A woman was killed in Shanghai in 2009. A New Zealand resident, Kyung Yup Kim, is accused of her murder. China wants him extradited – The Detail asks, why is it taking so long?
Kyung Yup Kim has been living in limbo for more than a decade.
The New Zealand resident and South Korean citizen is accused of murdering a woman, Peiyun Chen, in Shanghai in 2009 and the Chinese authorities want him sent back to China to face trial.
But that’s not as easy as it seems. The case has put the spotlight back on New Zealand’s “complex and convoluted” – in the words of the Law Commission – extradition laws.
“Extradition is a legal proceeding where one country alleges that somebody has committed a crime in their jurisdiction and that person is in another country,” explains Victoria University law professor and former Law Commission Geoff McLay.
“It’s basically a request to the other country to return that person for a proper criminal trial.”
That’s what happened in the Kim case: China submitted a request for Kim’s extradition back in 2011.
For that to happen, a New Zealand court has to establish whether there is, on the face of it, a case against Kim – which the district court did in 2013.
The Minister of Justice has twice given the final sign-off for Kim to be surrendered.
So why is he still in New Zealand?
An important factor to consider in this case is the fact the country asking for Kim to be extradited is China, says Anna High, a senior lecturer at Otago University’s law school.
New Zealand would not extradite someone if there was a chance they would face the death penalty, but China has given assurances that would not happen to Kim if he was convicted. China has also assured New Zealand Kim would not be tortured and his right to a fair trial would be respected.
Kim’s extradition has been given the go-ahead on the basis of those assurances, but his lawyers have mounted a number of legal challenges to stop that from happening – the most recent of which resulted in the Supreme Court ruling last month that he can be surrendered to China.
But High says there’s still good reason for New Zealand to be wary.
“There are many wide-ranging systemic issues with the criminal justice system in China, the legal system more generally is founded on different values and a very different political system to New Zealand,” she says.
New Zealand has a legal and moral obligation to ensure that if a person is extradited to another country, that they will be treated fairly, High says.
“There are really problematic systemic concerns about the Chinese criminal justice system that means, generally speaking, we have not in the past been assured that such fairness will be assured in China.”
High says Kim’s case turns on whether or not New Zealand can rely on the promises made by Chinese authorities.
“There are two issues: there’s what have they promised, so the quality of the assurances that they’ve offered, and there’s also the question of whether those assurances will be honoured.
“Those both need to be considered when we decide whether it’s safe to surrender Kim into the Chinese criminal justice system.”
While the Supreme Court has ruled Kim be extradited to China – and it accepts China’s assurances – Kim’s lawyer Tony Ellis says he’s prepared to take the case to the United Nations Human Rights Committee.
The final decision rests with the Justice Minister Kris Faafoi, but that could also be subject to further legal challenges.
And for Kyung Yup Kim, that means the limbo he’s lived in for so long is far from over.
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