4 Feb 2022

Supreme Court to weigh assurances from China in extradition case of murder-accused

6:58 am on 4 February 2022

A suicidally depressed Auckland man recently diagnosed with a brain tumour is at risk of torture and an unfair trial if he is extradited to China to face a murder charge, his lawyer says.

Supreme Court in Wellington, Coat of Arms

Photo: RNZ / Rebekah Parsons-King

Kyung Yup Kim, who was born in Korea but has lived in New Zealand since his early teens, denies any involvement in the death of Peiyun Chen in Shanghai in 2009.

The Supreme Court will today hear what may be the final submissions in his 12-year battle through the New Zealand courts to avoid extradition.

It was believed to be the first time China had made such a request from New Zealand, which has no extradition treaty with the superpower.

Considered a test case, it is likely to set a legal precedent and is being closely watched internationally.

In 2015, a former Justice minister, Amy Adams​, decided Kim should be surrendered to China - but his legal team has successfully thrown up a number of challenges over the years to prevent this happening.

Last June, the Supreme Court agreed the government could hand him over, as long as it could obtain "appropriate assurances" from China that Kim would get a fair trial and not be tortured.

Two of the judges wanted to send the case back to the Justice minister for further consideration.

However, the majority of three voted for the quicker option of adjourning the case, and asked the Crown to produce the new information by the end of July.

Today's hearing will involve competing interpretations of the Chinese government's assurances.

Tony Ellis

Tony Ellis. Photo: RNZ / Murielle Baker

Kim's lawyer, Tony Ellis, said his legal team and the Crown remained "at odds" over the risk to his client.

It was "inhumane" of the government to force Kim to be going to court at all in view of his deteriorating health, he said.

In December, Dr Ellis wrote to Justice Minister Kris Faafoi asking him to exercise his discretion not to extradite Kim after he was diagnosed with a "small" brain tumour as well as kidney and liver disease.

He was also severely depressed and suicidal.

However, the minister responded that "in the circumstances" he considered it appropriate to await the outcome of the Supreme Court hearing.

"The minister sought leave to appeal the decision of the Court of Appeal on 9 July 2019, some two and a half years ago, during which time Mr Kim's health has worsened," Dr Ellis said.

"Given Mr Kim's current health, the delay in determining the new request not to extradite, independent of the Supreme Court hearing, is considered inhumane."

However, this hearing in New Zealand's highest court may not be the end of the legal road for Kim.

Dr Ellis has indicated that if the Supreme Court rules against him, he will take the case to the United Nations human rights committee and seek an interim injunction against extradition.

Furthermore, it will be up to the Justice minister to sign the final surrender decision, which could potentially be again challenged in court.

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