New Zealand’s top court on Wednesday ruled a man can be extradited to China to face a murder charge — a landmark judgment that goes against the trend set by most democratic nations.
In a 3-2 decision, the Supreme Court found that China was able to give New Zealand officials sufficient assurance that the accused, Kyung Yup Kim, could get a fair trial and wouldn’t be tortured.
Concerns over those issues have been enough to stop most democratic countries from extraditing suspects to China in recent times. Like many other nations, New Zealand doesn’t have a formal extradition treaty with China.
The decision is sure to be celebrated by China’s ruling Communist Party as not only a legal victory but also a diplomatic and public relations success.
But Kim’s lawyers said they would try to stop the extradition, first by filing a complaint with the U.N. Human Rights Committee and then, if needed, by filing a fresh judicial review based on Kim’s poor health.
Lawyer Tony Ellis said Kim was very disappointed by the judgment. He said his client is in a suicidal state due to his health issues, which include severe depression, a small brain tumor, and liver and kidney disease.
Ellis said he had trouble understanding the decision given that for the past 10 years, most countries had stopped extraditing people to China. He said almost every suspect in China pleads guilty before going to trial, because they know that if they don’t they’ll be tortured.
He said China might see the ruling as encouragement to start extradition cases against people who have fled the country and been accused of economic crimes.
New Zealand’s Minister of Justice Kris Faafoi declined to comment on the case, which has dragged on for 11 years.
In making its decision, the Supreme Court overturned an earlier appeals court ruling. In an odd twist, two judges on the Supreme Court had recused themselves because before being promoted to the top court they had sat on the appeals court — where both had ruled against the extradition.
The Supreme Court found that China was able to give sufficient assurance that Kim would be jailed in Shanghai, where New Zealand consulate staff could monitor him before and during his trial. That would include visits at least every second day before his trial and at other times he requested.
China also told officials that Kim would serve his prison sentence in Shanghai if convicted.
The court found that “if no substantial grounds exist for believing an individual accused is at risk of torture because of the assurances provided, the individual should not avoid prosecution for a serious crime.”
Kim’s lawyers unsuccessfully argued that consular staff couldn’t adequately monitor Kim while he was in jail, particularly if he was subject to torture that was hard to detect, like forced drugging.
Kim was arrested in 2011 after China asked to extradite him on one count of intentional homicide.
He was incarcerated in New Zealand jails for more than five years, and spent another three years on electronic monitoring, making him the longest-serving prisoner not to face a trial in modern New Zealand.
According to court documents, Kim is a South Korean citizen who moved to New Zealand more than 30 years ago with his family when he was 14.
He is accused of killing a 20-year-old waitress and sex worker, Peiyun Chen, in Shanghai after traveling to the city to visit a different woman who was his girlfriend at the time.
Chen was found in a Shanghai wasteland on New Year’s Eve 2009. An autopsy concluded she had been strangled to death, and that she’d also been hit in the head with a blunt object.
Chinese police say they have forensic and circumstantial evidence linking Kim to the crime, including a quilt found with the body. Police say a distraught Kim told an acquaintance he may have “beaten a prostitute to death.”
Kim says he is innocent. Ellis said his defense case would be that his former girlfriend, who has Communist Party connections, is responsible for the crime.
