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IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA562/2017
[2019] NZCA 209

BETWEEN
KYUNG YUP KIM
Appellant

AND
MINISTER OF JUSTICE OF
NEW ZEALAND
First Respondent

ATTORNEY-GENERAL OF
NEW ZEALAND
Second Respondent

[…]

JUDGMENT OF THE COURT

A The appeal is allowed.

B The Minister of Justice’s decision to surrender the appellant under s 30 of the Extradition Act 1999 is quashed.

C The Minister of Justice must reconsider whether the appellant is to be surrendered in accordance with the matters identified at [278] of this judgment.

D The respondents are jointly and severally liable to pay the appellant one set of costs for a standard appeal on a band B basis and usual disbursements. We certify for second counsel.

E Costs in the High Court are to be dealt with by that Court having regard to this judgment.

REASONS OF THE COURT
(Given by Winkelmann J)

Introduction

Mr Kim is a citizen of the Republic of Korea. He came to New Zealand with his family in 1989, when he was 14 years old. He and his mother are permanent residents of New Zealand, while his father and younger brother are New Zealand citizens. Mr Kim is the father of two teenage children, for whom he is the principal caregiver.

Chinese authorities allege that in 2009, Mr Kim killed a 20-year-old woman Pei Yun Chen in Shanghai. Chinese police have both forensic and circumstantial evidence linking Mr Kim to the homicide. On 25 May 2011 New Zealand received a request from the People’s Republic of China (the PRC) seeking the extradition of Mr Kim on one count of intentional homicide. That request included an assurance that if convicted, Mr Kim would not be sentenced to death.

In response to that request, Mr Kim was arrested in New Zealand and held in custody pending completion of extradition proceedings. He remained detained for over five years as the extradition proceedings made their way through the courts before eventually being released on electronic bail. The proceedings in connection with this request for extradition have a lengthy and complex history, which we need only outline in part. In the ensuing seven years since that initial arrest, Mr Kim has resisted surrender arguing that he will be at significant risk in the PRC of torture, extra-judicial killing or the imposition of the death penalty. He says his mental health is such that he should not be surrendered, and that if he is surrendered, he will receive inadequate treatment. He claims to have a defence to the charge but says he will not receive a fair trial if returned to the PRC because of systemic and fundamental flaws in its criminal justice system. Finally, Mr Kim argues that if convicted, he will be exposed to a disproportionately severe sentence.

The Minister of Justice is responsible under the Extradition Act 1999 (the Extradition Act) for the decision to surrender Mr Kim. The Minister sought and received various assurances from the PRC to meet the concerns identified by Mr Kim and Ministry officials in connection with the risk of torture and Mr Kim’s right to a fair trial. In late 2015, following receipt of those assurances, the then Minister of Justice, the Hon Amy Adams, determined that Mr Kim was to be surrendered.

She concluded that Mr Kim was at risk of torture if surrendered but that assurances provided by the PRC which allowed extensive monitoring of Mr Kim’s treatment adequately addressed this risk. In assessing the risk the assurances had to meet, the Minister proceeded on the basis that, as an ordinary criminal, Mr Kim was not at high risk of torture, and that other aspects of his case further reduced the risk. She was satisfied that recent reforms to criminal procedure, and assurances regarding access to a lawyer, met any risk that Mr Kim would not receive a fair trial on his return.

Mr Kim applied successfully to judicially review that decision before Mallon J. The Judge identified reviewable errors and directed the Minister to reconsider her decision.

The Minister, having reconsidered whether to surrender Mr Kim, again decided that Mr Kim was to be surrendered. Mr Kim then applied to judicially review the Minister’s second surrender decision, but on this second occasion, Mallon J refused the application.

Mr Kim now appeals that refusal of judicial review. He argues that in declining the second application for review, the Judge overlooked serious errors in the Minister’s decision-making process and reasoning. Mr Kim’s overall contention is that in deciding to surrender Mr Kim, the Minister failed to come to grips with the functioning of the PRC’s legal system in which pre-trial torture and extra-judicial execution is endemic, and a fair trial is not possible. He argues the Minister underestimated the extent of the risks that Mr Kim faced, due to errors in her decision-making process and because she took a view of the facts not reasonably open to her. He contends that the Minister ought not to have relied upon diplomatic assurances because that practice undermines the standing of international conventions and the rule of law in the PRC, and because the assurances in this case are inadequate to meet the concerns they purport to address.

