The 10-year-long court battle over the extradition of a murder suspect to China remains unresolved, with New Zealand's top court adjourning an appeal by the Crown.
Three of the five judges have asked the Crown to seek further assurances from China that Kyung Yup Kim's will not be in danger of being subject to torture if he's surrendered to face trial.
The Korean-born man, who became a resident after moving to New Zealand as a teenager, is accused of killing a woman while visiting Shanghai in 2009. Chinese police say they have forensic evidence. Kim denies the accusation and claims to have a defence.
Kim's legal representative, Tony Ellis, said in a statement he was "surprised and disappointed" by the court's partial decision.
"The People’s Republic of China is a rogue state. It engages in endemic use of torture; does not guarantee fair trials; and more widely rejects the basic premise that it must respect international human rights law," he said in a statement.
"We are therefore hopeful that the court will in due course conclude, as we say is plain, that there is no such thing as a fair trial in China and that Mr Kim cannot be extradited."
It's the first time China has asked New Zealand to extradite one of its citizens or residents. New Zealand, like many Western countries, does not have an extradition treaty with China.
The case has been in and out of the courts since China first made the extradition order in 2011. Kim spent five years in prison on remand, but is now on bail to his home in Auckland.
Dr Ellis argued this was a "test case" by China to allow extradition and that New Zealand "should not be that test case".
Under the National Government, the then-Justice Minister Amy Adams twice approved Kim's extradition after getting diplomatic assurances he would be treated fairly and not receive the death penalty.
In 2019, the Court of Appeal quashed her decision, raising questions as to the reliability of the assurances and finding she had underestimated the risk to Kim.
The Supreme Court found there are some gaps in the assurances obtained. It said assurances should have been sought to make sure Kim will be detained and tried in Shanghai, and New Zealand should have also sought confirmation that visits will be allowed every 48 hours during the investigation phase.
"If these additional assurances are received, there would be a sufficient basis for the minister to conclude that there are no substantial grounds to believe that Mr Kim would be in danger of being subjected to torture were he to be surrendered," the judgement said.
Extradition orders are decided by the Justice Minister. The Supreme Court majority accepted that it may be possible for Kris Faafoi to find that some or all of the assurances set out may not be necessary, and that he can depart from the previous minister's decision.
The two dissenting judges found the Court of Appeal decision should be upheld, quashing the decision to surrender Kim and an order be made to the Justice Minister directing him to reconsider the extradition.
Parties now have until July 30 to file submissions.
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