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Kim v Prison Manager, Mt Eden Corrections Facility [2012] NZCA 471; [2012] 3 NZLR 845 (12 October 2012)

Last Updated: 26 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA637/2012
[2012] NZCA 471
BETWEEN KYUNG YUP KIM
Appellant
AND THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY
Respondent
Hearing: 8 October 2012
Court: Arnold, Randerson and White JJ
Counsel: T Ellis and G K Edgeler for Appellant
A M Powell and D J Perkins for Respondent
Judgment: 12 October 2012 at 3 p.m.

JUDGMENT OF THE COURT


A The appeal is dismissed.

B Costs are reserved in terms of [74] of this judgment.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents
Para No
Introduction
Background facts
The statutory framework
First issue: Was the Judge wrong to find there was power under s 23 of the Act to detain Mr Kim in custody?
Discussion
Second issue: Was the Judge wrong to find that two alleged deficiencies in the request to extradite Mr Kim were not suitable for determination in a habeas corpus application?
Discussion
Third issue: Should the Judge have treated the application for habeas corpus as an application for judicial review and ordered an expedited hearing?
Disposition

Introduction

[1] The appellant Mr Kim is a citizen of the Republic of Korea but is also a permanent resident of New Zealand. The People’s Republic of China (the PRC) has made a request under s 18 of the Extradition Act 1999 (the Act) for Mr Kim’s surrender in connection with a murder alleged to have been committed in Shanghai in 2009.
[2] Judge Broadmore issued a provisional arrest warrant under s 20 of the Act dated 9 June 2011. Mr Kim was arrested and brought before the District Court. He was then remanded in custody where he has remained despite attempts to obtain bail. Several fixtures have been made in the District Court for the determination under s 24 of the Act of Mr Kim’s eligibility for surrender, but these applications have all been adjourned at Mr Kim’s request. He is currently held by the respondent in custody under a warrant issued by Judge Gibson on 2 July 2012 pursuant to s 23 of the Act.
[3] Some 15 months after his arrest and detention, Mr Kim applied to the High Court on 12 September 2012 for a writ of habeas corpus. In a judgment issued on 18 September 2012, Kós J dismissed the application.[1] Mr Kim now appeals against the dismissal of his application on three grounds:

Background facts

[4] On 11 March 2010, a warrant for the arrest of Mr Kim was issued by the Shanghai Municipal Public Security Bureau. The arrest warrant stated that it had been issued under Article 59 of the Criminal Procedure Law of the PRC and upon approval from the No 1 Branch of the Shanghai People’s Procuratorate. The warrant went on to state that “we hereby assign our investigators to enforce the arrest of Kyung Yup Kim ... suspected of Intentional Homicide, and sent to Shanghai Detention Center.”
[5] In May 2010 the PRC issued a document known as an Interpol Red Notice in respect of Mr Kim, seeking his location and arrest with a view to extradition. The Notice referred to the arrest warrant for the crime of murder. A brief summary of the facts of the case stated that the body of a named victim had been found in Shanghai and that Mr Kim was “suspected” of murdering her.
[6] In March 2011, the PRC Public Security Bureau Criminal Investigation Department issued an extradition request to the Ministry of Justice in New Zealand. The request stated:

On 2 May 2010, People’s Republic of China Shanghai Public Security Bureau issued a Red Wanted Notice (A-3260/5-2010) of KIM KYUNGYUP through Interpol, who was suspected of committing an intentional homicide. Now we have learned that the suspect, KIM KYUNGYUP had departed from Republic of Korea to New Zealand by taking flight KE129 on 4 October 2010. So we request for assistance from New Zealand to take KIM KYUNGYUP into custody and extradite him to China for prosecution.

[7] The request went on to refer to the arrest warrant issued with the approval of the Shanghai People’s Procuratorate in March 2010 and added the following summary of facts:

On 31 December 2009, a female corpse was found at a wasteland at the south side of XinLong Road and West HaoShang Road in QiBao Town, MinHang District, Shanghai. After investigation, this female (PeiYun CHEN, 20 yrs old, from WuHu District of AnHui Province) was killed and was disposed over there. On 16 January 2010, a male named KIM KYUNGYUP was found strongly suspicious of this crime. On 11 December 2009, the suspect killed the victim at his residence in Shanghai and disposed the corpse later, and then he departed from Shanghai PuDong International Airport to Korea by taking flight KE894 on 14 December 2009.

[8] The extradition request identified the Articles of the PRC Criminal Law relating to the offence of intentional homicide and advised that the Supreme People’s Court of the PRC had decided that the extradited person “shall not be sentenced to death penalty after being extradited from New Zealand”. The extradition request was received by the New Zealand Government on 23 May 2011. Since there is no extradition treaty between New Zealand and China, the request for extradition was dealt with under s 60 of the Act. Under that section, the Minister of Justice decided on 15 August 2011 to allow the process under Part 3 of the Act to be invoked.
[9] In the meantime, by letter of 1 June 2011, the Shanghai police requested the New Zealand police (Interpol Office) to apply for the provisional arrest of Mr Kim. The letter stated:

The Chinese authorities intend to request the surrender of Mr Kim from New Zealand to China for the intentional homicide of Ms PeiYun CHEN in December 2009 in Shanghai.

