Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZHC 2417; [2012] NZAR 990 (18 September 2012)

Last Updated: 27 September 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-1918 [2012] NZHC 2417

UNDER Habeas Corpus Act 2001

IN THE MATTER OF an application for a writ of habeas corpus

BETWEEN KYUNG YUP KIM Applicant

AND PRISON MANAGER, MOUNT EDEN CORRECTIONS FACILITY Respondent

Hearing: 14 September 2012

Counsel: T Ellis with G K Edgeler for Applicant

A M Powell with D J Perkins for Respondent

Judgment: 18 September 2012

_{JUDGMENT OF THE HON JUSTICE KÓS}

[1] Mr Kim was arrested in June 2011 following an extradition request from the People’s Republic of China. The Chinese authorities allege1 that he murdered a young woman in Shanghai in December 2009. He is by citizenship Korean, but has permanent residence in New Zealand. He has lived here since the age of 14, although it appears he spends time in Korea and China as well.

[2] At his bail appeal in this Court his former counsel conceded that the evidence against Mr Kim is relatively strong. Bail was declined. He remains in custody. Mr Kim has changed counsel. Now he applies, 15 months after his original arrest

_{and detention, for habeas corpus.}

1 _{It is a live issue whether they have actually charged him, however.}

KIM v PRISON MANAGER, MOUNT EDEN CORRECTIONS FACILITY HC WN CIV 2012-485-1918 [18 September 2012]

Background

[3] The history of this matter is as follows:

Date Event

9 June 2011 Provisional arrest warrant issued by Judge Broadmore.

Applicant arrested.

11 June 2011 Applicant brought before a court. However, no judge was available

(being a Saturday). Applicant remanded in custody.

13 June 2011 Applicant brought before Judge Cunningham. Applicant remanded in custody but expressly reserved his position as to bail.

17 June 2011 Proceeding called before Judge Wilson QC.

The People’s Republic of China requested that date be fixed for the filing of the Minister of Justice’s notice (Extradition Act 1999, s

23(4)(c)(interim injunction)). Applicant sought additional time.

Applicant remanded in custody.

22 June 2011 Proceeding called before Judge Harvey. Proceeding adjourned to

allow additional time for the filing of the Minister’s notice.

Applicant remanded in custody but expressly reserved his position as to bail.

17 August 2011 Proceeding called before Judge McElrea. Minister’s notice filed.

Discussion as to suitable fixture for surrender eligibility hearing. Registry offered 30 November 2011. Applicant’s counsel advised that that date was unsuitable, as he required two months after all the People’s Republic of China’s evidence was filed. After that, Applicant may wish to file evidence of his own. Registry offered 1

February 2012. Applicant’s counsel advised that that date was

unsuitable on account of the holiday period.

Surrender eligibility hearing fixed for 15 February 2012. Listed for mention on 4 November 2011 to monitor progress.

Applicant remanded in custody.

4 November 2011 Proceeding called before Judge Weir. Listed for mention on 17

November 2011 to monitor progress. Applicant remanded in custody.

17 November 2011 Applicant brought before Judge Behrens QC. Fixture on 15

February 2012 vacated. Surrender eligibility hearing fixed for 2-4

July 2012. Applicant remanded in custody.

26 January 2012 Applicant brought before Judge Cunningham for bail hearing.

Adjourned to allow applicant further time to file an affidavit. Applicant remanded in custody.

7 February 2012 Bail hearing before Judge Gibson. Bail refused. Applicant remanded in custody.

28 February 2012 Appeal to the High Court (Justice Brewer) against refusal of bail.

Appeal dismissed.

10 April 2012 Applicant’s counsel applied for the fixture on 2-4 July 2012 to be

vacated as overseas inquiries remained complete, three-day fixture

likely to be insufficient and counsel’s instructions were incomplete.

16 April 2012 People’s Republic of China’s counsel indicated that it would abide the Court’s decision re vacation of the 2-4 July 2012 fixture.

2 July 2012 Proceeding called before Judge Gibson. Applicant remanded in custody.

5 September 2012 Applicant’s counsel applied for the fixture on 15 October 2012 to be vacated pending determination of habeas corpus and judicial review applications.

