Kim v Prison Manager, Mt Eden Corrections Facility [2014] NZHC 3152 (10 December 2014)

Last Updated: 10 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3174 [2014] NZHC 3152

UNDER	the Habeas Corpus Act 2001
IN THE MATTER	of an application for a writ of habeas corpus
BETWEEN	KYUNG YUP KIM Applicant
AND	THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY Respondent

Hearing:	4 December 2014
Counsel:	T Ellis and S Park for Applicant NMH Whittington and A Todd for Respondent
Judgment:	10 December 2014

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 10 December 2014 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Carole Curtis (Auckland) for Applicant

Meredith Connell (Auckland) for Respondent

_{Counsel: Dr Tony Ellis}

KIM v THE PRISON MANAGER, MT EDEN CORRECTIONS FACILITY [2014] NZHC 3152 [10 December

2014]

Introduction

[1] On 28 November 2014, I heard an application by Mr Kim for a writ of habeas corpus. He was detained in a prison pursuant to a warrant issued in the District Court under s 70 of the Extradition Act 1999 (“the Act”) and his argument was that the warrant had expired. I reserved my decision.

[2] On 2 December 2014, the District Court issued a new warrant for Mr Kim’s detention, this time pursuant to s 26(1) of the Act. The next day I delivered my judgment.¹ I said I would have granted Mr Kim’s application, but the matter was now moot because of the new warrant. I awarded Mr Kim his costs.

[3] Mr Ellis, for Mr Kim, at once filed a further application for a writ of habeas corpus. I heard argument on 4 December 2014. Essentially, Mr Ellis submits that the District Court issued the new warrant unlawfully because it failed to follow due process.

The process

[4] Mr Kim’s first application for a writ of habeas corpus was filed on one basis but argued on another. That was because, the day before the hearing, Mr Ellis saw a copy of the warrant pursuant to which Mr Kim was detained and noted that, on its face, it had expired. He handed up submissions to that effect. Crown counsel then had to extemporise an argument that the warrant was still operative.

[5] Subsequently, Crown counsel concluded that the first warrant should never have been issued. On 2 December 2014, Crown counsel sent a memorandum to Judge Gibson, who had issued the warrant. A copy of the memorandum was served on Mr Ellis and another was provided to me. The point of the memorandum was to advise Judge Gibson that, in the Crown’s view, he had been wrong to detain Mr Kim pursuant to a warrant issued under s 70 of the Act.

[6] Judge Gibson had the task of determining, pursuant to s 24 of the Act, whether Mr Kim is eligible for surrender in relation to the offence for which

surrender is sought. In this case, the People’s Republic of China wishes to extradite Mr Kim to face a charge of intentional homicide. Judge Gibson decided that Mr Kim is eligible for surrender, and gave that ruling.

[7] Section 26(1)(a) of the Act provides that if the Court determines that a person is eligible for surrender, it must “issue a warrant for the detention of the person ... pending the surrender of the person to the extradition country or the person’s discharge according to law”. However, what happened was that counsel for Mr Kim, upon hearing the Court’s determination that Mr Kim is eligible for surrender, at once informed the Court that Mr Kim would appeal against the determination. Section 70 of the Act provides that if this happens, “the Court may order that the person who is the subject of the determination continue to be detained or, as the case may be, issue a warrant for the arrest and detention of the person, pending the determination of the appeal”. Judge Gibson, having had that provision called to his attention and accepting the submission of counsel that this was the appropriate section under which to order continued detention, issued his warrant accordingly.

[8] The crux of the submission made to Judge Gibson by Crown counsel can be taken from the memorandum as follows:²

14. The case has fundamentally miscarried because the District Court did not issue a warrant under s 26(1) when the law compelled it to do so. The Court was led into that error by the parties.

15. If the warrant issued under s 70(1), which was issued under a mistake of law, has expired by the effluxion of time, then the current position is that there is no lawful authority for the applicant’s continued detention because although he was liable by operation of law to a warrant under s 26(1), no such warrant was in fact issued.

16. The error relating to the warrant issued under s 70(1) and its subsequent expiry by operation of law does not however preclude the issuing of the warrant under s 26(1) which was and still is required under s 26(1).

