Decision in case of murder suspect Kyung Yup Kim concludes government can trust Chinese assurances extradited defendants will not face torture
By Tess McClure in Auckland
Wed 13 Apr 2022
The New Zealand parliament in Wellington. The supreme court decision sets a precedent for New Zealand which does not have an extradition treaty with China. Photograph: Dave Lintott/Rex/Shutterstock
New Zealand’s courts have ruled the government can extradite to China a man suspected of murder – a landmark ruling that, if it proceeds, will be the first time the country has sent a resident to face trial in China.
The courts had previously blocked the extradition of Kyung Yup Kim, a man accused of killing a young woman in Shanghai, citing the risk of torture and not receiving a fair trial.
Wednesday’s supreme court decision, the latest in 12 years of rulings and appeals, sets a precedent for New Zealand, which, like a number of western countries, does not have an extradition treaty with China and has suspended its extradition treaty with Hong Kong in 2020.
Of particular significance is the court’s conclusion that New Zealand’s government could trust assurances from China that extradited defendants would not be at risk of human rights abuses or torture.
“I am deeply troubled by the decision,” said Dr Anna High, co-director of the Otago University’s centre for law and society.
“There are grave and well-documented problems with China’s criminal justice system – the idea that a diplomatic promise is a sufficient basis for surrendering someone into that system seems, at best, incredibly naive.”
The last year has seen ongoing debate 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.
Kyung Yup Kim is 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 he denies. Kim and his lawyers have repeatedly argued that if he were to be extradited, he faces the risk of torture and not would be given a fair trial. They argue assurances provided by China – including that Kim would be tried in Shanghai and that he could be visited by consular staff – are not sufficient or trustworthy.
Today’s ruling quashes the court’s earlier decision, with the majority of judges concluding that “further assurances [from China] provide a reasonable basis on which the minister could be satisfied that there was no real risk of Mr Kim being tortured … [or] would face an unfair trial on surrender to the PRC”.
“The assumption that diplomatic assurances from the PRC can be a sound basis for extradition is deeply concerning,” High said. “This is the same PRC which is assuring the world that the allegations of human rights abuses in Xinjiang are fabrications, despite an abundance of evidence to the contrary.”
“There is systemic … torture in the Chinese justice system,” Kim’s lead lawyer, Dr Tony Ellis, told the Guardian, adding that assurances about torture from the Chinese government were “not worth the paper they’re written on”. He said New Zealand could not rely on assurances from China about a fair trial, and pointed to trials of foreign citizens in China, where diplomats for detainees’ home countries were excluded from the courtrooms.
Speaking after a court decision in 2021, Victoria University law professor and former law commissioner Geoff McLay said that “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 2016 Law Commission report recommended extradition decisions be removed from government ministers and be handled by the courts, to ensure decisions did not have the appearance of being affected by political pressures.
The original high court ruling outlines the evidence that Chinese authorities say they hold against Kim – claims that Kim contests. They list forensic evidence, including nine blood samples found at Kim’s residence that China says were identified as being Ms Chen’s; evidence from an acquaintance of Kim’s who said he contacted him in a distressed state and that he “may have beaten a prostitute to death”; and that Chen’s body was found wrapped in materials identified by Kim’s girlfriend as being similar to those kept at his apartment.
New Zealand received the extradition request from China for a charge of intentional homicide in May 2011. In late 2015, the then-minister of justice, Amy Adams, decided 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 given the risk of torture and of Kim not receiving a fair trial. The latest rulings are in response to the minister appealing against that decision, as well as a cross-appeal by Kim’s legal team.
Ellis said a complaint would be filed with the UN human rights committee seeking interim measures that Kim not be extradited, and if necessary he would file a fresh judicial review on the basis of Kim’s health issues. Ellis said he had multiple health issues including depression, a small brain tumour, liver and kidney disease.
If those further measures are unsuccessful, the decision on whether to extradite Kim will rest with justice minister Kris Faafoi. A spokesperson for minister’s office said “The Minister is aware of today’s judgment and will be giving it careful consideration. He won’t be commenting further at this time.”