7 September 2012 People’s Republic of China’s counsel opposed vacation of 15

October 2012 fixture.

11 September 2012 Teleconference in extradition proceeding before Judge Gibson.

14 September 2012 Teleconference in extradition proceeding before Judge Gibson.

14 September 2012 Surrender eligibility hearing for 15 October 2012 vacated on application by Mr Kim.

[4] Because the focus of this application is upon the last warrant for detention, issued by Judge Gibson at the District Court in Auckland on 2 July 2012, the circumstances of that hearing need to be noted. I am told that Mr Kim’s former counsel appeared for him at that hearing. I am also told that he did not oppose the continuation of custody until 15 October 2012. That was the date allocated for determination of Mr Kim’s eligibility for surrender under s 24 of the Extradition Act

1999. A prior date of 2 July 2012 had been vacated on Mr Kim’s application. Indeed the hearing of the present habeas corpus application was preceded by a few minutes by a further successful application by Mr Kim (through his present counsel) to vacate the 15 October 2012 date. The new date for the surrender eligibility hearing was not advised.

Habeas Corpus

[5] Habeas corpus has been described as “the most fundamental legal right”.2 It is the remedy for the right declared in Magna Carta that “no free man shall be taken or imprisoned or disseized of his ... liberties ... save by the law of the land”,3 although its origins predate that great constitutional compact. It was from time to time resorted to by the Courts of England in the years before the Stuart kings. But

_{the Stuarts gave it greater impetus in the constitutional struggles of the seventeenth}

2 Clark and McCoy The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth

_{(Oxford University Press, Oxford, 2000).}

3 Joseph Constitutional and Administrative Law in New Zealand (3 ed, Brookers, Wellington,

2007) at 1069.

century.4 It has been the resort of the insignificant and of the famous alike. Applicants in the latter category include Wolf Tone, Sun Yat Sen, Erskine Childers, Ho Chi Minh, Joe Slovo, Ronnie Biggs and Augusto Pinochet.5 One of those in the former category was Robert Liversidge;6 another, 170 years earlier, James Somersett, the escaped slave whose supporters petitioned for habeas corpus and of whom Lord Mansfield did not say that the air of England was too pure for a slave to breathe.7

After surrendering in 1815, Napoleon Bonaparte was detained at sea in Plymouth Sound on HMS Bellerophon for fear he would apply for the writ. He had hoped to settle in retirement “in the heart of England”. The heart of England held hard against him, however.8

[6] The focus of habeas corpus is on the person detaining the applicant, and the authority he or she has to detain. It is the jailer, here, who is the proper respondent. “The habeas corpus shall be alwayes directed to him who hath the custody of the body”.9 Section 8 of the Habeas Corpus Act 2001 (the Act) provides for how the respondent is to be named. The onus lies on the respondent to show that the detention is lawful.10 Difficulties have arisen at common law where the authority to detain is based on a decision by an inferior court. Limited jurisdictional review on habeas corpus was permitted by common law in such circumstances.11

[7] The Act provides for summary determination of the application. By s 9(3) the Registrar must allocate a date for hearing the application no later than three working days after filing. Then the Judge must by s 9(2) ensure that the application is disposed of as a matter of priority and urgency. Such a procedure makes it difficult for a Court to determine, satisfactorily, substantive issues in dispute lying

_{beneath the face of the warrant under which the applicant is detained. Formerly, a}

4 Halliday, Habeas Corpus: From England to Empire (Harvard University Press, Cambridge

_{Mass, 2010) at 16–28.}

5 _{Clark and McCoy, above n 2, at 1.}

6 _{Also known as Jack Perlzweig: Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 (HL).}

7 R v Knowles ex parte Somersett [1772] EngR 57; (1772) 20 St Tr 1 (KB). The report of the judgment does

_{however end with the words “and therefore the black must be discharged” (at 82).}