[10] Reference was made to the jurisdiction of the PRC courts to try Mr Kim; to the warrant for Mr Kim’s arrest issued in March 2010; and to the view of the police in the PRC that Mr Kim was a flight risk since he had already left China and Korea.
[11] The request for Mr Kim’s provisional arrest also included background facts in relation to the alleged offending including the discovery of the body; the fact that the autopsy showed that the victim had been intentionally killed; that the victim’s DNA was found in the bedroom of Mr Kim’s address in Shanghai; and that Mr Kim had told a friend that he had just killed someone. The summary stated that Mr Kim was “suspected” of killing the victim at his Shanghai residence.
[12] On or about 10 June 2011, the PRC applied to the District Court in New Zealand for a provisional arrest warrant under s 20 of the Act. The application was supported by an affidavit by a senior New Zealand police officer producing, amongst other things, the Interpol Red Notice and the letter from the Shanghai Police of 1 June 2011. Judge Broadmore issued (ex parte) a provisional arrest warrant dated 9 June 2011.[2] The warrant stated:

PROVISIONAL WARRANT FOR ARREST UNDER
EXTRADITION ACT 1999

(Sections 20(1), 42, Extradition Act 1999)

TO: Every member of the police

On 10 June 2011 the People’s Republic of China applied for a provisional warrant under section 20 of the Extradition Act 1999 for the arrest of KIM Kyungyup of Auckland, occupation unknown.

The information provided in support of the application states that –

(a) KIM Kyungyup is accused of the following offence in the People’s Republic of China: murder (intentional homicide) pursuant to Article 232 of the Criminal Law of People’s Republic of China.

(b) On 11 March 2010 a warrant for the arrest of KIM Kyungyup in relation to the offence was issued by Xue Bin ZHANG, Commissioner of the Shanghai Municipal Public Security Bureau, on approval from the No 1 Branch of Shanghai People’s Procuratorate on 10 March 2010.

I am satisfied that –

(a) The warrant for the arrest of KIM Kyungyup has been issued in the People’s Republic of China by a judicial authority having lawful authority to issue the warrant; and

(b) KIM Kyungyup is in New Zealand; and

(c) There are reasonable grounds to believe that –

(i) KIM Kyungyup is an extraditable person within the meaning of section 3 of the Extradition Act 1999;

(ii) The offence for which KIM Kyungyup is sought is an extradition offence within the meaning of section 4 of the Extradition Act 199; and

(d) It is necessary or desirable that a warrant for the arrest of KIM Kyungyup be issued urgently.

I DIRECT YOU TO ARREST KIM Kyungyup and bring him before a District Court as soon as possible to be further dealt with in accordance with the Act.

DATED at Wellington this 9th day of June 2011.

[13] The form of the provisional arrest warrant was as prescribed by the Extradition Regulations 1999 (Form EA2).
[14] A detailed procedural history of what happened after Mr Kim’s arrest is set out in the judgment of Kós J. It is unnecessary to repeat that history. It is sufficient to state that the extradition proceedings have been before the District Court on numerous occasions between 11 June 2011 and 14 September 2012. On each occasion, Mr Kim has been remanded in custody. A bail application was refused on 7 February 2012 and Mr Kim’s appeal from that refusal was dismissed on 28 February 2012.
[15] On 17 August 2011, the Court offered a fixture for the s 24 hearing on 30 November 2011. That date was not suitable for Mr Kim’s then counsel and a new date was fixed for 15 February 2012. That fixture was vacated and, on 17 November 2011, a new fixture was made for 2 July 2012. On Mr Kim’s application, that fixture was vacated and a new date fixed for 15 October 2012. That fixture was also vacated on Mr Kim’s application despite opposition by the PRC.
[16] Upon each remand, warrants were issued for Mr Kim under s 23 of the Act. The main focus of the inquiry in the High Court was on the last warrant of detention issued by Judge Gibson on 2 July 2012, since Mr Kim is held under the authority of that warrant. The warrant is expressed in the following terms:

WARRANT OF DETENTION

(Section 23, Extradition Act 1999)

CASE NUMBER: CRI-2011-004-011056

PRN 29938042

DOB: 30/05/1975

To every member of the police and to the Manager of Mt Eden Mens Prison

Name: Kyung Yup Kim

Address: 229A RICHARDSON Road, MT ROSKILL, AUCKLAND

Occupation: Unknown

On 9 June 2011 the Government of the People’s Republic of China made a request under section 20 of the Extradition Act 1999 for the surrender of Kyung Yup Kim of 229A RICHARDSON Road, MT ROSKILL, AUCKLAND, New Zealand and on 9 June 2011 His Honour Judge T J Broadmoore [sic] issued a provisional warrant for the arrest of Kyung Yup Kim.

On 13 June 2011 Kyung Yup Kim was arrested under warrant.

On 17 June 2011 I have determined, under section 23 Extradition Act 1999 that Kyung Yup Kim is to be held in custody pending determination of the proceedings.

