G.R. No.

155076
February 27, 2006
LUIS MARCOS P. LAUREL, Petitioner,
vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial
Court, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES&
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY,
Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order
issued by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City,
Branch 150, which denied the "Motion to Quash (With Motion to Defer
Arraignment)" in Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a
legislative franchise to render local and international telecommunication
services under Republic Act No. 7082.2 Under said law, PLDT is authorized
to establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and switching
stations, for both domestic and international calls. For this purpose, it has
installed an estimated 1.7 million telephone lines nationwide. PLDT also
offers other services as authorized by Certificates of Public Convenience
and Necessity (CPCN) duly issued by the National Telecommunications
Commission (NTC), and operates and maintains an International Gateway
Facility (IGF). The PLDT network is thus principally composed of the
Public Switch Telephone Network (PSTN), telephone handsets and/or
telecommunications equipment used by its subscribers, the wires and cables
linking said telephone handsets and/or telecommunications equipment,
antenna, the IGF, and other telecommunications equipment which provide
interconnections.3 1avvphil.net
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of routing and
completing international long distance calls using International Private
Leased Lines (IPL), cables, antenna or air wave or frequency, which
connect directly to the local or domestic exchange facilities of the
terminating country (the country where the call is destined). The IPL is
linked to switching equipment which is connected to a PLDT telephone
line/number. In the process, the calls bypass the IGF found at the

1|IT LAW CASES- LAUREL AND SOLEDAD

terminating country, or in some instances, even those from the originating

country.4
One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells "Bay Super Orient Card" phone cards to people who
call their friends and relatives in the Philippines. With said card, one is
entitled to a 27-minute call to the Philippines for about 37.03 per minute.
After dialing the ISR access number indicated in the phone card, the ISR
operator requests the subscriber to give the PIN number also indicated in
the phone card. Once the callers identity (as purchaser of the phone card) is
confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the
IPL never pass the toll center of IGF operators in the Philippines. Using the
local line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable.5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to
course its incoming international long distance calls from Japan. The IPL is
linked to switching equipment, which is then connected to PLDT telephone
lines/numbers and equipment, with Baynet as subscriber. Through the use
of the telephone lines and other auxiliary equipment, Baynet is able to
connect an international long distance call from Japan to any part of the
Philippines, and make it appear as a call originating from Metro Manila.
Consequently, the operator of an ISR is able to evade payment of access,
termination or bypass charges and accounting rates, as well as compliance
with the regulatory requirements of the NTC. Thus, the ISR operator offers
international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT.6
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines and
equipment; computers or any equipment or device capable of accepting
information applying the prescribed process of the information and
supplying the result of this process; modems or any equipment or device
that enables a data terminal equipment such as computers to communicate
with other data terminal equipment via a telephone line; multiplexers or any
equipment or device that enables two or more signals from different sources
to pass through a common cable or transmission line; switching equipment,
or equipment or device capable of connecting telephone lines; and software,
diskettes, tapes or equipment or device used for recording and storing
information.7

PLDT also discovered that Baynet subscribed to a total of 123 PLDT

telephone lines/numbers.8 Based on the Traffic Study conducted on the
volume of calls passing through Baynets ISR network which bypass the
IGF toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission
(SEC) also revealed that Baynet was not authorized to provide international
or domestic long distance telephone service in the country. The following
are its officers: Yuji Hijioka, a Japanese national (chairman of the board of
directors); Gina C. Mukaida, a Filipina (board member and president); Luis
Marcos P. Laurel, a Filipino (board member and corporate secretary); Ricky
Chan Pe, a Filipino (board member and treasurer); and Yasushi Ueshima,
also a Japanese national (board member).
Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants10 issued by the RTC of Makati, Branch 147,
National Bureau of Investigation (NBI) agents searched its office at the 7th
Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999.
Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.
Villegas were arrested by NBI agents while in the act of manning the
operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted
PLDT statement of accounts, parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and
issued a Resolution11 on January 28, 2000, finding probable cause for theft
under Article 308 of the Revised Penal Code and Presidential Decree No.
40112 against the respondents therein, including Laurel.
On February 8, 2000, State Prosecutor Calo filed an Information with the
RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with
theft under Article 308 of the Revised Penal Code. After conducting the
requisite preliminary investigation, the State Prosecutor filed an Amended
Information impleading Laurel (a partner in the law firm of Ingles, Laurel,
Salinas, and, until November 19, 1999, a member of the board of directors
and corporate secretary of Baynet), and the other members of the board of
directors of said corporation, namely, Yuji Hijioka, Yasushi Ueshima,
Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the
Revised Penal Code. The inculpatory portion of the Amended Information
reads:
On or about September 10-19, 1999, or prior thereto, in Makati City, and
within the jurisdiction of this Honorable Court, the accused, conspiring and

2|IT LAW CASES- LAUREL AND SOLEDAD

confederating together and all of them mutually helping and aiding one
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long
distance calls belonging to PLDT by conducting International Simple
Resale (ISR), which is a method of routing and completing international
long distance calls using lines, cables, antennae, and/or air wave frequency
which connect directly to the local or domestic exchange facilities of the
country where the call is destined, effectively stealing this business from
PLDT while using its facilities in the estimated amount of P20,370,651.92
to the damage and prejudice of PLDT, in the said amount.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion to Defer
Arraignment)" on the ground that the factual allegations in the Amended
Information do not constitute the felony of theft under Article 308 of the
Revised Penal Code. He averred that the Revised Penal Code, or any other
special penal law for that matter, does not prohibit ISR operations. He
claimed that telephone calls with the use of PLDT telephone lines, whether
domestic or international, belong to the persons making the call, not to
PLDT. He argued that the caller merely uses the facilities of PLDT, and
what the latter owns are the telecommunication infrastructures or facilities
through which the call is made. He also asserted that PLDT is compensated
for the callers use of its facilities by way of rental; for an outgoing overseas
call, PLDT charges the caller per minute, based on the duration of the call.
Thus, no personal property was stolen from PLDT. According to Laurel, the
P20,370,651.92 stated in the Information, if anything, represents the rental
for the use of PLDT facilities, and not the value of anything owned by it.
Finally, he averred that the allegations in the Amended Information are
already subsumed under the Information for violation of Presidential Decree
(P.D.) No. 401 filed and pending in the Metropolitan Trial Court of Makati
City, docketed as Criminal Case No. 276766.
The prosecution, through private complainant PLDT, opposed the motion,14
contending that the movant unlawfully took personal property belonging to
it, as follows: 1) intangible telephone services that are being offered by
PLDT and other telecommunication companies, i.e., the connection and
interconnection to their telephone lines/facilities; 2) the use of those
facilities over a period of time; and 3) the revenues derived in connection
with the rendition of such services and the use of such facilities.15
The prosecution asserted that the use of PLDTs intangible telephone
services/facilities allows electronic voice signals to pass through the same,