[9] Judge Gibson convened a telephone conference on 2 December 2014. Mr Ellis and his junior, Mr Park, participated, although Mr Ellis submits that he did so out of courtesy and as an officer of the Court since he had no instructions from

Mr Kim. Mr Park has made an affirmation summarising his notes of the telephone conference and I take the following account from it.

[10] Judge Gibson, who had been made aware by Crown counsel of the outstanding application for a writ of habeas corpus, asked whether the new Crown position had been put before me. Mr Ellis informed Judge Gibson that it had not. He also told Judge Gibson that the eligibility hearing having been determined, Judge Gibson was functus officio and, further, that the Judge should not pre-empt the habeas corpus proceeding. Judge Gibson was made aware that Mr Ellis had no instructions from Mr Kim, nor did he have a legal aid grant to cover the telephone conference. Mr Ellis requested that the parties be heard before the Judge made any decision. Judge Gibson is noted by Mr Park as saying that the telephone conference was not a hearing and that he would not hold a hearing because he was simply correcting an error relating to the warrant. The Judge said that he would issue a warrant pursuant to s 26(1).

The positions of the parties

[11] The Crown’s position (and the onus is on the Crown) is that Judge Gibson is correct. An error was made. Section 26(1) requires the issue of a warrant and the Judge merely complied with his statutory obligation, albeit belatedly. No substantive rights of Mr Kim were affected. As a fallback, the Crown argues that because Mr Kim’s application effectively challenges the decision of Judge Gibson, and the process through which it was reached, this is not a matter suited for the summary remedy of habeas corpus but should rather be left for judicial review.

[12] Mr Ellis submits that Mr Kim’s substantive rights were involved and were breached. First, Mr Ellis submits that Judge Gibson was functus officio. The hearing to determine Mr Kim’s eligibility for surrender had been concluded with the issue of the s 70 warrant. It could not be re-opened. Further, Mr Kim had a right to appear and be heard on what amounted to a further Crown application for a warrant to detain him. He was not afforded that right, his fate was determined solely in reliance on the Crown’s memorandum and, effectively, in secret. In Mr Ellis’s submission, these breaches of Mr Kim’s fundamental right to due process, including

his right to natural justice, are egregious and patent. Accordingly, Mr Kim’s detention under the s 26(1) warrant is unlawful and I must direct the issue of a writ of habeas corpus for Mr Kim’s immediate release.

Issues

[13] The issues I have to determine are:

(1) Is the District Court Judge functus officio so that he had no power to issue the s 26(1) warrant?

(2) Did the issue of the s 26(1) warrant result from a denial of due process?

(3) Is the validity of the s 26(1) warrant unsuited for summary determination by the habeas corpus procedure and better left for judicial review?

[14] If these issues are decided in favour of Mr Kim, the final issue will be whether he is unlawfully detained. If he is, I must direct that a writ of habeas corpus issue.³

Is the District Court Judge functus officio?

[15] The term “functus officio” is lawyers’ shorthand for the concept that once an authority has made its decision it has exhausted its jurisdiction and has no power to act further in the matter.⁴

[16] The argument made by Mr Ellis is that the jurisdiction of the District Court was limited to the determination of Mr Kim’s eligibility for surrender. Judge Gibson made that determination on 29 November 2013 and, in the same hearing, directed a s 70 warrant to issue. That was the end of the District Court’s lawful involvement.

_{Its jurisdiction was exhausted.}

³ _{Habeas Corpus Act 2001, s 14(1).}

⁴ GDS Taylor Judicial Review: A New Zealand Perspective (3rd ed, Lexis Nexis, Wellington,

2014) at 632.

[17] I do not accept this argument. Section 26(1) mandates the issue of a warrant in terms of s 26(1)(a) if the District Court determines that a person is eligible for surrender.⁵ In my previous judgment, I accept that s 26 applies in this case and that a warrant under s 70 should not have issued. That being so, Judge Gibson had not exhausted his jurisdiction under s 26(1) because he never exercised his jurisdiction under s 26(1). Judge Gibson did not re-open the s 24 eligibility for surrender hearing.

[18] This ground for the application does not succeed.

Was Mr Kim denied due process?