I DIRECT YOU, the said Constables to deliver Kyung Yup Kim to the Superintendant at Mt Eden Mens Prison.

AND YOU, the said Manager to receive Kyung Yup Kim into your control and to detain him until Monday the 15th of October 2012 when he is required to attend the Auckland District Court to answer further to the application.

Dated at the Auckland District Court this 2nd day of July 2012.

B A Gibson

District Court Judge

The statutory framework

[17] The broad object of the Act is to provide for the surrender of an accused or a convicted person from New Zealand to an extradition country (or vice versa).[3] A particular object of the Act is to provide a means for New Zealand to give effect to requests for extradition from both Commonwealth and non-Commonwealth countries.[4] The request for extradition in this case was dealt with under Part 3 of the Act. A request for surrender with supporting documents may be made under s 18 and if such a request is made, the Minister of Justice may request a District Court Judge to issue a warrant under s 19 of the Act.
[18] However, in urgent cases, a provisional arrest warrant may be issued even though no request for surrender has been made. The issue of a provisional arrest warrant is authorised by s 20 of the Act:

20 Provisional arrest warrant may be issued

(1) A District Court Judge may issue a provisional warrant in the prescribed form for the arrest of a person if the Judge is satisfied on the basis of the information presented to him or her that—

(a) a warrant for the arrest of a person has been issued in an extradition country by a court or a Judge or other person having authority under the law of the extradition country to issue it; and

(b) the person is, or is suspected of being, in New Zealand or on his or her way to New Zealand; and

(c) there are reasonable grounds to believe that the person is an extraditable person in relation to the extradition country and the offence for which the person is sought is an extradition offence; and

(d) it is necessary or desirable for an arrest warrant to be issued urgently.

(2) A warrant may be issued under this section even though no request for surrender has been made.

[19] The Judge must be “satisfied on the basis of the information presented” of four matters:
[20] It is evident from the statutory criteria that the legislature did not intend the District Court Judge to conduct an extensive examination into the facts of the case. The decision required is provisional only and the Judge need only be satisfied of the four matters identified on the basis of the information presented. Relevantly in the present context, the Judge need not reach any final conclusion as to whether the person concerned is an extraditable person or that the offence for which the person is sought is an extradition offence as those expressions are respectively defined by ss 3 and 4 of the Act. The Judge need only be satisfied on the basis of the information presented that there are reasonable grounds so to believe.
[21] When a provisional warrant is issued, the applicant must report the issue of the warrant to the Minister and provide the material presented to the court by the applicant for the warrant.[5] On receipt of the report, the Minister has a discretion to order that the proceedings be discontinued and may cancel any warrant of arrest.[6]
[22] Section 23 then prescribes the next step in the process, the procedure following arrest. Relevantly, s 23 provides:

23 Procedure following arrest

(1) A person arrested on a warrant issued after a request under section 19 or issued under section 20 must, unless sooner discharged, be brought before a court as soon as possible.

(2) The person—

(a) is not bailable as of right; and

(b) may not go at large without bail.

(3) If the court remands the person on bail, the court may impose any conditions of bail that the court thinks fit in addition to any conditions that the court may impose under subsections (1) to (3) of section 31 of the Bail Act 2000 (as applied by section 49 of that Act).

...

[23] The next stage of the process is the determination of eligibility for surrender under s 24 of the Act. That section provides:

24 Determination of eligibility for surrender

(1) Subject to section 23(4), if a person is brought before a court under this Part, the court must determine whether the person is eligible for surrender in relation to the offence or offences for which surrender is sought.

(2) Subject to subsections (3) and (4), the person is eligible for surrender in relation to an extradition offence for which surrender is sought if—

(a) the supporting documents (as described in section 18(4)) in relation to the offence have been produced to the court; and

(b) if—

(i) this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions, or qualifications that require the production to the court of any other documents; or

(ii) the terms of an extradition treaty in force between New Zealand and the extradition country require the production to the court of any other documents—

those documents have been produced to the court; and

(c) the court is satisfied that the offence is an extradition offence in relation to the extradition country; and

(d) the court is satisfied that the evidence produced or given at the hearing would, according to the law of New Zealand, but subject to this Act,—

(i) in the case of a person accused of an extradition offence, justify the person's trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand; or

(ii) in the case of a person alleged to have been convicted of an extradition offence, prove that the person was so convicted.

(3) The person is not eligible for surrender if the person satisfies the court—

(a) that a mandatory restriction on the surrender of the person applies under section 7; or

(b) except in relation to a matter referred to in section 30(2)(ab), that the person's surrender would not be in accordance with the provisions of the treaty (if any) between New Zealand and the extradition country.

(4) The court may determine that the person is not eligible for surrender if the person satisfies the court that a discretionary restriction on the surrender of the person applies under section 8.

(5) Subsections (3) and (4) are subject to section 105.

(6) Without limiting the circumstances in which the court may adjourn a hearing, if—

(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings are produced; and

(b) the court considers the deficiency or deficiencies to be minor in nature,—

the court may adjourn the hearing for such period as it considers reasonable to allow the deficiency or deficiencies to be remedied.

