Comparison Between the Rules of Evidence in Hong Kong and Indonesia

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Sexual offenses Criminal Laws

In Hong Kong, a high-profile case involving sexual offenses has been a topic of debate. This case was appealed. HKSAR versus Tso Kin Shing was a case where the defendant lacked legal representation. The Court of Appeal ruling was a conviction for eight years. The defendant was found guilty. The defendant was found guilty of serious sexual offenses and greatly disadvantaged due to his lack of representation. Police abuse was alleged during the jury trial. Moreover, there was a lack of a confession statement admissibility which was not even verified. The defendant was standing in for himself, and his closing statements were cut short by the senior prosecuting counsel. The Senior Prosecuting Counsel was given an audience to make a closure which was not his entitlement. This trial lacked transparency and fairness, therefore, the chance for an appeal was granted, however, the defendant was denied leave to the Court of Appeal.

The United Nations report released in September 2013 revealed that close to a quarter of men living within Asia has confessed to having committed at least one rape. Indonesia has a culture of rape, the government recently set in to protect the women against rape, regardless of an existing rape culture. However, the women in Indonesia still fear because of the existing culture of rape, and of the fact that perpetrators have been left walking scot-free in the past. This has created lots of tension in the country. Sexual offenses laws ought to be reinforced by government support of women and the Constitution to make the laws more effective in Indonesia.

The Indonesian Constitutional Court has made major amendments in the Indonesian criminal laws as from 11th January 2017. This particularly pertains to the criminal cases involving investigators. Decision No. 130/PUU-XIII/2015 (standing for decision No. 130) was rendered by the court[9]. This decision requires investigators to serve letters to the prosecutors, defendants and the plaintiffs. The Indonesian criminal procedure was borrowed from Rome. Therefore, countries such as the United Kingdom have similar laws on this.

China is more of a dictatorship, however, there are criminal laws which dictate its operation. For example, the detention laws are quite intriguing. The police have the power to detain high-profile dissidents without the knowledge of their families. This goes against the criminal procedure in many countries. The trial stage is the proof of a person's innocence or guilt depending on the verdict issued by the judge. Unless a person has gone through trial and verdict has been passed at the drop of the hammer, the defendant remains innocent until proven guilty. Informing family members of a detained individual is one of the procedures of Indonesian criminal law. In China, an artist, Ai Weiwei was detained for 81 days while almost boarding a Hong Kong flight. Moreover, in cases involving corruption, state security or terrorism, detainees are held in residential surveillance in detention centers.

However, in both Indonesia and Hong Kong, hearsay is not an admissible criminal evidence in the court of law. Hong Kong disregards hearsay because it is inflexible and very strict. Further, hearsay may prevent the possibility of providing objective evidence[10]. Therefore, hearsay is inadmissible not unless it falls within one of the statutory exceptions to the common law. This is the same case in Indonesia. For there to be a guilty verdict, there has to be objective evidence as opposed to circumstantial evidence. It is common practice that not all who are accused end up convicted. The ruling is transparent and fair – based on the evidence gathered during the court proceedings.

The procedure for making a ruling in Hong Kong is intriguing. Once the evidence has been presented, the public interest is considered. That is, does the interest of the public lie in a conviction or acquittal? The outcome of a verdict, therefore, depends upon two factors – evidence submitted and public interest. Indonesian criminal procedure depends on the gravity of the evidence presented[11]. The public interest is not upheld sacrosanct; the judiciary makes its ruling exercising its independence and passing the verdict by the evidence and nature of the case in question. The law is the main reference.

HKSAR versus Pang Hung Fai case showed a lack of objectivity on the part of the Hong Kong court which made the ruling. The Court of Appeal acquitted a bribery victim because given the defendant's beliefs, perceptions, knowledge and evaluations, he would not put into account that the property of which he held had the proceeds of an indictable offense. In Indonesia, ignorance is not an excuse in the law. The acquittal was not in line with the constitution. The Court of Appealed failed in its role to deliver to the public through defending rights and freedoms. Though there are circumstances in both countries in which justice has not been served, there are Courts of Appeal in which a person can present his or her case given the evidence.

Electronic Evidence

Electronic evidence refers to any data stored in electronic media. For example, information stored in floppy diskettes, tape recording or information stored in the form of audio or video. Today the most common types of electronic evidence are the word processors and the emails. Most data stored electronically is done by a human, the law in Hong Kong regards such data as the one deleted as hearsay (second-hand evidence). Cap 8, Laws of Hong Kong is a section that prescribes the admissibility of evidence[12]. The amendments to the Hong Kong laws that took place in 1999 June abolished partly rules against hearsay evidence.

Electronically stored records are currently accepted as evidence in civil proceedings. Electronically stored business records are acceptable in the court of law as evidence in Hong Kong laws under section 47. However, hearsay can be disputed by the court under section 47, especially if it is in the interest of justice. The responsibility of litigants is to preserve any form of evidence – whether electronic or otherwise – failure to which the court may regard them to be perverting the course of justice. Litigants had an obligation to present both undisclosed and disclosed electronic evidence.

The Indonesian parliament passed a new bill on electronic information and the transactions in 2008. The law was enacted by the President and became law number 11, 2008. The law, therefore, recognizes the formation of contracts electronically and accepts electronic evidence, electronic signatures, facsimile transmissions, and e – mail. The law of electronic transactions has