and ultimately to the called partys number. It averred that such

service/facility is akin to electricity which, although an intangible property,
may, nevertheless, be appropriated and be the subject of theft. Such service
over a period of time for a consideration is the business that PLDT provides
to its customers, which enables the latter to send various messages to
installed recipients. The service rendered by PLDT is akin to merchandise
which has specific value, and therefore, capable of appropriation by
another, as in this case, through the ISR operations conducted by the
movant and his co-accused.
The prosecution further alleged that "international business calls and
revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code." Moreover, the intangible telephone services/facilities
belong to PLDT and not to the movant and the other accused, because they
have no telephone services and facilities of their own duly authorized by the
NTC; thus, the taking by the movant and his co-accused of PLDT services
was with intent to gain and without the latters consent.
The prosecution pointed out that the accused, as well as the movant, were
paid in exchange for their illegal appropriation and use of PLDTs
telephone services and facilities; on the other hand, the accused did not pay
a single centavo for their illegal ISR operations. Thus, the acts of the
accused were akin to the use of a "jumper" by a consumer to deflect the
current from the house electric meter, thereby enabling one to steal
electricity. The prosecution emphasized that its position is fortified by the
Resolutions of the Department of Justice in PLDT v. Tiongson, et al. (I.S.
No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No.
2000-370) which were issued on August 14, 2000 finding probable cause
for theft against the respondents therein.
On September 14, 2001, the RTC issued an Order16 denying the Motion to
Quash the Amended Information. The court declared that, although there is
no law that expressly prohibits the use of ISR, the facts alleged in the
Amended Information "will show how the alleged crime was committed by
conducting ISR," to the damage and prejudice of PLDT.
Laurel filed a Motion for Reconsideration17 of the Order, alleging that
international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not
considered personal property, and that the prosecution failed to adduce
proof of its existence and the subsequent loss of personal property
belonging to another. Citing the ruling of the Court in United States v. De
Guzman,18 Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called party.

3|IT LAW CASES- LAUREL AND SOLEDAD

He insisted that telephone calls are considered privileged communications

under the Constitution and cannot be considered as "the property of PLDT."
He further argued that there is no kinship between telephone calls and
electricity or gas, as the latter are forms of energy which are generated and
consumable, and may be considered as personal property because of such
characteristic. On the other hand, the movant argued, the telephone business
is not a form of energy but is an activity.
In its Order19 dated December 11, 2001, the RTC denied the movants
Motion for Reconsideration. This time, it ruled that what was stolen from
PLDT was its "business" because, as alleged in the Amended Information,
the international long distance calls made through the facilities of PLDT
formed part of its business. The RTC noted that the movant was charged
with stealing the business of PLDT. To support its ruling, it cited
Strochecker v. Ramirez,20 where the Court ruled that interest in business is
personal property capable of appropriation. It further declared that, through
their ISR operations, the movant and his co-accused deprived PLDT of fees
for international long distance calls, and that the ISR used by the movant
and his co-accused was no different from the "jumper" used for stealing
electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the Order of
the RTC. He alleged that the respondent judge gravely abused his discretion
in denying his Motion to Quash the Amended Information.21 As gleaned
from the material averments of the amended information, he was charged
with stealing the international long distance calls belonging to PLDT, not its
business. Moreover, the RTC failed to distinguish between the business of
PLDT (providing services for international long distance calls) and the
revenues derived therefrom. He opined that a "business" or its revenues
cannot be considered as personal property under Article 308 of the Revised
Penal Code, since a "business" is "(1) a commercial or mercantile activity
customarily engaged in as a means of livelihood and typically involving
some independence of judgment and power of decision; (2) a commercial or
industrial enterprise; and (3) refers to transactions, dealings or intercourse
of any nature." On the other hand, the term "revenue" is defined as "the
income that comes back from an investment (as in real or personal
property); the annual or periodical rents, profits, interests, or issues of any
species of real or personal property."22
Laurel further posited that an electric companys business is the production
and distribution of electricity; a gas companys business is the production
and/or distribution of gas (as fuel); while a water companys business is the
production and distribution of potable water. He argued that the "business"

