Case Brief: Minister of Justice v Kyung Yup Kim

July 2, 2021

Summary

The Supreme Court considered the legality of extradition orders for Kyung Yup Kim to China so that he can be tried for murder. The proceedings have been adjourned until it can consider a joint report submitted by the parties. The Supreme Court has indicated the Minister of Justice is able to order the surrender of Mr Kim if certain criteria are met.

 

Background

Kyung Yup Kim is accused of murdering a woman in China. The PRC sought extradition of Mr Kim for trial in China. The PRC gave initial assurances that Mr Kim’s rights would be respected - he would not be tortured and would receive a fair trial. Upon review of the PRC’s assurances, the Minister of Justice made the decision to surrender Mr Kim. Mr Kim successfully challenged this decision. The High Court ruled the Minister needed to address the quality of the PRC’s assurances and whether she was satisfied that the assurances sufficiently protected Mr Kim from ill-treatment. The Minister had to reconsider her decision with these factors in mind.

After reconsideration, the Minister again decided to surrender Mr Kim. Mr Kim challenged this second decision, culminating in a Court of Appeal decision in his favour. It ruled the Minister once again failed to take into account relevant factors concerning the PRC’s assurances.

The Minister of Justice and Attorney-General appealed the Court of Appeal decision.

 

The Case

The need to make a preliminary assessment on human rights abuse

The Supreme Court reversed the Court of Appeal finding that the Minister had to make a preliminary assessment on whether the assurances could be relied on given China’s human rights record. The reliability of assurances could be considered in the context of the individual case after assurances were given.

Assurances on torture

While the Court acknowledged that torture is still widespread in the PRC, it ruled the decision to surrender Mr Kim was open to the Minister if there were no substantial grounds to believe Mr Kim was be in danger of torture.

This could be proven if the assurances were sufficiently adequate, there was proper monitoring to ensure those assurances would be complied with, and Mr Kim’s personal characteristics did not heighten his risk.

The Court requested further information on assurances that Mr Kim would be tried and (if convicted)incarcerated in Shanghai, and confirmation with the PRC that New Zealand diplomatic visits with Mr Kim would be permitted at least every 48 hours.

Assurances of a fair trial

Minimum international procedural standards need to be met in order to have a fair trial. The Court concluded that the process prescribed by Chinese criminal procedure law was sufficient to meet international standards of a fair trial. However, there was concern about the independence of the Chinese judicial committee tasked with overseeing Mr Kim’s trial.

The Court requested further information on the judicial committee’s access to material, whether Mr Kim had a right to respond to third party submissions and whether the Minister was satisfied coercive political agents would not attend the hearing.

Requirement to seek remittance

The Court acknowledged that a sentence of life imprisonment for murder did not breach international law on gross and disproportional punishment. Since this maximum penalty was available to PRC judges, they had discretion whether to consider time already spent by Mr Kim. The Court ruled it was not necessary for the Minister to seek this assurance in order to surrender Mr Kim.

 

Result

The Supreme Court decided most of the assurances the Minister took into account were adequate for an extradition order. However, the Court highlighted certain factors concerning torture and a fair trial that needed to be considered before surrender would be considered lawful. The Court adjourned until the parties could produce a joint report providing the information requested.  This is due on the 30 July 2021.

This case is being watched closely as the Court’s decision could have an impact on the diplomatic relationship between China and New Zealand.

For further information, please contact Solicitor Patrick Corish

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