New Zealand courts have ruled that the government may extradite a man suspected of murder to China – a landmark ruling that, if continued, the country will send a country resident to China for the first time.
Earlier, courts blocked the extradition of Kyon Yupa Kim, a man accused of killing a young woman in Shanghai, citing the risk of torture and a lack of a fair trial.
The Supreme Court ruling on Wednesday, the last in 12 years of decisions and appeals, sets a precedent for New Zealand, which, like a number of Western countries, has no extradition treaty with China and suspended its extradition treaty with Hong Kong in 2020.
Of particular importance is the court’s finding that the New Zealand government can trust China’s assurances that the extradited defendants will not be at risk of human rights abuses or torture.
“I am deeply concerned about this decision,” said Dr. Anna Hai, co-director of the Center for Law and Society at the University of Otago.
“There are serious and well-documented problems with China’s criminal justice system – the idea that a diplomatic promise is reason enough to give someone into that system seems incredibly naive at best.”
Last year saw the debate continues on whether New Zealand’s trade dependence on China could hamper its ability to make diplomatic calls that provokes Beijing’s anger – a tension the New Zealand government has said has absolutely nothing to do with its decisions on fundamental issues or human rights.
Kyon Yup Kim is a permanent resident of New Zealand of Korean descent who came to the country in 1989. Chinese authorities suspect Kim of killing young woman Peiyun Chen during a visit to Shanghai in 2009 is a charge he denies. Kim and his lawyers have repeatedly argued that in the event of extradition, he faces the risk of torture and will not be given a fair trial. They argue that China’s assurances – including that Kim will be tried in Shanghai and that he may be visited by consular officers – are insufficient and unreliable.
Today’s decision overturns a previous court decision, and most judges have concluded that “additional safeguards [from China] provide a reasonable basis on which the Minister can ensure that there is no real risk of Mr. Kim’s torture … [or] will be subjected to an unfair trial of capitulation in China. “
“The suggestion that China’s diplomatic assurances could be a reliable basis for extradition is a matter of deep concern,” Hai said. “This is the same PRC that assures the world that allegations of human rights abuses in Xinjiang are fabrications, despite much evidence to the contrary.”
“The Chinese justice system has systemic … torture,” Kim, a leading lawyer for Dr. Tony Ellis, told the Guardian, adding that the Chinese government’s assurances of torture “are not worth the paper on which they are written.” He said New Zealand could not count on China’s assurances that the trial would be fair, and pointed to trials of foreign nationals in China, where diplomats from countries where detainees are being held have been expelled from courtrooms.
Speaking after the court ruling in 2021, University of Victoria law professor and former law commissioner Jeff McLay said he was “essentially Kim is the tip of the iceberg” in terms of extraditions that China may request. “The dilemma is very serious for the courts,” he said.
The 2016 report of the Legal Commission recommends rejecting extradition decisions from government ministers and considering them in court to ensure that decisions do not appear to be under political pressure.
The original Supreme Court ruling outlines the evidence the Chinese authorities say they have against Kim – allegations that Kim disputes. They list forensic evidence, including nine blood samples found at Kim’s residence that, according to China, were identified as Ms. Chen’s; evidence from an acquaintance of Kim’s, who said he contacted him in critical condition and that he “may have beaten a prostitute to death”; and that Chen’s body was found wrapped in materials marked by Kim’s girlfriend as similar to those stored in his apartment.
New Zealand received a request for extradition from China on charges of premeditated murder in May 2011. In late 2015, then-Justice Minister Amy Adams decided to extradite Kim to China after she demanded diplomatic guarantees regarding his treatment. But in June 2019, the Court of Appeals overturned the minister’s decision, saying it should be reconsidered to take into account the risk of torture and that Kim would not receive a fair trial. The latest rulings are a response to the minister’s appeal against the decision, as well as a mutual complaint by Kim’s legal team.
Ellis said a complaint would be filed with the UN Human Rights Committee demanding that measures be taken to prevent Kim from being extradited, and if necessary he would file a new lawsuit based on Kim’s health problems. Alice said he had several health problems including depression, a small brain tumor, liver and kidney disease.
If these further measures are unsuccessful, the decision to extradite Kim will be made by Justice Minister Chris Faofoi. A spokesman for the minister’s office said: “The minister is aware of today’s verdict and will consider it carefully. He will not comment at the moment. “