in all these cases is the commercial activity, while the goods and
merchandise are the products of such activity. Thus, in prosecutions for
theft of certain forms of energy, it is the electricity or gas which is alleged
to be stolen and not the "business" of providing electricity or gas. However,
since a telephone company does not produce any energy, goods or
merchandise and merely renders a service or, in the words of PLDT, "the
connection and interconnection to their telephone lines/facilities," such
service cannot be the subject of theft as defined in Article 308 of the
Revised Penal Code.23
He further declared that to categorize "business" as personal property under
Article 308 of the Revised Penal Code would lead to absurd consequences;
in prosecutions for theft of gas, electricity or water, it would then be
permissible to allege in the Information that it is the gas business, the
electric business or the water business which has been stolen, and no longer
the merchandise produced by such enterprise.24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Mendoza,25 where it was ruled that the Revised Penal Code, legislated as it
was before present technological advances were even conceived, is not
adequate to address the novel means of "stealing" airwaves or airtime. In
said resolution, it was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of
1997" to deter cloning of cellular phones and other forms of
communications fraud. The said bill "aims to protect in number (ESN) (sic)
or Capcode, mobile identification number (MIN), electronic-international
mobile equipment identity (EMEI/IMEI), or subscriber identity module"
and "any attempt to duplicate the data on another cellular phone without the
consent of a public telecommunications entity would be punishable by
law."26 Thus, Laurel concluded, "there is no crime if there is no law
punishing the crime."
On August 30, 2002, the CA rendered judgment dismissing the petition.27
The appellate court ruled that a petition for certiorari under Rule 65 of the
Rules of Court was not the proper remedy of the petitioner. On the merits of
the petition, it held that while business is generally an activity
which is abstract and intangible in form, it is nevertheless considered
"property" under Article 308 of the Revised Penal Code. The CA opined
that PLDTs business of providing international calls is personal property
which may be the object of theft, and cited United States v. Carlos28 to
support such conclusion. The tribunal also cited Strochecker v. Ramirez,29
where this Court ruled that one-half interest in a days business is personal
property under Section 2 of Act No. 3952, otherwise known as the Bulk

4|IT LAW CASES- LAUREL AND SOLEDAD

Sales Law. The appellate court held that the operations of the ISR are not
subsumed in the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that THE COURT OF APPEALS ERRED IN RULING THAT THE
PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE
INFORMATION IS NOT THE "INTERNATIONAL LONG
DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE
TERM "BUSINESS" IS PERSONAL PROPERTY WITHIN THE
MEANING OF ART. 308 OF THE REVISED PENAL CODE.30
Petitioner avers that the petition for a writ of certiorari may be filed to
nullify an interlocutory order of the trial court which was issued with grave
abuse of discretion amounting to excess or lack of jurisdiction. In support of
his petition before the Court, he reiterates the arguments in his pleadings
filed before the CA. He further claims that while the right to carry on a
business or an interest or participation in business is considered property
under the New Civil Code, the term "business," however, is not. He asserts
that the Philippine Legislature, which approved the Revised Penal Code
way back in January 1, 1932, could not have contemplated to include
international long distance calls and "business" as personal property under
Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioners interpretation as to whether an
"international long distance call" is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet, through
its officers, including petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to respondent PLDT by
conducting ISR operations, thus, "routing and completing international long
distance calls using lines, cables, antenna and/or airwave frequency which
connect directly to the local or domestic exchange facilities of the country
where the call is destined." The OSG maintains that the international long
distance calls alleged in the amended information should be construed to
mean "business" of PLDT, which, while abstract and intangible in form, is
personal property susceptible of appropriation.31 The OSG avers that what
was stolen by petitioner and his co-accused is the business of PLDT
providing international long distance calls which, though intangible, is
personal property of the PLDT.32

For its part, respondent PLDT asserts that personal property under Article
308 of the Revised Penal Code comprehends intangible property such as
electricity and gas which are valuable articles for merchandise, brought and
sold like other personal property, and are capable of appropriation. It insists
that the business of international calls and revenues constitute personal
property because the same are valuable articles of merchandise. The
respondent reiterates that international calls involve (a) the intangible
telephone services that are being offered by it, that is, the connection and
interconnection to the telephone network, lines or facilities; (b) the use of its
telephone network, lines or facilities over a period of time; and (c) the
income derived in connection therewith.33
PLDT further posits that business revenues or the income derived in
connection with the rendition of such services and the use of its telephone
network, lines or facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone services/telephone
network, lines or facilities which allow electronic voice signals to pass
through the same and ultimately to the called partys number. It is akin to
electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDTs
telephone network, lines, or facilities over a period of time for consideration
is the business that it provides to its customers, which enables the latter to
send various messages to intended recipients. Such use over a period of
time is akin to merchandise which has value and, therefore, can be
appropriated by another. According to respondent PLDT, this is what
actually happened when petitioner Laurel and the other accused below
conducted illegal ISR operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for
certiorari is the proper remedy of the petitioner in the Court of Appeals; (b)
whether or not international telephone calls using Bay Super Orient Cards
through the telecommunication services provided by PLDT for such calls,
or, in short, PLDTs business of providing said telecommunication services,
are proper subjects of theft under Article 308 of the Revised Penal Code;
and (c) whether or not the trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying the motion of the
petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari instituted by the
petitioner in the CA is proper, the general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to nullify an order
denying a motion to quash the Information is inappropriate because the

5|IT LAW CASES- LAUREL AND SOLEDAD

aggrieved party has a remedy of appeal in the ordinary course of law.

Appeal and certiorari are mutually exclusive of each other. The remedy of
the aggrieved party is to continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order and the decision on
appeal. However, if the trial court issues the order denying the motion to
quash the Amended Information with grave abuse of discretion amounting
to excess or lack of jurisdiction, or if such order is patently erroneous, or
null and void for being contrary to the Constitution, and the remedy of
appeal would not afford adequate and expeditious relief, the accused may
resort to the extraordinary remedy of certiorari.35 A special civil action for
certiorari is also available where there are special circumstances clearly
demonstrating the inadequacy of an appeal. As this Court held in Bristol
Myers Squibb (Phils.), Inc. v. Viloria:36
Nonetheless, the settled rule is that a writ of certiorari may be granted in
cases where, despite availability of appeal after trial, there is at least a prima
facie showing on the face of the petition and its annexes that: (a) the trial
court issued the order with grave abuse of discretion amounting to lack of or
in excess of jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the decision in
the present case will arrest future litigations; and (e) for certain
considerations such as public welfare and public policy.37
In his petition for certiorari in the CA, petitioner averred that the trial court
committed grave abuse of its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the Amended Information
despite his claim that the material allegations in the Amended Information
do not charge theft under Article 308 of the Revised Penal Code, or any
offense for that matter. By so doing, the trial court deprived him of his
constitutional right to be informed of the nature of the charge against him.
He further averred that the order of the trial court is contrary to the
constitution and is, thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a protracted trial and
incur expenses to defend himself against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or
omission constituting an offense38 and must allege facts establishing
conduct that a penal statute makes criminal;39 and describes the property
which is the subject of theft to advise the accused with reasonable certainty
of the accusation he is called upon to meet at the trial and to enable him to
rely on the judgment thereunder of a subsequent prosecution for the same
offense.40 It must show, on its face, that if the alleged facts are true, an