[24] The hearing before a District Court Judge under s 24 is the opportunity for a more thorough examination of Mr Kim’s eligibility for surrender. The Court must be satisfied about all of the four matters listed in s 24(2)(a) to (d). That includes the Court being satisfied that the offence is an extradition offence in relation to the extradition country[7] and that, in the case of a person accused of an extradition offence, the evidence produced or given at the hearing would, under New Zealand law, justify the person’s trial if the conduct constituting the offence had occurred in New Zealand.[8] Whether Mr Kim is “a person accused of an extradition offence” is also open for examination at the s 24 hearing.
[25] The onus of proof of the matters in s 24(2) rests upon the PRC as the party seeking extradition. Even if the matters in s 24(2) are proved to the satisfaction of the Court, the subject person will not be eligible for surrender if he or she satisfies the Court that a mandatory restriction on his or her surrender applies under s 7 of the Act or that his or her surrender would not be in accordance with the provisions of the relevant extradition treaty.[9] The Court may also determine that the subject person is not eligible for surrender if he or she satisfies the Court that a discretionary restriction on his or her surrender applies under s 8.[10] We note, in that respect, that a discretionary restriction on surrender applies where, in defined circumstances, it would be unjust or oppressive to surrender the person concerned. The final point to note about s 24 is that the Court has power to adjourn the hearing if, amongst other things, a document contains a deficiency that the Court considers is minor. The purpose of any such adjournment is to enable the deficiency to be remedied.
[26] If the Court determines under s 24 that a person is eligible for surrender, then the Court must issue a warrant for the detention of that person under s 26 of the Act. Thereafter, the Minister must determine under s 30 whether the person is to be surrendered. Relevantly to Mr Kim’s case as argued before us, the Minister must not determine that the person is to be surrendered if a mandatory restriction on surrender applies under s 7 or under any applicable treaty, or if 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”.[11]
[27] The Minister may also determine that the person is not to be surrendered if it appears to the Minister that the person may be sentenced to death by the appropriate authority in the extradition country and that country is unable to sufficiently assure the Minister that the person will not be sentenced to death or, if so sentenced, it would not be carried out.[12]

First issue: Was the Judge wrong to find there was power under s 23 of the Act to detain Mr Kim in custody?

[28] Kós J rejected a submission made on Mr Kim’s behalf that there was no power of detention under s 23. Counsel had submitted that s 23 did not contain any express or implied power to remand in custody. This contrasted with other sections in the Act that conferred express powers to detain in custody.[13]
[29] The High Court rejected this argument, accepting submissions made for the respondent that here, power to remand in custody was conferred by certain provisions of the Summary Proceedings Act 1957 imported by s 22(1) of the Act. Had this not been the case, the Judge would have found in any event, that an express power to detain in custody was conferred by s 23(2) of the Act since persons arrested under ss 19 or 20 were not bailable as of right and were not permitted to go at large without bail. Of necessity, that implied the continued detention of the affected person under s 23. Otherwise, s 23(2) was not internally reconcilable.
[30] It was submitted by Mr Edgeler on Mr Kim’s behalf that the Judge had erred in reaching this conclusion. Counsel relied upon a statement by Lord Bridge in R v Secretary of State for the Home Department, ex parte Khawaja [14] to the effect that the courts have a duty to:

... regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on. ...

[31] Mr Edgeler repeated a submission made in the High Court contrasting the five express powers of detention identified above with the absence of any express power in s 23. He submitted that the only sensible conclusion to be drawn was that the legislature did not intend there to be a power of detention under that section. He also observed that, in the sections in the Act conferring an express power of detention, the legislation permitted detention in custody or in a hospital or secure facility under s 184T(3) of the Summary Proceedings Act. It was submitted that the absence of any reference to this alternative in s 23 further confirmed the absence of power to detain under that provision.
[32] Mr Edgeler also contrasted the simplified extradition procedure under Part 4 of the Act, noting that s 43(5) of the Act (importing s 184T of the Summary Proceedings Act and certain sections of the Bail Act 2000) does not refer to a person detained under s 44 (a provision similar in effect to s 23).
[33] Finally, counsel noted that s 22(1)(b) of the Act imported certain provisions of the Summary Proceedings Act only “so far as applicable and with the necessary modifications ...”. In written submissions, counsel argued that it was not sufficiently clear that s 46 of the Summary Proceedings Act was incorporated. It was said to be “beyond belief” that Parliament could have intended that the detention power in s 46 of the Summary Proceedings Act could be “incorporated by stealth” when the Act referred unambiguously to the detention power under s 184T(3) of the Summary Proceedings Act. Counsel made a similar point in relation to the express incorporation in s 22 of the Act of the power under s 206 of the Summary Proceedings Act (in relation to contempt powers).