8 Cordingly Billy Ruffian: The Bellerophon and the Downfall of Napoleon (Bloomsbury, London,

_{2003) 273-274. See also Clark and McCoy, above n 2, at 42–43.}

9 Anon (1586) Goodb. 44, cited in Farbey and Sharpe The Law of Habeas Corpus (3 ed, Oxford

_{University Press, Oxford, 2011) at 195.}

10 _{Habeas Corpus Act 2001, s 14(1).}

11 Farbey and Sharpe, above n 9, at 30–37; Clark and McCoy, above n 2, at 88-89.

warrant to detain, valid on its face, might be a sufficient answer. Limited jurisdictional review only might occur. But s 14(2) requires the Judge dealing with the application to “inquire into” matters of fact and law claimed to justify the detention. In doing so the Judge is not confined to correction of jurisdictional error.

[8] Section 14 in full provides:

(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

(2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b) a ruling as to bail by a court of competent jurisdiction. (3) A Judge must determine an application by—

(a) refusing the application for the issue of the writ; or

(b) issuing the writ ordering the release from detention of the detained person.

(4) All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

(5) A writ of habeas corpus may be in the form set out in the Schedule.

[9] Section 14 is the ultimate product of a short report by the Law Commission in 1997. The substantive part of the report itself is just nine pages long. On the intended meaning of s 14(2), the commentary provided by the Commission says:12

Subsection (2) provides that courts considering whether or not a detention is lawful are not confined to considering the formal position, but are to examine the merits. ... The wording of ss(2) is intended to overcome the problems discussed, for example, by Professor Sir William Wade QC,

12 Law Commission Habeas Corpus Procedure (NZLC, R 44, 1997) at 21.

“Habeas Corpus and Judicial Review” (1997) 113 LQR 55 and the Law Commission (England and Wales) Administrative Law: Judicial Review and Statutory Appeals (Law Com 226, 1994, 93–97).

And that is that. The main focus of the Commission’s report is on procedure.

[10] Following the enactment of s 14(2), there has been much doubt as to the extent to which s 14(2) mandates consideration of upstream issues of validity. In Bennett v Superintendent, Rimutaka Prison13 the Court of Appeal observed that it did not consider the 2001 Act brought about “any relevant change to the substance of the law of habeas corpus.”

[11] In Manuel v Superintendent, Hawkes Bay Regional Prison14 the Court of Appeal noted that, in light of the discussion of what is now s 14(2) in the Law Commission’s Report, “it would be wrong to conclude that a Court on a habeas corpus application is not entitled to examine an administrative decision which underpins the legality of the applicant’s detention”. But the Court of Appeal then went on to say this:15

On the other hand, Parliament must have contemplated a consideration of underlying questions of fact and law only to the extent to which such enquiry is possible within the procedures provided for in the Act. The enquiry envisaged must have been one that although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention.

[12] The Court noted the capacity of judicial review to proceed expeditiously, and on the other hand its concern “as to the capacity of the summary [habeas corpus] process ... to determine fairly and appropriately the important questions which are raised” as to the administrative (or indeed, it should be noted, judicial) decision underlying the detention. The Court of Appeal went on to say:16

In this context there seems to be no risk of injustice in requiring judicial review proceedings to be commenced in those cases in which administrative law challenges are not susceptible to fair summary determination.

13 _{Bennett v Superintendent, Rimutaka Prison (2002) 1 NZLR 616 (CA) at [63].}

14 _{Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [46].}

15 At [47].

[13] At [49] the Court of Appeal said:

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.

[14] The Court in Manuel concluded this aspect of the discussion of the scope of summary habeas corpus application in these terms:17

The legal basis for our approach does not lie in any particular limitation on the common law remedy of habeas corpus. Rather we see the issue as turning on the interpretation of the Habeas Corpus Act which cannot have contemplated the use of the habeas corpus remedy for purposes for which the statutory process provided in the Act is plainly inappropriate.

[15] It follows from this that the habeas corpus jurisdiction, both common law and statutory, is not intended to provide an alternative summary hard look judicial review jurisdiction. Where the essence of the challenge is to legitimacy of decision-making by a person other than the respondent jailer, that challenge will almost of necessity have to be by judicial review. Expedited if need be. An exception exists where prima facie illegitimacy of decision-making by that non-party, invalidating the otherwise regular warrant, can confidently be found by summary examination.