offense has been committed. The rule is rooted on the constitutional right of
the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be convicted of an offense even if proven
unless it is alleged or necessarily included in the Information filed against
him.
As a general prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged, or any offense for that
matter, should be resolved on the basis of said allegations whose truth and
veracity are hypothetically committed;41 and on additional facts admitted or
not denied by the prosecution.42 If the facts alleged in the Information do
not constitute an offense, the complaint or information should be quashed
by the court.43
We have reviewed the Amended Information and find that, as mentioned by
the petitioner, it does not contain material allegations charging the petitioner
of theft of personal property under Article 308 of the Revised Penal Code.
It, thus, behooved the trial court to quash the Amended Information. The
Order of the trial court denying the motion of the petitioner to quash the
Amended Information is a patent nullity.
On the second issue, we find and so hold that the international telephone
calls placed by Bay Super Orient Card holders, the telecommunication
services provided by PLDT and its business of providing said services are
not personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international telephone calls,
telecommunication services and business is contrary to the letter and intent
of the law.
The rule is that, penal laws are to be construed strictly. Such rule is founded
on the tenderness of the law for the rights of individuals and on the plain
principle that the power of punishment is vested in Congress, not in the
judicial department. It is Congress, not the Court, which is to define a
crime, and ordain its punishment.44 Due respect for the prerogative of
Congress in defining crimes/felonies constrains the Court to refrain from a
broad interpretation of penal laws where a "narrow interpretation" is
appropriate. The Court must take heed to language, legislative history and
purpose, in order to strictly determine the wrath and breath of the conduct
the law forbids.45 However, when the congressional purpose is unclear, the
court must apply the rule of lenity, that is, ambiguity concerning the ambit
of criminal statutes should be resolved in favor of lenity.46
Penal statutes may not be enlarged by implication or intent beyond the fair
meaning of the language used; and may not be held to include offenses

6|IT LAW CASES- LAUREL AND SOLEDAD

other than those which are clearly described, notwithstanding that the Court
may think that Congress should have made them more comprehensive.47
Words and phrases in a statute are to be construed according to their
common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed, to
carry the principle that a case which is within the reason or
mischief of a statute is within its provision, so far as to punish a crime not
enumerated in the statute because it is of equal atrocity, or of kindred
character with those which are enumerated.48 When interpreting a criminal
statute that does not explicitly reach the conduct in question, the Court
should not base an expansive reading on inferences from subjective and
variable understanding.49
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons
nor force upon things, shall take personal property of another without the
latters consent.
The provision was taken from Article 530 of the Spanish Penal Code which
reads:
1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.50
For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive another of
his ownership/lawful possession of personal property which intent is apart
from and concurrently with the general criminal intent which is an essential
element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following
elements: (a) the taking of personal property; (b) the said property belongs
to another; (c) the taking be done with intent to gain; and (d) the taking be
accomplished without the use of violence or intimidation of person/s or
force upon things.51
One is apt to conclude that "personal property" standing alone, covers both
tangible and intangible properties and are subject of theft under the Revised
Penal Code. But the words "Personal property" under the Revised Penal
Code must be considered in tandem with the word "take" in the law. The
statutory definition of "taking" and movable property indicates that, clearly,
not all personal properties may be the proper subjects of theft. The general
rule is that, only movable properties which have physical or material
existence and susceptible of occupation by another are proper objects of

theft.52 As explained by Cuelo Callon: "Cosa juridicamente es toda

sustancia corporal, material, susceptible de ser aprehendida que tenga un
valor cualquiera."53
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be "taken" from the
place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto. La
sustraccin de cosas inmuebles y la cosas incorporales (v. gr., los derechos,
las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas,
para conseguir su apropiacin. El Codigo emplea la expresin "cosas
mueble" en el sentido de cosa que es susceptible de ser llevada del lugar
donde se encuentra, como dinero, joyas, ropas, etctera, asi que su concepto
no coincide por completo con el formulado por el Codigo civil (arts. 335 y
336).54
Thus, movable properties under Article 308 of the Revised Penal Code
should be distinguished from the rights or interests to which they relate. A
naked right existing merely in contemplation of law, although it may be
very valuable to the person who is entitled to exercise it, is not the subject
of theft or larceny.55 Such rights or interests are intangible and cannot be
"taken" by another. Thus, right to produce oil, good will or an interest in
business, or the right to engage in business, credit or franchise are
properties. So is the credit line represented by a credit card. However, they
are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods,
wares and merchandise of businessmen and credit cards issued to them are
movable properties with physical and material existence and may be taken
by another; hence, proper subjects of theft.
There is "taking" of personal property, and theft is consummated when the
offender unlawfully acquires possession of personal property even if for a
short time; or if such property is under the dominion and control of the
thief. The taker, at some particular amount, must have obtained complete
and absolute possession and control of the property adverse to the rights of
the owner or the lawful possessor thereof.56 It is not necessary that the
property be actually carried away out of the physical possession of the
lawful possessor or that he should have made his escape with it.57 Neither
asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough.58

