New Zealand’s supreme court has reopened the door for a murder suspect’s potential extradition to China, in a landmark new ruling released on Friday. If it goes ahead, the extradition would be the first time New Zealand has sent a resident to China to face trial.
The case comes in a period of intense scrutiny of the New Zealand-China relationship, and after New Zealand has issued several statements raising “grave concerns” over potential human rights breaches by China, including abuses of the Uyghur minority in Xinjiang and the crackdown on pro-democracy activists in Hong Kong.
It also follows months of discussion over whether New Zealand’s trade reliance on China could hamper its ability to make diplomatic calls that anger Beijing – a tension that the New Zealand government has said has absolutely no bearing on its decisions over matters of principle or human rights.
New Zealand, like a number of western countries, does not have an extradition treaty with China. The 150-page ruling released by the supreme court on Friday does not make a final ruling on extradition – it adjourns the appeal until new assurances and submissions can be filed in July.
It does, however, broadly conclude that the minister could reasonably approve the extradition if the government received several more assurances from the Chinese government around conducting a fair trial and ensuring Kim was not subject to torture. Crucially, the supreme court accepted that such assurances could be made by China and trusted by New Zealand.
It found that it was possible for the minister to accept diplomatic assurances that an extradited suspect would not be tortured, even from a state where torture is systemic – if those assurances were comprehensive enough, included monitoring, and there was basis to conclude that they would be complied with.
The court also dismissed a sweeping appeal arguing that the broader human rights situation meant no reasonable Justice Minister could make such an extradition order to China.
The case, which has played out over more than a decade now, concerns Kyung Yup Kim, a Korean-born permanent resident of New Zealand, who came to the country in 1989. Chinese authorities suspect Kim of murdering a young woman, Peiyun Chen, on a 2009 visit to Shanghai – a charge that he denies. Kim and his lawyers have argued that if he were to be extradited, he faces the risk of torture and not would be given a fair trial.
New Zealand received the extradition request from China for a charge of “intentional homicide” in May 2011. In late 2015, the Minister of Justice at the time, Amy Adams, decided that Kim should be surrendered to China after she sought diplomatic assurances about his treatment. But in June 2019, the court of appeal quashed the minister’s decision, saying it must be reconsidered citing the risk of torture and of Kim not receiving a fair trial. The latest ruling is in response to the minister appealing that decision, as well as a cross-appeal by Kim’s legal team.
Kim’s lead lawyer, Tony Ellis, said that New Zealand could not rely on assurances from China about a fair trial. He pointed to other trials of foreign citizens taking place in China, in which the diplomats for detainees’s home countries were excluded from the courtrooms.
Yang Hengjun, an Australian citizen and writer facing espionage charges in China, said in May that he was subject to more than 300 interrogations, including sustained periods of torture. Australia’s ambassador to China, Graham Fletcher, was excluded from the courtroom during Yang’s single-day trial. In March, Canadian diplomats were denied entry to the closed-door trials of a former Canadian diplomat, Michael Kovrig, and a Canadian businessman, Michael Spavor, both of whom had been detained for around two years.
Ellis also pointed to extremely high rates of convictions and guilty pleas in Chinese courts, saying that “99.9% plead guilty … because of the very real fear of being tortured. It’s impossible to get away from.”
“We consider there’s a very real risk of torture,” he told the Guardian. “The UN Committee Against Torture has very clearly reported torture is systemic in China”. The Supreme Court’s ruling found that “We do not consider that high conviction rates, such as the 98–99% conviction rate … necessarily suggest bias in the court system.”
The court ruled that the New Zealand government needed to fill in some of the gaps in the assurances they had from China – including that Kim be tried and detained in Shanghai, and that New Zealand should be able to conduct visits at least every 48 hours during the investigation. If it did so, the court found it could be reasonably concluded that Kim was not at risk of torture.
Ellis was dismissive of the efficacy of those measures, saying that if Kim was in Chinese custody, he may be too “terrified” to disclose that he was being tortured, and the observers would not necessarily be able to discern whether Kim was being tortured.
Victoria University law professor and former Law Commissioner Geoff McLay said the decision was “a really significant reversal” of the previous court of appeal decision.
McLay said that if New Zealand’s courts had ruled it could not extradite Kim – given the seriousness of the charges against him, and the evidence presented by Chinese authorities – it would create a precedent where there was very little chance of other extraditions from New Zealand to China. On the other hand, he said, “essentially Kim is the tip of the iceberg” in terms of extraditions that China might request. “The dilemma is very stark for the courts,” he said.
A Law Commission report from 2016 recommended that criminal justice decisions over extradition should be removed from government ministers, and handled wholly by the courts, to ensure those decisions did not have the appearance of being affected by political pressures or diplomatic concerns.
The government accepted the report’s recommendations at the time, but has not enacted them.
Ellis said that the decision on extradition should be removed from the minister of justice, and made by the courts, as New Zealand’s government trade ministers were “very clearly are subject to the political pressures given the very serious trade balance with China”.
Kim spent five years in New Zealand prison awaiting an outcome, and is now on electronically monitored bail.
The court has asked both parties to report back by 30 July 2021. Ellis has said he will take to the United Nations human rights committee, whose jurisdiction New Zealand had accepted.