[19] The rights which Mr Ellis contends his client was denied are fundamental to our system of justice and are ancient in their lineage. They are taken for granted in the context of criminal justice:⁶

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

[20] The principles of natural justice evolved at common law and are affirmed by the New Zealand Bill of Rights Act, not limited by it. However, it is important to realise that the principles of natural justice are standards against which the lawfulness of a process can be determined. Context matters. All principles do not necessarily apply to all situations:⁷

The term “natural justice” has a long-established meaning. The two key principles of natural justice are that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and that the decision maker be disinterested and unbiased (nemo debet esse judex in propria sua causa). The extent of the requirements of natural justice, however, depends on the circumstances and the nature of the decision, assessed in light of any relevant statutory provisions (see Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at p 141).

⁵ The Court of Appeal recognised this in Kim v The Prison Manager, Mt Eden Corrections

_{Facility [2012] NZCA 471, [2012] 3 NZLR 845 at [26].}

⁶ _{New Zealand Bill of Rights Act 1990, s 27(1).}

⁷ Combined Beneficiaries Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2

NZLR 56 at [11].

[21] Here, Mr Ellis’s primary submission is that Mr Kim was denied natural justice because he was entitled to be present and entitled to be heard after having had adequate notice of the hearing and the issues to be determined. Instead, he was unrepresented and the decision to issue the new warrant was made after the Judge had heard only from the Crown. Mr Ellis relies, in particular, on the decision of the

Privy Council in R v Taito.⁸

[22] Taito is a well known case. The Court of Appeal had developed a particular practice where legal aid for appeals had been refused of dismissing the substantive appeals on the papers without an appearance by either the Solicitor-General or the appellant. The Privy Council held that this practice was wrong. The dismissals of the appeals on the papers involved no exercise of judicial judgment but were formal or mechanical acts relying on the earlier decisions that legal aid should not be granted. Statutory provisions requiring the appearance of the Solicitor-General and giving the appellant the choice of making written submissions or appearing in person were not complied with. The Privy Council rejected the Solicitor-General’s argument that overall the process met the requirements of natural justice. The Privy Council held that the procedural rights of appellants under the legislation served an instrumental role in helping to ensure correct decisions on the substance of cases. Decisions that the appeals were in truth unmeritorious could only be made after

observance of procedural due process.⁹

[23] This is a very different case from Taito. There, statutory provisions establishing a process which included the right of an appellant to be heard in support of his appeal were not being complied with. In an area where the Court of Appeal had a substantive choice to make – whether to allow an appeal or not – that choice was being made without proper judicial consideration of the merits and without hearing from the parties. In this case, there are no such considerations.

[24] The contestable part of the process was the s 24 hearing. That was concluded when Judge Gibson determined that Mr Kim is eligible for surrender. Having made

_{that determination, the Judge was required by s 26(1) of the Act to issue a warrant}

⁸ _{R v Taito [2003] 3 NZLR 577 (PC).}

⁹ At [19].

for detention in the mandated form. He did not do so until the omission was drawn to his attention by the Crown.

[25] The issue, then, is whether principles of natural justice are applicable in this particular situation. As Barker J said in Chandra v Minister of Immigration,¹⁰ one must ask “does the Act expressly or impliedly exclude the rules of natural justice?”

[26] There is a number of decisions where habeas corpus has been sought and the right to be heard has been held not to apply because of the statutory contexts. Among them are:

(1) Kim v Attorney-General¹¹

In this case, Mr Kim made a similar argument in relation to the issue of a notice under s 23(4) of the Act – which is a notice from the Minister of Justice stating that a surrender request has been made. Collins J held, and I respectfully agree:

In my assessment, the s 23(4) notice was issued to comply with a purely mechanical step in the extradition process. The Minister did not need to afford Mr Kim an opportunity to be heard on whether or not the Minister had received a request to extradite Mr Kim.

(2) Misiuk v New Zealand Parole Board¹²

Mr Misiuk argued that he was detained unlawfully because the Parole

Board had changed his release date without hearing from him:

[10] Mr Misiuk argued in the High Court that the Board should have held a hearing at which he was able to make submissions before it decided to change his release date. He said its failure to do so was a breach of his right to be heard. The High Court Judge found that s 28 did not require a hearing to be conducted before a decision was made, but rather required that another parole hearing be held as soon as possible after the decision was made. We agree with the Judge. Mr Misiuk told us that the Parole Board was

¹⁰ _{Chandra v Minister of Immigration [1978] 2 NZLR 559 (SC) at 570.}

¹¹ _{Kim v Attorney-General [2014] NZHC 1383 at [90].}

¹² Misiuk v New Zealand Parole Board [2012] NZCA 116.

conducting hearings at Paremoremo Prison on the day on which the variation decision was made. He said that it would have been a simple matter for the Parole Board to arrange for him to be summoned and for a hearing to take place. He said in those circumstances s 28(5) should be interpreted as requiring a hearing to be conducted before the decision to vary or revoke the direction for release is made.