7|IT LAW CASES- LAUREL AND SOLEDAD

The essence of the element is the taking of a thing out of the possession of
the owner without his privity and consent and without animus revertendi.59
Taking may be by the offenders own hands, by his use of innocent persons
without any felonious intent, as well as any mechanical device, such as an
access device or card, or any agency, animate or inanimate, with intent to
gain. Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.60
We agree with the contention of the respondents that intangible properties
such as electrical energy and gas are proper subjects of theft. The reason for
this is that, as explained by this Court in United States v. Carlos61 and
United States v. Tambunting,62 based on decisions of the Supreme Court of
Spain and of the courts in England and the United States of America, gas or
electricity are capable of appropriation by another other than the owner. Gas
and electrical energy may be taken, carried away and appropriated. In
People v. Menagas,63 the Illinois State Supreme Court declared that
electricity, like gas, may be seen and felt. Electricity, the same as gas, is a
valuable article of merchandise, bought and sold like other personal
property and is capable of appropriation by another. It is a valuable article
of merchandise, bought and sold like other personal property, susceptible of
being severed from a mass or larger quantity and of being transported from
place to place. Electrical energy may, likewise, be taken and carried away.
It is a valuable commodity, bought and sold like other personal property. It
may be transported from place to place. There is nothing in the nature of gas
used for illuminating purposes which renders it incapable of being
feloniously taken and carried away.
In People ex rel Brush Electric Illuminating Co. v. Wemple,64 the Court of
Appeals of New York held that electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are coal, kerosene oil,
and gas. It may be conveyed to the premises of the consumer, stored in cells
of different capacity known as an accumulator; or it may be sent through a
wire, just as gas or oil may be transported either in a close tank or forced
through a pipe. Having reached the premises of the consumer, it may be
used in any way he may desire, being, like illuminating gas, capable of
being transformed either into heat, light, or power, at the option of the
purchaser. In Woods v. People,65 the Supreme Court of Illinois declared that
there is nothing in the nature of gas used for illuminating purposes which
renders it incapable of being feloniously taken and carried away. It is a
valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity and of
being transported from place to place.

Gas and electrical energy should not be equated with business or services
provided by business entrepreneurs to the public. Business does not have an
exact definition. Business is referred as that which occupies the time,
attention and labor of men for the purpose of livelihood or profit. It
embraces everything that which a person can be employed.66 Business may
also mean employment, occupation or profession. Business is also defined
as a commercial activity for gain benefit or advantage.67 Business, like
services in business, although are properties, are not proper subjects of theft
under the Revised Penal Code because the same cannot be "taken" or
"occupied." If it were otherwise, as claimed by the respondents, there would
be no juridical difference between the taking of the business of a person or
the services provided by him for gain, vis--vis, the taking of goods, wares
or merchandise, or equipment comprising his business.68 If it was its
intention to include "business" as personal property under Article 308 of the
Revised Penal Code, the Philippine Legislature should have spoken in
language that is clear and definite: that business is personal property under
Article 308 of the Revised Penal Code.69
We agree with the contention of the petitioner that, as gleaned from the
material averments of the Amended Information, he is charged of "stealing
the international long distance calls belonging to PLDT" and the use
thereof, through the ISR. Contrary to the claims of the OSG and respondent
PLDT, the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls
of the callers with the use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the taking
of personal property without the consent of the owner thereof, the
Philippine legislature could not have contemplated the human voice which
is converted into electronic impulses or electrical current which are
transmitted to the party called through the PSTN of respondent PLDT and
the ISR of Baynet Card Ltd. within its coverage. When the Revised Penal
Code was approved, on December 8, 1930, international telephone calls and
the transmission and routing of electronic voice signals or impulses
emanating from said calls, through the PSTN, IPL and ISR, were still nonexistent. Case law is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute claimed by the
respondents, a narrow interpretation of the law is more consistent with the

8|IT LAW CASES- LAUREL AND SOLEDAD

usual approach to the construction of the statute. Penal responsibility cannot

be extended beyond the fair scope of the statutory mandate.70
Respondent PLDT does not acquire possession, much less, ownership of the
voices of the telephone callers or of the electronic voice signals or current
emanating from said calls. The human voice and the electronic voice signals
or current caused thereby are intangible and not susceptible of possession,
occupation or appropriation by the respondent PLDT or even the petitioner,
for that matter. PLDT merely transmits the electronic voice signals through
its facilities and equipment. Baynet Card Ltd., through its operator, merely
intercepts, reroutes the calls and passes them to its toll center. Indeed, the
parties called receive the telephone calls from Japan.
In this modern age of technology, telecommunications systems have
become so tightly merged with computer systems that it is difficult to know
where one starts and the other finishes. The telephone set is highly
computerized and allows computers to communicate across long
distances.71 The instrumentality at issue in this case is not merely a
telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet
Card Ltd. The corporation uses computers, modems and software, among
others, for its ISR.72
The conduct complained of by respondent PLDT is reminiscent of
"phreaking" (a slang term for the action of making a telephone system to do
something that it normally should not allow by "making the phone company
bend over and grab its ankles"). A "phreaker" is one who engages in the act
of manipulating phones and illegally markets telephone services.73 Unless
the phone company replaces all its hardware, phreaking would be
impossible to stop. The phone companies in North America were impelled
to replace all their hardware and adopted full digital switching system
known as the Common Channel Inter Office Signaling. Phreaking occurred
only during the 1960s and 1970s, decades after the Revised Penal Code
took effect.
The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is,
the term "personal property" under Article 308 of the Revised Penal Code
cannot be interpreted beyond its seams so as to include "telecommunication
or telephone services" or computer services for that matter. The word
"service" has a variety of meanings dependent upon the context, or the
sense in which it is used; and, in some instances, it may include a sale. For
instance, the sale of food by restaurants is usually referred to as "service,"
although an actual sale is involved.74 It may also mean the duty or labor to