[16] In the present case, Mr Kim’s counsel has produced a draft statement of claim for judicial review. Those draft proceedings challenge the provisional warrant issued by Judge Broadmore on 9 June 2011, the application made for the warrant under

s 20, the processes thereafter taken by the Minister of Justice under s 21 (not to cancel the warrant), and the absence of reasons given for not cancelling the warrant under that provision. Some of those arguments are also advanced in the present case. Mr Ellis was frank in acknowledging that he had removed those judicial review issues he perceived as suitable for summary determination into the present application.

[17] Habeas corpus is expressly not to be used as a collateral attack on adverse bail decision: s 14(2)(b). In the present case Mr Ellis submitted that the appropriate outcome of this application might be the release of Mr Kim on bail. The authorities cited by Mr Ellis for that purpose18 do not appear to support that proposition. Nor is it readily reconcilable to s 14(3). Further, the qualified release proposed suggests strongly that the present application is at base a collateral attack on the decision of

Brewer J on 28 February 2012 not to grant bail to Mr Kim.

[18] It follows, therefore, that questions on this application are broadly two: (a) Is Mr Kim held under a valid warrant?

(b) How far may the Court then go in looking behind the warrant to determine the validity or otherwise of decisions made upstream of any apparently regular warrant? In doing so, the Court must determine whether the arguments made are “properly susceptible of fair and sensible summary determination”.

Challenges to the warrant

[19] Mr Kim is presently detained by the Manager of Mt Eden Prison on a warrant issued by Judge Gibson on 2 July 2012 in these terms:

18 Franic v Wilson [1993] 1 NZLR 318 (HC) and Clark and McCoy op cit at 229.

[20] Mr Kim’s first challenge is to the warrant itself. The objections taken are as

follows:

(a) That the warrant is invalid in referring to a request made on 9 June

2011 for “surrender” of Mr Kim (as opposed to an application for a provisional arrest warrant) and in referring to a determination made by the Judge on “17 June 2011” (as opposed to 2 July 2012).

(b) The absence of reasons given for the making of the warrant, in breach of s 23(1)(a) of the New Zealand Bill of Rights Act 1990, render it a nullity.

(c) The absence of any power to detain at all under s 23 of the Extradition

Act 1999, under which the warrant was issued, also render it a nullity.

Errors on the face of the warrant

[21] Mr Ellis is scathing in his criticism of the warrant and the paperwork underlying it. Putting all understatement to one side as a waste of courtesy, he says:

The detention here cannot possibly be lawful. The applicant’s detention suffers from numerous fatal flaws. The underlying paperwork is so bad it is not overstating it to call the application incompetent.

Indeed, such is his dismay that he says exactly the same thing again two paragraphs later in his submissions.

[22] It is common ground that the warrant contains the first two errors alleged. Indeed it contains others, albeit of no materiality whatsoever (such as the misspelling of Judge Broadmore’s surname). The respondent concedes that the reference to a request for “surrender” is wrong. And it concedes that the determination made by Judge Gibson was on 2 July 2012 rather than “17 June 2011”.

[23] Mr Ellis relies on the decision of John Hansen J in Mailley v General Manager, Auckland Central Remand Prison.19 I accept, however, Mr Austin Powell’s submission for the respondent that that case was altogether different. The number and extent of defects in the warrant there were so fundamental that it was incapable of authorising detention at all. They included intituling referring to irrelevant statutory provisions, an error as to the date of the extradition request being made, an error as to the provision of the Act under which the extradition request was

made, and an error as to the date on which a provisional arrest warrant was issued or as to the Judge who issued that warrant. So serious were the errors there that Hansen J said:20

The difficulty in this case is that there is absolutely no evidence of the orders that were made in Court by these various District Court Judges and it

19 Mailley v General Manager, Auckland Central Remand Prison HC Auckland CIV 2008-404-

_{008316, 17 December 2008.}

20 At [10].

appears that at least one was made in Chambers back-dating the order ... There is no way of knowing what order Judge Wilson made in Court.

