Q&A: What the Court of Appeal's extradition decision means for China

While thousands of anti-extradition protesters took to the streets of Hong Kong, a New Zealand court blocked a murder suspect from being handed over to authorities in China.

In a judgment issued on Tuesday, the Court of Appeal said the extradition of Auckland man Kyung Yup Kim, who has been accused of murdering a woman in Shanghai in 2009, must be reconsidered due to human rights risks in China.

The case marks the first time China has made an extradition request to New Zealand. The Asia Media Centre spoke with University of Canterbury law professor and extradition law researcher Neil Boister about what the Court of Appeal’s ruling now means for China.

How common are extradition cases in New Zealand, and what is the extradition process?

Not common at all. It’s a long-winded process from start to finish. First, the country requesting extradition will send out feelers to find out whether we’d be willing to entertain a request. There’s some necessary documentation which needs to be put together, and that documentation is then brought before an extradition tribunal in the District Court. The job of the District Court Judge is to find out whether the person is eligible for extradition. They call these “eligibility hearings”. The main requirement is that the offence alleged would be considered criminal if it had occurred here. There must also be sufficient evidence — so there must be some kind of prima facie case to call for a trial.

If the Judge says they are eligible, then it goes to the Justice Minister to decide whether they should be surrendered. Obviously with Mr Kim, they got through the eligibility hearing, and decided he was eligible. Then they went to the second stage, which is surrender. That was always going to be a problem for the Chinese, because now the Justice Minister must assess the human rights risks to this individual. There is also the due process risk — what kind of trial will he have, will he get legal representation, will he have someone with him while he’s being interrogated by police?

Why can China request extradition from New Zealand without there being a treaty?

The Extradition Act 1999 regulates New Zealand’s internal processes in extradition. Our treaty relationships mean we have an obligation to extradite. So, for example, we have a treaty with Hong Kong — we have an obligation to extradite, assuming all the domestic laws are met. But with China, we don’t have any obligation. We do have a process in the Act to entertain ad hoc requests. But it’s a discretionary process — the Justice Minister can decide we are not going to, and that will be the end of that.

What message is the Court of Appeal decision on Kyung Yup Kim sending to China?

What the Court of Appeal has done is set down a very clear standard. It is saying that seeking general assurances from China that don’t explore every facet of the risk to this particular individual will not do. More interesting though is that it insists on a level of scrutiny which I think is going to be very difficult for the Chinese to meet. It may in fact serve as a permanent bar to extradition to China. It may also be the judicial way of saving the New Zealand government the difficulty of turning China down. They can simply turn to the Court of Appeal judgment and say, look, we’ve tried this, and it failed.

What is the significance of this decision, particularly given the recent events in Hong Kong?

The judgment has set a very clear line in the sand over which it’s going to be very difficult to hop. If you compound the situation in Hong Kong with this, the turning down of the extradition treaty in Australia, the decision by Canada to proceed with the extradition hearing against Huawei chief financial officer Meng Wanzhou… what you see is the difficulty for China in trying to find its place in a world of liberal human rights democracies, when it clearly has an illiberal system.

What are the next steps, in terms of the New Zealand case?

The next question for us will be whether this is appealed in the Supreme Court. As I said, the one issue that really interests me is whether it will ever be possible for the Chinese government to meet the standard that has been set down by the Court of Appeal.

Interview and editing by Siobhan Downes.

- Asia Media Centre