Discussion

[34] It is not in dispute that a power to detain in this context must be plainly conferred by statute. We agree that it would have been preferable for the legislature to have stated expressly in s 23 that the Court had authority to retain the affected person in custody or in a hospital or secure facility under s 184T of the Summary Proceedings Act. However, we have no difficulty in rejecting the submission that there is no power to detain upon a remand under s 23 of the Act.
[35] First, we agree with Kós J that the clear implication of s 23(2) is that the Court has power to detain under that section. Mr Edgeler accepted that when Mr Kim came before the Court on the provisional arrest warrant (and on all subsequent remands) he was already detained. In terms of s 23(2), Mr Kim was not entitled to bail as of right and was not at liberty to be at large without the grant of bail. Since it is clear that the grant of bail under s 23 is not mandatory, it inevitably follows as a matter of logic that the legislature intended the Court to have the power to order the person detained in custody. We observe that it would be a strange result if a person arrested on a provisional warrant could not be detained in custody where the circumstances warranted that outcome. Without that power, a person considered to be a flight risk could flee the country or go into hiding before the s 24 hearing had taken place.
[36] In any event, we also agree with Kós J that s 22 of the Act provides authority to detain under s 23. That section provides:

22 Powers of court

(1) In proceedings under this Part, except as expressly provided in this Act or in regulations made under section 102,—

(a) the court has the same jurisdiction and powers, and must conduct the proceedings in the same manner, as if the proceedings were a committal hearing of an information for an indictable offence alleged to have been committed within the jurisdiction of New Zealand; and

(b) the following provisions apply to the proceedings, so far as applicable and with the necessary modifications:

(i) Parts 5 and 5A and sections 203, 204, and 206 of the Summary Proceedings Act 1957:

(ii) Parts 1 (except sections 9 to 12), 2, and 4 of the Bail Act 2000:

(iii) the Criminal Procedure (Mentally Impaired Persons) Act 2003.

(2) Despite section 5 of the Summary Proceedings Act 1957, a District Court presided over by Justices or 1 or more Community Magistrates does not have jurisdiction to conduct proceedings under this Part.

(3) Despite section 46(1) and (2) of the Summary Proceedings Act 1957 (as applied by section 157 of that Act) and section 28(2) of the Bail Act 2000, a decision under this Part to remand a person in custody or on bail may be made only by a Judge.

[37] We accept the submission made by Mr Powell on behalf of the respondent that the effect of s 22(1) of the Act is two-fold. Firstly, in proceedings conducted under the Act, the Court is to have the same jurisdiction and powers as if the proceedings were a committal hearing for an indictable offence alleged to have been committed in New Zealand.
[38] Secondly, so far as applicable and with the necessary modifications, specific provisions of the Summary Proceedings Act, the Bail Act and the Criminal Procedure (Mentally Impaired Persons) Act 2003 are to apply to proceedings under the Act.
[39] Part 5 of the Summary Proceedings Act includes s 157, which provides that s 46 of that Act (with the necessary modifications) applies to proceedings under Part 5. Section 46 of the Summary Proceedings Act applies when a hearing is adjourned under the general power of adjournment conferred by s 45 of that Act. Upon an adjournment, the Court or Justice or Community Magistrate may allow the defendant to go at large; grant bail under the Bail Act; or remand the defendant in custody.
[40] It is therefore clear that, in proceedings under the Act, the Court has available the power under the Summary Proceedings Act to remand the affected person, including a remand in custody. However, that power is modified under the Act by s 22(2) and (3) so that proceedings under the Act and the power to remand in custody or on bail may only be exercised by a Judge.
[41] Section 22(3) of the Act is of importance since it refers expressly to the power to remand under s 46 of the Summary Proceedings Act as applied by s 157 of that Act. This reinforces the more general application of Part 5 of the Summary Proceedings Act in proceedings under the Act.
[42] We do not accept the submission that the absence of reference in s 23 to s 184T of the Summary Proceedings Act is material. The power to remand in a hospital or secure facility under s 184T(3) is available in proceedings under the Act since that section is contained in Part 5 of the Summary Proceedings Act as imported by s 22(1)(b) of the Act.
[43] Nor do we accept the submission that the sections under the Act expressly conferring a power to detain in custody are material. All of them relate to the period after a determination under s 24. The purpose of s 23 is to set out the Court’s powers between arrest and the s 24 hearing. There is no need to modify or read down the clear provisions of s 22 conferring the power to detain.
[44] We conclude that Kós J was right that a Judge, acting under s 23 of the Act, has power to order the detention of the affected person in custody. The Judge also has the power to grant bail and to remand the affected person to a secure facility or hospital.

Second issue: Was the Judge wrong to find that two alleged deficiencies in the request to extradite Mr Kim were not suitable for determination in a habeas corpus application?

[45] It was first submitted that there was no evidence that Mr Kim was an “extraditable person” under the Act since he had neither been convicted of an extradition offence against the law of the PRC nor had he been accused of having committed such an offence. It was submitted that the evidence did not go any further than establishing that Mr Kim was required for questioning by the authorities in PRC.
[46] There is no dispute that if Mr Kim is not an extraditable person, then there is no power to extradite him. In this connection, s 3 provides:

3 Meaning of extraditable person

In this Act, a person is an extraditable person in relation to an extradition country if—

(a) the person is accused of having committed an extradition offence against the law of that country; or

(b) the person has been convicted of an extradition offence against the law of that country and—

(i) there is an intention to impose a sentence on the person as a consequence of the conviction; or

(ii) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served.