[24] This case is different. There is no misunderstanding or misapprehension that a provisional arrest warrant was issued by Judge Broadmore on 9 June 2011. Nor that the request made by the People’s Republic of China on 9 June 2011 was for that warrant. That step formed part of the overall “surrender” procedure under the Extradition Act 1999 providing for a request for surrender, Ministerial notification under s 19, the issue of a provisional warrant under s 20, further notification to the Minister under s 21 and eventual determination of eligibility for surrender under s

24. While it is wrong to describe the 9 June 2011 request as one for “surrender”, the error was not such as to leave anyone in a state of misapprehension as to what was going on. Least of all Mr Kim, who by 2 July 2012 had without opposition been in custody for over 12 months. The same analysis applies to the incorrect date appearing in the warrant as the date of determination by Judge Gibson. That seems to originate from an inadvertent copying of the warrant issued by Judge Wilson QC on 17 June 2011. Again, there would have been no doubt on the part of anyone affected by the warrant that the Judge’s determination occurred not on the date shown part way through the warrant, but on the date immediately appearing above his signature. That is, on 2 July 2012.

[25] Section 204 of the Summary Proceedings Act 1957 applies to proceedings under Part 3 of the Extradition Act 1999, by reason of s 22(1)(b)(i). It provides that no warrant shall be set aside by reason only of defect, irregularity, omission or want of form unless the Court is satisfied there has been a miscarriage of justice. The degree of defect, irregularity and want of form in this case is not so serious as to give rise to any miscarriage of justice.

[26] I therefore dismiss the first challenge to the warrant.

Absence of reasons

[27] I turn now to the alleged absence of reasons given for the warrant. Mr Ellis submits that Judge Gibson gave no reasons for the detention, but merely described “a native purpose”. Mr Ellis submits that s 23(1)(a) of the New Zealand Bill of Rights

Act 1990 requires advice to the arrestee or detainee of the reasons for his arrest and detention. So, Mr Ellis submits, each detention warrant needs as much explanation as the arrest warrant. Reasons in a separate document should issue after being given orally, relying on Cronin v Sheffield Magistrates Court21 and Lewis v Wilson and Horton.22 There the Court of Appeal noted the desirability of Courts giving reasons for the twin purposes of maintaining open administration of justice and enabling

review. The giving of reasons is not necessarily invariable, however, and might in

appropriate circumstances be “abbreviated”.23

[28] I do not accept this argument, however.

[29] First, there is no necessity in my view for reasons to be set out on the face of the warrant. It is certainly necessary that a reasoned decision be made by a District Court Judge exercising the power in s 20(1) of the Extradition Act 1989. That provision requires the Judge to be satisfied of four things: that a warrant for arrest has been issued in an extradition country by a lawful authority, that the person is in or on his or her way to New Zealand, that there are reasonable grounds to believe that the person is an extraditable person, and that it is necessary and desirable for the arrest warrant to be issued urgently. A decision to exercise those powers needs to be reasoned. The reasons need not be elaborate or even complete, but they must be sufficient to meet the indicative requirements in Lewis.

[30] In the present case Judge Broadmore issued a provisional warrant which is reasoned, albeit briefly. It records on its face the fact of application, the supporting information relied on in the application, and the Judge’s satisfaction as to each of the four elements required under s 20(1). I acknowledge Mr Ellis’ criticisms of the adequacy of the reasons given. I would however have been surprised to see a warrant set forth in any greater detail. I acknowledge also Mr Ellis’ criticisms of the Judge’s conclusions on the third element: reasonable grounds to believe that Mr Kim is a “extraditable person”. To be such a person one must have been “accused of

_{committing an extradition offence”.}24 _{In the present case, the paperwork is}

