'He's had enough', New Zealand Top Court to stop extradition of murder accused to China

New Zealand's top court is considering a plea to stop the extradition of a permanent resident accused of murder in China.

Kyung Yup Kim denies being involved in the killing of a young woman while he was in Shanghai in late 2009, and he wants the extradition process stopped.

"He has suffered enough, it's been too long and it's not safe to send him back there," one of his lawyers, Tony Ellis, told five Supreme Court judges on Wednesday.

Since mid 2011 Chinese authorities have wanted him extradited for questioning and trial, leading to Kim spending more than five years in custody in Auckland and another three effectively under house arrest, before his bail terms were relaxed.

The court has reserved its decision on the Crown's appeal against a decision that the Minister of Justice, who decides whether to surrender a wanted person for extradition, had to reconsider Kim's case on grounds including concerns about human rights in China.

Kim cross-appealed asking for the extradition process to be stopped.

The Human Rights Commission was allowed to make submissions in the case even though it was not a party.

Its lawyer, Andrew Butler, said China made non-binding assurances about Kim getting a fair trial, not being tortured, and New Zealand officials being able to monitor his case and condition. 

The assurances made through diplomatic channels could not be relied upon and without the assurances Kim would be at substantial danger of torture and unfair trial, Butler said.

Commentators and the United Nations agreed torture and ill-treatment of prisoners was routine in China, including by officials the state was not able to control.

In the circumstances, under New Zealand law and international obligations, the courts should not facilitate Kim's return, Butler said.

One of the assurances made was that China would comply with with applicable international obligations for fair trial rights, but Solicitor-General Una Jagose, QC, confirmed that there were no international obligations applying to China.

However, China had also assured it would comply with its own domestic law about fair trial rights and the Crown said those met minimum standards, she said.

The original surrender decision was made by former Minister of Justice, Amy Adams, but if the case was reconsidered it would go to the current Minister Andrew Little.

The court heard that China was treating Kim's case as preparation for dozens of other extradition applications it wants to make internationally for "economic criminals".

Other than several extraditions from Spain, Kim's lawyers could not find any extraditions to China that had been granted in the past decade. 

Kim repeatedly offered to have Chinese officials interview him in New Zealand but that was not accepted.

One of Kim's lawyers, Tony Ellis said if the Minister did have to reconsider Kim's case grounds would be added to cover his health which was said to be poor, both physically and mentally.

Kim's lawyers are acting for him for free, and if he wins they want costs awarded in his favour.

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