[47] Kós J noted that the warrant for Mr Kim’s arrest was issued by the Shanghai Municipal Public Security Bureau on 11 March 2010. However, the exact nature of that instrument, and whether it was sufficient to amount to a criminal accusation of an extradition offence, was a matter that needed to be examined at another time. In particular, it would require contested evidence of foreign law and criminal procedure, none of which was before the Court.
[48] It was also submitted on Mr Kim’s behalf in the High Court that no lawful application had been made to extradite Mr Kim because there was no evidence that the PRC had complied with Article 47 of the Extradition Law of the PRC which provides:

Article 47 When requesting a foreign state to grant extradition or transit for extradition, the adjudicative organ, procuratorate organ, public security organ, state security organ or prison administration organ responsible for handling the case concerned in a province, autonomous region and municipality directly under the Central Government shall submit its written opinion accompanied by relevant documents and material with certified correct translation respectively to the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice. After the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice have, respectively in conjunction with the Ministry of Foreign Affairs, reviewed the opinions and approved to make the request, the request shall be submitted to the foreign state through the Ministry of Foreign Affairs.

[49] As to the Article 47 point, Kós J referred to the decision of this Court in Manuel v Superintendent, Hawkes Bay Regional Prison[15] and accepted the respondent’s submission that it would be a rare case where the habeas corpus procedure permits the court to inquire into challenges on administrative law grounds to decisions lying upstream of apparently regular warrants. This was particularly the case where the decisionmaker is not the detaining party.
[50] The Judge was not prepared to make a summary determination as to the alleged invalidity of process under a foreign law in the absence of evidence. He found that any issues raised went to the validity of the request for surrender under s 18(1) of the Act. That matter, the Judge said, must be addressed either in judicial review processes in relation to the grant of the provisional arrest warrant or in the surrender eligibility hearing under s 24 in due course. The Judge added that the former process (judicial review) might be expedited if necessary. In that respect, the Judge noted that Mr Kim had prepared, but not filed, draft proceedings for judicial review. We have been informed that those proceedings have still not been filed because Mr Kim’s advisers had been awaiting further information from the Ministry of Justice that has only recently been received. A draft statement of claim was produced. We were informed this is not in final form and that it raises not only the issues that were before Kós J but also wider issues.

Discussion

[51] We agree with the Judge that the alleged deficiencies in the request to extradite Mr Kim are not suitable for determination in a habeas corpus application. The limits on the capacity to determine issues in the summary process envisaged by the Habeas Corpus Act 2001 have been canvassed by this Court in Manuel v Superintendent of Hawkes Bay Regional Prison.[16] While the Court on such an application is entitled to examine an administrative decision underpinning the legality of the applicant’s detention, the scope of the inquiry must be limited by the practical limits of a summary process conducted in circumstances of urgency. The availability of judicial review may be considered in some cases as an alternative process for the resolution of issues not suitable for summary determination. However, we observe that Manuel was not an extradition case. There does not seem to be any valid reason in the present case why the issues raised in this appeal could not be addressed in the s 24 hearing.
[52] The Court in Manuel also confirmed that it will be a rare case that the Court will inquire in the habeas corpus context into decisions that lie upstream of an apparently regular warrant. As this Court put it:

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to enquire, into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.

[53] We are satisfied that both of the alleged deficiencies involve the determination of questions of fact of such complexity that they are not suitable for summary determination on a habeas corpus application. On the first alleged deficiency, we have not been referred to any New Zealand authority as to when a person will be treated as having been “accused” of having committed an extradition offence in terms of s 3(a) of the Act. However, the issue has been considered in several cases in the United Kingdom and in Australia. One of the leading authorities is the decision of the House of Lords in In Re Ismail.[17] The House was concerned with an application by the Federal Republic of Germany to extradite Mr Ismail from the United Kingdom in relation to offences connected with an international fraud perpetrated on German investors. Mr Ismail maintained that he was not a person “accused” of an extraditable offence under s 1(1) of the Extradition Act 1989 (UK) because no criminal charge had been made against him in Germany. He maintained he was merely a suspect who was wanted for pre-trial investigations. The House of Lords upheld a decision by the Divisional Court of the Queen’s Bench Division dismissing Mr Ismail’s challenge.
[54] The leading judgment of the House was delivered by Lord Steyn with whom the other Law Lords agreed. The issue was discussed by Lord Steyn in some detail.[18] It was common ground that mere suspicion that an individual has committed offences would not be sufficient to place him or her in the category of an “accused” person, nor would it be enough that a person was wanted by the police to “help them with their inquiries”. His Lordship noted there was no statutory definition of the term “accused”. Given the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it was not surprising the legislature had not attempted a definition. It would be unwise for the House to attempt to define these words in the UK legislation.
[55] Lord Steyn continued:

The starting point is that “accused” in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an “accused” person. Next there is the reality that one is concerned with the contextual meaning of “accused” in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg. v Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of “accused” in an extradition treaty: Rey v Government of Switzerland [1998] UKPC 17; [1999] A.C. 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment.

[56] His Lordship went on to emphasise that a broad purposive interpretation was required with an “intense” focus on the particular facts of each case:

It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an “accused” person. All one can say with confidence is that a purposive interpretation of “accused” ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an “accused” person is satisfied. ... For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is “accused” within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case.

