wants to extradite Mr Kim so that he can be tried on one count of intentional homicide. It invoked New Zealand’s extradition process. As a result, Mr Kim was arrested on 10 June 2011. He has been in custody ever since. This is because Mr Kim does not want to be extradited to China and has challenged every step of the extradition process.
[2] On 29 November 2013, in the District Court at Auckland, Judge BA Gibson determined that Mr Kim is eligible for surrender. That is to say, Mr Kim’s case meets the criteria under s 24 of the Extradition Act 1999 (“the Act”) and so he can be extradited if the Minister of Justice decides that it is lawful and right that he should be.
[3] However, immediately after Judge Gibson delivered his judgment, counsel for Mr Kim advised the Judge that Mr Kim would appeal. The Judge then dealt with Mr Kim’s custodial status under the section which provides for custody pending determination of appeal.1
[4] The Act provides2 that once a person is determined to be eligible for surrender, the Court must issue a warrant for the person’s detention “pending the surrender of the person to the extradition country or the person’s discharge according to law”. However, if, as here, immediate advice is given that the person intends to appeal against the determination, the Court may order that the person continue to be detained “pending the determination of the appeal”.3 That is what Judge Gibson did (although the warrant had an additional phrase, the significance of which I will come to).
[5] The warrant which was issued reads:4
1 Extradition Act 1999, s 70.
2 Section 26(1)(a).
3 Section 70(1).
4 Extradition Regulations 1999, Form EA11.
WARRANT FOR DETENTION OF PERSON PENDING DETERMINATION OF APPEAL
(Section 70, Extradition Act 1999)
TO: Every member of the police
AND TO: The Manager of Mt Eden Corrections Facility
On 29 November 2013 the District Court at Auckland made a determination under section 24 of the Extradition Act 1999 in relation to the eligibility for surrender of KIM Kyungyup of Auckland, occupation unknown.
Immediately after the determination was made, KIM Kyungyup informed the Court that the party intends to appeal against the determination.
KIM Kyungyup is currently detained in custody.
I DIRECT YOU, the said members of the police, to arrest KIM Kyungyup and deliver him to the Manager of Mt Eden Corrections Facility; and
I DIRECT YOU, the said Manager, to receive KIM Kyungyup into custody and to detain him pending the determination of the appeal or discharge according to law.
DATED at Auckland this 29th day of November 2013
“BA Gibson”
District Court Judge
[6] On 11 December 2013, Mr Kim filed his appeal against Judge Gibson’s determination. The procedure of stating questions of law for the High Court to decide on the appeal was completed on 13 May 2014. However, on 12 September
2014, Mr Kim abandoned his appeal by notice of abandonment. On the same day, Brown J endorsed the notice: “Appeal dismissed”.
[7] Mr Kim now applies for a writ of habeas corpus directing his immediate release from custody and detention. His argument is that the warrant issued by Judge Gibson expired as soon as he abandoned his appeal.
The issue
[8] The issue is whether Mr Kim’s detention following his abandonment of his appeal against Judge Gibson’s determination that he is eligible for surrender is lawful.
The law
[9] The writ of habeas corpus has an ancient history and a constitutional prominence which have been written about exhaustively. For my current purpose, I am content to note that s 14(1) of the Habeas Corpus Act 2001 puts the onus on the respondents to establish that the detention of Mr Kim is lawful. If they fail to do that then I “must grant as a matter of right a writ of habeas corpus” ordering Mr Kim’s release.
Discussion
[10] The argument of Mr Ellis for Mr Kim is a simple one. The warrant issued under s 70 cannot last beyond the determination of the appeal, and the appeal has been determined. The currency of the warrant, as stated in the warrant, is:
… pending the determination of the appeal or discharge according to law.
The final phrase does not extend the currency of the warrant beyond the determination of the appeal because (a) it cannot, since s 70 does not authorise it, and (b) the “or” is disjunctive. It is one or the other, and it could be possible for a discharge according to law to arise before the determination of the appeal – for example, the extradition request might be withdrawn.
[11] Mr Pike QC, for the respondents, had no warning that this was to be the main issue in the habeas corpus application. The validity of the warrant was not a ground set out in the application for the writ, nor advanced in Mr Ellis’s written submissions of 26 November 2014. It was not until Mr Ellis read the copy of the warrant exhibited to the affidavit of Terence Otene, sworn on 26 November 2014 in opposition to the issue of the writ, that he realised the issue existed. Accordingly, Mr Ellis handed up additional submissions at the beginning of the hearing. I took a short adjournment so that Mr Pike could consider the submissions. An application for a writ of habeas corpus is an urgent, summary remedy. It must, almost always, be given precedence over all other matters before the High Court. It is for the respondents to prove that detention is lawful. Mr Pike made the best of the situation with which he was faced without seeking further time to consider the respondents’ position.
[12] On 2 December 2014, counsel for the respondents filed and served copies of a new approach to the District Court which contains an argument not put before me by Mr Pike. I find it persuasive but, because it does not affect the decision I have reached, I will incorporate it in my reasons without re-opening the hearing.
[13] As I have said, s 26 of the Act requires the District Court, if it determines under s 24 that a person is eligible for surrender, to issue a warrant for the detention of the person “pending the surrender of the person to the extradition country or the person’s discharge according to law”. The argument contained in the new approach to the District Court is that this is what Judge Gibson was required to do when he made his determination that Mr Kim is eligible for surrender, notwithstanding the immediate advice given by counsel that Mr Kim would appeal the determination. Instead, the Judge issued the warrant under s 70 of the Act.
