(June 20, 2019) On June 11, 2019, the New Zealand Court of Appeal released its judgment (Kim v Minister of Justice  NZCA 209) on an appeal of a High Court ruling in a consequential extradition case involving a man who is a citizen of the Republic of Korea and a New Zealand permanent resident. The High Court had refused to judicially review the previous Minister of Justice’s determination that the man, who has been accused of a murder in the People’s Republic of China (PRC), should be surrendered to that country under the Extradition Act 1999. The Court of Appeal overturned the High Court’s decision, holding that the current Minister of Justice must reconsider whether to grant the PRC’s extradition request. The case involves the first ever PRC request for extradition of a person from New Zealand.
In a summary released by the Court of Appeal, the background to the case was explained as follows:
In 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. In response, the Minister of Justice sought and received various assurances from the PRC to meet concerns identified by Mr Kim and Ministry officials in connection to the risk of torture, extra-judicial killing and Mr Kim’s right to a fair trial under international law. The Minister was satisfied that these assurances addressed the risks identified and determined that Mr Kim be surrendered under s 30 of the Extradition Act 1999.
Mr Kim successfully applied to judicially review that decision. The Minister obtained further assurances in light of the High Court’s findings and reconsidered her decision, determining again that Mr Kim be surrendered to face trial in the PRC. The Judge refused Mr Kim’s second application for judicial review. Mr Kim appealed that decision to this Court.
Section 30 of the Extradition Act 1999 provides that the Minister of Justice must make a determination, in accordance with that section, as to whether a person who is the subject of a court warrant for detention should be surrendered to the requesting country. If certain conditions are present, the Minister must determine that a person should not be surrendered. These include cases where “it appears to the Minister that there are substantial grounds for believing that the person would be in danger of being subjected to an act of torture in the extradition country” (s 30(2)(b)). Discretionary restrictions on surrender also apply under subsection 30(3), including if
(a) it appears to the Minister that the person may be or has been sentenced to death by the appropriate authority in the extradition country, and the extradition country is unable to sufficiently assure the Minister that—
(i) the person will not be sentenced to death; or
(ii) if that sentence is or has been imposed, it will not be carried out; or
. . .
(d) . . . it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or
(e) for any other reason the Minister considers that the person should not be surrendered.
Court of Appeal Decision
The Court of Appeal states in paragraph 14 of its judgment that, while the above provisions do not expressly provide for consideration of whether an individual will receive a fair trial,
it is common ground, on the facts of this case, that s 30(3)(e) requires the Minister to address the issue of fair trial rights in the PRC when making the surrender decision. That is because that section and the powers conferred under it must be interpreted, to the extent its wording permits, in a manner consistent with New Zealand’s obligations under international law.
The appellant put forward several grounds of appeal, set out in paragraph 44 of the judgment, including that the High Court judge had erred in “holding that the Minister could lawfully and reasonably rely upon diplomatic assurances as a means of reducing the risk that Mr Kim would be tortured” or as “an adequate protection against the risk of the imposition and carrying out of the death penalty”; failing to address the absence of any assurance addressing the risk of extrajudicial killing; and upholding the Minister’s decision that surrender of the appellant to the PRC would not result in a flagrant breach of his right to a fair trial.
Among the key findings of the Court of Appeal, as set out in the summary referred to above, were the following:
Issue Three: Did the Minister err in accepting assurances in relation to torture as adequate to protect Mr Kim on return to the PRC?
Held: Yes. While it was relevant for the Minister to ascertain whether Mr Kim was in a class of defendants at “high risk” of torture in the PRC, it was not reasonably open to the Minister to conclude on the evidence before her that Mr Kim, as a murder accused, was not at high risk. In upholding this the Judge erred. The Judge also erred in finding no error in the Minister’s conclusion that certain factors, such as location of trial, reduced Mr Kim’s risk of torture because there was a lack of evidence on this point. Finally the Judge erred in failing to identify deficiencies in the Minister’s consideration of the adequacy of assurances given the information that torture remains widespread in the PRC and that torture is difficult to detect.
. . .
Issue Six: Did the Minister apply an incorrect legal standard when determining whether Mr Kim’s right to a fair trial would be upheld?
Held: Yes. This Court has reservations as to the Othman (Abu Qatada) v United Kingdom test of “flagrant denial of justice”, as it involves such a departure from standards so as to amount to a nullification or destruction of fair trial rights guaranteed by international law. Rather, a more appropriate threshold is whether there is a “real risk of a departure from the standard such as to deprive the defendant of a key benefit of the right in question”. [Once] a person establishes a “real risk”, it is for the requesting state to dispel any doubts.
Issue Seven: Did the Minister err in concluding that there was no risk of departure from fair trial standards justifying refusal of surrender?
Yes. The assurance that Mr Kim would be tried in accordance with domestic law did not meet the concern that he would not be tried before an independent tribunal, a right guaranteed under international law. The evidence before the Judge, and Minister, was that [the] PRC’s criminal justice system prioritises stability and crime control over procedural rights, and is subject to political influence. There was insufficient evidence before the Minister in relation to disclosure, the status of the defence bar and the right to examine prosecution witnesses for the Minister to reasonably conclude there was no real risk to a departure from fair trial standards in Mr Kim’s case.
Issue Eight: Did the Minister err in making the decision to surrender Mr Kim notwithstanding the absence of assurance addressing the risk of disproportionate punishment?
Held: Yes. As a matter of sentencing methodology and considering international legal obligations, it would be a disproportionately severe, or cruel and degrading, punishment should time served in custody in the arresting state not be deducted from the finite sentence of imprisonment in the PRC. There was evidence before the Minister of PRC officials previously providing assurances to this effect. Against this background, the Court considered the Judge erred in finding no reviewable error.
The Court’s conclusions were also summarized in paragraph 275 of its judgment. As a result of these findings, the Court quashed the Minister’s decision to surrender the appellant to the PRC under section 30 of the Extradition Act and directed the Minister to reconsider the issue, including addressing the following matters set out in paragraph 278 of the judgment:
(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.