[57] Ismail has been applied subsequently in the United Kingdom in several cases including Assange v Swedish Prosecution Authority[19] and Neave v Court of Rome, Italy.[20] Some care is needed in relation to these cases since they are decided under the Extradition Act 2003 (UK) which has material differences from the 1989 Act considered in Ismail. The 2003 Act was passed to give effect to a decision of the Council of the European Union known as the Framework Decision. [21] This effected substantial changes designed to facilitate the surrender of persons wanted in criminal proceedings in member states. The Framework Decision provides for “European arrest warrants”. In the present context, the 2003 Act has a new s 2(3) that adds a requirement that the relevant arrest warrant must state not only that the subject person is accused of the commission of a specified offence but also that the warrant is issued “with a view to his arrest and extradition ... for the purpose of being prosecuted for the offence”. The 2003 Act also provides that the arrest warrant must specify a number of particulars relating to the offences alleged as we discuss below.
[58] In the Assange case, the Queen’s Bench Division of the Divisional Court[22] found that Mr Assange was “accused” of the offences specified in the European arrest warrant even though no formal decision had been made by the Swedish authorities and even though, under Swedish law, a person had to be interrogated before a decision to charge was made.[23] This was found to be a process not uncommon on the Continent. The purpose of the questioning was found to be to ensure there was no proper basis for the matter not to proceed to trial.[24] This was a case that had moved from suspicion to accusation supported by proof.[25]
[59] Assange and Ismail were also applied by the Queen’s Bench Divisional Court in Neave.[26]
[60] In Director of Public Prosecutions v Kainhofer[27] the High Court of Australia was considering an extradition request by Austria. Although the case was determined on other grounds, Gummow J discussed at length the interpretation of the term “accused” under the Extradition Act 1988 (Cth). He emphasised[28] the need to construe extradition legislation so as to accommodate the criminal procedure of extradition countries. Mere inquiries preliminary to deciding whether to institute prosecution would be unlikely to amount to a person being “accused” of an offence for the purposes of the Extradition Act.[29] But Gummow J continued:

On the other hand, I would not accept the proposition that there must be an authorised public accusation of equivalent effect to what in common law systems would be treated as an indictment or the laying of an information. Care must be taken to allow, within the limits mentioned earlier in these reasons, what in the United States was called a “reasonable cosmopolitan interpretation”. In particular, differences between denomination or categorisation of procedures should not be given too great a weight. The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.

[61] We conclude that the issue of whether Mr Kim has been “accused” of an extradition offence for the purposes of the Act is a question of fact. That involves close consideration of the criminal processes of the extradition country in order to establish whether the subject may properly be regarded in any particular case as “accused of an extradition offence”. The fact that the criminal procedures of the extradition country may not correspond with those of New Zealand is not determinative. Nor is it necessarily decisive that no formal charge has been laid or that further questioning may be necessary before that occurs.
[62] Mr Ellis accepted that some of the material that had been placed before the District Court supported the conclusion that Mr Kim was “accused” of extraditable offences. However, he also pointed to other evidence that suggested that Mr Kim might only be a suspect who was wanted for further questioning. He did not propose to put any further evidence before the Court on this question but Mr Perkins informed us that the PRC recognised that it would be necessary to respond to this point by further evidence given under s 144 of the Evidence Act 2006 in the upcoming proceedings.
[63] We agree with Kós J that, in the context of a habeas corpus application, it is not appropriate to determine the “intensely factual” issue of whether Mr Kim is accused of an extradition offence for the purposes of the Act. The materials currently before the Court are plainly insufficient to reach any reliable finding on this point. Detailed expert evidence would be required on matters such as the significance of an arrest warrant in the PRC process leading to prosecution and the implications for Mr Kim of the stage the criminal process has reached. In that respect, we note that the PRC has detailed the case against Mr Kim with some precision and has supplied relevant parts of the evidence against him.
[64] We also observe that we have some doubts about accepting the English translations of documents issued by the PRC. Evidence is likely to be required to ensure the accuracy of translations. There is obvious potential for misunderstanding in this context.
[65] We take a similar view in relation to the Article 47 issue. If it is permissible to enter into upstream issues regarding the validity of the arrest warrant issued in the PRC or the validity of the extradition request, expert evidence would again be required as to the interpretation of Article 47; whether it was in force at the relevant time; and whether it was complied with. This issue does not lend itself to summary determination and certainly not on the materials currently before the Court.
[66] We add that, for the purpose of issuing the provisional arrest warrant, Judge Broadmore was not required to enter upon the issues discussed in this part of the judgment. Nor were those judicial officers responsible for Mr Kim’s subsequent remands. It was enough that Judge Broadmore was satisfied of the matters required under s 20 on the basis of the materials before him. There were reasonable grounds for the belief that Mr Kim was accused of an extraditable offence which was plainly identified in the warrant. The Judge was not required to give reasons beyond those described in the warrant in the prescribed form.
[67] Mr Ellis also submitted that the arrest warrant issued by the PRC did not disclose that an extradition offence had occurred in China. He said it did not disclose the identity of the victim, the country or location of the alleged murder nor the time it occurred. He referred us to a Scottish decision in the Appeal Court of the High Court of Justiciary, La Torre (Antonio) v HM Advocate.[30] In that case, one of the grounds of objection to a request by Italy to extradite the appellant for trial on charges of organised crime was a lack of specificity in a European arrest warrant issued under the Extradition Act 2003 (UK). This challenge was not upheld. There was no requirement for the victim to be identified and there was sufficient specificity in the warrant and supporting materials to comply with the requirements of s 2(2), (3) and (4) of the 2003 Act. As already noted, these provisions require much more detail than the equivalent provision under New Zealand legislation and were inserted to give effect to the Framework Decision.
[68] For the purposes of a provisional warrant under s 20 of the New Zealand legislation, the Act does not specify the content required in the arrest warrant issued in the requesting country other than to provide that it must be issued by a court or judge or other person having the power to issue it under the law of the extradition country.[31] On its face, the arrest warrant appeared to comply with this requirement.
[69] When the s 24 stage is reached, the focus is broader and includes consideration of the extradition request and supporting documents required by s 18 of the Act. In the present case, the extradition request provided very full details of the crime including the time and place it was alleged to have occurred, the name of the victim and other relevant circumstances. We have no doubt that ample particulars were provided to enable Mr Kim to know the details of the crime he is alleged to have committed.