The issues on this judicial review are difficult. Mr Kim’s case is the first occasion on which New Zealand has been asked to extradite to the PRC. Extradition processes exist to ensure that those who commit crimes cannot escape consequences by fleeing the jurisdiction — that there should be no safe havens for those who commit serious crimes. And it is alleged that Mr Kim has committed a very serious crime, a crime in respect of which credible evidence has been gathered by the PRC. But on the other hand, the Minister of Justice is asked to return Mr Kim to a country that has a criminal justice system very different to our own, that has not committed to relevant international instruments in the way or to the extent that New Zealand has — a country in which, it is reliably reported, torture remains widespread (notwithstanding procedural reforms in the last 40 years which have reduced the incidence of torture) and in which the criminal justice system is subject to political influence. New Zealand has obligations under international law to refuse to return a person to a jurisdiction in which they will be at substantial risk of torture, or where they will not receive a fair trial.

It is in this context that the courts are asked to review the Minister’s exercise of her decision-making power to surrender Mr Kim. On the view we have taken, the Minister must again re-visit the decision to surrender. We have summarised our reasons at [275] below.

[…]

[275] Applying this standard of review of the Minister’s decision, we have found that the Judge erred in some respects in refusing Mr Kim’s application for judicial review, but not in others. We summarise our conclusions as follows:

First ground — diplomatic assurances

(a) The Judge did not err in finding that it was open to the Minister to seek diplomatic assurances to meet the risk of torture. New Zealand’s international obligations provide no absolute prohibition on relying on assurances as relevant to an assessment of the risk of torture.

(b) The Judge correctly found that before relying upon assurances, the Minister was required to address the preliminary question, whether the general human rights situation in the PRC was such that assurances should be sought. The reason for addressing this issue is that such an inquiry may reveal whether the value of human rights is recognised in the requesting state, and whether the rule of law as it exists in that state is sufficient to secure those rights to the person the subject of the request. However, we consider that the Judge erred in concluding that the Minister did address that preliminary question. The Minister referred to the “general situation” in the PRC but only with regards to torture and only as part of her reasoning as to the risk of torture faced by Mr Kim. The Minister did not address as a separate and preliminary question whether the human rights situation in the PRC more generally is such that assurances should not be sought or accepted.

Second ground — irrelevant considerations

(c) The Judge did not err in rejecting an argument that the Minister took into account an irrelevant consideration, namely helping the PRC establish credibility in the international community. The briefings provided to the Minister did not put the matter on that basis. Rather, officials highlighted that the PRC would be motivated to honour its assurances because of the serious consequences for the bilateral relationship as well as the PRC’s international reputation should the assurances not be honoured. This material was clearly relevant to the Minister’s assessment of the likelihood of whether the PRC would comply with its undertakings.

Third ground — torture

(d) The Judge was correct to conclude that it was relevant for the Minister to ascertain whether Mr Kim was in one of the classes of people at high risk of torture in the PRC. However, the Judge erred in concluding that on the material before the Minister it was open to her to find that Mr Kim, as a murder accused, is not at high-risk. Relevant evidence asserting that murder accused were at a high-risk of torture could not reasonably be put to one side and no evidence before the Minister went so far as to conclude that murder accused were not at a high-risk of torture.

(e) The Judge erred in upholding the Minister’s reliance on the fact that Mr Kim could be tried in Shanghai, the stage of the investigation, and the strength of the case against Mr Kim, as reducing the risk of torture.

There was insufficient evidence for treating those factors as reducing the risk of torture in this case.

(f) The Judge erred in failing to identify the following deficiency in the Minister’s consideration of the adequacy of the assurances against torture. The Minister erred in failing to address how the assurances (which depended upon opportunities being created for Mr Kim and others to report torture, and upon monitoring) could protect against torture when:

(i) torture is already against the law, yet persists;

(ii) the practice of torture in the PRC is concealed, and its use can be difficult to detect;

(iii) videotaping of interrogations is selective and torture often occurs outside the recorded session;

(iv) evidence obtained by torture is frequently admitted in court; and

(v) there are substantial disincentives for anyone, including the detained person, reporting the practice of torture.

Fourth ground — death penalty

(g) The Judge did not err in upholding the Minister’s reliance upon the assurance received that Mr Kim would not be sentenced to death.

The Minister obtained evidence of the PRC’s previous compliance with similar assurances from New Zealand (in the context of deportation) and other countries.

Fifth ground — extra-judicial killings

(h) The Judge did not err in upholding the Minister’s approach to the risk of extra-judicial killings. However, the material provided for Mr Kim in respect of extra-judicial killing, while not bearing on the risk for him, is nevertheless relevant to the preliminary question identified at [275](b)] above; whether, in light of the general human rights situation, assurances should be sought or relied upon in the case of Mr Kim.

Sixth ground — legal standard

(i) The Judge erred in finding the Minister applied the correct legal test to determining whether the risk to Mr Kim’s right to a fair trial was such that he should not be surrendered. The inquiry for the Minister is whether Mr Kim is at a real and not merely fanciful risk of a departure from the standard such as to deprive him of a key benefit of a procedural right under the ICCPR, which are procedural rights designed to secure the right to a fair trial. When revisiting the decision whether or not to surrender Mr Kim, the Minister should apply the test as articulated at [179] above.