[11] We can see no basis for that submission. Either there is a requirement for a hearing or there is not. There is no basis to interpret the s 28(5) differently, based on where the Parole Board happens to be conducting its business at any time. While the Board may choose to hold a hearing if that is practical in the circumstances, it does not seem that the holding of such a hearing would absolve it of the obligation under s 28(5) to hold another hearing as soon as practical after the decision. In the end, the words of the section are clear and the practicalities do not alter that meaning. This point of appeal fails.

[27] In my view, this case has similar considerations. Section 26(1) has aspects of natural justice requirements included within it. But they do not include a right to be heard:¹³

(1) If the court determines under section 24 that the person is eligible for surrender, it must—

(a) Issue a warrant for the detention of the person in a [prison] or other place authorised in accordance with section 27 of this Act or [section 184T(3)] of the Summary Proceedings Act 1957 pending the surrender of the person to the extradition country or the person's discharge according to law; and

(b) Record in writing the extradition offence or extradition offences in relation to which the court has determined that the person is eligible for surrender; and

(c) Send to the Minister a copy of the warrant of detention and the record made under paragraph (b), together with a copy of the application and any other evidence taken before the court in the case and any other information before it that has not already been sent to the Minister, and such report on the case as the court thinks fit; and

(d) Inform the person that—

(i) Subject to section 71, the person will not be surrendered until the expiration of 15 days after the date of the issue of the warrant of detention; and

¹³ Extradition Act 1999, s 26(1).

(ii) During that time the person has the right to make an application for a writ of habeas corpus; and

(iii) The person has the right to lodge an appeal under

Part 8.

[28] The right of a person to be informed that he will not be surrendered until the expiration of 15 days and that he has the right during that time to make an application for writ of habeas corpus and to lodge an appeal, are the natural justice procedures the section requires. But because a Judge has no discretion as to whether to issue the warrant, there is no right to be heard on the matter.

[29] In this case, Judge Gibson convened a telephone conference having received the Crown’s memorandum, apparently for the purpose of advising the parties of his intention to issue the s 26(1) warrant. Mr Park has recorded that the Judge, in answer to Mr Ellis’s protests, made it clear that he was not conducting a hearing.

[30] Against this analysis of the situation, Mr Ellis’s trenchant criticism of the issuing of the s 26(1) warrant is inapt.¹⁴ Mr Kim was not denied due process because of a breach of the principles of natural justice. The issuing of the warrant was not a contestable matter because it was not a matter for judicial decision. The Judge did what he was required to do.

[31] I accept that Judge Gibson did not inform Mr Kim of the matters set out in s 26(1)(d). But no wrong has flowed from that failure. Mr Kim is already contesting his surrender and has already exercised his right to make an application for a writ of habeas corpus. He understands he has a right to lodge an appeal, and indeed exercised that right in respect of the s 70 warrant. In these circumstances, the failure to give required information does not make Mr Kim’s detention arbitrary.¹⁵

[32] Mr Ellis’s submission that the process was wrong because Mr Kim was not considered for bail is not material to the issue of the validity of the warrant. There is

_{no requirement that a bail hearing take place immediately upon a warrant being}

¹⁴ “So, all in all, Sir, this was a disgrace and I don’t think I would be overstating it to say this is the nearest thing I have ever seen in this jurisdiction to a kangaroo court. This should not be allowed to happen. The warrant is unlawful and he should be released on the second writ of habeas corpus.” (Transcript of submissions, at 9)

¹⁵ New Zealand Bill of Rights Act 1990, s 22.

issued. Section 26(2) makes it clear that bail may be granted notwithstanding the issue of a warrant. Mr Kim remains entitled to apply for bail. He has applied unsuccessfully several times in the past.

[33] This ground for the application does not succeed.

