The Supreme Court of New Zealand ruled on Friday that murder suspect Kyung Yup Kim can be extradited to China, subject to certain further assurances being received from China as to torture and fair trial-related issues.
Kim, a Korean-born permanent resident of New Zealand, is accused of murdering Peiyun Chen while he was in Shanghai in 2009. In May 2011, New Zealand received a request from China seeking his extradition on one count of intentional homicide.
Under New Zealand’s Extradition Act, the procedure for extradition has two stages: 1) the District Court must determine whether a person for whom an extradition request has been made is eligible for surrender to the requesting country; and 2) the Minister of Justice must determine whether the person should be surrendered to the requesting country. Stage one was completed in November 2013. Then-minister Amy Adams subsequently decided in November 2015 that the extradition could go ahead but was directed to reconsider her decision after a successful judicial review in 2016. After the minister came to the same conclusion, Kim lodged a second appeal, reaching the Supreme Court in 2019.
In Friday’s judgment, a majority of the Supreme Court judges decided to adjourn the appeal until further assurances were received from China as to Kim’s prospects of a fair trial and to be free from torture. However, assuming such matters were satisfactorily resolved, the judges held that “there would be no substantial grounds … that Mr. Kim will be in danger of being subjected to an act of torture if surrendered to the PRC. Nor would there be a real risk of an unfair trial.”
The court rejected arguments mounted by Kim that diplomatic assurances as to torture and fair trials could not be trusted “from a state where torture is routine and systemic,” suggesting that this led to a “‘Catch-22’ proposition that, if you need to ask for assurances, you cannot rely on them.” The court considered that “assurances are part of the matrix to be considered when examining whether there is a real risk of torture or there are substantial grounds for believing a person would be in danger of being tortured.”
The court also rejected Kim’s argument that the general human rights situation in China meant that no reasonable Minister could ever decide to extradite him.
The parties to the proceeding have been instructed to file a joint report by July 30, outlining the results of further inquiries and any further assurances received.