Seventh ground — fair trial

(j) The Judge erred in finding it was reasonably open to the Minister to be satisfied that the assurances met the risk that Mr Kim would not receive a fair trial if surrendered to the PRC. We have identified the following issues in connection with the following fair trial rights that were not adequately addressed by the assurances:

(i) The right to a hearing before an independent panel or public tribunal: Mr Kim has a right to be tried before a tribunal that decides cases on the evidence before it and free from political pressure. There was material before the Minister to suggest that political influence is pervasive in the PRC’s criminal justice system and this is how the system is designed to work.

There was also material to suggest that the political influence prioritises social policy objectives over individual procedural protections.

(ii) The right to legal representation, including the right to present a defence, receive legal assistance, adequately prepare a defence and to examine witnesses: there were a number issues in connection with this right including the discretionary nature of disclosure to the defence and the fact that witnesses for the prosecution rarely give evidence with trial mostly being conducted on the papers. More troubling is the position of the defence bar in the PRC. Defence counsel must be able to honestly and responsibly represent an accused person without fear of repercussion if the procedural right is to operate in accordance with its purpose. There was material before the Minister to suggest that defence counsel operate in an environment in which they fear persecution for their representation of their client.

(iii) The right not to be compelled to testify or confess guilt: there was material before the Minister to suggest that Mr Kim could be interrogated for a period of months in the absence of a lawyer.

Eighth ground — disproportionate punishment

(k) The Judge erred in finding the Minister made no error in failing to seek a specific assurance that the five years spent in custody in New Zealand would be deducted from any finite sentence of imprisonment in the PRC. As a matter of sentencing methodology, and considering New Zealand’s international obligations, to not account for the time Mr Kim spent in custody would lead to a disproportionately severe punishment.

Ninth ground — access to mental health care

(l) We do not consider it appropriate to address the issue of Mr Kim’s access to mental health services on the basis of the material before the Court.

RESULT

[276] We therefore allow the appeal.

[277] The Minister’s decision to surrender Mr Kim under s 30 of the Extradition Act is quashed.

[278] The Minister of Justice must reconsider the issue of Mr Kim’s surrender.

In particular, the Minister should address the following matters:

(a) Whether the general human rights situation in the PRC suggests that the value of the human rights recognised under the ICCPR and the Convention against Torture are not understood and/or valued, and further, if they are, whether the rule of law in the PRC is sufficient to secure those rights.

(b) The Minister is to make further inquiry as to whether murder accused are at high-risk, or higher risk, than the notional ordinary criminal.

(c) The Minister should not treat the fact that Mr Kim will be tried in Shanghai, the stage of the investigation, or the strength of the case against Mr Kim as reducing the risk of torture, unless further inquiries provide a sufficient evidential basis for proceeding on that basis.

(d) In assessing the effectiveness of the assurances to address the risk of torture, the Minister must address such evidence as there is that:

(i) torture is already against the law, yet persists;

(ii) the evidence is that practice of torture in the PRC is concealed and that its use can be difficult to detect;

(iii) videotaping of interrogations is selective and torture often occurs outside the recorded sessions;

(iv) evidence obtained by torture is regularly admitted in court; and

(v) there are substantial disincentives for anyone, including the detained person, reporting the practice of torture.

(e) When addressing the issue of the risk that Mr Kim will not receive a fair trial in the PRC should he be surrendered, the Minister should:

(i) seek further information in connection with the extent to which the judiciary is subject to political control, and the extent to which tribunals that did not hear persons, or groups, or tribunals that did not hear the case, control or influence decisions of guilt or innocence;

(ii) seek further information as to the position of the defence bar in the PRC, the right the defence has to disclosure of the case to be met, and the right to examine witnesses; and

(iii) seek further assurances that Mr Kim will be entitled to disclosure of the case against him (detailed as to timing and content), that he will have the right, through counsel, to question all witnesses, and the right to the presence of effective defence counsel during all interrogation.

(f) The Minister should address the risk that Mr Kim will be sentenced to a finite term of imprisonment and receive no credit for time already served in New Zealand. Relevant to consideration of this issue will be any assurances the Minister is able to obtain in relation to this.

COSTS

[279] Mr Kim has been successful on this appeal. Accordingly, the respondents are jointly and severally liable to pay the appellant one set of costs for a standard appeal on a band B basis and usual disbursements. We certify for second counsel.

[280] Costs in the High Court are to be dealt with by that Court having regard to this judgment.

[Full judgment: 2019NZCA209_KimvMinJustice.pdf]

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