Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
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 CAG.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 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 Resolution 11 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 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. 970925) 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,18Laurel averred that the case is not one with telephone calls
which originate with a particular caller and terminates with the called party. 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. Carlos 28 to support
such conclusion. The tribunal also cited Strochecker v. Ramirez,29 where this Court ruled that onehalf interest in a days business is personal property under Section 2 of Act No. 3952, otherwise
known as the Bulk 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
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 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

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 non-existent. 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 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.76A 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.

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,80declaring 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 directed to issue an order granting the motion of the petitioner to quash the
Amended Information.
SO ORDERED
1-Laurel v. Abrogar GR# 155076/ Jan. 13, 2009 (576 SCRA 41)FACTS

PLDT sued Laurel, for violation of Art 308 RPC (theft), allegedly using international longdistance calls belonging to PLDT,
without its knowledge and consent

Laurel filed motion to

quash information, contending international calls are not personalproperty

PLDT: calls & rig

ht to conduct business, both capabl of appropriation, thus personalpropertyISSUE: WON the international calls as well as the
business of providing telecommunication ortelephone service are personal properties capable of appropriation and can be
objects of theft.HELD:

Case remanded to trial court. Crime is properly designated as theft. Prosecutiondirected to amend information, to clearly
state the property subject of the theft areservices & business of PLDT.

Intl long distance calls are not personal properties. PLDT:

o
could not have acquired ownership over such calls,

o
merely encodes, enhances, decodes, and transmits said calls
o
could not validly claim that such call were taken without its consent.

Use of the facilities w/o PLDT consent is the unlawful taking of the telephone servicesand business

Only reqt for a personal property to be the object of theft under the RPC is that it becapable of appropr
iation. The word take in the RPC maybe committed through the useof the offenders own hands as well
as any mechanical device.

Business of providing telecommunication or telephone services is likewise personalproperty. Business is not enumerated
as real property in Art 415. Thus it is personal property