[14] Section 70 reads:
70 Custody pending determination of appeal
(1) If—
(a) A District Court makes a determination under section 24 or section 45; and
(b) Immediately after the court makes the determination, either party informs the court that the party intends to appeal against the determination,—
the court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal.
(2) If—
(a) A District Court makes a determination under section 24 or section 45; and
(b) Either party files a notice of appeal against the determination,—
any District Court or the High Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal.
(3) If a person is detained under an order made under this section or arrested and detained under a warrant issued under this section,—
(a) If the proceedings are under Part 3, sections 22, 23(1) to
23(3), 26(2) and 26(3), and 27 apply to the detention of the person with any necessary modifications as if the appeal
proceedings were proceedings under section 24 to determine
whether or not the person is eligible for surrender:
…
[15] The argument is that a warrant can be issued under s 70 only if the appeal is by the extraditing party against a determination that a person is not eligible to be surrendered for extradition. This argument is not without its difficulties given the wording of s 70, but it does explain why ss 72 and 73, which provide for the powers of the Court on the determination of an appeal, fail to provide a mechanism for the continued detention of a person who appeals a determination that he is eligible for surrender and his appeal is unsuccessful.
[16] The difficulties to which I have referred arise from s 70 making no distinction between whether the party appealing is the person who is the subject of the determination or the opposing party. For example, a consequence of “either party” informing the Court that the party intends to appeal is that the Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal.
[17] If the mandatory requirement under s 26 operates to trigger an order that the person who is the subject of the determination be detained “pending the surrender of the person to the extradition country or the person’s discharge according to law”, then what purpose is there in giving the Court power to order that the person continue to be detained? Or, if the person is already detained pursuant to s 26, why, if there is an order under s 70(1) that the person continue to be detained, is there a need for s 70(3)(a) to apply to him?
[18] It might be there is some possible permutation of custody which has not occurred to me. Nevertheless, it is clear from ss 72 and 73 that on the determination of an appeal it is assumed a person who appeals unsuccessfully against a determination that he is eligible for surrender will remain in detention.
[19] Section 73(1) addresses the situation where a person appeals against a determination that he is eligible for surrender and the Court allows the appeal and reverses the determination. In such a case, the Court must either discharge the person or remit the determination to the District Court with a direction that the proceedings to determine whether the person is eligible for surrender be reheard. There is no specific power to direct that the person remain in custody if the latter option is chosen. The assumption is that he remains in custody, and that must be pursuant to s 26(1).
[20] Further, s 73(3) provides for the situation where although a person appeals against a determination that he is eligible for surrender and succeeds, the Court may nevertheless decline to reverse or amend the determination if it considers that no substantial wrong or miscarriage of justice has occurred and that the determination ought to be upheld. Again, there is no provision for the Court to order further detention. The assumption is that s 26(1) continues to apply.
[21] The situation is different if the appeal is against a determination that a person is not eligible for surrender and the Court finds that the determination includes an error of law. Under this scenario, the person who is subject to the determination has been held in detention pursuant to a warrant issued under s 70 “pending the determination of the appeal”. Since the appeal has been determined, the Court needs powers to continue the detention, if appropriate. Section 73(4) provides those powers. The Court may – and this would occur where its decision simply overturns that of a District Court Judge – exercise the powers of a District Court under s 26(1)-
(3) as if it were a District Court.5 In other words, the person subject to the
determination is put into the situation in which he would have been if the District
Court Judge had found against him in the s 24 proceedings.
[22] However, if the result of the appeal against the determination that the person is not eligible for surrender is that an error of law is identified, but the Court decides it is just to remit the determination to the District Court, then the power given is a power to issue a warrant for the arrest and detention of the person pending the
District Court’s reconsideration of the determination or rehearing “and section 70(3)
5 Section 73(4)(a). This applies to proceedings under Part 3, which is the situation in this case.
applies to any warrant issued under this paragraph as if the warrant were issued under section 70”.6 In other words, because the issue of eligibility for surrender is still open, the person subject to the determination is returned to the position he was in prior to the District Court Judge making his initial determination.
[23] Given the Hampton Court maze of the Act (as Mr Pike put it), I am not surprised that Judge Gibson issued the warrant under s 70. But he should not have and it has now expired. The appeal has been determined and the warrant has expired. I am aware now of the documents the respondents have filed with the District Court in an attempt to regularise the situation. Mr Ellis has filed a response in opposition. However, this morning I have been shown a fresh warrant issued by Judge Gibson under s 26(1) of the Act. My decision, except as to costs, is now moot.
Decision
[24] Nevertheless, I find that the respondents failed to establish that Mr Kim’s
detention under the s 70 warrant was lawful. At best, it had expired. [25] I would have granted the application for a writ of habeas corpus.
[26] I award costs in favour of the applicant on a 2B basis. They may be set by the Registrar if the parties cannot agree. I stipulate that costs should be calculated only on the application for habeas corpus and not on the application for discharge
under s 36 of the Act.7
Brewer J
6 Section 73(4)(c).
7 See the Minute/Directions of Venning J, 27 November 2014.
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