Third issue: Should the Judge have treated the application for habeas corpus as an application for judicial review and ordered an expedited hearing?

[70] Mr Ellis submitted that the Judge had overlooked or failed to adopt a submission made to him that, if the writ of habeas corpus was refused, he should consider converting the proceedings to judicial review proceedings and allocating an urgent hearing to dispose of the issues raised. However, as we have already noted, Kós J was aware that a draft statement of claim for judicial review proceedings had been produced at the time of the hearing before him and that it had not been filed. The Judge was entitled to take the view that, if judicial review proceedings were required, Mr Kim could file them and have the issues determined.
[71] We also note that matters have moved on since the High Court proceedings in that Mr Kim has prepared a much wider draft statement of claim covering not only the issues that were before the High Court but other issues relating to his extradition. From a practical point of view, if Mr Kim wishes to proceed with the judicial review proceedings, he can file them and seek an urgent hearing. But, like Kós J, we consider that the appropriate course in terms of the Act is for Mr Kim to raise the foreshadowed issues in the context of the s 24 hearing and any relevant decision-making processes thereafter.
[72] Since the hearing, counsel for Mr Kim has filed a memorandum providing further material relating to the suggestion that Mr Kim might be subject to torture or the death penalty if surrendered to the PRC. This material has not caused us to alter our conclusion that such matters can be addressed during the s 24 hearing or in the statutory processes that follow that hearing.

Disposition

[73] For the reasons given, the appeal is dismissed.
[74] The appellant would ordinarily be liable to pay costs to the respondent but since the legal aid position is unclear, we will formally reserve costs. If the respondent seeks costs, a memorandum should be filed and served with 14 days of the date of this judgment and the appellant is to file a responding submission within 14 days thereafter.







Solicitors:
Carole Curtis, Auckland for Appellant
Crown Law Office, Wellington for Respondent

[1] Kim v R [2012] NZHC 2417.

[2] We suspect this may have been mis-dated since it appears the application and supporting affidavit were dated 10 June 2011.
[3] Extradition Act 1999, s 12.
[4] Extradition Act, s 12(b) and (c).
[5] Extradition Act, s 21(1) and (2).
[6] Extradition Act, s 21(3) and (4).
[7] Extradition Act, s 24(2)(c).
[8] Extradition Act, s 24(2)(d).
[9] Extradition Act, s 24(3).
[10] Extradition Act, s 24(4).
[11] Extradition Act, s 30(2)(a), (ab) and (b).
[12] Extradition Act, s 30(3)(a).
[13] Those sections are ss 26(1)(a), 28(2)(a), 46(1)(a), 53(2)(b)(i) and 54(2)(a).
[14] R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74 (HL) at 122.
[15] Manuel v Superintendent Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).
[16] Manuel v Superintendent of Hawkes Bay Prison, above n 15, at [46]–[51].
[17] In re Ismail [1998] UKHL 32; [1999] 1 AC 320 (HL).
[18] At 326–327.
[19] Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin).

[20] Neave v Court of Rome, Italy [2012] EWHC 358 (Admin). See also Dabas v The High Court of Justice Madrid [2006] EWHC 971 (Admin) at [12] and Hilali v Spain [2006] EWHC 1239 (Admin) at [28].

[21] Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

[22] The case later went to the Supreme Court but whether Mr Assange was “accused” was not at issue. See Assange v Swedish Prosecution Authority [2012] UKSC 22.
[23] At [140] and [148].
[24] At [150].
[25] At [152].
[26] At [19] and [20].
[27] Director of Public Prosecutions v Kainhofer [1995] 185 CLR 528.
[28] At 559.
[29] At 564.
[30] La Torre (Antonio) v HM Advocate [2006] HCJAC 56.
[31] Extradition Act, s 20(1)(a).

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