be rendered by one person to another; performance of labor for the benefit

of another.75 In the case of PLDT, it is to render local and international
telecommunications services and such other services as authorized by the
CPCA issued by the NTC. Even at common law, neither time nor services
may be taken and occupied or appropriated.76 A service is generally not
considered property and a theft of service would not, therefore, constitute
theft since there can be no caption or asportation.77 Neither is the
unauthorized use of the equipment and facilities of PLDT by the petitioner
theft under the aforequoted provision of the Revised Penal Code.78
If it was the intent of the Philippine Legislature, in 1930, to include services
to be the subject of theft, it should have incorporated the same in Article
308 of the Revised Penal Code. The Legislature did not. In fact, the Revised
Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to be
proscribed, it must be by special statute79 or an amendment of the Revised
Penal Code. Several states in the United States, such as New York, New
Jersey, California and Virginia, realized that their criminal statutes did not
contain any provisions penalizing the theft of services and passed laws
defining and penalizing theft of telephone and computer services. The
Pennsylvania Criminal Statute now penalizes theft of services, thus:
(a) Acquisition of services. -(1) A person is guilty of theft if he intentionally obtains services for himself
or for another which he knows are available only for compensation, by
deception or threat, by altering or tampering with the public utility meter or
measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively, to
a distribution or transmission line, by attaching or maintaining the
attachment of any unauthorized device to any cable, wire or other
component of an electric, telephone or cable television system or to a
television receiving set connected to a cable television system, by making
or maintaining any unauthorized modification or alteration to any device
installed by a cable television system, or by false token or other trick or
artifice to avoid payment for the service.
In the State of Illinois in the United States of America, theft of labor or
services or use of property is penalized:
(a) A person commits theft when he obtains the temporary use of property,
labor or services of another which are available only for hire, by means of
threat or deception or knowing that such use is without the consent of the
person providing the property, labor or services.

9|IT LAW CASES- LAUREL AND SOLEDAD

In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional scope of
the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft of
services, thus:
(1) A person is guilty of theft if he purposely obtains services which he
knows are available only for compensation, by deception or threat, or by
false token or other means to avoid payment for the service. "Services"
include labor, professional service, transportation, telephone or other public
service, accommodation in hotels, restaurants or elsewhere, admission to
exhibitions, use of vehicles or other movable property. Where compensation
for service is ordinarily paid immediately upon the rendering of such
service, as in the case of hotels and restaurants, refusal to pay or absconding
without payment or offer to pay gives rise to a presumption that the service
was obtained by deception as to intention to pay; (2) A person commits
theft if, having control over the disposition of services of others, to which
he is not entitled, he knowingly diverts such services to his own benefit or
to the benefit of another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its
decision in Lund v. Commonwealth,80 declaring that neither time nor
services may be taken and carried away and are not proper subjects of
larceny, the General Assembly of Virginia enacted Code No. 18-2-98 which
reads:
Computer time or services or data processing services or information or
data stored in connection therewith is hereby defined to be property which
may be the subject of larceny under 18.2-95 or 18.2-96, or
embezzlement under 18.2-111, or false pretenses under 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of
Alabama of 1975 penalizes theft of services:
"A person commits the crime of theft of services if: (a) He intentionally
obtains services known by him to be available only for compensation by
deception, threat, false token or other means to avoid payment for the
services "
In the Philippines, Congress has not amended the Revised Penal Code to
include theft of services or theft of business as felonies. Instead, it approved
a law, Republic Act No. 8484, otherwise known as the Access Devices
Regulation Act of 1998, on February 11, 1998. Under the law, an access
device means any card, plate, code, account number, electronic serial
number, personal identification number and other telecommunication

services, equipment or instrumentalities-identifier or other means of account

access that can be used to obtain money, goods, services or any other thing
of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in
Section 9 of the law are the acts of obtaining money or anything of value
through the use of an access device, with intent to defraud or intent to gain
and fleeing thereafter; and of effecting transactions with one or more access
devices issued to another person or persons to receive payment or any other
thing of value. Under Section 11 of the law, conspiracy to commit access
devices fraud is a crime. However, the petitioner is not charged of violation
of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to any
liability for violation of any provisions of the Revised Penal Code inclusive
of theft under Rule 308 of the Revised Penal Code and estafa under Article
315 of the Revised Penal Code. Thus, if an individual steals a credit card
and uses the same to obtain services, he is liable of the following: theft of
the credit card under Article 308 of the Revised Penal Code; violation of
Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised
Penal Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended
Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
provides:
Sec. 33. Penalties. The following Acts shall be penalized by fine and/or
imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and communication
system; or any access in order to corrupt, alter, steal, or destroy using a
computer or other similar information and communication devices, without
the knowledge and consent of the owner of the computer or information and
communications system, including the introduction of computer viruses and
the like, resulting on the corruption, destruction, alteration, theft or loss of
electronic data messages or electronic documents shall be punished by a
minimum fine of One hundred thousand pesos (P100,000.00) and a
maximum commensurate to the damage incurred and a mandatory
imprisonment of six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed Orders of the Regional Trial Court and the Decision of the Court of
Appeals are REVERSED and SET ASIDE. The Regional Trial Court is

10 | I T L A W C A S E S - L A U R E L A N D S O L E D A D

directed to issue an order granting the motion of the petitioner to quash the
Amended Information.
SO ORDERED.

MARK SOLEDAD y CRISTOBAL,

- versus PEOPLE OF THE PHILIPPINES,
February 23, 2011
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking to reverse and set aside the Court of Appeals (CA)
Decision[1] dated June 18, 2008 and Resolution[2] dated August 22, 2008
in CA-G.R. CR. No. 30603. The assailed Decision affirmed with
modification the September 27, 2006 decision[3] of the Regional Trial
Court (RTC), Branch 202, Las Pias City, finding petitioner Mark C.
Soledad guilty beyond reasonable doubt of Violation of Section 9(e),
Republic Act (R.A.) No. 8484, or the Access Devices Regulations Act of
1998; while the assailed Resolution denied petitioners motion for
reconsideration.
The facts of the case, as narrated by the CA, are as follows:
Sometime in June 2004, private complainant Henry C. Yu received a call on
his mobile phone from a certain Tess or Juliet Villar (later identified as
Rochelle Bagaporo), a credit card agent, who offered a Citifinancing loan
assistance at a low interest rate. Enticed by the offer, private complainant
invited Rochelle Bagaporo to go to his office in Quezon City. While in his
office, Rochelle Bagaporo indorsed private complainant to her immediate
boss, a certain Arthur [later identified as petitioner]. In their telephone
conversation, [petitioner] told private complainant to submit documents to a
certain Carlo (later identified as Ronald Gobenchiong). Private complainant

