The Minister of Justice’s decision to surrender Kyung Yup Kim was upheld by the Supreme Court, meaning he can now be extradited to China and face trial for the murder of a woman in 2009.
Kyung Yup Kim is accused of murdering a woman in China. Since 2011 the PRC has sought Kim’s extradition so he may be tried in China. These requests led to significant controversy due to China’s reputation for judicial torture and human rights violations. The PRC gave initial assurances that Kim’s rights would be respected, meaning 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 Kim. Kim successfully challenged this decision. The High Court ruled the Minister needed to address the quality of the PRC’s assurances and whether they sufficiently protected Kim from ill-treatment. The Minister was required to reconsider her decision with these factors in mind.
After reconsideration, the Minister again decided to surrender Kim. Kim challenged this second decision, where the Court of Appeal 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 to the Supreme Court.
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 appeal was adjourned to allow the Minister to make further inquiries and seek further assurances. This preliminary judgment was released in June 2021.
The need to make a preliminary assessment on human rights abuse
The Court of Appeal held the Minister’s decision relied on a preliminary assessment of whether China’s assurances could be relied upon at all, given their poor human rights record. The Supreme Court disagreed, and held the reliability of assurances could be considered in the context of the individual case. Kim’s publicity meant the PRC had a strong incentive to comply with its assurances over an ordinary criminal suspect.
Assurances on torture
The Court acknowledged torture is still widespread in the PRC. However, it ruled the decision to surrender Kim was open to the Minister if there were no substantial grounds to believe Kim was be in danger of torture. This could be proven if the assurances were sufficiently adequate, there was proper monitoring to ensure compliance, and Kim’s personal characteristics did not heighten his risk.
The Court requested further information on assurances that Kim would be tried and, if convicted, incarcerated in Shanghai. The Court also requested confirmation with the PRC that New Zealand diplomatic visits with Kim would be permitted at least every 48 hours, or as quickly as possible at Kim’s request.
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 these standards. However, the Court raised concerns about the independence of the Chinese judicial committee tasked with overseeing Kim’s trial.
The Court requested further information on the judicial committee’s access to material, whether 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 Kim. The Court ruled it was not necessary for the Minister to seek this assurance in order to surrender Kim.
Judgment following the adjournment
By the time of its second judgment in April 2022, the Court’s requested assurances were sought and obtained by the Minister. In response to concerns of torture, the PRC undertook that Kim would be permitted visits by New Zealand consular staff at least every 48 hours during the investigation, or by Kim’s request. The PRC provided further information on the judicial committee procedure, confirming its compliance with domestic and international fair trial requirements. This also confirmed that Kim would have the opportunity to respond to all material.
The majority was satisfied the further assurances provided a reasonable basis for the Minister to determine there was no real risk Kim would face torture or an unfair trial.
The Supreme Court held it was open for the Minister to surrender Kim to the PRC. The Court of Appeal decision was overturned, and the Minister’s decision to surrender Kim was upheld.