The Supreme Court has told the government it needs to seek further assurances that a New Zealand resident who has been fighting extradition to China for 10 years would receive a fair trial before it surrenders him.
Photo: RNZ / Rebekah Parsons-King
Kyung Yup Kim is accused of murdering a woman in China in 2009 and the Chinese government called for his extradition in 2011.
After 15 months of deliberations, the Supreme Court has released a majority decision saying they need more information and adjourned the Attorney-General's appeal against an earlier ruling quashing former justice minister decision to deport Kim.
That ruling said former justice minister Andrew Little could not sign off on the deportation before satisfying himself that Kim would not be tortured in China and would get a fair trial.
Kim had made a cross appeal that in light of the human rights situation in China "no reasonable minister" could ever make the decision to extradite him - but that has been dismissed.
In today's judgment, the Supreme Court said Kim's level of risk may have been underestimated by the minister and there were some gaps in the assurances it had received from the Chinese government.
The judges said the current minister of justice would be entitled to sign off on an order if he was assured by Chinese senior authorities that Kim would not be subjected to torture.
"If the assurances and monitoring requirements had been strengthened in the ways set out above, the Minister would have been entitled to consider that there were no substantial grounds to believe that Mr Kim would be in danger of being subjected to an act of torture were he to be surrendered," the judgment said.
The judges said extradition proceedings were not about determining criminal charges, and should therefore proceed with as little delay as possible.
"We reiterate that there are also other rights involved: the rights of individual victims of crime and their families and the rights of society generally to ensure that those accused of serious crimes do not escape being tried and, if found guilty, being subjected to suitable sanctions."
Three of the judges, Justices Glazebrook, France and Arnold, have asked for a further report on these matters by 30 Jult and have asked both parties to indicate whether a further hearing was sought.
Justices O'Regan and French held the appropriate decision would be to uphold the Court of Appeal order quashing the minister's decision to surrender Kim and direct him to reconsider the matter.