Is the validity of the warrant better left for judicial review?

[34] The test for whether a case is better suited to habeas corpus or judicial review is set out in Manuel v Superintendent of Hawkes Bay Regional Prison.¹⁶ The Court of Appeal said that it will be a rare case:¹⁷

... where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants... 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.

[35] In Campbell v The Superintendent, Wellington Prison, the Court of Appeal discussed in more detail the utility of the judicial review process in cases where unlawful detention is claimed:¹⁸

In recent years this Court has indicated on several occasions that where the crucial question arising in a citizen’s claim of wrongful detention concerns the validity of an administrative decision authorising that detention, the appropriate method of seeking judicial intervention is by an application to the High Court for judicial review (rather than for habeas corpus). In judgments such as Manuel v Superintendent of Hawkes Bay Prison [2005] NZLR 161 and Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR

616 the Court has emphasised that the judicial review procedure affords an effective, flexible and expeditious process for securing release from unlawful detention. Where a considered judicial examination and evaluation of facts concerning the validity of an administrative decision is necessary to establish the unlawfulness of the detention, it is more suitable than the very important but essentially summary procedure of habeas corpus.

[36] There is no doubt that the warrant issued by Judge Gibson was issued pursuant to a statutory power and is valid on its face. The application for a writ of

¹⁶ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [46].

_{Note: the case went to the Supreme Court but was decided by the majority on a different basis.}

¹⁷ _{At [49].}

¹⁸ Campbell v The Superintendent, Wellington Prison [2007] NZAR 52 (CA) at [35].

habeas corpus is based on Mr Ellis’s submissions that there were deficiencies in the process by which Judge Gibson came to the decision to issue the warrant. Accordingly, this represents a challenge not to the lawfulness of the authority for Mr Kim’s detention but a challenge upstream, to the decision that resulted in the otherwise lawful detention.

[37] The Crown argues that where the allegation is that a judicial process has miscarried, an investigation is required into the circumstances of the process and the elements of the decision making. Judge Gibson has not yet given his reasons for issuing the warrant (according to Mr Park’s notes, he intends to issue a Minute in due course). The Crown contends that the issues raised by Mr Ellis are better dealt with by judicial review where the record of the decision-maker, who would also necessarily be a party to the review, can be examined and any issues of fact resolved.

[38] I note also that since the decision in Manuel, Parliament has legislated to make clear that the Court may refuse an application for the issue of a writ of habeas corpus, without requiring the defendant to establish lawful detention, if the Court is satisfied that the habeas corpus procedure is not the appropriate one for considering the allegations made by the applicant.¹⁹

[39] In broader circumstances, I would accept the Crown’s argument. If Judge Gibson’s decision had been one of judicial discretion or related to a situation where, prima facie, principles of natural justice had not been observed, I might well have considered that a judicial review process was necessary in order to properly investigate the procedural propriety of what had occurred and to resolve issues of fact and law. But I do not think this is the case here. Here, there is a statutory requirement for a warrant to issue. Judge Gibson, albeit belatedly, complied with his statutory obligation. Mr Kim had no right to be heard to contest the issuing of the warrant. As Wild J says in Wellington International Airport Ltd v Commerce

Commission,²⁰ “the Court may not restrain the performance of a mandatory statutory

_duty”.

¹⁹ _{Habeas Corpus Act 2001, s 14(1A).}

²⁰ Wellington International Airport Ltd v Commerce Commission (2002) 10 TCLR 460 (HC) at

[66].

[40] It does not really matter, therefore, why Judge Gibson held the telephone conference or what his reasons were for issuing the warrant.

[41] This ground for opposing the issue of a writ of habeas corpus does not succeed.

Decision

[42] In my view, Judge Gibson did no more than correct an error. The warrant issued pursuant to s 26(1) by which Mr Kim is detained currently was issued lawfully and is valid. There is nothing in the circumstances by which the warrant came to be issued which would make unlawful the otherwise lawful detention. The Crown has discharged its onus to establish that Mr Kim’s detention is lawful.

[43] The application for the issue of a writ of habeas corpus is denied.

[44] I am not sure of the legal aid situation. If the Crown wishes to claim costs, it must file and serve a memorandum by 2 February 2015. Mr Ellis may reply by

_{23 February 2015.}

Brewer J