submitted various documents, such as his Globe handyphone original

platinum gold card, identification cards and statements of accounts.
Subsequently, private complainant followed up his loan status but he failed
to get in touch with either [petitioner] or Ronald Gobenchiong.
During the first week of August 2004, private complainant received his
Globe handyphone statement of account wherein he was charged for two (2)
mobile phone numbers which were not his. Upon verification with the
phone company, private complainant learned that he had additional five (5)
mobile numbers in his name, and the application for said cellular phone
lines bore the picture of [petitioner] and his forged signature. Private
complainant also checked with credit card companies and learned that his
Citibank Credit Card database information was altered and he had a credit
card application with Metrobank Card Corporation (Metrobank).
Thereafter, private complainant and Metrobanks junior assistant manager
Jefferson Devilleres lodged a complaint with the National Bureau of
Investigation (NBI) which conducted an entrapment operation.

During the entrapment operation, NBIs Special Investigator (SI) Salvador

Arteche [Arteche], together with some other NBI operatives, arrived in Las
Pias around 5:00 P.M. [Arteche] posed as the delivery boy of the
Metrobank credit card. Upon reaching the address written on the delivery
receipt, [Arteche] asked for Henry Yu. [Petitioner] responded that he was
Henry Yu and presented to [Arteche] two (2) identification cards which
bore the name and signature of private complainant, while the picture
showed the face of [petitioner]. [Petitioner] signed the delivery receipt.
Thereupon, [Arteche] introduced himself as an NBI operative and
apprehended [petitioner]. [Arteche] recovered from [petitioner] the two (2)
identification cards he presented to [Arteche] earlier.[4]

there willfully, unlawfully and feloniously defraud complainant HENRY

YU by applying a credit card, an access device defined under R.A. 8484,
from METROBANK CARD CORPORATION, using the name of
complainant Henry C. Yu and his personal documents fraudulently obtained
from him, and which credit card in the name of Henry Yu was successfully
issued and delivered to said accused using a fictitious identity and addresses
of Henry Yu, to the damage and prejudice of the real Henry Yu.
CONTRARY TO LAW.[5]
Upon arraignment, petitioner pleaded not guilty. Trial on the merits ensued.
After the presentation of the evidence for the prosecution, petitioner filed a
Demurrer to Evidence, alleging that he was not in physical and legal
possession of the credit card presented and marked in evidence by the
prosecution. In an Order dated May 2, 2006, the RTC denied the Demurrer
to Evidence as it preferred to rule on the merits of the case.[6]
On September 27, 2006, the RTC rendered a decision finding petitioner
guilty as charged, the dispositive portion of which reads:
In the light of the foregoing, the Court finds accused Mark Soledad y
Cristobal a.k.a. Henry Yu, Arthur GUILTY beyond reasonable doubt of
violation of Section 9(e), Republic Act 8484 (Access Device Regulation
Act of 1998). Accordingly, pursuant to Section 10 of Republic Act 8484
and applying the Indeterminate Sentence Law, said accused is hereby
sentenced to suffer an imprisonment penalty of six (6) years of prision
correccional, as minimum, to not more than ten (10) years of prision mayor,
as maximum. Further, accused is also ordered to pay a fine of Ten
Thousand Pesos (P10,000.00) for the offense committed.
SO ORDERED.[7]

Petitioner was thus charged with Violation of Section 9(e), R.A. No. 8484
for possessing a counterfeit access device or access device fraudulently
applied for. The accusatory portion of the Information reads:

On appeal, the CA affirmed petitioners conviction, but modified the penalty

imposed by the RTC by deleting the terms prision correccional and prision
mayor.

That on or about the 13th day of August 2004, or prior thereto, in the City
of Las Pias, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating with certain Rochelle
Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald Gobenciong a.k.a.
Carlo and all of them mutually helping and aiding each other, did then and

Hence, this petition raising the following issues:

11 | I T L A W C A S E S - L A U R E L A N D S O L E D A D

(1)

Whether or not the Information is valid;

(2)
Whether or not the Information charges an offense, or the offense
petitioner was found guilty of;

date of the commission of the offense; and the place where the offense was
committed.

(3)
Whether or not petitioner was sufficiently informed of the nature of
the accusations against him;

We do not agree.

In the Information filed before the RTC, it was clearly stated that the
accused is petitioner Mark Soledad y Cristobal a.k.a. Henry Yu/Arthur. It
was also specified in the preamble of the Information that he was being
charged with Violation of R.A. No. 8484, Section 9(e) for possessing a
counterfeit access device or access device fraudulently applied for. In the
accusatory portion thereof, the acts constituting the offense were clearly
narrated in that [petitioner], together with other persons[,] willfully,
unlawfully and feloniously defrauded private complainant by applying [for]
a credit card, an access device defined under R.A. [No.] 8484, from
Metrobank Card Corporation, using the name of complainant Henry C. Yu
and his personal documents fraudulently obtained from him, and which
credit card in the name of Henry Yu was successfully issued, and delivered
to said accused using a fictitious identity and addresses of Henry Yu, to the
damage and prejudice of the real Henry Yu. Moreover, it was identified that
the offended party was private complainant Henry Yu and the crime was
committed on or about the 13th day of August 2004 in the City of Las Pias.
Undoubtedly, the Information contained all the necessary details of the
offense committed, sufficient to apprise petitioner of the nature and cause of
the accusation against him. As aptly argued by respondent People of the
Philippines, through the Office of the Solicitor General, although the word
possession was not used in the accusatory portion of the Information, the
word possessing appeared in its preamble or the first paragraph thereof.
Thus, contrary to petitioners contention, he was apprised that he was being
charged with violation of R.A. No. 8484, specifically section 9(e) thereof,
for possession of the credit card fraudulently applied for.

