Kim v The Prison Manager, Mt Eden Corrections Facility - [2014] NZHC 3051

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 Respondents

Judgment:

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.

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: [2014] NZHC 3051
Decision Date: 3 December 2014

CaseChat Overview and Summary

Kyung Yup Kim has applied to the High Court for a writ of habeas corpus, seeking his immediate release from custody. Mr Kim was arrested on 10 June 2011 at the request of the People’s Republic of China, which seeks his extradition so that he can be tried on one count of intentional homicide. Mr Kim does not want to be extradited and has challenged every step of the extradition process. The issue before the Court was 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 Court found that the respondents failed to establish that Mr Kim’s detention under the warrant issued under s 70 of the Extradition Act 1999 was lawful. At best, it had expired. The Court would have granted the application for a writ of habeas corpus. The Court awarded costs in favour of the applicant on a 2B basis. They may be set by the Registrar if the parties cannot agree. The Court stipulated 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.

Orders