21 _{Cronin v Sheffield Magistrates Court [2002] EWHC 2568 (QB) at 24.}

22 _{Lewis v Wilson and Horton [2000] 3 NZLR 546 (CA).}

23 _{At [81].}

24 Or convicted thereof: Extradition Act 1999, s 3(a) and (b).

somewhat murky. The translated documents from the Chinese prosecutor variously “charge” Mr Kim with murder, refer to an arrest warrant for “suspicion” of homicide or else indicate that further evidence is to be sought “with a recommendation to initiate a public prosecution”. However, that is a classic judicial review argument against the original warrant upstream of the warrant under which Mr Kim is currently detained. It is not in my view capable of being determined at this summary step. Alternatively of course it is a matter that can be taken up at the much- protracted extradition surrender eligibility hearing under s 24 – at which the

applicant must show “a warrant for the arrest of the person for the offence”.25

[31] Secondly (and subject to the next argument as to the power to detain at all under s 23), the warrant issued by Judge Gibson on 2 July 2012 appears (as Mr Ellis accepts) to have been the product of a brief hearing in the District Court at Auckland on 2 July 2012. There, extension of the prior warrant was either consented to or at least not opposed. In future cases of this kind it would be preferable if the Crown were to furnish evidence of the process by which the relevant warrant was issued. However, here, where the continued detention was at least not opposed by counsel for Mr Kim, no particular reasons would need to be given for the order by the Judge. The authority to arrest and detain was given by s 20 and the ensuing s 23 warrants. Bail had been sought from the same Judge Gibson on 7 February 2012, and declined. Mr Kim’s refusal of bail was dismissed by Brewer J in the High Court on

28 February 2012. At Mr Kim’s own request, the surrender eligibility hearing had been adjourned from 2 July 2012 to 15 October 2012. The natural consequence of all this, assuming s 23 conferred a power to detain at all, was continued detention to

15 October 2012. Which is what the warrant prescribes.

[32] I turn now to consider whether s 23 confers a power of detention at all.

Absence of power to detain?

[33] Whether s 23 of the Extradition Act 1999 (under which the warrant is issued)

_{confers a power to detain is a standard ultra vires argument. To the extent that it is}

25 Extradition Act 1999 ss 18(4)(a)(i) and 24(2)(a).

independent of disputed fact, and is primarily a question of law, it is entirely suitable for determination at summary stage under a habeas corpus application.

[34] Section 23 of the Extradition Act 1999 provides:

(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).

(4) If the person has been arrested on a provisional arrest warrant issued under section 20, the following provisions apply:

(a) the hearing of the proceedings must not proceed until the court receives from the Minister a notice in writing stating that a request for the surrender of the person has been transmitted to the Minister under section 18:

(b) pending the receipt of the notice from the Minister, the proceedings may from time to time be adjourned:

(c) if the court does not receive the notice—

(i) within the time prescribed in an extradition treaty that is in force between the extradition country and New Zealand; or

(ii) if no time is prescribed in a treaty, or no treaty is in force, within such reasonable time as the court may fix,—

the court must discharge the person:

(d) the court may from time to time, in its discretion, extend any time fixed by it under paragraph (c)(ii).

[35] Mr Ellis submits that the section does not empower continued detention of a person pending determination of extradition proceedings. If it is suggested that a power of detention is implicit in the provision, that is “misplaced”. He cites in

support the observation of Lord Bridge in R v Secretary of State for the Home

Department ex parte Khawaja that the Courts have a duty to:26

... 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.

[36] Mr Ellis submits that the section contains no power of detention, in contrast to such powers found explicitly in other provisions following the Court’s determination that the affected person is eligible for surrender: ss 26(1)(a), 28(2),

46(1)(a), 53(2)(b)(i) and 54(2)(a). All contain express words authorising the Court to “issue a warrant for the detention of a person”. No such words are found in s 23, and Mr Ellis submits that the “only sensible conclusion to be drawn is that there is no power of detention in s 23.”

[37] I am unable to accept that argument.

[38] First, counsel27 concedes that ss 19 and 20 of the Extradition Act 1999 in combination confer a power to detain. He submits that applies up to the point where the person affected is brought before the Court. That takes place under s 23(1).

