Comparison Between the Rules of Evidence in Hong Kong and Indonesia

Comparison Between the Rules of Evidence in Hong Kong and Indonesia (Criminal Cases)

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Comparison Between the Rules of Evidence in Hong Kong and Indonesia (Criminal Cases)

Introduction

         Evidence in criminal cases is very important in nations because they reflect the constitution of the country and international relations. The rule of law dictates the living standards of a population and the rights of the populace^[1]. Indonesia and Hong Kong are countries in Asia with different cultural beliefs and laws regarding criminal cases. A criminal case refers to the prosecution of an individual or an organization for committing a public wrong^[2]. However, criminal procedures differ in countries and are not considered universally applicable. There are cases in both Indonesia and Hong Kong that have given these nations a poor image in the entire world. The interest of this paper is to analyze such cases while giving recommendations and condemnations where applicable. The criticism and applause of these procedures ought to be in light of moral grounds as well as humanitarian perspective^[3].

         Hong Kong is a powerful nation. However, there have been cases in the public domain which have sparked both local and international controversy. For example, the HKSAR versus Krieger case of 2014^[4]. This case was a bribery case against Macau's Ao Man Long. The Court of Appeal acquitted the defendants. Further, the prosecution, in this case, was ordered to refrain from appealing any further. The grounds of dismissal of this case was bribing overseas officials while planning in Hong Kong is not a criminal offense. The Hong Kong bribery laws have a loophole because these laws disregard compliance with international relations. Laws like this are likely to destroy international relations thereby scaring international investors from engaging in business with Hong Kong.

         Likewise, there have been major breeches in the criminal cases in Indonesia. For example, in the trial of Schapelle Corby, there was a breach of the Indonesian Code of Criminal Procedure (KUHAP). Schapelle Corby was denied legal counsel during the preliminary interrogation at Denpasar airport. According to Articles 54 and 56 everyone has the right to legal aid, and this lasts throughout the entire process of proceedings^[5]. From the beginning of preliminary examination by the police legal aid is needed right to the trial. Further, there was a refusal to test for the fingerprints of the accused to determine the origin and quality of the Marijuana. The principle of judicial impartiality and independence was compromised.

         This paper identifies unique cases in the criminal cases in both Indonesia and Hong Kong. The aim is to compare the criminal justice system while identifying loopholes and giving recommendations in light of the law and the constitution. The three levels of criminal justice in Indonesia is compared against those in Hong Kong especially in electronic cases and the weight requirement of valid evidence, the requirement of collaborative evidence and the restrictions on documentary and circumstantial evidence. Young Simon provides intricate details regarding the Hong Kong criminal justice system which informs an integral part of our discussion.

Comparison between Hong Kong Criminal System and Indonesia

Indonesia has three levels of criminal procedure. This according to the Criminal Procedure Act referred to as KUHAP. The procedures include the police level, prosecution level, and the court level also referred to as a trial. There is a distinct procedure at the police level which all citizens must adhere to. This includes reporting a complaint, investigation, questioning, arrest and detention. There are also laws regarding the detention of an individual, the length of time that detention ought to take and limits barring the police from harassing members of the public. These laws reflect a democracy with one government and a definite procedure for handling criminal cases. However, it is not entirely true to state that these laws are always adhered to. There are cases of the breach of rights of individuals.

 The HKSAR versus Krieger in Hong Kong in which a criminal case was dismissed stating clearly that it is not a criminal offense to planning for bribery for a foreign official while in Hong Kong was not a criminal offense^[6]. Such a law does not apply in Indonesia. Any form of bribery is handled as a criminal offense, whether done domestically or against foreign officials. KUHAP was last revised in 1981, and clearly, defines the procedure of handling bribery cases. There have been further developments in Indonesian criminal cases in 2017 which include the promulgation of a new Supreme Court Regulation. This regulation pertains to the supervision of criminal investigations and corporate prosecutions. The Corruption Eradication Commission (KPK) investigates corruption in both public and private sectors including the citizenry and pays very keen attention to bribery cases whether done in Indonesia or foreign nations.

An equally interesting criminal law decision in Hong Kong is the HKSAR versus Singh Gursewak case. A defendant charged with theft was tried and convicted in absentia. The appeal was denied on the premise that trials in absentia are exceptional and very rare especially in cases when the accused is unrepresented. The defendant had absconded on purpose and breached the bail conditions deliberately. This is applicable in Hong Kong; however, it is a breach of individual rights and freedoms as dictated by the constitution. Under the Rome Statute, article 63 in Indonesia, the accused shall be present during a trial. Article 176 of the Indonesian Constitution, however, states that (1) should a defendant disturb during the court sessions after warning by the judge; he shall order that the defendant is taken out of the court, the case shall proceed in the absence of the defendant. (2) if the defendant continuously disturbs during the court session, the judge shall see to it that the verdict is passed when the defendant is present^[7].

Contrary to the Hong Kong Law of Criminal Justice, a trial can only take place in Indonesia when the defendant is present^[8]. Defendant absconding trial is no grounds for proceeding with the trial without representation of the defendant. Further, the verdict is passed when the defendant is present. HKSAR versus Singh Gursewak case of 2014 makes the top five unfair cases handled in Hong Kong and those who are not in line with criminal case procedures. Denying the defendant an appeal because trial in absentia is rare and exceptional under the Hong Kong laws is further superficial and a breach of individual rights and freedoms.

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