Our Court of Appeal thinks that China's criminal justice system is so unsafe that it simply cannot try cases fairly - and our government ministers can't really trust China's promises that it will do better.

I am fortunate enough to be a citizen of three countries – New Zealand, the United Kingdom, and Ireland – which gives me the right to live in all three places. So, let’s imagine I am a very bad person. Being such, I do a very bad thing here in New Zealand (inset heinous crime of your choosing), then hop on a plane to Ireland or the United Kingdom to settle into a new life.

Pretty terrible, right? In this increasingly interconnected world, why should I be able to evade the reach of justice because I’m now residing in a foreign country? Wouldn’t we expect that the other country will do all it can to return me to New Zealand shores to answer for my crimes?

Now let’s mess with that picture a bit. Instead of my having committed some heinous crime in New Zealand, imagine that a New Zealand resident is accused of having carried out a murder in China. The Chinese police say that they’ve the necessary evidence to establish guilt (which they share with us), but the accused denies having anything to do with the crime.

Surely the same principle ought to apply, right? If the Chinese believe someone has committed this heinous crime (and can show us decent evidence to back up this belief), then shouldn’t we do all we can to send that person back there to answer the charge in their courts? What’s good for us surely ought to be good for them?

OK, now figure this into your answer. There’s evidence that the Chinese police routinely torture suspects to obtain confessions. The lawyers who represent defendants in that country face reprisals if they are too diligent in carrying out their role. The courts that deliver “justice” in individual cases are directly controlled by its ruling Communist Party

Should we still send a person overseas to face a trial under such conditions? Or, do we as a good and humane society, say that we’re not prepared to deliver someone into the jaws of such a fundamentally unjust process? Should we impose our standards of what justice must look like on to another place? 

OK, now figure this into your answer. Anxious to reassure New Zealand that the accused will be treated properly, China gives diplomatic assurances that the accused will not be tortured and that they’ll get a fair trial. In essence, they pinky promise us that they’ll behave themselves as we would expect them to (in this case, at least). 

Isthatenough to satisfy us, as a good and humane society, that we should send the accused to face trial in China? Because, remember, there’s a murder victim here who deserves justice. And we don’t think that simply being able to run from one country to another ought to allow the guilty to escape that justice, right?

These questions are not hypotheticals. They are, in effect, what the Court of Appeal had to consider in its just released decision in Kim v Minister of Justice. In a nutshell, China wants Mr Kim back to face a murder charge. Having been promised by China that Mr Kim will be treated properly, Amy Adams (as then Minister of Justice) agreed to send him over. Mr Kim then challenged that decision, arguing that the Minister simply cannot trust the promises she has been given.

Here is the Court of Appeal’s money paragraph, explaining why they largely agree with Mr Kim (as handed down by now-Chief Justice Helen Winkelmann and agreed with by now-Supreme Court Justice Joe Williams):

[274] The concerns we have identified are wide-ranging. Some of the matters we have identified raise serious issues as to whether a decision to surrender Mr Kim could be made in a manner which is compliant with New Zealand’s international obligations. We have identified the difficulty that exists in obtaining assurances adequate to meet the risk of torture in a country where torture is illegal yet remains widespread because of cultural and systemic features of the PRC criminal justice system. Other issues may be still more difficult to address: the existence of direct political influence in the criminal justice system and the evidence of harassment, and even persecution, of criminal defence lawyers. We do not exclude the possibility however that further inquiry may produce information on these matters of which we are unaware, and which show a different picture of the PRC criminal justice system.

In other words, the Court of Appeal regards the problems with China’s criminal justice system as being so deeply rooted and inimical to our principles of justice that it might well be impossible to everbe satisfied that a person can receive a fair trial there. And if that is the case, a good and humane society like ours simply cannot send someone into it, no matter what they are alleged to have done.

This case may turn out to be a pretty big deal for more than just Mr Kim. Because, while China obviously want him back (non-state sanctioned murder is something most societies disapprove of), he also serves as something of a test case for the wider China-New Zealand relationship.  

China has been busy pursuing around the globe citizens that it accuses of having enriched themselves through corruption and other unlawful means, including a number in New Zealand. As this article explains, China has been using all sorts of mechanisms to try and bring them back to its territory to try them pour encourager les autres. New Zealand has seen its own example of this, whenJiang Lei “voluntarily” returned to China last year to face corruption charges.

However, if China could get New Zealand (and other countries) to agree to extradite such alleged criminals, well, that would be far easier for it. And so, China has been wanting to establish an extradition treaty with us to smooth that process along. 