[39] Secondly, I accept the argument advanced by Mr Powell for the respondent that s 46(1) of the Summary Proceedings Act 1957 then applies to a s 23(1) hearing. That follows from s 22(1)(a) of the Extradition Act 1999, which provides that in proceedings under Part 3 the Court has the same powers as if the proceeding were a committal hearing of an information for an indictable offence alleged to have been committed within New Zealand. In that event s 22(1)(b)(i) provides specifically that Part 5 of the Summary Proceedings Act 1957 applies. By s 155(1), that confers a power to adjourn proceedings under Part 3 of the Extradition Act 1999. And s 46(1) of the Summary Proceedings Act 1957, which provides:

Where any hearing is adjourned under section 45, and the defendant is liable on conviction to a sentence of imprisonment or the defendant has been arrested, the Court or Justice or Community Magistrate may—

26 _{R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 (HL) at 112.}

27 Mr Ellis’ junior, Mr Graeme Edgeler on this particular aspect.

(a) allow the defendant to go at large for the period of the adjournment;

or

(b) grant the defendant bail under the Bail Act 2000 for the period of the adjournment; or

(c) remand the defendant in custody for the period of the adjournment

then applies under s 22(1)(a) so as to confer an express power to remand an affected person in custody after he is brought before the Court under s 23(1).

[40] Thirdly, in any event, I would have found that s 23(2) creates an express power to detain the affected person. Section 23(2) provides that that person is “not bailable as of right”, and “may not go at large without bail”. Of necessity that empowers the continued detention of the affected person under s 23. Section 23(2) is not otherwise internally reconcilable.

[41] I therefore find that s 23 does contain a power to detain. In terms of Lord Bridge’s observation in Khawaja such power is clearly justified by the statutory language in s 23.

Challenge to decisions made upstream of the warrant

[42] I turn now to the two remaining grounds of challenge advanced on Mr Kim’s

behalf. They are:

(a) That no lawful request for surrender was made by People’s Republic of China in the first place, it having failed to comply with Chinese laws in the making of such requests.

(b) That Mr Kim is not an “extraditable person” for the purposes of ss 3 and 18 of the Extradition Act 1999, because he has not been “accused of having committed an extraditable offence against the law of [China]”.

[43] Before analysing these two grounds, I should note three points.

[44] The first is that these are really challenges to the extradition process itself, and so far as material to a habeas corpus application for unlawful detention, are challenges to the issue of the s 20 provisional arrest warrant.

[45] Secondly, as the Court of Appeal noted in Manuel, it will be a “rare case” where habeas corpus procedure permits the Court to inquire into challenges on administrative law grounds to decisions lying upstream of apparently regular warrants. As the Court of Appeal then noted:28

This is particularly likely to be the case where the decision-maker is not the detaining party.

[46] Thirdly, as I noted earlier, the Courts at common law and, following Manuel, still under the Habeas Corpus Act 2001, approach review of an upstream warrant made by an inferior Court, which on its face permits detention by the respondent, with reservation. As I have noted, in some situations it is possible to reach a summary view as to the validity of such a decision. The ultra vires argument advanced in respect of the existence or not of a power to detain under s 23 is such an example. But where the challenge involves condemnation of a judicial or even administrative decision productive of an apparently regular warrant, on the basis of contested questions of fact, summary process under habeas corpus is not likely to be an appropriate course.

No lawful request for surrender?

[47] Mr Ellis submits that Chinese law as to the making of such requests first requires compliance by the applicant with local law under the People’s Republic of China. In particular, evidence is essential that the required documents have been submitted to, and approved by, each and everyone of the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of State Security, Ministry of Public Security and Ministry of Justice. As Mr Ellis puts it, “without approval from each of

_{these five organs of government, there is no request.” Rather, the request has been}

28 Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

made by Mr Jian Li, the Director of Investigation and Supervision of the No. 1

Branch of the Shanghai Municipal Peoples Procuratorate.

[48] Mr Powell for the respondent submits that an examination of extradition law and procedure in the People’s Republic of China, to determine the regularity or otherwise of that country’s request to New Zealand in respect of the applicant, is “inapposite” to a “fair and sensible summary determination” on an application for a writ of habeas corpus. He submits there would need to be detailed evidence and submissions as to procedures mandated by Chinese extradition law, and the extent to which those procedures were followed or not followed in the present case.