Section 6, Rule 110 of the Rules of Criminal Procedure lays down the
guidelines in determining the sufficiency of a complaint or information. It
states:

The Courts discussion in People v. Villanueva[9] on the relationship

between the preamble and the accusatory portion of the Information is
noteworthy, and we quote:

SEC. 6. Sufficiency of complaint or information. A complaint or

information is sufficient if it states the name of the accused; the designation
of the offense given by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate

The preamble or opening paragraph should not be treated as a mere

aggroupment of descriptive words and phrases. It is as much an essential
part [of] the Information as the accusatory paragraph itself. The preamble in
fact complements the accusatory paragraph which draws its strength from

(4)
Whether or not petitioner was legally in possession of the credit card
subject of the case.[8]
The petition is without merit.
Petitioner was charged with Violation of R.A. No. 8484, specifically
Section 9(e), which reads as follows:
Section 9. Prohibited Acts. The following acts shall constitute access device
fraud and are hereby declared to be unlawful:
xxxx

(e) possessing one or more counterfeit access devices or access devices

fraudulently applied for.
Petitioner assails the validity of the Information and claims that he was not
informed of the accusation against him. He explains that though he was
charged with possession of an access device fraudulently applied for, the act
of possession, which is the gravamen of the offense, was not alleged in the
Information.

12 | I T L A W C A S E S - L A U R E L A N D S O L E D A D

the preamble. It lays down the predicate for the charge in general terms;
while the accusatory portion only provides the necessary details. The
preamble and the accusatory paragraph, together, form a complete whole
that gives sense and meaning to the indictment. x x x.
xxxx
Moreover, the opening paragraph bears the operative word accuses, which
sets in motion the constitutional process of notification, and formally makes
the person being charged with the commission of the offense an accused.
Verily, without the opening paragraph, the accusatory portion would be
nothing but a useless and miserably incomplete narration of facts, and the
entire Information would be a functionally sterile charge sheet; thus making
it impossible for the state to prove its case.

The Information sheet must be considered, not by sections or parts, but as

one whole document serving one purpose, i.e., to inform the accused why
the full panoply of state authority is being marshaled against him. Our task
is not to determine whether allegations in an indictment could have been
more artfully and exactly written, but solely to ensure that the constitutional
requirement of notice has been fulfilled x x x.[10]
Besides, even if the word possession was not repeated in the accusatory
portion of the Information, the acts constituting it were clearly described in
the statement [that the] credit card in the name of Henry Yu was
successfully issued, and delivered to said accused using a fictitious identity
and addresses of Henry Yu, to the damage and prejudice of the real Henry
Yu. Without a doubt, petitioner was given the necessary data as to why he
was being prosecuted.
Now on the sufficiency of evidence leading to his conviction.
Petitioner avers that he was never in possession of the subject credit card
because he was arrested immediately after signing the acknowledgement
receipt. Thus, he did not yet know the contents of the envelope delivered
and had no control over the subject credit card.[11]
Again, we find no value in petitioners argument

13 | I T L A W C A S E S - L A U R E L A N D S O L E D A D

The trial court convicted petitioner of possession of the credit card

fraudulently applied for, penalized by R.A. No. 8484. The law, however,
does not define the word possession. Thus, we use the term as defined in
Article 523 of the Civil Code, that is, possession is the holding of a thing or
the enjoyment of a right. The acquisition of possession involves two
elements: the corpus or the material holding of the thing, and the animus
possidendi or the intent to possess it.[12] Animus possidendi is a state of
mind, the presence or determination of which is largely dependent on
attendant events in each case. It may be inferred from the prior or
contemporaneous acts of the accused, as well as the surrounding
circumstances.[13
In this case, prior to the commission of the crime, petitioner fraudulently
obtained from private complainant various documents showing the latters
identity. He, thereafter, obtained cellular phones using private complainants
identity. Undaunted, he fraudulently applied for a credit card under the
name and personal circumstances of private complainant. Upon the delivery
of the credit card applied for, the messenger (an NBI agent) required two
valid identification cards. Petitioner thus showed two identification cards
with his picture on them, but bearing the name and forged signature of
private complainant. As evidence of the receipt of the envelope delivered,
petitioner signed the acknowledgment receipt shown by the messenger,
indicating therein that the content of the envelope was the Metrobank credit
card.
Petitioner materially held the envelope containing the credit card with the
intent to possess. Contrary to petitioners contention that the credit card
never came into his possession because it was only delivered to him, the
above narration shows that he, in fact, did an active part in acquiring
possession by presenting the identification cards purportedly showing his
identity as Henry Yu. Certainly, he had the intention to possess the same.
Had he not actively participated, the envelope would not have been given to
him. Moreover, his signature on the acknowledgment receipt indicates that
there was delivery and that possession was transferred to him as the
recipient. Undoubtedly, petitioner knew that the envelope contained the
Metrobank credit card, as clearly indicated in the acknowledgment receipt,
coupled with the fact that he applied for it using the identity of private
complainant.

Lastly, we find no reason to alter the penalty imposed by the RTC as

modified by the CA. Section 10 of R.A. No. 8484 prescribes the penalty of
imprisonment for not less than six (6) years and not more than ten (10)
years, and a fine of P10,000.00 or twice the value of the access device
obtained, whichever is greater. Thus, the CA aptly affirmed the imposition
of the indeterminate penalty of six years to not more than ten years
imprisonment, and a fine of P10,000.00.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. The Court of Appeals Decision dated June 18, 2008 and Resolution
dated August 22, 2008 in CA-G.R. CR. No. 30603 are AFFIRMED.
SO ORDERED.

14 | I T L A W C A S E S - L A U R E L A N D S O L E D A D