New Zealand Supreme Court Rules in “test case which the international community was watching closely”
On 13 April 2022, a five-strong panel in the New Zealand Supreme Court (“NZSC”) handed down judgment in the case of Minister of Justice v Kyung Yup Kim  NZSC 44. The key question for the court was whether Mr Kim would be at risk of torture in Chinese custody and, if so, whether assurances provided by the Chinese authorities were sufficient to mitigate that risk. The court was told that “this would be a “test case” for the PRC which the international community was watching closely” because “the PRC has a “significant interest in being able to extradite individuals to face criminal charges”.
By a majority of three to two, the court allowed the Minister of Justice’s appeal, with the effect that the decision to surrender the respondent to the Chinese authorities — which the New Zealand Court of Appeal had quashed in 2019 — was reinstated.
As was evident from the judgment and the approach of the Chinese authorities, the case was viewed on both sides as a “test case” and template for future Chinese extraditions from other jurisdictions. The NZSC’s legal analysis drew on principles very similar to those applied to diplomatic assurances in English extradition proceedings. However, it is debatable whether an English court would have reached the same conclusion. Nonetheless, a Supreme Court judgment from a highly respected common law jurisdiction is likely to embolden the Chinese authorities to pursue further extraditions from across the globe. The UK does not have an extradition treaty with China and suspended extradition arrangements with Hong Kong in 2020 over concerns about Chinese human rights and rule of law violations.
The respondent in the NZSC proceedings, Mr Kyung Yup Kim, is a South Korean citizen who moved to New Zealand over thirty years ago with his family when he was a teenager. Kim is accused by the Chinese government of the ‘intentional homicide’ of a Chinese citizen in Shanghai in 2009. Chinese police insist that they have strong forensic and circumstantial evidence linking Kim to the crime; Kim, however, maintains his innocence, stating that his defence in Chinese proceedings would be that his former girlfriend is responsible.
This month’s ruling follows a decision from the NZSC on 4 June 2021, in which the court held that the government of New Zealand would, in principle, be permitted to extradite Kim providing the Chinese government gave appropriate assurances that (1) Kim would receive a fair trial; and (2) Kim would not be tortured.
The test for the court to consider was whether there were ‘substantial grounds for believing that Mr Kim [was] at risk of torture or an unfair trial’. This language echoes the standard applied in English case law—namely that assurances from a Requesting State must address a ‘real risk’ of human rights violations. In English cases, extradition must be compatible with a person’s rights under the European Convention on Human Rights, including Article 3, which prohibits torture or inhuman or degrading treatment or punishment.
The criteria for assurances in English cases were clarified in the Othman case in the European Court of Human Rights. Othman sets out a non-exhaustive list of eleven criteria which should be met by a court enabling extradition.
In Kim’s case, the NZSC conducted a simpler, three-stage enquiry in relation to the risk of torture, considering:
(a) the risk to the individual, considered in light of their particular characteristics and situation, and the general human rights situation in the receiving country;
(b) the quality of assurances offered and whether, if honoured, they would adequately mitigate the risk to the individual; and
(c) whether the assurances [would] be honoured.
The court applied the same three-stage analysis in respect of the risk that Mr Kim would not receive a fair trial.
Though the court did not follow English law to the letter on the questions of assurances, they did cite the English case of Aswat approvingly, as authority that the court may adjourn an appeal pending further enquiries being made of the requesting state with respect to assurances. The court noted that the same approach had also been followed in the Assange proceedings, where the UK Supreme Court had now refused Assange permission to appeal his extradition to the United States.
The majority in this case held that China’s provision of two further assurances was sufficient to mitigate against any real risk that they would torture Mr Kim or deny him a fair trial. These two further assurances were:
- a) an assurance that Mr Kim would be tried in Shanghai, and detained there both before and after trial (were he to be convicted); and
- b) confirmation from Chinese authorities that consular visits during the investigation phase will be permitted at least every 48 hours, as well as within a short time period after any request by Mr Kim, in line with the instructions the Minister provided to China.
It was significant to the court that Kim was both held and tried in Shanghai. First, the court had heard expert evidence from the UN Special Rapporteur on Torture to the effect that torture is less prevalent in urban parts of China than elsewhere. Secondly, New Zealand consular officials would be able to visit Mr Kim personally every 48 hours providing he was in Shanghai (where those officials were based). As a result, New Zealand could rely on its own officials to conduct the monitoring, as opposed to a Chinese body, or indeed a Non-Governmental Organisation with no particular national affiliation. (South Korean officials may also be involved in monitoring Kim.)
The court was addressed specifically on the political or policy incentives for the Chinese authorities to adhere to its assurances, and its previous abuse of the criminal justice system for political ends, contrary to the rule of law. In particular, the Minister of Justice (on behalf of the Chinese authorities) argued that the court could have confidence that the assurances would be kept because “(p)ublicity by New Zealand about any non-compliance with the assurances would “seriously jeopardise” the PRC’s law enforcement cooperation with other countries.” In addition, the Minister argued that Mr Kim’s cases was “in a different category from that of the two Canadians and from the situations in Hong Kong and that in Xinjiang. The two Canadians were targeted because they were Canadian citizens “as part of broader bilateral issues” between Canada and the PRC…” and “Mr Kim’s case had no link to Hong Kong or Xinjiang. The violations in those places were “strongly tied” to the PRC’s political aspirations in relation to those two regions.”
Three of the five judges were satisfied that the assurances provided by the Chinese authorities left no substantial risk that Kim would be tortured or face an unfair trial. This is both surprising and troubling given China’s track record, acknowledged by the New Zealand Minister of Justice and the court, in torturing criminal suspects and the use of its criminal justice system for political ends. It is hard to believe that an English court would so casually accept that China had imprisoned two Canadian citizens and threatened them with the death penalty solely and unashamedly as political leverage in the case of Meng Wanzhou, or that it was prepared to violate human rights and the rule of law in Hong Kong and Xinjiang because of its “political aspirations”. The NZSC’s reasoning appears to be that China will honour its assurances in respect of Mr Kim because of the same ruthless pragmatism that led it to those flagrant violations. In other words, the question of whether China will torture or deny a fair trial to extradited persons appears to have been determined to the court’s satisfaction not because it was persuaded that China would abide by human rights standards and international legal norms, but because it appeared to be in China’s self-interest in this particular case, at this particular point in time not to do so. This is an extremely cynical approach to the absolute prohibition on torture that one hopes no other democratic nation will follow.
 Ibid., at 
 Minister of Justice v Kyung Yup Kim  NZSC 44 (footnote 7, at )