[49] I accept Mr Powell’s argument at this stage of proceedings. I am not prepared to make a summary determination as to invalidity of process under foreign law, in the absence of evidence thereon. The onus lies on the respondent to show validity of detention. To that extent any onus to produce evidence of that foreign law would lie on the respondent. But this is an exact example of why caution must be exercised on summary upstream review. Where the issue becomes one of evidence of foreign law, such evidence is not readily obtainable on summary procedure within the three day time limit provided in s 9. That goes to an issue upstream of the warrant itself – namely the validity of the s 18(1) request for surrender. These matters must be addressed either in judicial review processes in relation to the grant of the provisional arrest warrant (which is what detains Mr Kim in New Zealand) or in the surrender eligibility hearing in due course. The former may be expedited if necessary. The latter Mr Kim has twice postponed.

[50] I dismiss this ground of challenge.

Whether the applicant has been charged with an extraditable offence

[51] I have already described the paperwork in this case as somewhat murky in relation to the exact status within Chinese criminal procedure of the charges against the applicant.29 Only if the District Court Judge issuing the provisional arrest

_{warrant is satisfied that there are reasonable grounds to believe that the person}

29 See at [30] above.

affected is an “extraditable person” may the warrant issue. An “extraditable person” must by s 3 be a person “accused of having committed an extradition offence against the law of [China].”

[52] There does not appear to be any New Zealand case law on the meaning of “extraditable person”. In particular what is meant by a “person ... accused”. In DPP v Kainhofer30 Gummow J said:

As was pointed out in Narain (1987) 15 FCR 411, in the common law, the term “accused” is not a legal term of art. It may be used in legislation with purely domestic concerns so as to encompass terms such as “charge”, “indict”, “impeach”, “arraign”, “incriminate”, as well as to refer to the laying of an information of a private prosecution. But it would not readily be understood as including suspicion by prosecuting authorities but without prosecution. Much would depend upon the particular statutory or constitutional context.

See also the House of Lords decision in Re Ismail.31

[53] Mr Ellis submits that the evidence shows that Mr Kim has not been charged with, or accused of, any offence in China. Rather he is simply wanted for questioning in respect of a potential charge of intentional homicide in China. The Extradition Act 1999 does not permit surrender of a person merely for questioning. As he puts it, “nowhere in any of the documentary material placed before the District Court – in respect of either of the applications for the provisional warrant or the request for surrender – do the Chinese authorities accuse Mr Kim of any offence, let alone an extraditable one”.

[54] Mr Powell for the respondent submits, again, that an examination of the criminal law and procedure in the People’s Republic of China to determine whether the applicant has been charged, or was merely sought for questioning, again is inapposite to “fair and sensible summary determination” on an application for a writ of habeas corpus. In addition and in any event, he submits that the Act does not require a person in respect of which extradition is sought to have been “charged” with an extradition offence. Relying on Kainhofer, something less than that is

_needed.

30 _{DPP v Kainhofer (1995) 185 CLR 528 at 558–559.}

31 Re Ismail [1999] 1 AC 320 (HL).

[55] Whether Mr Kim is an extraditable person is a question of fundamental importance. It will be front and centre in the surrender eligibility hearing in due course. And, certainly, it may also be raised in a judicial review application. That course is foreshadowed in the draft proceedings prepared for Mr Kim. But it is not a matter that I can reasonably deal with on a summary basis, where it is dependent upon what may be contested evidence of foreign law and criminal procedure, none of which is now, or could reasonably be, before me.

[56] It is clear on the evidence that a warrant for arrest of Mr Kim was issued by the Shanghai Municipal Public Security Bureau on 11 March 2010. The exact nature of that instrument, and whether it is sufficient to amount to criminal accusation of an extradition offence in terms of s 3(a), is a matter that will need to be examined at another time. I accept in light of the authorities such as Ismail that the Court considering those issues would need to look beyond the mere appearance of the warrant. But that would depend upon evidence, and that evidence is not before me.

[57] I dismiss this ground of challenge.

Disposition

[58] In accordance with s 14(3), the application for issue of a writ of habeas corpus is refused.

[59] If costs are in issue, I will receive memoranda.

Stephen Kós J

Solicitors:

Carole Curtis, Auckland for Applicant

Crown Law, Wellington for Respondent