Not only does the Court of Appeal’s judgment now effectively halt any future extraditions to China under current arrangements, it also puts a real hurdle in the way of any such treaty arrangement. Because, in the wake of this judgment you have to ask how any government could claim to be confident that sending individuals to face trial in that country is safe. Such concerns already stymied an extradition treaty between China and Australia back in 2017. 

Quite how China’s Government will react to this not-so-implicit judicial criticism of their practices remains to be seen. Because let’s not beat about the bush. The Court of Appeal is openly saying that the reality of China’s criminal justice system falls so far short of what is acceptable that a Minister simply cannot trust that country’s word that an accused will get a fair trial. 

That’s a pretty damning message – it will be interesting to see what response it receives.  

Comments (9)

by Liam Hehir on June 12, 2019
Liam Hehir

Terrific piece. I really don't have any knowledge or expertise of any kind whatever in such things, but why not an extraterritorial jurisdiction for murder and other heinous personal crimes in such matters? Too insulting to the foreign government?

by Andrew Geddis on June 12, 2019
Andrew Geddis

Glad you asked, Liam! Because it turns out that is exactly what the Chinese do (as they won't extradite their citizens to foreign countries). And so, back in 2011 they tried (and convicted) someone who had been accused of murdering a taxi driver in Auckland ... much to Bill Hodge's disgust, I should add!

Interestingly, the murderer is said to have "confessed" to the killing ... which, given what the Court of Appeal has to say about how the Chinese Police obtain such information, we might raise our eyebrows at. And also interestingly, the NZ Police fully cooperated in the prosecution after getting assurances that the death penalty would not be sought. There's no information about whether other assurances about torture and fair trial rights were asked for. I'd love to see a full NZBORA analysis of that decision, if one was ever done!

by Liam Hehir on June 12, 2019
Liam Hehir

Interesting. I also assume, perhaps incorrectly, that we would never extradite anybody who might face the death sentence on conviction. Those supporting a consistent ethic of life should certainly hope so. But if a foreign government can't be trusted on some matters, how could it be trusted on anything else? For example, extradition might be sought for charges in respect of which an undertaking re the death penalty is given, only for other charges to emerge later on. Given that, I am surprised that this wasn't also a big factor in the decision.

(Unless it was - I have to confess not actually reading any of the links).

by Andrew Geddis on June 12, 2019
Andrew Geddis

Basically, the C. of A. said that Government was OK to believe China when it said it wouldn't execute Mr Kim because (i) it had made and stuck to such promises before in relation to other countries; and (ii) it's pretty easy to monitor such commitments (i.e. you can check that Mr Kim is still alive after being convicted).

In relation to torture, but, such monitoring is much harder to undertake. Also, there's evidence that the Chinese central Government doesn't have great control over its own police and their practices - torture is officially unlawful in China, but still widely practiced. So the value of the undertaking is downgraded accordingly.

Note how deep down into the weeds the Court is getting on all of this - the standard of review was said to be "strict", but arguably it really is a "correctness" basis (i.e. was the Minister right when she accepted China's word, rather than acting in a way a reasonable Minister could choose to do)!

by Liam Hehir on June 12, 2019
Liam Hehir

Rightly so, no matter the demands for pragmatism in diplomacy.

by Andrew Geddis on June 12, 2019
Andrew Geddis

Interesting to then compare with what the High Court had to say when asked to review a ministerial decision to extradite someone to Australia (McGrath v Minister of Justice):

The Minister is entitled, when considering whether it would be unjust or oppressive to surrender Mr McGrath to the Australian legal system, to take into account the fact that the Australian system is equipped to examine these issues. The factoring of that consideration by the Minister into her assessment was legitimate.

The standard of review very much seems to reflect a judicial decision on whether another country is "like" us enough (or, rather, has courts "like" us enough) to trust with prisoners!

by Liam Hehir on June 12, 2019
Liam Hehir

Well, I think there is a certain amount of sense to that. If the idea is that we wish to protect the accused from unfair processes and which we protect against in our common law system, it seems reasonable to look favourably on other jurisdictions having the same common law system as its basis.

(Again I didn't read the entire linked judgment. And there is no headnote.) 

If I recall correctly, however, there was a controversy some years ago when Australian courts were reluctant to extradite those accused of historic sex crimes because of our use of representative charges.

by Lee Churchman on June 12, 2019
Lee Churchman

Kim Dotcom should use similar arguments against his extradition to the US, which, while nowhere near as bad as China, has a somewhat dubious justice system.

by Liam Hehir on June 12, 2019
Liam Hehir

Well, they have the Fifth Amendment in the United States and courts willing to enforce it if you have the means of lawyering up. I’m pretty sure Mr Dotcom would be okay.

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